### IN THE TENTH COURT OF APPEALS No. 10 - 20 - 00045 - CV IN RE THE COMMITMENT OF MICHAEL JASON CLAXTON

From the 40th District Court Ellis County, Texas Trial Court No. 100701
MEMORANDUM OPINION Appellant, Michael Jason Claxton, was found to be a sexually

- violent predator under the Sexually Violent Predator Act (SVP A ). See T E X . H EALTH & S AFETY C ODE A NN . §§ 841.001

- .151
. On appeal , Claxton contends that : (1) the trial court erred by refusing to exclude the opinion of a non

- testifying expert under the statutory right to cross

examination provided in s ection 841.061 of the SVPA ; (2) the trial court erred by refusing to exclude the opinion of a non

- testifying expert under Texas Rule of Evidence 705 ; (3) the trial court erred by refusing to exclude testimony about his non

- sexually

- related

murder conviction ; and (4) the evidence is legal ly and factual ly in sufficien t to support the jury's finding that he is a sexually

- violent predator. We affirm.In re Commitment of Claxton Page 2 Issue O ne In his first issue, Claxton argues that the trial court erred by refusing to exclude the opinion of Dr. Stephen Thorne , a forensic psychologist , under the statutory right to

cross - examination provided in s ection 841.061 of the SVPA. See T EX . H EALTH & S AFETY C ODE A NN . § 841.061(d)(4). A PPLICABLE L AW In enacting the SVPA, the Texas legislature made specific findings that public safety and treatment are the primary statutory goals for the "small but extremely dangerous group of sexually [

- ] violent predators . . . [who] have a behavioral abnormality that is not amenable to traditional mental illness treatment modalities and that makes [them] l ikely to engage in repeated predatory acts of sexual violence." Id. § 841.001
. The commitment procedure begins when the Texas Department of Criminal Justice notifies an established multidisciplinary team (MDT) of the anticipated release date of a person who is serving a sentence for a sexually violent offense and "may be a repeat sexually violent offender." Id. § 841.021(a). The MDT must timely assess whether the person is a repeat sexually violent offender and is likely to commit a sexually violent of fense after release, notify the Department of the assessment, and make a recommendation regarding whether to evaluate the person for a behavioral abnormality. Id. § 841.022(c).In re Commitment of Claxton Page 3

The Texas Supreme Court has determined that commitment under the SVPA is not p unitive or criminal in nature and that a SVP A commitment proceeding is a civil matter to which the constitutional safeguards attendant to a criminal prosecution do not apply
. In re Commitment of Fisher , 164 S.W.3d 637, 645

- 53 (Tex. 2005). Section 841.146(b) of the SVPA provides that a civil commitment proceeding is subject to the rules of procedure and appeal for civil cases but that, to the extent of any conflict between this
statute and the rules of procedure and appeal for civil cases, this sta tute controls. In re Commitment of Jones , 602 S.W.3d 908 , 912 (Tex. 2020 ) (holding that a civil

- commitment verdict that the defendant is a sexually

- violent predator must be unanimous). Section 841.061(d) specifically sets out the rights of the person at the trial, including the right to

cross - examine a witness who testifies against the person. See T EX . H EALTH & S AFETY C ODE A NN . § 841.061(d)(4). D ISCUSSION Outside the presence of the jury, defense counsel objected to any reference being made to the MD T report prepared by Dr. Stephen Thorne because Dr. Thorne would not be testifying at trial. Defense counsel contends that the MDT report is testimonial becaus e it was prepared for litigation, and th erefore , should not be allowed into evidence. The ground for defense counsel’s objection was that any reference to the MDT report w ould be “a direct violation of Section 841.061 of [the T exas H ealth & S afety C ode ] , whichIn re Commitment of Claxton Page 4

requires Mr. Claxton [have] the right to cross

- examine a witness who testifies

. ” 1 See T EX . H EALTH & S AFETY C ODE A NN . § 841.061(d)(4). However, w h ile in the presence of the jury, the State’s testifying expert, Dr. Turner ,
was asked what records he reviewed and relied on in formulating his expert opinion. When Dr. Turner mentioned the MDT report, d efense counsel only objected to hearsay, which was overruled. Defense counsel did not object before the jury that Claxton’s statutory right t o cross - examine was being denied as previously contended

. Furthermore, the record reflects that def e nse counsel and the state later questioned Dr. Turner regarding Dr. Thorne’s MDT report without objection

. See Volkswagen of Am., Inc. v. Ramirez , 159 S.W .3d 897 ( Tex. 2004) (holding that e rror in the admission of testimony is deemed harmless and is waived if the objecting party subsequently permits the same or similar evidence to be introduced elsewhere without objection ) ; State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866 , 870 (Tex. 20 09) (stating that any error in the admission of evidence is likely harmless if it is cumulative of other evidence) ; see also In re Commitment of Brown, No. 05

- 16

- 01178

- CV, 2018 Tex. App. LEXIS 1357, at * 20 n. 3 (Tex. App.

— Dallas Feb. 20, 2018, no pet.) (me m. op.). Therefore, because the objection made at trial does not comport with the issue raised on appeal , we conclude that Claxton’s first

1 Also o utside the presence of the jury, defense counsel requested a running objection to, among other things, any reference to the MDT report by Dr. Thorne. The trial court specifically stated: “I’ll give you a running objection to all the matters that you referenced, but I think you are going to have to renew your objection to MDT matters.” Defense counsel responded, “[c]ontemporaneously, yes, Your Honor.” The trial court then stated, “I understand. There may be some of those that are objectionable. There may be some that are not, but we’ll cross that bridge.”In re Commitment of Claxton Page 5

issue was not preserved for appellate review. See T EX . R. A PP . P. 31; In re T.B. , 594 S.W.3d 773 , 779 (Tex. App.

– Waco 2019, no pet.) ; s ee also In re Commitment Lucero , N o . 09

- 14

- 00157

- CV , 2015 Tex. App. LEXIS 1098 , at *11 (Tex. App. Beaumont, Feb. 5, 2015 , pet. d enied) (mem. op. ) (“ An issue on appeal that does not comport with an objection made at trial is wai ved

. ” (citations omitted) )
. We overrule Claxton’s first issue. Issue Two In his second issue, Claxton argues that the trial court erred by refusing to exclude the opinion of Dr. Thorne under Texas Rule of Evidence 705. See T EX . R. E VID . 705
. A PPLICABLE L AW Rule 705 of the Texas Rules of Evidence provides that an expert may di sclose on direct examination, or be required to disclose on cross

- examination, the underlying facts or data supporting his or her opinion through trial testimony. See T EX . R. E VID . 705(a); In re Commitment of Polk

, 187 S.W.3d 550, 555 (Tex. App.

— Beaumont 2006, no pet.). “ When an expert relie[s] upon hearsay in forming his opinion, and it is of a type reasonably relied upon by such experts, the jury is generally permitted to hear it. ” In re Commitment of Salazar , No. 09

- 07

- 345

- CV, 2008 Tex. App. LEXIS 8856, at *4 (Tex. App.

— Beaumont Nov. 26, 2008, pet. denied) ( citing T EX . R. E VID . 703; Decker v. H a tfield , 798 S.W.2d 637, 638 (Tex. App.

– Eastland 1990, writ. dism’d w.o.j.)). However, hearsay evidence that would be otherwise admissible may b e excluded if its probative value in helping the jury evaluate the expert’s opinion is outweighed by its prejudicial effect. See T EX . R. E VID . 705(d); seeIn re Commitment of Claxton Page 6

also In re Commitment of Carr , No. 09

- 14

- 00156

- CV, 2015 Tex. App. LEXIS 3492, at * 6 (Tex. App.

— Beaumont Apr. 9, 2015, no pet.) (mem. op.). If the court allows the jury to hear such evidence and the opponent of the evidence makes a timely request, the court must provide a limiting instruction to the jury, restricting the jury's use of th e evidence. See T EX . R. E VID . 705(d); see also In re Commitment of Salazar , No. 09

- 07

- 345

- CV, 2008 Tex. App. LEXIS 8856, at *4 (Tex. App.

— Beaumont Nov. 26, 2008, pet. denied) (mem. op.). D ISCUSSION Unless offered for a reason other than to prove the truth of the matter asserted , the introduction of an expert's out
- of

- court opinion would be deemed inadmissible hearsay. See T EX . R. E VID . 801; In re Commitment of Lares , 608 S.W.3d 41, 45 (Tex. App.

— San Antonio 2020, no pet.)
. T he rules of evidence do allow an expert's out
- of

- court opinion if it helps to form the basis of a testifying expert's opinion. See T EX . R
. E VID . 705(d ); In re Commitment of Winkle , 434 S.W.3d 300, 315 (Tex. App.

— Beaumont 2014, pet. denied). In a SVP A case, an expert's opinion regarding risk assessment is pivotal, and it is important for a jury to be able to consider and scrutinize how the testifying expert arrived at his opinion in order for the jury to arrive at its own conclusion. See In re Commitm ent of Winkle , 434 S.W.3d at 315; In re Commitment of Day , 342 S.W.3d 193, 199 (Tex. App.

— Beaumont 2011, pet. denied). In this case, Dr. Turner described his methodology for arriving at a risk assessment of Claxton , which included reviewing Dr. Thorne ’s mu ltidisciplinary team report. Dr.In re Commitment of Claxton Page 7

Thorne ’s report found Claxton to have a behavior abnormality , which indicated that Claxton “possesses a severe degree of psychopathic characteristics.” Dr. Turner explained that in assessing a behavior abnormality, psychologist s are looking for a pattern of behavior. To do this, they have to look at past behaviors and prior sex offenses. Ultimately, any prejudicial effect of providing "basis" evidence i s mitigated by a trial court's limiting instruction, explaining the evidence's scope and purpose. See In r e C ommitment of Winkle , 434 S.W.3d at 315. Here, at the request of defense counsel, t he trial
court instructed the jury that testimony about a non

- testifying expert's opinion , Dr. Thorne , may only be considered to show the basis of Dr. Turner 's opinion and that the jury should not consider it for the truth of the matter asserted. In the absence of evidence to the contrary, we presume the jury followed the trial court's limiting instructions. See In re Commitment of Stuteville , 463 S.W.3d 543, 555 (Tex. App.

— Houston [1st Dist.] 2015, pet. denied) ; In re Com mitment of Day , 342 S.W.3d at 199 ; s e e also In re Commitment of S.D. , No. 10

- 17

- 00129

- CV, 2020 Tex. App. LEXIS 101 , at * *16

- 17 (Tex. App.

— Waco Jan. 8, 2020, no pet.) (mem. op.). Accordingly, we conclude that the trial court was within its discretion when it allowed Dr. Turner to testify about the MDT report regarding the basis for his opinion

. See In re C ommitment of Talley , 522 S.W.3d 742, 748 (Tex. App.

– Houston [1st Dist
. ] 2017, no pet.) (no ting that an appellate court reviews the trial court’s decision to admit an out

- of

- court opinion for an abuse of discretion); se e also In re Commitment ofIn re Commitment of Claxton Page 8

Lares , No. 04

- 19

- 00240

- CV, 2020 Tex. App. LEXIS 3917, at **10

- 11 (Tex. App.

– San Antonio May 6, 2020 , no pet.) (mem. op). We overrule Claxton’s second issue. Issue Three In his thir d issue, Claxton argues that the trial court erred by refusing to exclude testimony about his non

- sexually

- related

- murder conviction

. See T EX . R. E VID . 705
. A PPLICABLE L AW As stated earlier, the SVPA provides a civil

- commitment procedure for the long

term supervision and treatment of sexually

- violent predators

. See T EX . H EALTH & S AFETY C ODE A NN . § 841.0 01 ; s ee also In re Commitment of Stoddard , 619 S.W.3d 66 5, 669 (Tex. 2020)
.

“ The commitment procedure begins when the Texas Department of Criminal Justice notifies an established multidisciplinary team of the anticipated release date of a person who is serving a sentence for a sexually [

- ] violent offen se and ‘ may be a repeat sexuall y[

- ] violent offender

. ’” Id. (citing T EX . H EALTH & S AFETY C ODE A NN . § 841.021(a) )
. “ The team must timely assess whether the person is a repeat sexually [

- ] violent offender and is likely to commit a sexually [

- ] violent offense after release, notify the Department of the assessment, and make a recommendation regarding whether to evaluate the person for a behavioral abnormality. ” Id. (citing T EX . H EALTH & S AFETY C ODE A NN . § 841.022(c) )
.

“ Upon receipt of a recommendation to do so, the Department must timely conduct the behavioral

- abnormality assessment by utilizing an expert to examine the person and make a clinical assessment based on testing for psychopathy, a clinical interview, andIn re Commitment of Claxton Page 9

other appropriate

. . . techniques. ” Id. (citing T EX . H EALTH & S AFETY C ODE A NN . § 841.023(a) )
. We review evidentiary rulings using an abuse

- of

- discretion standard. See In re Commitment of Stuteville , 463 S.W.3d at 554 (citing Horizon/CMS Healthcare Corp. v. Auld , 34 S.W.3d 887, 906 (Tex. 2 000)). As stated earlier, u nder Texas Rule of Evidence 705, an expert in a SVPA civil commitment proceeding may disclose the underlying facts or data upon which the expert bases his or her opinion if it is of a type of information relied on by experts in the field when forming opini ons on the subject. See T EX . R. E VID . 705; see also In re Commitment of Stuteville , 463 S.W.3d at 554

- 55. However, the expert's disclosure of these facts and data is subject to the same relevancy constraints that govern the admission of other kinds of

ev idence. See T EX . R. E VID . 705(d) ("If the underlying facts or data would otherwise be inadmissible, the proponent of the opinion may not disclose them to the jury if their probative value in helping the jury evaluate the opinion is outweighed by their pre judicial effect.")

. Texas Rule of Evidence 403 provides that relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needle ssly presenting cumulative evidence.” T EX . R. E VID . 403. “‘Factors considered when applying the Rule 403 balancing test include the probative value of the evidence,In re Commitment of Claxton Page 10

the potential of the evidence to impress the jury in some irrational way, the time needed to develop the evidence, and the proponent’s need for the evidence.’” In re Commitment of Stuteville , 463 S.W.3d at 555 (quoting In re Commitment of Anderson , 392 S.W.3d 878, 882 (Tex. App.

— Beaumont 2013, pet. denied)). Texas law presumes that relevant evidence is admissible. See In re Commitment of Winkle , 434 S.W.3d at 309 (citing T EX . R. E VID . 402). Although Rule 403 allows for the exclusion of relevant evidence on special grounds, it should be used sparingly. See i d. Evidence of other offenses may be admissible in civil commitment cases when such evidence assists the jury in understanding an expert’s testimony that the person has a behavioral abnormality, which is the ultimate issue that the jury must determine. See In re Commitment of Stuteville , 463 S.W.3d at 556. This evidence may also be helpful to the jury in weighing the expert’s opinion. Id. ; see In re Commitment of Talley , 522 S.W.3d at 749. D ISCUSSION The case at bar is substantially similar to a case decided by the First Court of Appeals

. See generally In re Commitment of Barrientos , No. 01

- 17

- 00649

- CV, 2018 Tex. App. LEXIS 5261 (Tex. App.

— Houston [1st Dist.] July 12, 2018, pet. denied) (mem. op.)

. There , Barrientos argue d that evidence of his non - sexual criminal conduct should have been excluded a s unduly prejudicial because the State did not need evidence of his nonsexual criminal conduct to explain the basis of Dr. Thorne ’s , the S tate’s testifying expert, opinionIn re Commitment of Claxton Page 11

that he suffers from a behavi oral abnormality , and because the State introduced other evidence supporting Dr. Thorne's opinion

. Id. at * * 1 3

- 14
. Dr. Thorn e explained that antisocial behavior is one of the two main risk factors that experts in his field look at when evaluating whether someone has a behavioral abnormality

. Id. at *14. Dr. Thorne further stated that someone who is antisocial “ breaks the law, violates the health, safety, the rights of other individuals, [and is] impulsive, rebellious, [and] irresponsible. ” Id. The First Court of Appeals concluded that the trial court could have reasonably concluded that this evidence “would be helpful to the jury in weighing Dr. Thorne’s testimony, and in explaining the basis for Dr. Thorne’s opinion that Barrientos suffers from a behavioral abnormality, based in party on his opinion that Barrientos has antisocial traits and an antisocial orientation.” Id. at *1 6
. Here , Dr. Turner reviewed Claxton’s murder conviction to form an opinion concerning Claxton’s antisocial personality a nd behavioral traits. Dr. Turner used t his finding of Claxton’s “serious and violent offense that occurred while he was on probation” as a factor in scoring the Static

- 99R , an antisocial personality disorder diagnosis

. Moreover, a s previously mentioned, the court gave a limiting instruction during trial and in the jury charge instructing the jury that they could only consider information derived from the records Dr. T urner reviewed and relied on for purposes of evaluating the basis of Dr. T urner 's opinion and assessing the weight and credibility of his opinion. And t here is nothing in the record indicating that the jury failed to followIn re Commitment of Claxton Page 12

the judge's instructions. See In re Commitment of Day , 342 S.W.3d at 199 ( stating that appellat e courts presume the jury followed trial court's limiting instruction)

. Therefore, b ased on th e foregoing , the trial court could have reasonably found that evidence of Claxton’s extraneous bad acts would be helpful to the jury in weighing Dr. Turner's testimony and in explaining the basis for Dr. Turner's opinion that Claxton suffers from a behavioral abnormality. See In re Commitment of Stuteville , 463 S.W.3d at 554

- 55 ; see also In re Commitment of Barrientos , 2018 Tex. App. LEXIS 5261, at *1 6. Given the purpose for admitting the evidence under Rule 705, and the trial court's limiting instruction, we conclude that the trial court did not abuse its discretion by refusing to exclude testimony about Claxton’s non

- sexually

- related murder convicti on . See In re Commitment of Stuteville , 463 S.W.3d at 554; see also In re Commitment of Winkle , 434 S.W.3d at 309. We overrule Claxton’s third issue. Issues Four and Five In his fourth and fifth issues, Claxton argues that the evidence is legally and factually insufficient to support the jury’s finding that he is a sexually

- violent predator. We disagree. S TANDARD OF R EVIEW Proceedings under the SVP A are civil in nature, but because the State's burden of proof at trial is the same as in a criminal case , we review verdicts in cases brought under the SVP A using the standard of review applied in criminal cases. In re Commitment ofIn re Commitment of Claxton Page 13

Stuteville , 463 S.W.3d at 551. When reviewing a legal

- sufficiency challenge to the evidence in a sexually

- violent

- predator ca se, we assess all of the evidence in the light most favorable to the verdict to determine whether a rational jury could find, beyond a reasonable doubt, each of the elements that the State must prove to support a judgment of civil commitment. In re Commit ment of H.L.T. , 549 S.W.3d 656, 661 (Tex. App.

— Waco 2017, pet. denied) (citing In re Commitment of Mullens , 92 S.W.3d 881, 885 (Tex. App.

— Beaumont 2002, pet. denied)). T he Texas Supreme Court has articulated the proper standard for factual

sufficiency re view of a finding that a person is a sexually

- violent predator as follows: The appellate standard governing a factual

- sufficiency review of a finding that a person is a sexually [

- ] violent predator is whether, in light of the entire record, the disputed evi dence a reasonable factfinder could not have credited in favor of the verdict, along with undisputed facts contrary to the verdict, is so significant that the factfinder could not have found beyond a reasonable doubt that the statutory elements were met. In re Commitment of Stoddard , 619 S.W.3d at 677
. A PPLICABLE L AW A civil commitment proceeding under the SVPA incorporates the “beyond a reasonable doubt” burden of proof typically reserved for criminal cases. See In re Commitment of Fisher , 164 S.W.3d at 639

- 41. In a suit to commit a person as a sexually

violent pred ator, the State must prove that the person “(1) is a repeat sexually [

- ] violent offender” who “(2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.” T EX . H EALTH & S AFETY C ODE A NN . §In re Commitment of Claxton Page 14

841.003 (a). 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 ) . As relevant here, sexual assault and attempted sex ual assault, as outlined in section 22.011 of the Texas Penal Code, are sexually

- violent offenses. Id. § 841.002(8)(A); see T EX . P ENAL C ODE A NN . § 22.011. The SVPA defines "behavioral abnormality" a s “ 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. ” T EX . H EALTH & S AFETY C ODE A NN . § 841.002( 1). A “predatory act” is “an act directed toward individuals, including family members for the primary purpose of victimization.” Id. § 841.002( 5 ). Further, “[a] condition which affects either emotional capacity or volitional capacity to the extent that a p erson 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). D ISCUSSION In arguing that the evidence is legally and factually insufficient to support the jury’s verdict, Claxton focuses on the reliability of Dr. Turner 's testimony, arguing that it

was misleading, conclusory , and speculative

. Conclusory testimony cannot support a judgment because it is considered no evidence. Bombardier Aerospace Corp. v. SPEPIn re Commitment of Claxton Page 15

Aircraft Holdings , LLC, 572 S.W.3d 213, 222 (Tex. 2019). An expert's testimony is conclusory when the expert asserts a conclusion with no basis. Id. at 223. The expert must link her conclusions to the facts, explaining the basis of her assertions. Id. A n expert's experience alone may be a sufficient basis for expert testimony. Id. at 227. However, asking the jury to take the expert 's word for it because of her status as an expert will not suffice. Id. at 223. Therefore, a judgment may not be supported by conclusory expert testimony even if a party did not object to admission of such testimony. City of San Antonio v. Pollock

, 284 S.W.3d 809, 816 (Tex. 2009) ("[W]hen expert testimony is speculative or conclusory on its face . . . then a party may challenge the legal sufficiency of the evidence even in the absence of any objection to is admissibility."); s ee In re Commitment of H.L.T
. , 549 S.W.3d at 661

- 62. Dr. Turner has been a licensed clinical psychologist since 2013. He has conducted
over two
- hundred behavioral abnormality evaluations and testified regarding these evaluations nearly fifty times

. In this case, Dr. Turner found Claxton to have a behavior abnormality that predisposes him to engage in predatory acts of sexual violence

. Dr. Turner explained that he used the standard methodology that experts in Texas follow for these evaluations. Specifically, Dr. Turner cond ucted a face

- to
- face psychiatric evaluation of Claxton that lasted two

- and

- a - half hours and reviewed numerous documents, including the MDT report conducted by Dr. Thorne that also found ClaxtonIn re Commitment of Claxton Page 16

to have behavioral abnormality, offense reports, prison record s, victim statements , and other official documents

. Among the documents reviewed by Dr . Turner were Claxton’s prior sexually

related convictions, which included a 1984 conviction for sexual assault of a child that resulted in a year spent in the Giddings State School and subsequent juvenile detention until Claxton was eighteen years old , a 1991 conviction for attempted sexual assault that resulted in the assessme nt of a seven

- year prison sentence that was probated for seven years with a $1,000 fine , and a 2011 conviction for sexual assault that resulted in a ten

year prison sentence. Claxton also received sexual

- misconduct write

- ups while in prison for masturbati ng toward a female officer and for consensual sex with another inmate

. Additionally, Claxton admitted to Dr. Turner that , when he was an adult, he impregnated the fifteen

- year - old daughter of his deceased brother , although he was never convicted for th is offense

. Moreover, the record contains a statement from Claxton indicating that when he was twenty years old, he sexually offended against a nineteen

- year - old woman by rubbing her breasts, forcefully removing her clothing, and rubbing his penis against he r vagina and anus without consent. Claxton also threatened this woman with death. Dr. Turner testified that he looks for a pattern of behavior, and in doing so, he has to look at past behaviors and prior offenses

. According to Dr. Turner, Claxton’s history is very telling of Claxton’s behavioral abnormality , as Claxton ha s only spent short period s of time in free society before committing other sexual offenses

. Dr. Turner alsoIn re Commitment of Claxton Page 17

found it concerning that Claxton does not see victims as victims. Dr. T urner explained that “ w hen he doesn't see a victim as truly a victim and he sees the victim as someone who may, to a certain degree, want violent sexual acts perpetrated against them, then the likelihood of him engaging in that act again and again increases. ” Using the Diagnosis and Statistical Manual (DSM

- V), Dr. Turner ultimately concluded that Claxton has a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence based on two risk facto r s – an unspecified paraphilic disorder with sadistic interests , “ w hich is where someone gets sexual gratification from causing pain or fear in their partners , ” and antisocial personality disorder , which Dr. Turner described as someone who p u ts themselves before others and lacks remorse. Dr. Turner noted, “ we tend to see them very often engaging in illegal behaviors. They have a problem with authority. They tend to lie very easily. And then eve n when they're given a second chance or put on some kind of supervision, they tend not to be able to follow the rules and continue to get in trouble. ” Based on the foregoing, we conclude that the record provides support for Dr. Turner 's opinions. Conseque ntly, h is opinions cannot be characterized as wholly conclusory or without any foundation. See In re Commitment of H.L.T. , 549 S.W.3d at 661

- 64 (concluding that expert testimony was not wholly conclusory or without any foundation based on facts from the p erson's past, reports from a psychologist who found the person to suffer from a behavioral abnormality, a face

- to
- face interview of the person,In re Commitment of Claxton Page 18

a consideration of various risk factors for sexually reoffending, a consideration of prior sexual offenses, and her knowledge and expertise to support her opinion, among other things); see also Pollock

, 284 S.W.3d at 817. Furthermore, viewing the evidence in the light most favorable to the verdict, we hold that a rational jury could have found, beyond a reasonable doubt, that Claxton is a repeat, sexually

- violent offender and suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See T EX . H EALTH & S AFETY C ODE A NN . §§ 841.002(2), 841.003(a); In re Commitment of H .L.T. , 549 S.W.3d at 661

- 64; In re Commitment of Almaguer , 117 S.W.3d at 506. In other words, we conclude that the evidence is legally sufficient to support the jury's finding that Claxton is a sexually

- violent predator. See T EX . H EALTH & S AFETY C ODE A NN . § 841.003(a), 841.062; In re Commitment of H.L.T. , 549 S.W.3d at 661

- 64; In re Mullens , 92 S.W.3d at 885. Additionally, in light of the entire record, the evidence is also factually sufficient to support the jury’s verdict. 2 See T EX . H EALTH & S AFET Y C ODE A NN . §§ 841.003(a), 841.062; see also In re Commitment of Stoddard , 619 S.W.3d at 677 (citing In re A.C. , 560

2 In his issue regarding factual sufficiency, Claxton argues that the evidence is factually insufficient to support the jury’s verdict because, with a flawed expert opinion, he has not been shown bey ond a reasonable doubt to be “a member of the small group of extremely dangerous sex offenders” the SVPA was enacted to address. In making this argument Claxton relies heavily on the Fort Worth Court of Appeals’s opinion in In re Commitment of Stoddard
. See In re Commitment of Stoddard , 601 S.W.3d 879 (Tex. App.

— Fort Worth 2019), rev’d , 619 S.W.3d 665 (Tex. 2020). However, while this case was pending in this Court, the Texas Supreme Court reversed the Fort Worth Court of Appeals’s Stoddard opinion , holdi ng that the “small but extremely dangerous group” language in the SVPA that the Fort Worth Court of Appeals relied on is not part of the statute’s definition of “sexually [

- ] violent predator” and, therefore, is not an element the jury had to find. See In r e Commitment of Stoddard , 619 S.W.3d at 677. Thus, we are not persuaded by this argument or Claxton’s reliance on the reversed Stoddard opinion from the Fort Worth Court of Appeals.In re Commitment of Claxton Page 19

S.W.3d 624, 631 (Tex. 2018); In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002)). The jury was entitled to draw reasonable inferences from basic facts to determine ultimate facts, and to resolve conflicts and contradictions in the evidence by believing all, some, or none of the testimony. See In re Commitment of Barbee , 192 S.W.3d 835, 842 (Tex. App.

— Beaumont 2006, no pet.). The jury apparently chose to accept as credible Dr. Turner’s testimony. Accordingly, we overrule Claxton’s fourth and fifth issues. Conclusion Having overruled all of Claxton’s issues on appeal, we affirm the judgment of the trial court.

MATT JOHNSON Justice Before Chief Justice Gray, Justice Johnson , and Justice Smith Affirmed Opinion delivered and filed October 20, 2021 [CV06]