Opinion filed August 31, 2022

In The

Eleventh Court of Appeals __________

No. 11-20-00253-CV

__________

IN RE COMMITMENT OF MARVIN GUNTER

On Appeal from the 32nd District Court

Nolan County, Texas

Trial Court Cause No. 20087

M E M O R A N D U M O P I N I O N

This is an appeal from a civil commitment order in which the State sought to 

commit Appellant, Marvin Gunter, for treatment and supervision as a sexually 

violent predator pursuant to the Texas Civil Commitment of Sexually Violent 

Predators Act (the SVP Act). TEX. HEALTH & SAFETY CODE ANN. ch. 841 (West

Supp. 2021). A jury found beyond a reasonable doubt that Appellant is a sexually 

violent predator, and the trial court entered a final judgment and commitment order 

committing Appellant for treatment and supervision. HEALTH & SAFETY § 841.081. 
2

Appellant contends in two issues that the evidence is legally and factually 

insufficient to support the jury’s sexually violent predator finding. We affirm. 

Background Facts

On January 26, 2000, Appellant pleaded guilty to three offenses involving 

sexual misconduct—indecency with a child by contact, sexual assault, and 

aggravated sexual assault. The trial court assessed his punishment at confinement 

for twenty years, twenty years, and forty years, respectively, in the Institutional 

Division of the Texas Department of Criminal Justice. The trial court sentenced 

Appellant accordingly, and the sentences ran concurrently. 

Although all three convictions occurred on January 26, 2000, Appellant 

committed the offenses in 1999, 1998, and 1996. Appellant’s offenses were against 

three of his prepubescent children. He pleaded guilty to indecency with his son, 

sexual assault of his youngest daughter, and aggravated sexual assault of his oldest 

daughter. 

Appellant testified at the commitment trial. He did not deny having sexual 

contact with his female children, nor did he deny that he had been convicted of the 

three sexually violent offenses. He denied indecency with his son, but agreed that

he had pled guilty to the charge of doing so. He testified that he knew what he was 

doing was wrong but that he enjoyed it, and he stopped sexually assaulting his 

children when they no longer came to his bedroom. He testified that he blames 

himself for his crimes and feels ashamed and angry at himself for his actions.

He testified that he does not believe he has a continuing problem with “this 

type of behavior” and that he is not at risk of reoffending. Appellant testified that he 

is working to complete his sex offender treatment but has faced obstacles in 

preparing for the commitment trial, which caused him to miss classes. He testified 

that he is benefiting from the treatment program.
3

Amy Morrison, the sex offender treatment program provider for the TDCJ

described Appellant’s progress in the program as “needs improving.” She further 

described Appellant’s demeanor as moody, angry, argumentative, and lackadaisical, 

and she stated that Appellant failed to participate in group discussions. Morrison 

has issued two formal “disciplinary cases” to Appellant for violating group rules—

one for possession of pornography and another for absences. She has never needed 

to grant an extension to other program participants. Morrison testified that Appellant 

was unable to complete his treatment program in a timely fashion and was given a 

sixty-day extension to do so. At the time of the hearing, Appellant was still enrolled 

in the program. However, the program was temporarily discontinued due to the 

COVID-19 pandemic.

Two experts testified at the commitment trial. The State’s expert, Dr. Sheri 

Gaines, is a licensed medical doctor with a specialization in psychiatry. Dr. Gaines 

is board certified by the American Board of Psychiatry and Neurology and has more 

than thirty years of experience in forensic psychiatry. After detailing her experience

and training, Dr. Gaines opined that Appellant has a behavioral abnormality. To 

reach this opinion, Dr. Gaines reviewed “a couple thousand or more” pages of 

records and conducted a face-to-face interview with Appellant. The interview lasted 

for two and a half hours, which Dr. Gaines testified was a normal length for a risk 

assessment evaluation. 

Dr. Gaines opined that Appellant has a behavioral abnormality because “he 

meets the terms of the definition that comes from the statute, and because he has risk 

factors that make him likely to repeat the acts for which he is convicted.” She 

explained that a “risk factor” is “something that has been studied that has been 

identified in literature as making something more likely to happen.” By contrast, a 

“protective factor” is one that statistically reduces an individual’s risk of reoffending. 
4

Among the risk factors that Dr. Gaines identified were sexual deviancy in the 

form of pedophilia. Dr. Gaines diagnosed Appellant with pedophilic disorder using 

the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5). 

Other risk factors include the different types of sexual acts and abuse on each victim;

the occurrence of acts over many years; psychopathic traits like lack of remorse, 

lying, and manipulation; offending under the influence of drugs and alcohol; victim 

blaming; and offending in a public place. 

Dr. Gaines also identified some protective factors, including Appellant’s age 

and his completion of his GED and other educational programs while in prison. 

However, Dr. Gaines noted that Appellant’s age was not a completely protective 

factor because Appellant’s original offenses occurred when he was in his forties and 

the academic literature indicates that reoffending is less likely once a person reaches 

the age of thirty. Thus, Appellant was offending at an age when the literature would 

indicate he was less likely to offend. 

Finally, Dr. Gaines noted that Appellant had not completed his treatment 

program, did not have stable plans post-release, and intended to live with another 

sex offender. In her opinion, Appellant’s pedophilic disorder combined with his risk 

factors constituted a behavioral abnormality as defined in the Health and Safety 

Code because it affected his emotional and volitional capacity. 

Appellant’s expert, Dr. Stephen Thorne, Ph.D., is a licensed psychologist with 

a practice in forensic psychology. He reviewed the same documents as Dr. Gaines, 

scored a Static-99 actuarial and a PCLR, and conducted a two-hour interview with 

Appellant. Like Dr. Gaines, Dr. Thorne diagnosed Appellant with pedophilic 

disorder. He opined that Appellant does not meet the criteria for having a behavioral 

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

He performed a Hare-PCLR on Appellant, an actuarial designed to identify 

psychopathic traits in an individual. Appellant’s PCLR score was 23 out of 40, 
5

which Dr. Thorne said is “considered to be in the moderate range for psychopathy, 

at the high end of the moderate range.” Dr. Thorne explained that, although

Appellant has some antisocial or psychopathic traits, he did not believe Appellant to 

be a psychopath. In addition to the PCLR, Dr. Thorne scored a Static-99 on 

Appellant, an actuarial instrument designed to identify traits connected to sexual 

recidivism. Dr. Thorne scored Appellant as a “negative two,” which “is 

characterized as being in the very low range.”

Dr. Thorne identified protective factors, which included Appellant’s age, his 

single sentencing occasion, his lack of a mental illness diagnosis that would affect 

his impulse control (i.e., schizophrenia or bipolar disorder), his ability to maintain 

stable employment, and the fact that his offenses were limited to familial victims 

rather than strangers. He also opined that the low score on the Static-99 was a 

protective factor. 

Dr. Thorne noted that most of the risk factors are included or accounted for in 

the PCLR and Static-99 actuarial. However, the risk factors that he identified 

included Appellant’s lack of social support, antisocial behavior, sexual deviancy in 

the form of pedophilic disorder, and offending under the influence of alcohol. He 

also opined that offending in a public place was a risk factor on some assessment 

instruments, but he stated that Appellant’s offending in a public place did not sway 

his ultimate opinion. Finally, Dr. Thorne testified that he was concerned that 

Appellant had not completed his treatment program. He stated that if Appellant was 

unsuccessful in completing the program, his “ultimate opinion in this case would 

probably change.” 

Analysis

Appellant raises two issues for our review: he challenges the legal and factual 

sufficiency of the jury’s finding that he is a sexually violent predator. The SVP Act 

provides for the civil commitment of sexually violent predators based on legislative 
6

findings that “a small but extremely dangerous group of sexually violent predators 

exists and that those predators have a behavioral abnormality that is not amenable to 

traditional mental illness treatment modalities and that makes the predators likely to 

engage in repeated predatory acts of sexual violence.” HEALTH &SAFETY § 841.001. 

A person is a sexually violent predator 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) (emphasis 

added). The legislature defines a “repeat sexually violent offender” as a person who 

is convicted of “more than one sexually violent offense and a sentence is imposed 

for at least one of the offenses.” Id. § 841.003(b). “Sexually violent offense” is 

defined in the SVP Act to include enumerated Penal Code offenses. Id. 

§ 841.002(8).

1

 Finally, “behavioral abnormality” is defined 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). 

A commitment proceeding under the SVP Act is a civil case that incorporates 

the “beyond a reasonable doubt” burden of proof from criminal cases. In re 

Commitment of Stoddard, 619 S.W.3d 665, 674 (Tex. 2020); In re Commitment of 

Stratton, 637 S.W.3d 870, 875 (Tex. App.—Eastland 2021, no pet.). Thus, to civilly 

commit a person as a sexually violent predator, the State must prove the above 

elements beyond a reasonable doubt.

1

Appellant’s underlying convictions are for indecency with a child by contact, sexual assault, and 

aggravated sexual assault; all of which are “sexually violent offenses” under the Health and Safety Code. 

See HEALTH & SAFETY § 841.002(8); TEX. PENAL CODE ANN. §§ 21.11(a)(1), 22.011, 22.021 (West 

2019 & Supp. 2021). 
7

Directed Verdict

In his first issue, Appellant contends that the evidence is legally insufficient 

to support the trial court’s finding that he is a “repeat sexually violent offender.” 

We note that although raised as a legal sufficiency issue, the trial court granted

a directed verdict in favor of the State as to element one—finding that Appellant is 

a repeat sexually violent offender—and Appellant’s argument under his first issue 

addresses the trial court’s directed verdict. See HEALTH & SAFETY § 841.003(a). We 

review the grant of a directed verdict in the light most favorable to the party against 

whom the verdict was rendered and disregard all contrary evidence and inferences. 

In re Commitment of Talley, 522 S.W.3d 742, 750 (Tex. App.—Houston [1st Dist.] 

2017, no pet.). A directed verdict is proper when the evidence is such that no other 

verdict can be reached and the moving party is entitled to judgment as a matter of 

law. See Blackstone Med., Inc. v. Phoenix Surgicals, L.L.C., 470 S.W.3d 636, 645 

(Tex. App.—Dallas 2015, no pet.). In a civil commitment case, Texas courts have 

uniformly held that when the undisputed evidence establishes that the defendant has 

been convicted of more than one sexually violent offense and a sentence was 

imposed for one of them, a partial directed verdict that the defendant is a repeat 

sexually violent offender is appropriate. See Stratton, 637 S.W.3d at 876–77 

(collecting cases). 

Here, the trial court’s grant of a partial directed verdict that Appellant is a 

repeat sexually violent offender was proper because Appellant had been convicted 

of three sexually violent offenses and sentences were imposed for all three. The 

State introduced three judgments of conviction for sexually violent offenses. 

Appellant conceded that he was convicted and sentenced for all three offenses. Thus, 

the partial directed verdict in favor of the State was proper because Appellant is a 

repeat sexually violent offender as a matter of law. Accordingly, we overrule 

Appellant’s first issue. 
8

Factual Sufficiency

In Appellant’s second issue, he contends that there is factually insufficient 

evidence to support the jury’s finding that he has a behavioral abnormality that 

makes him likely to engage in predatory acts of sexual violence. We disagree.

The standard of review for a factual-sufficiency review differs from the 

evaluation for legal sufficiency. A “factual-sufficiency review is premised on 

consideration of the entire record.” Stoddard, 619 S.W.3d at 674 (citing In re A.C., 

560 S.W.3d 624, 630 (Tex. 2018)). As with the legal sufficiency analysis, there is 

still an assumption that the factfinder resolved disputed evidence in favor of the 

finding if a reasonable factfinder could do so. Id. at 674. “However, disputed 

evidence that a reasonable factfinder could not have credited in favor of the finding 

is treated differently” in a factual sufficiency analysis. Id. at 676. Thus, in sexually 

violent predator cases, “where the burden of proof is beyond a reasonable doubt, the 

evidence is factually insufficient if, in light of the entire record, the disputed 

evidence that a reasonable factfinder could not have credited in favor of the [sexually 

violent predator] finding, along with the undisputed facts that do not support the 

finding, is so significant that the factfinder could not have found beyond a reasonable 

doubt that the statutory elements were met.” Id. at 674–75. A reviewing court’s 

mere disagreement with the factfinder “as to the proper evidentiary weight and 

credibility cannot be the basis of a reversal on factual-insufficiency grounds.” Id. at 

677. 

To support his contention, Appellant again directs us to his “single sentencing 

occasion.” Appellant also contends that he has no serious psychological issues, has 

a history of maintaining employment, and has only two incidents of misconduct 

during his incarceration.

We first turn to evidence supporting the verdict. Both experts diagnosed 

Appellant with pedophilic disorder and agreed on several risk factors present in
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Appellant’s case. The risk factors include sexual deviancy, offending in a public 

place, offending while under the influence of drugs or alcohol, and antisocial 

behaviors. Additionally, all the witnesses at trial testified that Appellant had not 

successfully completed his sex offender treatment program. Finally, Dr. Gaines 

opined that Appellant has a behavioral abnormality. 

Contrary to the verdict, Dr. Thorne opined that Appellant does not have a 

behavioral abnormality. Dr. Thorne testified that a strong factor to consider is 

whether a person has reoffended after release. However, he recognized that because 

these are Appellant’s first convictions, Appellant has never been released after a 

conviction. Both experts recognized Appellant’s age as a protective factor, but only 

Dr. Thorne recognized Appellant’s lack of additional psychological diagnoses as 

protective.2 Dr. Thorne also listed Appellant’s history of stable employment and his 

lack of nonfamilial (stranger) victims as protective factors. 

In light of the entire record, viewing the supporting and contrary evidence, we 

hold that the jury could have determined, beyond a reasonable doubt, that Appellant 

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

sexual violence and that Appellant is a sexually violent predator. 

Within his second issue, Appellant also contends that the State failed to prove

that he falls in the “small but extremely dangerous group of sexually 

violent predators” mentioned in the legislative findings of the SVP Act. 

HEALTH & SAFETY § 841.001. However, the Texas Supreme Court rejected this 

argument in Stoddard, finding that the language in the legislative findings is not an 

element of the statute. 619 S.W.3d at 677 (“This ‘small but extremely dangerous 

group’ language, contained in the Act’s legislative findings, is not part of the statute’s 

2

Dr. Gaines testified that the absence of a risk factor is not a protective factor.
10

definition of ‘sexually violent predator’ and was not an element the jury was required 

to find.”). 

Because the “small but extremely dangerous” language is not an element, and 

because the evidence was such that the jury could have determined that 

Appellant has a behavioral abnormality that makes him likely to engage in a 

predatory act of sexual violence, we overrule Appellant’s second issue. See

HEALTH & SAFETY § 841.001, .003(a)(2).

This Court’s Ruling 

We affirm the judgment of the trial court. 

JOHN M. BAILEY

CHIEF JUSTICE

August 31, 2022

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.