1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO. 09
- 11
- 00 613
- CV



### ____________________ IN RE COMMITMENT OF CHARLES PHILIP ANDERSON

_______________________________________________________ ______________ On A ppeal from the 435th District Court Montgomery County, Texas Trial Cause No . 11
- 0 2
- 02043 CV

________________________________________________________ _____________ OPINION Charles Philip Anderson challenges his civil commitment as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001

- .151 (West 2010 & Supp. 2012) (the SVP statute). A person is a “sexually violent predator” subject to commitment
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) (West 2010). Anderson challenges the sufficiency of the evidence to support the jury’s verdict, and h e challenges some of the trial court’s evidentiary rulings. He attacks some of the judge’s comments, the judge’s ruling on a demonstrative exhibit, and the judge’s fair ness . Anderson claims th at certain provisions of the SVP statute are unconstitutional. We hold the evidence is sufficient, sections 841.002(2) and2 841.003(a)(2) are constitutional, the rulings and comments of the trial court do not support a reversal , and the record does not establish judicial bias . W e affirm the judgment of the trial court.
S UFFICIENCY OF THE E VIDENCE Anderson challenges the legal and factual sufficiency of the evidence to support a finding that he has serious difficulty controlling his behavior and that he is likely to engage in a predatory act of sexual violence. H is argument is that he has not engaged in any sexual misconduct during the ten years of his second incarceration, and this , he
argues, demonstrates he is not dangerous and does not suffer from a serious lack of control. He suggest s that the experts and the jury could not “reasonably or constitutionally infer” that he has serious difficulty controlling his behavior “based on his
more than ten

- year old past acts of sexuall y offending.”
In the legal sufficiency challenge, we view 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 commitment under the SVP statute. In re Commitment of Mullens , 92 S.W.3d 881, 885 (Tex. App.

— Beaumont 2002, pet. denied)

. The factual sufficiency challenge to the SVP commitment order requires this Court to weigh the evidence to determine whether a verdict supported by legally su fficient evidence nevertheless reflects a risk of injustice so great that we are compelled to grant a3 new trial. In re Commitment of Day , 342 S.W.3d 193, 213 (Tex. App.

— Beaumont 2011, pet. denied). Anderson has a history of sexual offenses: indecency wi th a child in 1985; sexual assault of a child in 1989; attempted sexual assault of a female adult in 1989; and aggravated sexual assault in 2001. He pleaded guilty to each offense. He served approximately eight years in prison and was released in 1997. On the aggravated sexual assault offense, he was sentenced in 2002 to ten years. The State’s experts, Dr. Price and Dr. Self, testified that Anderson suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence

. Dr. Quijano, the defendant’s expert, testified Anderson no longer has a behavioral abnormality. The experts had similar diagnoses for Anderson: paraphilias, antisocial personality disorder, and significant psychopathic personality traits

. Dr . Price and D r. Self diagnosed Anderson with sexual deviancy. Dr. Quijano and Dr. Price indicated Anderson suffers from depression.
Dr. Quijano testified for the defense that A nderson also has bipolar disorder and has taken medication for the condition. The State’s testifying experts disagreed with the bipolar disorder diagnosis. Dr. Quijano testified medication is helping Anderson, and the previous condition affecting the behavioral abnormality is no longer present. Quijano testified that if Anderson qui ts taking his medication, “ we have to assume that the mania will come back and then of course the effect of the mania on the volitional capacity will4 come back.” Although Quijano testified that Anderson is “overall compliant” in taking his medications, he also explained, as did the State’s experts, that Anderson is at times

non - compliant. Dr. Price testified to four major reasons for his opinion that Anderson has a behavioral abnormality. Price explained that Anderson has chronic sexual offending in his h istory, different types of sexual offending, escalating sexual offending, and a current perception that he did not commit these sexually violent offenses and does not need
treatment. Dr. Price testified that Anderson is a sexual deviant. Price explained th at a sexual deviant is a person who becomes aroused and engages in abnormal sexual behavior. Sexual deviance is a paraphilia that is outside of what is normal in the context of sexual behavior, thinking, and feeling. Based on records reviewed by Price, Anderson’s own testimony, Anderson’s current perceptions about the offenses , and actuarial test results, Price testified Anderson is a menace to society and has a behavioral abnormality that makes him likely to commit a predatory act of sexual violence. Dr. Self testified that sexual deviancy and a history of sexual offenses are “high on the list ” of risk factors for “future acts.” Self found that Anderson’s pattern of criminality and his antisocial and unstable lifestyle, combined with the sexual devianc y, create a heightened risk of reoffending. Self also found significant Anderson’s minimizing o r denial of the offenses and the lack of empathy for his victims, a characteristic that Self described as a lack of “ social brakes.” Dr. Self concluded that Anderson was seeking th e5 excitement and sexual arousal from overpowering someone else and forcing that person to do Anderson’s will sexually. Dr. Self characterized the pattern as “stepping up, where the behavior that was exciting and gratifying to an exte nt loses its thrill over time and the individual has to step up to kick it up a notch and get more intensity.” Self did not diagnose Anderson with bipolar disorder

. B ut , as Self explained, if Anderson is bipolar, he was not compliant with his medication wh ile he was in prison, and there is an extremely high probability that he will be non

- compliant over time. Moreover, Self testified there is no pill that can cure someone’s sexual deviancy or behavioral abnormality, and no pill that can obviate the risk tha t Anderson will commit acts of predatory sexual violenc e . The expert witnesses offered explanations for the absence of sexual misconduct disciplinaries during Anderson’s second incarceration. Price testified that inmates who have been in prison a long time have learned the system ; by the time of Anderson’s second incarceration, he had learned how to follow the rules. Price suggested that aging and medications are factor s contributing to the lack of sexual disciplinaries during the second incarceration. Dr. Qui j ano indicated that the lack of sexual misconduct disciplinaries was attributable to the positive effects of medication. Anderson testified that his medication has had little, if anything, to do with the absence of sexual reoffending for the last ten years. And on appeal, he states that the evidence regarding bipolar disorder, medication treatment for it, and periodic non

-6 compliance with medication is not relevant. He further maintains that age has changed and mellowed him and lessened his sex driv e , and he asserts he can control his sexual
urges. The record establishes that Anderson committed sexually violent offenses while he was on probation for a sexually violent offense , after he received sex offender treatment , after he received medications for the alleged bipolar disorder , and after he served time in prison for commission of a sexually violent offense. Anderson declined the most recent offer of sex offender treatment. He testified that he still has a problem controlling his
urges , and that h e is concerned about reoffending. The evidence support s the jury’s verdict. The jury was entitled to draw reasonable inferences f r om basic facts to determine ultimate fact issues , and to resolve conflicts and contradictions in the evidence by believing all, part, or none of a witness’s testimony. In re Commitment of Barbee , 192 S.W.3d 835, 842 (Tex. App.

— Beaumont 2 006, no pet. ). Considering all the evidence in the light most favorable to the verdict, we conclude the jury could reasonably find beyond a reasonable doubt that Anderson has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The record does not reflect a risk of injustice that compels granting a new trial. Issues one and two are overruled.7 E VIDENTIARY C HALLENGES Anderson challenge s evidentiary rulings of the trial court. He argues the trial court erred in admitting details of his prior criminal offenses. He asserts that Dr. Price went beyond using evidence of the prior offenses for the purpose of explaining the basis for his opinion and used the evidence for the purpose of establishing the truth of the details

. A n expert may disclose details regarding the underlying facts or data that the expert relied on in arriving at his opinion , subject to the trial court’s application of the balancing test and providing any requested necessary limiting instructions

. See In re Commitment of Ford , No. 09

- 11

- 00425

- CV , 201 2 WL 983323, at ** 1

- 2 (Tex. App.

— Beaumont Mar. 22, 2012, no pet

. ) ( mem. op.); In re Commitment of Day , 342 S.W.3d at 199 ; s ee also Tex. R. Evid. 703, 705. Price used Anderson’s criminal history , as appellate counsel acknowledges, for the “legitimate purpose of explaining the significance of the escalation of [Anderson’s] sexual offenses that he committed before 2002 . . . .” Anderson argues that the evidence should have been excluded because the “sordid details” of the offenses had very little proba tive value and , under Rule 403, were unfairly prejudicial. See Tex. R. Evid. 403. Evidence is unfairly prejudicial when it has an undue tendency to suggest that a decision be made on an improper basis, commonly, but not necessarily, an emotional one. Vasquez v. State , 67 S.W.3d 229, 240 (Tex. Crim. App.
200 2 ) (citing Rogers v. State , 991 S.W.2d 263, 266 (Tex. Crim. App. 1999)). In applying Rule 403, factors that should be considered include the probative value of the evidence,8 the potential of the evid ence to impress the jury in some irrational way, the time needed to develop the evidence, and the proponent’s need for the evidence. Montgomer y v. State , 810 S.W.2d 372, 389

- 390 (Tex. Crim. App. 199 1 ) (op. on reh’g). Here , each expert explained the facts c onsidered and how those facts affected th at expert’s evaluation. T he evidence assisted the jury in weighing the testimony and the opinion each expert offered

. T he trial judge could reasonably conclude the experts’ testimony was not unfairly prejudicial. See In re Commitment of Day , 342 S.W.3d at 199

. We overrule issue three. Anderson contends that the State should not have been allowed to question him about the details of one of the sexually violent offenses to which he pleaded guilty. Anderson denied ma ny of the details of the offense. Anderson’s attorney voiced objections in the trial court: hearsay; hearsay documents; and reading from the police report. The trial court overruled the objections and noted that it was not apparent that the
State ’s attorney was reading from the police report. The report was not in evidence. Moreover, t he argument on appeal

-- e ssentially that the trial court’s limiting instruction was insufficient

-- is not the same as the t he objections defense counsel made in the t rial
court

. See Wohlfahrt v. Holloway , 172 S.W.3d 630, 639

- 40 (Tex. App.

— Houston [14th Dist.] 2005, pet. denied) (Because objection in trial court did not comport with complaint on appeal, the objection was waived.); see also Tex. R. App. P. 33.1; Thomas v . State , 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). A reviewing court generally presume s a9 jury follow ed a trial court’s limiting instruction. See Golden Eagle Archery, Inc. v. Jackson , 1 16 S.W.3d 757, 771 (Tex. 2003). We overrule issue four. In issue five, Anderson contends the trial court erred in admitting Dr. Quijano’s testimony that Anderson may have committed unknown sex offenses

. Anderson argues
th e evidence was purely speculative and was not relevant to any issue in this case. The
State asked Dr. Quijano , who testified on Anderson’s behalf, if “ sex offenders often have committed more sex offenses than they have been arrested for[.]” He answered “yes” and agreed that possibly Anderson had sexually assaulted people that “we don’t even know about[.]” Anderson testified he exposed himself approximately 3,000 times

. The record, including Anderson’s own testimony and Dr. Quijano’s complete testimony, does not support the argument that Dr. Quijano’s statement caused an improper result in the tri al.
A ny error in allowing the question and the admission of D r. Quijano ’s statement during the State’s cross - examination does not require reversal of the judgment in this case

. See Tex. R. App. P. 44.1

. I ssue five is overruled

. C LOSING A RGUMENT Anderson argues the trial court erred by “effectively instructing ” the jury during closing jury arguments to ignore a critical portion of his defense

. During closing argument, Anderson’s counsel stated as follows : This is a case of a mentally ill person who has bee n criminalized in the system. It is time to tell them no. It is time to say you are going to get proper medical care for someone who needs it. Not throw away the key and10 say that this is just going to be further consequences for something that happened [.] The State objected that Anderson ’s counsel was, in effect, testifying about the effect of the verdict. The trial judge responded, “I am going to tell the jurors you are to ignore the effect of what your verdict is going to have. Okay?” Th e trial court did not instruct the jury to ignore Anderson’s defenses. See generally Magic Chef, Inc. v. Sibley , 546 S.W.2d 851, 857 (Tex. Civ. App.

— San Antonio 1977, writ ref’d n.r.e.) (argument concerning legal effect of answers); see also Louisiana & Ark. Ry. Co. v. Capps , 766 S.W.2d 291, 295

- 96 (Tex. App.

— Texarkana 1989, writ denied). We overrule issue six.
D EMONSTRATIVE A ID AND A LLEGATIONS OF B IAS Anderson contends the trial court demonstrated bias and deprived him of a fair trial by continuously displaying a d emonstrative visual aid during the testimony of the State’s expert witnesses , and by disparaging defense counsel during her cross examination of the State’s experts. During the testimony of Dr. Price, the State ’s attorney asked, “[I]n arriving at your opinion, did you answer the question whether you thought Mr. Anderson had a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence?” The State ’s attorney then asked whether it would aid
t he jury for the State to display the question, and Dr. Price stated that it would be of assistance to the jury. The question was apparently displayed for the jury’s view. Shortly thereafter, defendant’s attorney requested that the display be removed. The t rial judge denied the request and stated as follows:11 This is the issue they are going to be asking about. So it is not a big deal

. . . . This is the only thing this jury is focusing on. And I think it is good it is up there. So you guys should be focused and those are questions you should be asking about. Later defense counsel again objected to the “continuing display [of] the words ‘suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.’” The judge s tated as follows: Well, the record is not really too clear what is going on here. For the record, it is on an Elmo which is on the screen TV which is in front of the jury. And essentially it is the question that the jury is asked. That definition is given to them in the jury charge. It is not an incorrect statement of the law. And I think that it helps, at least will encourage, the lawyers to ask questions about this question because sometimes it seems that they get a little adrift. So I am going to overrule your objection. When you present your case, you can take it down or we will have the State take it down. The demonstrative aid contained statutory language

. Defense counsel objected “to this as not being a complete quote from the statute and an incomplete part of the question.” The display apparently included the second part of the definition of sexually violent predator

. The applicability of the first part of the definition

-- whether Anderson is a repeat sexually violent offender

-- wa s not in dispute. The trial court offered to allow defense counsel to “ [ p ] ut the rest of it up there

. ” The trial judge then stated, “ I t certainly doesn’t mislead the jury.” Anderson does not refer us to any authority precluding the use of a demonstrative
aid under these circumstances

. The quotation from the statute was t he question the jury

w as required to answer in arriving at its verdict; the quotation wa s not misleading. See12 generally Henricks v. State , 293 S.W.3d 267, 276 (Tex. App.

— Eastland 2009, pet. ref’d ) ( Trial court allowed investigator to have P ower P oint presentation as an aid for the jury to understand the testimony; “[a] witness may be allowed to demonstrate before the jury so as to make her testimony more plain and clear.”). Anderson argues the trial judge displayed bias against his counsel during the trial.
T he trial judge questioned the relevance of some of defense counsel’s questions and stated that the court would display the question again until trial counsel could “keep in mind what the goal is here.” Anderson also directs us to defense counsel’s cross

examination of Dr. Self during which the trial judge stated as follows: [Defense counsel], ask your questions. If [ the witness ] needs to have his recollection refreshed, he can do that. But don’t just ask questions and try to put documents into evidence in front of the jury. Okay? I have already done that. I told you that once. Ask another question, please.
T rial judges have broad, though not unfettered, discretion in handling trial s . Metzger v. Sebek , 892 S.W.2d 20, 37

- 40 (Tex. App.

— Houston [1st Dist] 1994, writ denied) ; see also In re Commitment of Barbee , 192 S.W.3d at 847

- 48. A trial court has inherent power to control the disposition of cases with economy of time and effort, exercising that power without bias and with patience, and in a manner that promotes confidence in the judge’s impartiality. Considering the entire record and the comments in context, we cannot conclude t he judge’s comments constitute reversible error under the circumstances. See
Tex. R. A pp. P. 44.1. We overrule issue seven.13 U NIFIED I SSUE In a supplemental brief filed after the Supreme Court’s recent decision in In re Commitment of Bohannan , Anderson argues that the Supreme Court rendered sections
841.002 (2) and 841.003(a)(2) facially unconstitutional and in violation of the Fourteenth Amendment’s due process clause. See In re Commitment of Bohannan , No. 10

- 0605, 2012 WL 3800317, at **4

- 5 (Tex. Aug. 31, 2012). He also contends that the Court eliminated the requirement that the person must have “serious difficulty controlling behavior.” But the Court did neither

. Bohannan did not eliminate any proof require d by the statute for a sexually

violent

- predator finding , nor did the Supreme Court change the statute or render it unconstitutional

. A requirement for finding someone a sexually violent predator is that the person must suffer from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence. See Tex. Health & Safety Code Ann. §
84 1 .003(a). The Supreme Court state d that after “ [ b ] oiling it down,” the definition of behavioral abnormality is “‘a . . . condition that . . . predisposes’ sexually violent conduct.” In re Commitment of Bohannan , 2012 WL 3800317, at *4. The Court explain ed that “condition and predisposition are one and the same[,]” and the question of “whether a person ‘suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence’ is a single, unif ied issue.” Id . at **4

- 5.14 This Court and the Third Court of Appeals have addressed arguments similar to those made by appellant, and noted that s erious difficulty controlling behavior is embedded in the definition of “behavioral abnormality.” See In re Commitment of Almaguer , 117 S.W.3d 500, 502

- 07 (Tex. App.

— Beaumont 2003, pet. denied) (holding
that no separate definition of emotional or volitional capacity as meaning serious difficulty controlling behavior was necessary); In re Commitment of Browning , 113
S. W .3d 851 , 862

- 63 (Tex. App.

— Austin 2003, pet. denied) (holding that no separate jury question of serious difficulty controlling behavior was necessary). We said in Almaguer : The statutory criteria submitted to the jury under the Texas statute in this case describe s the severity of the behavioral abnormality and the severity of the danger which must be present to subject the person to civil commitment. The statutory definition describes behavior caused by an abnormality that makes the person a menace t o the health and safety o f another person. See § 841.002(2). In answering the question submitted to it, the jury found that Almaguer suffers from a behavioral abnormality that “predisposes” him, and makes him “likely,” to engage in a predatory act of sexua l violence, to the extent that he is a menace to the health and safety of another. See §§ 841.002(2), 841.003. In re Commitment of Almaguer , 117 S.W.3d at 505. The Austin Court of Appeals previously explained: A finding that a person suffers from an emoti onal or volitional defect so grave as to predispose him to threaten the health and safety of others with acts of sexual violence entails a determination that he has “ serious difficulty controlling behavior. ” In re Commitment of Browning , 113 S.W.3d at 863 (citing In re Commitment of Mullens , 92 S.W.3d at 884

- 87 (evidence relating to defined abnormality legally sufficient to prove15 serious difficulty in controlling behavior)). An affirmative answer to the question of whether a person suffe rs from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence necessarily entails a determination that he has serious dif ficulty controlling behavior. As the United States Supreme Court stated in
Kansas v. He ndricks , “[W]e have never required State legislatures to adopt any particular nomenclature in drafting civil commitment statutes. Rather, we have traditionally left to legislators the task of defining terms of a medical nature that have legal significance. ” Kansas v. Hendricks , 521 U.S. 346, 359, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). We do not read the Bohannan opinion as el iminat ing a statutory requirement , or as altering the proof required under the statute to find that a person is a sexually violent predator

. We overrule the issue in Anderson’s supplemental brief. Appellant’s issues are overruled. T he trial court’s judgment is affirmed

. AFFIRMED.

_____________________________ DAVID GAULTNEY Justice Submitted on August 1, 2012 Opinion Delivered January 24, 2013 Before McKeithen, C.J., Gaultney and Horton, JJ.