NUMBER 13-16-00614-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

IN RE THE COMMITMENT OF SANTOS GOMEZ III

 

On appeal from the 103rd District Court

of Cameron County, Texas.

 

OPINION

Before Justices Rodriguez, Benavides, and Longoria 

Opinion by Justice Rodriguez

On August 17, 2016, a jury found beyond a reasonable doubt that Santos Gomez 

III is a sexually violent predator (SVP). See TEX. HEALTH & SAFETY CODE ANN. § 

841.003(a) (West, Westlaw through 2017 1st C.S.). The district court received the jury’s 

verdict, adjudged Gomez as an SVP, and civilly committed him for sex-offender treatment 

and supervision. By three issues, Gomez contends: (1)–(2) the evidence is legally and 

factually insufficient to find that he is an SVP because there was no mental health 

diagnosis and, if none was required, there was such an analytical gap in the State’s 
2

expert’s reasoning that a diagnosis recognized by the Diagnostic and Statistical Manual 

for Mental Disorders, 5th edition (DSM-V) should have been required; and (3) the trial 

court erred in allowing the State’s expert to testify about the Psychopathy ChecklistRevised (PCL-R) and Gomez’s psychopathic traits because that testimony did not lead 

to a mental health diagnosis. We affirm.

I. BACKGROUND

A. Prior Convictions

On May 30, 2008, in Cause No. 04-CR-511-D, a Cameron County District Court 

revoked Gomez’s probation and convicted Gomez of five counts of aggravated sexual 

assault of a child, see TEX. PENAL CODE ANN. § 22.021 (West, Westlaw through 2017 1st 

C.S.), and one count of indecency with a child (by contact), see id. § 21.11(a)(1) (West, 

Westlaw through 2017 1st C.S.), and sentenced him to a ten-year term of imprisonment. 

That same day, the same court, in cause No. 07-CR-1945-D, convicted Gomez of two 

counts of aggravated sexual assault of a child and sentenced him to a ten-year term of 

imprisonment. See id. § 22.021.

B. Civil Commitment Proceeding

On January 14, 2016, the State filed its original petition for civil commitment. See 

TEX. HEALTH & SAFETY CODE ANN. §§ 841.001–.153 (West, Westlaw through 2017 1st 

C.S.). It alleged that Gomez is an SVP and requested that he be committed for treatment

and supervision. See id. § 841.003(a). 

1. SVP Law

Under Texas law, a person can be found to be a “sexually violent predator” if the 

person: “(1) is a repeat sexually violent offender; and (2) suffers from a behavioral 
3

abnormality that makes the person likely to engage in a predatory act of sexual violence.” 

Id. A “[b]ehavioral abnormality” is “a congenital or acquired condition that, by affecting a 

person’s emotional or volitional capacity, predisposes the person to commit a sexually 

violent offense, to the extent that the person becomes a menace to the health and safety 

of another person.” Id. § 841.002(2).

2. Gomez’s Testimony

Gomez’s commitment proceeding was tried to a jury. Gomez testified regarding 

his prior convictions. He explained that the first six offenses involved his girlfriend’s 

twelve-year-old sister and occurred when he was living with his girlfriend’s family. 

Gomez agreed that, in his opinion, this sexual contact was consensual. He further 

testified that it only happened once, yet acknowledged that, in his voluntary written 

statement to police, he had said that it happened on other occasions. The trial court 

admitted this statement into evidence. Gomez further acknowledged that he was 

convicted of five counts of aggravated sexual assault against this child, offenses that 

happened on different dates. The trial court placed Gomez on probation for this 

conviction but, as Garcia testified, the court revoked his probation, in part, because he 

was alone with his minor daughters, then ages one and two, on several occasions during 

his probation. The sexual acts that occurred when he was with his daughters resulted in 

his subsequent conviction for sexually assaulting minor children. Although Gomez 

denied the acts, he agreed that he told police they occurred, as reflected in his statement 

that the court admitted as a trial exhibit. Gomez stated that he had lied to the police 

because he was under the influence of drugs and alcohol and he was sleep deprived—

everything was “like a blur” and he would just “say ‘yes’ or ‘no’ to questions so they could 
4

stop asking [him] questions.” Gomez also acknowledged his conviction for these 

offenses.1

3. The Experts’ Testimony

The State called expert forensic psychologist Stephen Thorne, Ph.D., as a witness. 

Gomez presented forensic psychologist and neuropsychologist Antoinette McGarrahan, 

Ph.D., to testify in his defense. Both witnesses examined Gomez prior to testifying. 

a. General Definitions and Methodologies

Each expert provided the jury with the statutory definition of “behavioral 

abnormality” found in chapter 841 of the Texas Health and Safety Code. See id. Each 

expert presented similar understandings of the definition’s various components. They 

agreed that the methodology employed when conducting behavioral abnormality 

evaluations includes reviewing records, conducting a personal interview, performing 

psychological and/or actuarial testing, and applying the relevant research to the specific 

case. The experts testified that the use of this methodology is the accepted standard in 

the field of forensic psychology.

b. PCL-R—a Psychopathic Checklist

Each expert utilized the PCL-R to determine whether Gomez met the criteria as a 

psychopath, as required by statute. See id. § 841.023(a). Dr. Thorne defined a 

“psychopath” as “somebody who’s thought to be kind of an aggressive, violent narcosis, 

 

1 The trial court in this civil-commitment case took judicial notice that aggravated sexual assault of 

a child under section 22.021 of the penal code, and indecency with a child (by contact) under section 

21.11(a)(1) of the penal code are sexually violent offenses for the purposes of chapter 841 of the health 

and safety code. See TEX. HEALTH & SAFETY CODE ANN. § 841.002(8)(A) (West, Westlaw through 2017 1st 

C.S.); TEX. PENAL CODE ANN. §§ 21.11(a)(1), 22.021 (West, Westlaw through 2017 1st C.S.).
5

that they are very self-centered, that they use people to their advantage, that they don’t 

have empathy or remorse towards other individuals, and that they’re more likely to 

engage in wide-ranging antisocial and criminal acts.” 

Dr. Thorne scored Gomez as a 23 on this test of twenty items, each rated at a 

zero, one, or two. He explained that a score of 23 out of a possible 40 placed Gomez 

“in the moderate range of psychopathic traits,” but not with a diagnosis of psychopath.2 

Dr. Thorne testified that Gomez exhibited the following traits: lack of remorse, elevated 

self-esteem, impulsiveness, an extensive history of lying, lack of responsibility, and 

inability to follow the terms of his mandatory supervision.

According to Dr. McGarrahan, Gomez received her PCL-R score of 12, indicating 

that he has a low level of psychopathic characteristics. She explained that she found the 

following traits definitely present: lack of remorse or guilt, promiscuous sexual behavior,

and behavior that resulted in the revocation of his probation. Dr. McGarrahan agreed 

that, like “[m]ost people,” Gomez had psychopathic characteristics. She agreed with Dr. 

Thorne that Gomez does not meet the criteria under the PCL-R to be diagnosed as a 

psychopath.

c. Static-99R—Evaluation of Static Risk Factors

The experts testified that each used the Static-99R. They explained that the 

Static-99R is an actuarial instrument that assesses someone’s likelihood of engaging in 

a certain act in the future. Dr. McGarrahan stated that the Static-99R tests for “ten [static 

or unchanging] risk factors that go into sexual violence, engaging in sexual violence in 

 

2 Dr. Thorne explained that he uses 30 or above on the PCL-R as indicative of a psychopath, while 

others use 25.
6

the future.” 3 According to Dr. Thorne, he used the Static-99R and its relevant, 

researched risk factors to assess Gomez’s likelihood of committing a sexual offense in 

the future.

Both experts scored Gomez a 5, which, according to Dr. Thorne, places him in the 

moderate-to-high risk range, and, according to Dr. McGarrahan, places him “in the 

moderate range of the higher end of moderate for engaging in a sexually violent offense 

in the future.” 4 While Dr. McGarrahan believed the Static-99R accurately reflected 

Gomez’s risk of reoffending, in her opinion, his score did not change whether or not 

Gomez suffers from a behavioral abnormality.5 Each testifying expert reviewed his or 

her scoring sheet with the jury, explaining the scores and the reasons for them.6

d. Other Risk Factors

Both Drs. McGarrahan and Thorne agreed that Gomez has a history of sexual 

deviance, which, according to Dr. Thorne, is one of the biggest risk factors that increases 

somebody’s risk of future sexual offending. But Dr. McGarrahan testified that she did 

 

3 Dr. McGarrahan identified and explained the relevance of the static risk factors that she evaluated 

on this test, including among others: age, living arrangements, non-sexual violence convictions, prior sex 

offenses, and acts involving strangers.

4 Dr. Thorne testified that the records contained an earlier Static-99R assessment by another 

professional. Gomez also received a positive 5 score from that evaluation.

5 According to Dr. McGarrahan, “someone with a score of 5 is 2.7 times [more] likely to engage in 

sexual recidivism” than “your average, or routine, sex offender who scores a 2.” Dr. McGarrahan also 

employed the forensic version of the Sexual Risk Assessment, which she described as an instrument that 

looks at non-static risk factors. She scored Gomez a 2.16, which, according the Dr. McGarrahan, means 

that he is at “a moderate level of need.”

6 Dr. Thorne explained that while the results of the PCL-R and the Static-99R do not say whether 

a person suffers from a behavioral abnormality, “[t]hey’re pieces to the puzzle.”
7

not believe that Gomez “would engage in predatory acts of sexual violence” in the future 

because “the sexual offenses he has, in [her] opinion, are not predatory in nature.”7 

In his assessment of other risks of sexual reoffending, Dr. Thorne testified that he 

diagnosed Gomez with pedophilic disorder.8 Dr. McGarrahan testified that she did not 

arrive at such a diagnosis. And even if she had diagnosed Gomez with pedophilia, Dr. 

McGarrahan agreed that Gomez would still not be likely to engage in a predatory act of 

sexual violence because a person can suffer from pedophilic disorder and not suffer from 

a behavioral abnormality.

Dr. Thorne also acknowledged that Gomez had previously been diagnosed with 

major depressive disorder. According to Dr. Thorne, Gomez had a history of depression, 

and a person can become so depressed that it affects their judgment. He explained that, 

according to the records, Gomez previously tried to kill himself, which demonstrates an 

impulsivity that Dr. Thorne considered relevant.

Dr. Thorne also determined that Gomez “probably meets the criteria for multiple 

drug-related diagnoses.” Yet, while listing Gomez’s past substance abuse as a risk 

factor for Gomez and agreeing that he would need substance abuse treatment, Dr. 

McGarrahan noted that, in her opinion, this risk factor did not predispose Gomez to 

commit a predatory act of sexual violence, only sexual violence.

 

7 Dr. McGarrahan explained that Gomez’s offenses are not included in the definition of “predatory 

act” because “those incest offenses[, such as the acts committed against his daughters and his girlfriend’s 

sister,] are not typically viewed in the psychology field as being predatory.”

8 According to Dr. Thorne, a pedophilic disorder requires a period of at least six months during 

which an adult displays sexual interests, behaviors, or thoughts about pre-pubescent children as those 

thirteen years of age or younger. He explained that a pedophilic disorder is a congenital or acquired 

condition that would affect Gomez’s emotional or volitional capacity.
8

Finally, Dr. Thorne explained that although he did not diagnose Gomez with 

antisocial personality disorder, he did assign Gomez a V-Code condition—not a DMS-V 

diagnosis—of adult antisocial behavior. Dr. Thorne described antisocial behaviors as 

“[i]llegal behaviors, behaviors that violate the safety or the well-being, the health of other 

individuals that are kind of against the traditional [legal and social] norms.”9 According 

to Dr. Thorne, antisocial behavior is another of the biggest risk factors for sexually 

reoffending. Dr. Thorne testified that Gomez exhibited traits of antisocial behavior, 

including being convicted for sex offenses, being convicted for stealing beer from a 

convenience store, being detained at the border for purchasing animal tranquilizers, using 

a variety of illegal drugs, and having multiple disciplinary cases in prison. Dr. 

McGarrahan testified that she also saw some antisocial traits in Gomez, including being 

irresponsible in the past, not being completely honest in the past, and having trouble with 

the law.10 According to Dr. McGarrahan, she did not, however, feel that Gomez “met the 

full criteria for antisocial personality disorder” because such traits must be exhibited prior 

to age fifteen and she did not see any indication of such conduct disorder prior to age 

fifteen for Gomez.

Other risk factors Dr. Thorne found for Gomez included having a non-familial victim 

and reoffending sexually while on probation for a sexually violent offense. 11 Dr. 

 

9 Dr. Thorne agreed that some of the psychopathic traits are similar to those found in someone 

with antisocial behavior traits.

10 Dr. McGarrahan identified other typical antisocial behaviors, including “talking about harming 

other people, engaging in fire setting, cruelty to animals, things that then go on to be indicative of hurting 

humans down the road.” She did not testify that Gomez exhibited these behaviors.

11 According to Dr. Thorne, while research suggests that successfully completing sex offender 

treatment lowers a person’s risk to reoffend sexually, persistence after punishment is a risk factor with 

“significantly higher levels of sexual recidivism.” Gomez was court-ordered into sex offender treatment as 
9

McGarrahan also found, as a risk factor, that Gomez was offending after punishment and 

while on probation.

e. Protective or Mitigating Factors

In addition, the experts testified about protective or mitigating factors that lower a 

person’s risk for sexual reoffending. Dr. McGarrahan testified that Gomez does not have 

any protective factors that would reduce his risk of reoffending, while Dr. Thorne 

summarized the following protective factors he found for Gomez: he is not a psychopath, 

he has no stranger victims, and he has no male victims. Good social support is 

theoretically a protective factor, but Dr. Thorne did not believe this was so for Gomez 

because he enjoyed a good support system at the times he committed his sexual 

offenses. Finally, it is undisputed that Gomez was, at the time of trial, in the early stages 

of a nine-month sex-offender-treatment program through the Texas Department of 

Criminal Justice. Dr. Thorne testified that Gomez had talked about all of his offenses in 

treatment, but had not admitted to all of them, so Gomez’s treatment was not yet a 

protective factor.

f. The Experts’ Opinions

Both experts evaluated Gomez and offered opinions as to whether Gomez suffers 

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

violence. See id. For the State, Dr. Thorne opined that Gomez does suffer from such 

a behavioral abnormality. See id. For the defense, Dr. McGarrahan testified that 

 

part of his original probation, and he testified that he learned relapse prevention and reported that he 

successfully completed an eighteen-month program. Yet, as Dr. Thorne noted, Gomez reoffended after 

treatment. Dr. Thorne identified reoffending against new sexual victims while on probation is another big 

risk factor.
10

Gomez does not. See id. Importantly, neither expert assigned a specific mental health 

diagnosis to Gomez in arriving at their respective opinions.

4. Final Judgment and Order of Commitment

On August 17, 2016, after the parties rested, the trial court directed a partial verdict 

that Gomez is a repeat sexually violent offender, the first element required for 

commitment under the SVP statute. 12 See id. § 841.003(a). The jury returned a 

unanimous verdict finding that Gomez is a sexually violent predator, thereby, implicitly 

finding the remaining required element—that he suffers from a behavioral abnormality 

that makes him likely to engage in a predatory act of sexual violence. See id.

§ 841.002(2). The trial court entered a final judgment reflecting the jury’s verdict and 

ordered that Gomez be civilly committed. After the trial court denied his motion for new 

trial, Gomez filed this appeal.

II. LEGAL SUFFICIENCY OF THE EVIDENCE13

By his first issue, Gomez challenges the legal sufficiency of the evidence to support 

the jury’s conclusion that he is an SVP—that he suffers from a behavioral abnormality 

that makes him likely to engage in a predatory act of sexual violence. He contends the 

 

12 Gomez does not challenge this ruling on appeal.

13 Gomez also challenges the factual sufficiency of the evidence in his second issue. But to 

preserve this issue for appeal, a complaint challenging the factual sufficiency of the evidence to support a 

jury finding in a civil case, must be urged in a motion for new trial, see TEX. R. CIV. P. 324(b), and ruled on 

by the trial court. See TEX. R. APP. P. 33.1(a); Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991) (“A point 

in a motion for new trial is a prerequisite to complain on appeal that the evidence is factually insufficient to 

support a jury finding . . . .”); Arroyo Shrimp Farm, Inc. v. Hung Shrimp Farm, Inc., 927 S.W.2d 146, 149 

(Tex. App.—Corpus Christi 1996, no writ) (same); see also In re Commitment of Day, 342 S.W.3d 193, 

206–17, (Tex. App.—Beaumont 2011, pet. denied) (reviewing a civil commitment case for factual 

sufficiency where a motion for new trial concerning factual sufficiency). Because Gomez did not raise 

factual sufficiency in his motion for new trial, he did not preserve this factual-sufficiency issue for appellate 

review. We overrule Gomez’s second issue.
11

evidence is legally insufficient because, to establish a “behavioral abnormality,” the State 

must show that Gomez was diagnosed with a mental health condition recognized by the 

DSM-V, and there was no such diagnosis here. In the alternative, Gomez asserts that 

even if we conclude that such a DSM-V recognized diagnosis is not necessary, the 

evidence is legally insufficient because “[t]here is simply too great an analytical gap 

between” the State expert’s diagnosis of a V-Code condition—adult antisocial disorder—

and the ultimate conclusion that Gomez suffers from a behavioral abnormality. See 

Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 727 (Tex. 1998) (providing that a 

court may reject an expert’s testimony when “there is simply too great an analytical gap 

between the data and the opinion proffered”).

The State responds that its expert’s use of a V-Code condition to note that Gomez 

has antisocial personality traits does not render his opinion legally insufficient. The State 

reasons that the evidence is sufficient because the SVP statute does not require a mental 

health diagnosis as a prerequisite to commitment, case law supports civil commitment 

without a mental health diagnosis, and the standard methodology used by evaluators 

does not include making diagnoses. The State asserts that when all of the evidence is 

viewed in a light most favorable to the verdict, the evidence is legally sufficient to support 

the verdict, and there is no analytical gap.

A. Standard of Review

In SVP cases, the State must prove the elements of its case beyond a reasonable 

doubt. See id. § 841.062(a). Because the statute places upon the State the burden of 

proof employed in criminal law, we adopt the appellate standard of review in criminal 

cases for legal sufficiency of the evidence, as did the Beaumont Court of Appeals in In re 
12

Commitment of Mullens. See 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet. 

denied) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

In a legal sufficiency review, this Court reviews all of the evidence in a 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. Id.; 

see In re Commitment of Anderson, 392 S.W.3d 878, 881 (Tex. App.—Beaumont 2013, 

pet. denied); see also TEX. HEALTH & SAFETY CODE ANN. § 841.003(a).

B. Discussion

1. No Mental Health Diagnosis Is Required in a Behavioral Abnormality 

Evaluation

Neither expert included making a mental health diagnosis as part of the standard 

methodology employed in behavioral abnormality evaluations. Both experts testified, 

and we agree that there is no statutory requirement of a mental health diagnosis to civilly 

commit a person as an SVP; chapter 841 reveals no requirement of a diagnosis. See 

TEX. HEALTH & SAFETY CODE ANN. §§ 841.001–.153.

Rather, section 841.023(a) of the SVP statute provides the only statutory directive 

to an examining expert: “[t]he expert shall make a clinical assessment based on testing 

for psychopathy, a clinical interview, and other appropriate assessment and techniques 

to aid the department in its assessment.” Id. § 841.023(a).

The Texas Legislature enacted the SVP statute in 1999 after the United States 

Supreme Court decided Kansas v. Hendricks. See 521 U.S. 346, 356–59 (1997) 

(considering the Kansas equivalent to the Texas SVP statute and dismissing the 

argument that a finding of a mental illness was a prerequisite to commitment). The 
13

Hendricks Court ultimately determined that legal definitions “need not mirror those 

advanced by the medical profession” and concluded that Hendricks’s pedophilia 

diagnosis qualified as his mental abnormality. Id.

The legislature made major revisions to the SVP statute in 2015,14 after the Texas 

Supreme Court decision in In re Commitment of Bohannan.

15

 388 S.W.3d 296, 306 (Tex. 

2012) (“A medical diagnosis of a person’s mental health may certainly inform an 

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

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

predisposed to sexually violent conduct.”); see also In re Commitment of Pickens, No. 09-

14-00391-CV, 2016 WL 821426, at *2 (Tex. App.—Beaumont Mar. 3, 2016, pet. denied) 

(mem. op.) (“A diagnosis of a mental disorder is not a prerequisite for civil commitment.”) 

(citing In re Commitment of Richard, No. 09-13-00539-CV, 2014 WL 2931852, at *2 (Tex. 

App.—Beaumont June 26, 2014, pet. denied) (mem. op.), cert. denied, 135 S.Ct. 1747 

(2015) (holding that the expert “was not required to make any mental diagnosis”)).16 But 

the 2015 revisions made no changes to the definitions of “behavioral abnormality” or 

 

14 Effective June 17, 2015, Senate Bill 746 amended Chapter 841 of the Texas Health and Safety 

Code in several respects. See Act of May 21, 2015 84th Leg., R.S., ch. 845, 2015 Tex. Sess. Law Serv. 

2701, 2701–12.

15 At issue in In re Commitment of Bohannan was the exclusion of expert testimony because the 

expert was neither a psychologist nor a psychiatrist. 388 S.W.3d 296, 302 (Tex. 2012). The Bohannan 

Court considered what had to be proven in a civil commitment proceeding and who could prove it. See id.

at 302–06.

16 Because the Beaumont Court’s decisions are not binding on this Court, Gomez asks us to 

consider on our own whether a mental health diagnosis is required. We do consider on our own whether 

such a mental health diagnosis is required; however, the Beaumont Court opinions are well reasoned and 

provide guidance for this Court. See Thomas v. Cook, 350 S.W.3d 382, 395 n.2 (Tex. App.—Houston 

[14th Dist.] 2011, pet denied); see also Garza v. Deleon, No. 13-13-00342-CV, 2013 WL 6730177, at *5 

(Tex. App.—Corpus Christi Dec. 19, 2013, no pet.) (mem. op.).
14

“SVP.” See TEX. HEALTH & SAFETY CODE ANN. §§ 841.002(2), (9); 841.003(a). The 

revisions did not add a requirement of a formal diagnosis. When the legislature meets 

after a particular statute has been judicially construed, as in this case, and does not 

change the statute, the courts presume that the legislature agreed with the construction. 

See Miller v. State, 33 S.W.3d 257, 260 (Tex. Crim. App. 2000) (on reh’g en banc) (“When 

a statute is reenacted without material change, it is generally presumed that the 

legislature knew and adopted or approved the interpretation placed on the original act, 

and intended that the new enactment should receive the same construction as the old 

one.”); see also Grapevine Excavation, Inc. v. Maryland Lloyds, 35 S.W.3d 1, 5 (Tex. 

2000) (“It is a firmly established statutory construction rule that once appellate courts 

construe a statute and the Legislature re-enacts or codifies that statute without substantial 

change, we presume that the Legislature has adopted the judicial interpretation.”). 

Our review of the SVP statute reveals no requirement of a mental health diagnosis. 

The courts have interpreted the SVP statute to require no formal diagnosis, with no 

legislative changes after such interpretation. The experts in this case acknowledged that 

a diagnosis is not included in the methodology. Likewise, we conclude that the absence 

of a formal diagnosis is not fatal to this sufficiency review.

2. Dr. Thorne’s Opinion Was the Result of Reasoned Judgment; There 

Was No Analytical Gap

Alternatively, Gomez asserts that, should we decide that a diagnosis is not 

required, at least in this case, there should be an exception to not requiring a diagnosis. 

See Bohannan, 388 S.W. at 303. Gomez argues that, here, there is no question that the 

DSM-V does not recognize someone as having a diagnosis of adult antisocial behavior. 
15

But because the State’s expert used a V-Code condition to help prove “behavioral 

abnormality,” he should be required to do so through an actual DSM-V recognized 

diagnosis.17 Gomez asserts that there is simply too great an analytical gap between the 

identification or diagnosis of a V-Code condition and the conclusion that Gomez’s suffers 

from a behavioral abnormality. See Gammill, 972 S.W.2d at 727 (discussing whether 

“there is simply too great an analytical gap between the data and the [expert’s] opinion 

offered”). Without an actual DSM-V recognized diagnosis, Gomez asserts that the 

evidence is legally insufficient to support a jury’s conclusion that Gomez suffers from a 

behavioral abnormality. In this case, we disagree.

Gomez’s arguments have been rejected in other courts. The Beaumont Court of 

Appeals found that an expert used “reasoned judgment based upon established research 

and techniques for his profession” when the expert reviewed historical records of the 

person’s behaviors, personally interviewed the person, and employed the actuarial tools 

that are recognized and utilized in his profession to determine conditions and evaluate 

levels of risk. See In re Commitment of Day, 342 S.W.3d 193, 204 (Tex. App.—

Beaumont 2011, pet. denied). In other SVP cases, the courts have determined that the 

expert used reasoned judgment based upon established research and techniques for his 

profession when the expert reviewed the records and interviewed the person, was 

licensed in the expert’s field, conducted the evaluation in accordance with the accepted 

standards of the expert’s field, and explained how he used the records to reach his 

opinions. See In re Commitment of Dodson, 434 S.W.3d 742, 750 (Tex. App.—

 

17 Gomez does not identify the DSM-V recognized diagnoses that he claims the State’s expert 

should have used.
16

Beaumont 2014, pet. denied); see also In re Commitment of Kalati, 370 S.W.3d 435, 438–

39 (Tex. App.—Beaumont 2012, pet. denied).

In this case, the State’s expert was licensed in his field and followed the standard 

accepted practices in conducting his evaluation of Gomez. Dr. Thorne testified that he 

reviewed the types of records standard for these evaluations and explained how he used 

the records to arrive at his opinion.18 He used instruments accepted by his profession 

for these types of evaluations. According to Dr. Thorne, he assessed risk and named 

risk factors for Gomez, finding that the following were Gomez’s greatest risk factors: 

[H]e has a documented history of sexual deviancy with three separate child 

victims, and . . . after pleading guilty to the initial sexual offenses and 

receiving a probation sentence, he reoffended against two new sexual 

victims while on probation. And even outside of those offenses, there is 

some evidence in the records of additional sexually deviant behavior and 

additional antisocial behavior.

Dr. Thorne agreed that, in his expert opinion, Gomez suffers from a behavioral 

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

We cannot conclude that there was too great an analytical gap between his 

methodology, his reasoning, and the opinion he offered. See Gammill, 972 S.W.2d at 

727; see also TEX. R. EVID. 702. Instead, we conclude that Dr. Thorne’s opinion was 

reasoned and based upon established research and techniques for his profession. See 

Day, 342 S.W.3d at 204; Dodson, 434 S.W.3d at 750; Kalati, 370 S.W.3d at 438–39.

 

18 We note that Dr. Thorne originally said he “diagnosed [Gomez] with something called adult 

antisocial behavior, which is something we call a ‘V-Code.’” Thorne later clarified that a “V-Code” is not 

the same as a diagnosis, “it’s listed as a condition in the DSM.” 

We cannot conclude that Dr. Thorne’s testimony misled the jury. It was free to discount Dr. 

Thorne’s opinion if they felt that his methodology and the bases for his opinion, including the V-Code 

condition of adult antisocial behavior, were not sufficient to support the expert’s opinion. See City of Keller 

v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (“Jurors are the sole judges of the credibility of the witnesses 

and the weight to give their testimony.”). This Court cannot impose its opinions to the contrary. Id.
17

Moreover, our review of the evidence set out above supports the jury’s verdict. It 

was entitled to draw reasonable inferences from basic facts to determine ultimate fact 

issues. See Anderson, 392 S.W.3d at 882. The jury was entitled to resolve conflicts 

and contradictions in the evidence by believing all, part, or none of a witness’s testimony. 

See id.; City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).

Considering all the evidence in the light most favorable to the verdict, we conclude 

that a rational jury could have found beyond a reasonable doubt that Gomez suffers from 

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

violence. See Mullens, 92 S.W.3d at 885. So the evidence is legally sufficient to 

support Gomez’s civil commitment as an SVP.

C. Summary

We have rejected each of Gomez’s arguments in support of his first issue, and we 

have instead concluded that: no diagnosis was required; there was no analytical gap 

between Dr. Thorne’s methodology, his reasoned judgment, and his proffered opinion 

such that an exception, if any, to the no-diagnosis requirement applied; and the evidence 

was legally sufficient to support Gomez’s civil commitment. We overrule Gomez’s first 

issue.

III. ADMISSION OF TESTIMONY REGARDING THE PSYCHOPATHY CHECKLIST (PCL-R)

AND GOMEZ’S PSYCHOPATHIC TRAITS

By his third issue, Gomez contends the trial court abused its discretion when it 

admitted Dr. Thorne’s testimony about the PCL-R because it did not lead to a diagnosis. 

He also complains that the trial court abused its discretion when it admitted Dr. Thorne’s 

testimony about Gomez’s psychopathic traits because it did not lead to a diagnosis and 
18

because it was irrelevant in determining whether Gomez suffers from a behavioral 

abnormality that makes him likely to engage in a predatory act of sexual violence. See 

TEX. R. EVID. 401 (providing that evidence is relevant if: (1) it has any tendency to make 

a fact more or less probable than it would be without the evidence; and (2) the fact is of 

consequence in determining the action). The State responds that to the extent Gomez 

preserved the issue, the trial court did not abuse its discretion because it was guided by 

the rules of evidence and the SVP statute when it allowed the State’s expert to testify 

about testing Gomez for psychopathy and the traits he believed Gomez exhibited. We 

agree with the State.

A. Standard of Review

We review evidentiary rulings for an abuse of discretion. Bay Area Healthcare 

Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per curiam); City of Brownsville 

v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial court abuses its discretion when 

it acts without regard for guiding rules or principles. Owens–Corning Fiberglas Corp. v. 

Malone, 972 S.W.2d 35, 43 (Tex. 1998).

B. Discussion

Dr. Thorne testified that the second edition of the PCL-R is an instrument typically 

scored by forensic psychologists performing behavioral abnormality evaluations. He 

explained that the test does not determine whether a person has a behavioral 

abnormality. But, Dr. Thorne further explained that the SVP statute requires the person 

be tested for psychopathy and that the PCL-R is “an instrument that’s commonly used in 

forensic cases to determine whether or not somebody meets the criteria as a 

psychopath.” See TEX. HEALTH & SAFETY CODE ANN. § 841.023(a). At trial, over 
19

Gomez’s objection, the State moved to display the PCL-R checklist. After being 

informed that the PCL-R results were a part of Dr. Thorne’s report, the trial court admitted 

it.

In sum, Dr. Thorne testified that, with a range of 0 to 40, Gomez’s score of 23 on 

the PCL-R “places him in the moderate range of psychopathic traits.” Dr. Thorne testified 

that he did not believe that Gomez is a true psychopath but that Gomez does have some 

psychopathic traits. Additionally, Gomez’s expert, Dr. McGarrahan, testified that she 

utilized the same instrument, scored Gomez as a 12, and identified certain psychopathic 

traits she saw in Gomez. Dr. McGarrahan also referred to the PCL-R as “the gold 

standard in our field for looking at whether somebody’s a psychopath.”

We find nothing objectionable in this testimony. Instead, the rules of evidence 

allow it, and the SVP statute requires it. Drs. Thorne and McGarrahan testified about 

their use of the PCL-R and the results of Gomez’s PCL-R testing for psychopathy. The 

SVP statute requires that the expert’s evaluation include testing for psychopathy: “[t]he 

expert shall make a clinical assessment based on testing for psychopathy, a clinical 

interview, and other appropriate assessment and techniques to aid the department in its 

assessment.” Id. And the rules of evidence provide for the disclosure at trial of the 

bases of an expert’s opinion. TEX. R. EVID. 705 (providing for the disclosure of the 

underlying facts or data and the examination of an expert about them). Because the trial 

court followed the rules of evidence and the SVP statute’s requirements, we cannot 

conclude that the PCL-R testing was not relevant as Gomez asserts or that the trial court 

abused its discretion in admitting testimony concerning the PCL-R and Gomez’s 
20

psychopathic traits.19 See id. R. 401, 705; TEX. HEALTH & SAFETY CODE ANN. 841.023(a); 

Bay Area Healthcare, 239 S.W.3d at 234; Owens–Corning Fiberglas Corp., 972 S.W.2d 

at 43; Alvarado, 897 S.W.2d at 753. We overrule Gomez’s third issue. 

IV. CONCLUSION

We affirm the trial court’s judgment of civil commitment.

NELDA V. RODRIGUEZ

Justice

Delivered and filed the 14th 

day of December, 2017.

 

19 We assume without deciding that Gomez preserved his relevancy argument for appeal.