## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 21

- 00417

- CV

___________________________

On Appeal from the 271st Distr ict Court

Wise County, Texas Trial Court No. CV21

- 03

- 136

Before Sudde rth, C.J. ; Kerr and Womack , J J. Memorandum Opinion by J ustice Womack 

### I N RE 

### : T HE 

### C OMMITMENT OF 

### J AMES 

### L AWRENCE 

### B ROWNING2 MEMORANDUM OPINION

I . INT RODUCTION

A fter a jur y found that Appellant James L awrence Brow ning was a sexually
violent pred ator , the trial court si g n ed a final judgme nt and order civilly committing

him

. See Tex. Healt h & S afety C ode Ann. §§ 841.003
, .081. On appeal, Browning

raise s thr ee issues:

1. Is the evidence factually sufficient t o support the jury’s implicit finding that Browning suffers from a behavioral abnormality, an indispensa ble element of a sexually violent p redator inquiry?

2. Did t h e tr ial court reversibly err by limiti ng Browning’s examination of the venire panelists re garding their capaci ty to afford him a fair trial in a case involving a child victim?

3 . Did the trial court reversibly er r by preventing Browning’s expert

w itnes s from ex plaining how her o pinion is informed by the legislative findings?
Holding that (1 ) the evidence is factually sufficient
, (2) t he trial court did not
improp erly limit Browning ’ s examination of the v enire panel
, an d (3) the trial court

did not er r by pr ohibit

ing Browning ’ s ex pert from discussing the legislative findings
,
we overrule Bro w ning ’ s issues and affirm the trial court ’ s judgment.

I I. OVERVIEW

The sta tute g overning th e civil commitment of sexually viole nt predat ors states that a person is a sexually violent predator if the person “(1) is a repeat se xually

violent offender; and (2) suffers from a behavioral abnormality that makes the person

li kely to en gage i n a predato ry act o f sexual violence.” Id. § 8 41.003(a).3

Browning does not disput e that the State met the first prong. The evidence

showed that (1) i n 1985, Browning was convicted of aggravated sexual assault and

received a ten

- y e ar sen t ence ; (2 ) i n March 1994, Br owning was conv icted of indecency

with a child by contact and received a th irty

- five

- year sentence ; and (3) i n July 1994,
Browning was convict ed of sexual assault and received a thirty

- year s entenc e.

R egard ing the second prong , t he statutory definit ion of “behavioral
abnormality” is “a congenital or a cquired condition that, by affecting a person ’ s emotional or volitional capacity , predisposes the per s on to com mit a sexually vi olent

of fense, to the extent that th e person becomes a menace to the health and safety of
another person.” Id. § 841.002(2). A t the heart of the secon d pro ng is t he person ’ s ability to control the behavior

. In re Commit ment of Gonzalez

, No. 0 2

- 21

- 00238

- CV,

20 22 WL 1183219, at *9 (Tex. App

. — Fort Worth Apr. 21, 2022, pet. denied) (mem.

o p.), cert. deni

ed
, 2022 WL 6573224 (

U.S. Oct

. 11 , 2022 ) (

No

. 22

- 5521 ) ; In re
Commitment of Tho mpson , No. 06

- 20

- 00024

- CV, 2020 WL 6066205, at *1 (T ex. App.

—
Texark ana Oct. 15, 2020, p et. denied) (mem. op.).

III. DISCUSSION

A. F actual Insufficiency
In his first issue, Browning claim s that the evi dence is factually insuffic ient to

support finding s beyond a reasonable doubt that Browning (1) is a sex ually viol ent

p r edator
, (2 ) ha d s er ious difficulty controlling his behavior at the time of trial
, and
(3) suffers from a behavioral abnormality that makes him likely to engage in a4

predatory act of sexual violence

. The record, however, con tains factually sufficient
evidence to support each of the challenged findings.

1. Standar d of Review
A properly conducted factual

- sufficiency rev iew in a sexually

- violent

- pred ator
case requires the appel late c ourt to determine whether, on the entire record, a

re aso nab le factfinder could find beyon d a reas onable doubt that t he defen d ant is a
sexually violent predator. In re Commitment of Stoddard , 619 S.W.3d 665, 668 (Tex.
2020)

. When doing s o , the appel late c ourt may not commandeer the jury ’ s role of
determining the witnesses ’ credibility and the weig ht to be given their t estimony

. Id.

I f a reasonable factfinder could d o so , the c ourt presume s that the factfinder resolved
disputed evidence in a manner consis tent with the finding

. Id. Finally, i f

— in light of

the entire record

— the contrary evide nce i s so significant that the fact f inder could not

have made its finding beyond a reasonable doubt , the n the eviden ce supporting the

verdict is factua lly insuff

icient

. Id.

Articulated differen tly, in a sexually

- violent

- predator case, where the burden of
proof is beyond a reasonabl e dou bt, if, in light of the entire re cord, (1) a reasonable

factfinder could not have cr e dited the disputed evidence in fav or of the sexual ly

violent

- predator find ing and (2) the undisputed fa c ts not supporting the finding are s o sig nificant that the fact finder c o uld not have found beyond a reasonable doubt that
the statutory elements were met , then the evidence is factually i nsufficien t

. Id

. at 675.5

The jury alone judge s the credibility of the witnesses and the weight to be giv en their testimony. In re Commitme nt of Mullens , 92 S.W.3d 881, 887 (Tex. App.

— Beaumont 2002, pet. denied)

. W hen resolving conflicts and contradictio ns in the

eviden ce , the jury may believ e all, part, or none of the witnesses ’ testimony. I d

. Further, f rom basic facts
, a jury may draw re asonable inferences to ultimate facts. I d.

This r emains true even w hen jur ies weigh opinion evidence and the judgm ent of

exp erts. Ki

rkpatrick v. Mem ’

l Hosp. of Garland

, 862 S.W.2d 762, 772 (Tex. A pp.

— Dallas

1993, writ denie d) ; see Da vid Rafe s, I nc. v. H uml , No. 01

- 08

- 00856

- CV, 2009 WL

3491043 , at *6 (Tex. App.

— Houston [1st Dist.] Oct. 29, 2009, no pet.) ( mem. op.)

. The jury d ecides which expert to belie ve. Kirkpatrick
, 862 S.W.2d at 772

. “ If the jury

has evidence suf

ficient that reasonable mi n ds could differ, we may not substitute our
judgment f

or tha t of the jury. ” Id

.
2. Application

a . Abnormal Behavior

Browni ng’s three offen ses themselves illustrated behavior that a rational

factfinder could have determined we re well outside the boun ds of normal behavior,
that is, tha t Browning ’ s beh avior was abnorm al

. Br ow ning discussed his offenses
with two ps ychologists, D r. Ti mothy Proct or , who testified on behalf of the Sta te , and

D r. Maris a Mauro , who testif ied on Browning ’ s b ehalf

. Both experts considered their
conversation with Browning and the record when evaluating the nature and
implications of Brown ing’s offenses. See Tex. R. Evid. 703.6 (1) 1985 Ag grav ated Sexual Assault
Regarding Brown ing ’ s first sexual of fense (the 1985 aggravated sexual assault),

Brownin g told both Dr. Proctor and Dr. Mauro that he was angry at the victim
, Cathy
, 1 for not pa ying hi m for some w ork that he had done a nd that he had wanted to
degra de her. According to Browning, Cathy was l ess than tactful when declining to
pay him ; laugh ing at and mock ing him did not help

. Browning bea t her up, g rabbed
her by the ha ir, put her on the ground, bang ed her head agains t the floor, bit her and

left bite marks on her back, choke d her, pulled out her pubic hair, forced her to
perform oral sex on him, and penetra ted her v agina wi th his penis , ca using a

lac eration on her vagina

. Browning had a knife but de nied threatening her with it.
Cathy , however, had allegedly indicated that Browning had use d a knife and had

thr eat ened t o cut of

f her breasts or nipples

. Fi nally
, d uring a depositio n, Browning

stated that hurt i ng her had arouse d him sexually.

(2) Mar ch 1994 I ndecency with a C hild by C ontact

Br owning ’ s second victim w as hi s ten

- or eleven

- year

- old step daughter , Al i ce

. Browning clarified that he was just livin g with the girl ’ s mother ; but the girl called him
dad, so he called her his stepdaughter. H e ackn owledged t o uching her br ea sts and

tou ching or pen etrating her vagin a with hi s finger “ [p]roba bly twi ce ” with the intent
to arouse and gratify his own sexual desire

. Alice alleged that she had touched

1 We use a pseudonym to protect the identit ies of Br o w ning ’ s three victims

. See Tex. R. App. P. 9. 9(a), 9 .10(a) ; 2d Tex. App. (Fort Worth ) Loc. R. 7

.7

Browning ’ s penis , but he asse rt ed t hat she ha d not to uched hi m in any wa y

. At the
time of the offense, Browning was having sex with Alice ’ s mother and three other

w omen. (3) July 1994 Sexual As sault
Browning ’ s third victim was h is f ourt een

- or fi fteen

- year

- old biological

d aug hter , Betty

. Browning re la ted that they had sex three times in three d iffer ent places. Betty put the numb er of occasions at “ up to seven

. ” Rega rding the f i r st time,
Browning explained, “ We went f or a ride on a m otorcycle. And on the way back, we
stopped at the bridge to talk. A nd we [were] l eaning against the bridge, and she put
herself in my lap [,] and we went in the woods and had sex. ” B y h is estimate,

Brown i ng had been estranged fr om Betty s ince 197 6
, 2 but s he came to stay with
Browning at Bro wning ’ s suggestion when she wa s fou rteen or fif teen years old

. The

offenses start ed occur ring within a few weeks after Betty had c ome ba ck into hi s life.
Browning denied threatening Bet ty , b ut the record indicated otherwise

. When

asked what kind of threats Browning ha d allege dly ma de to Betty, Dr. P roctor responded,

Threats about blowing [Betty] away, kill ing her, t hat

-- that he w ould offend against [

Alice] if [Betty] didn ’ t acquiesce
, which, of course, he

--

2 Browning estimated Betty ’ s ag e in 1976 initially at six or seven ye a rs o l d
, revised it to t

wo years o ld, an d then admitted that he did n ot know in what y ea r she ha d been born.8

he

-- he offended against [Alice] anyway. [ 3 ] There ’ s even in dicati ons th at

-- that he ha d t old p eople that he was

-- had traded [B ett y] for drugs an d that the re were other

-- another man, at least, that was going to be able to ha ve sex with her because of that. [ 4 ]

b

. Recidivism

T he evi denc e showed t hat incarceration did n ot d issuade Bro wning fr om

c om mi tting new offenses. Bec ause mandatory supervis ion plays a prominent role i n this discussion, we first explain what mandatory supervision is.
“Mandatory superv

isi on” me ans “the relea se of an e li gible in mate sentenced to

the i ns titutional division s o that the inmate may serve the remainder of the inmate’s
sentence not on parole bu t under the supervision of the pardons and paroles

division.” Tex . Gov’t Code Ann. § 5 08.001 (5). The releas e is man da tory and is
triggered when the in mate meets certain cond itio ns:

§ 508.147

. Release to Mandatory Supervision
(a) Except as provided by Sec tion 508.149, [ 5 ] a parole panel shall order the release of an inmate who is not on par o le to mandatory superv ision wh en the act ual calendar time the i n mate has served plus any ac crued good con duct time equ als the term to which the inmate was sentenced.
(b ) An inmate released to mandatory supervision is considered to be released on parole.

3 Accord ing to the in dictments, the o ffense aga inst A lice occurred on May 31
, 1992, and the offense against Be tty occurred abo ut t wo weeks later, on June 15, 1 992.

4 At trial, Browni ng denied selling Be tty for drugs.

5 This section is entitled “ Inmates Ineli gi ble for Manda t ory Supervision. ” Id. § 508.149

.9 (c) To the extent prac ticable, a rrangeme nts for the inmate’ s p ro per employment, maintena nce , and care mus t be made bef ore the inmate ’ s release to mandatory supervision.

Id. § 508.147. In contrast, parole is a discretionary release: “Parole” means “the

di screti onary and conditi onal re le ase of a n eligible inmate s en t en ced to the

institutional di vision so that the inmate m ay serve the remainder of the inmate’s

sentence und er the supervision of the pardons and paroles division.” Id. § 508.001(6).

(1) 1985 A g grava ted Sexual Assa ult

Brow n ing com mitted th e 1985 aggrav at e d s ex u al assault offense right after

disch arging his mandatory supervision for a non

- sex

- related offense, b urglary of a

habitat ion. Th is meant that Brow ning had already been to pr ison and had been

relea s ed when he committed the aggravated sexual assaul t.

(2) March 1994 I nde cency wit h a C hild by C ontact and July 1994 Sexual Assault

And w hi le Br owning was on mandatory supervision for the 198 5 aggravated

sexual assault, he co m mitted the two other sexual o f fenses. This meant that
Browning had al ready b e en to p rison for a sexual offense when he committed two

more sexual o ffenses.

(3) Sexual Misconduct While in Prison

Br owning ha d two sexual m iscond uct cas e s whil e in prison , which both exp erts

considered wh en making their determinations

. See Tex. R. Evid

. 7 03. The f irst one10

was in 1995, and the se cond on e was in 2007. Both involved indecent exposure. See

Tex. Penal Code Ann. § 21.08.

c . D u el ing Experts

Dr. Procto r concluded that Browning wa s a sexually violent predator

. Dr.

Mauro concluded the contr ar y , that is, that Browni ng was not a sexually vi o le nt

pr e dator. Both Dr. Proctor an d Dr. Mauro s et out their a n a lyses and were subject to

cross

- ex amination. B elow are examples of their analyses on Browning ’ s (1 ) a bility (or i nability

) to c on trol b ehavi or , (2) a ge and i ts s ignificanc e , (3) d escriptions of the o ffenses and t heir i nconsist e nc ies
, (4) i nsight (or l ack t hereof)
, (5) p edophilic d isorder
, (6) i ndicia of s exually s adistic b ehavior
, (7) s u bstance

- a buse i ssues , and
( 8) i mpetus for c ommi tti ng the o ffenses

.
Their o pin ions differe d

. 6

6 As pointed out by Browning in his brief, the trial court admitted much of the testimony with the following proviso:
Keep in mind hearsay generally

-- normally is not admissible.
So in this case, cer t ain he arsay informa tion that are contained in records or reviewed by an expert can be a nd is going to be admitted to you through expert te stimony. These statements are admitted only for11 (1 ) Ability (or Inability ) to Con trol Behavior

Dr. Pro ctor f

ound p a rticular sign if

icance in Browning ’ s committing the first

sex ual offen se af

ter having been in pr i son a nd on mandatory super vision for the
burgla ry offense and , further, in his committing the last two sexual offenses a ft er

servin g a prison sente nce and whil e still on man datory supervision for the first sexual

offense

. The three sexual o ffe ns es showed tha t Bro wning had “ se rious difficulty

cont rolli ng his behavior

. ” D r. P r oc tor also noted th at there wa s a “ pattern tha t the

t hings that typically deter pe ople from reoffen ding were not successfu l wit h him. ”

Ela borati ng, D r. Proctor sa id
, So as I talked about, emotional capacity deals with your psychol og i cal functioning, feelings, em otions, bei ng able to manag e, you r capacity to manage your emotions. I don ’ t think we really got into it, b ut volitional capacity is abou t c on trolling one ’ s behavior and whether someone has serious difficulty controlling be ha v ior. So, like, when you look at his off ending and espec ially o ffending after he had already been convicted
the purpose of showing the basis of the expert ’ s opinion and cannot b e
cons idered as evi dence to prov e the truth of the matter in and of itself stated.

T he court ’ s jury charge contained a comparable caveat : Hearsay is a statement that: 1 ) the declarant does not ma ke while testifying at the current trial or hea ring and 2) a pa rty offers in ev idence to prove the truth of the matter asserted in the statement. Hears ay normally is not admissible. In this case, certain hearsay information contained in records reviewed by an expert or experts was admitted before you through expert testimony. Su ch hearsay was admitted only for the purpose of showing th e basis of the exp ert ’ s opinion and cannot be considered as evidence to prove the truth of the matter asserted.

See T ex. R. Evid. 705(d).12

of a sex offense once an d the n he offends not with one vict im bu t a second vi ctim while he ’ s under supervision, that certainly speaks to emotiona l c apacity, but certainly voliti onal capaci ty.
Finally, Dr . P roctor observed that Browning ’ s behavior w hile in prison wa s not

blemish

- free : “ [T

]here were a couple of sexual misconduct cases once he got to prison

this last time. ” Dr. Proctor st ated that B r owning had e le v en maj o r disciplinary cases,

twenty

- two minor ones, and “ another four or s o that were major but were reduced to

mi no rs

. ” Most of the cases were for not following rules, but a few involved making

threats. “ But, of co urse, ” adde d Dr. Proc to r , “ for ou r purposes, the most striking
thing was that there were two sexual mis condu ct cases. ” D r. Proct or explained their
significance as fo llows:

We ’ re looking at sexual o ffending. Now, typically the kind of offendi ng you ’ re d oing in jai l are n ’ t sex ua l ly violent offenses. They can be, but it

-- it ’ s more often what are called masturbation case, which is w he re an inmate is masturbating towards a guard for sexual gratification. So that very much gets at someone havin g serious d ifficulty c o ntro lling t he i r behavior, even in prison they ’ re still engaging in se xual offense behavior, especially if it ’ s, you kn ow , indicated they ’ re

-- they ’ re doing it for sexual arousal, they ’ re targeting guards for the purpose of masturbat ing in thei r presence. Tha t is ve ry relevant to a behavioral abnormality

- type opinion.

The first sexual misconduct occurred in 19 9 5 : “ So in 1995 there was an

incident where he was masturbating at his cell door in public. So, I mean, that ’ s not

masturba ting in his bed covered up or

-- th a t ’ s standing at the cell door masturbating,

s o tha t

-- that speaks to somebody who is

-- is in te nd ing to be seen. ”

The second sexual miscond uct took place in 2007:13

And then [in 2007] there was

. . . a female officer tha t

. . . he had a n exchange with wh e re he cussed at her [,] and she was the o ne who saw him. So that seems pretty clearly t o be target ing.

Even more so in ’ 07 there was an incident where a

-- an officer came in and

-- to his cell. He was in the bo ttom bun k
, and he exposed h is penis, had a n erection, and began to masturbate his p enis toward

-- you know, in

-- where the offic e r could see

. That, again, is clearly targeting. I mean, he

-- the officer was standing right there [,] and [he] pulled out hi s penis a nd masturbated, so that would

- - t hat would qualify as well.
Dr. Proctor acknowledged that Browning ’ s con d uct im prov ed with time and that
Browning ’ s last disciplinary case was in 2007.

In cont rast, Dr. M auro dis c ounted the significance of Browning ’ s two sexual

mi sc onduct cases

. A l th o u gh she did not dis pute the truth of th e all egati ons, she
effectively disputed their r el evance :
Q. And you failed to consider the sexual misc onduct s in priso n; is that right?

A. O h
, no, I considered them. I just didn ’ t use them as an index offense.
Q

. Ok ay. And you ’ r e aware that the Static [ 7 ] manual includes sexual misconducts as an additional charge or index offense if it ’ s the last offens e for the index; is that correct?

7 According to Dr. Proctor, t he S tatic

- 99 R is the mo st co m mo nly used risk

asses sment mea sure for sexual o ffending. It was not , howe ve r, created specifically for behavioral

- abnormality evalu ation s. Dr. Mauro also used the S tat ic

- 99 R and
, additio nally, the Stat

ic

- 200 2R , which s he describ ed as an actu arial instrum ent that relies on historical data to determine predictive r isk

. Both Dr. Proctor and Dr. Mauro al so use d th e PCL

- R test, which Dr. Proctor said determin es general criminal recidivism but , like the S tatic

- 99 R, was not specifically desi gned to score for a beha vioral abnormality

. Dr. Mauro said that the P CL

- R “ is a historical i nstru ment that measures behavior over the course of t he lifetime. ”14 A. Ye s. I spok e about that on direct.
Q. And you would agree that [Bro wn i n g] re ceived two disciplinar ies for sexual misconduct, right?

A. Yes.
Q. And you would agree that the records stated that he exposed his peni s to an off

icer with, quote , the inte nt to gr atify his sexual desire, right?

A. It says that.

. . . . Q. A nd th e all egation was that he took out h is penis and then stroked it towards tha t officer; is that right?

A. That ’ s what the officer said, when sh e ’ s looking in his cell

. Q

. And you said you wouldn ’ t consider it unless it would be somethi ng illegal in the fre e wor ld; would you agree with that? [ 8 ]

A. Yes.

. . . .

8 Secti on 21.08 of the T exas Pena l Code provides
,

I NDECENCY EXPOSURE
( a) A pe rson commits an of fens e if he exp oses his anus or any part of his genitals with intent to arouse or gr atify the sexual desire of any person, and he is reckless about whe the r a nother is present who will be offen d ed or alarmed by his act.
( b ) An offense un der this section i s a Class B mis demeanor.

T ex. Penal Code Ann. § 21.08.15 Q. Okay. So if someone was in their house standing at a window masturbating towards someone for their own s exu al g ratification, that would be an offense, a sexual offense, correct?

A. I t could, I guess , conceivably. I ’ ve never, you know, seen it, b ut, you know, if there was an obvious intent there.
Q. A nd the other one, he got the dis ciplinary because he was
ma st urbating at his cell door, which was considered a public place because he wasn ’ t hidd en, h e wasn ’ t behind anyth ing, he didn ’ t cover himsel f. He was standing at his cell door masturbating, right?

A. That ’ s what it says.
Q. If someone in the free wor ld was standing at th eir door in their home and someone was outside, that w o u ld be conside red

e xposure; would you agree ?

A. If their door is o pen.

. . . . Q. So if the officer said that [Browning] was masturbating in public where he coul d be viewed, that would be exposur e?

A. That ’ s the officer ’ s opinion on th at in the la ng u age i n their rul e boo k. But clinically s peaking, I didn ’ t feel that it met the criteria for me to count it on the Static.
Q. Okay. And it was more than just an off icer ’ s opinion; it was also the fin di ng of TDCJ that he did this intentional ly?

A. S ur e

.

. . . .
A.

. . . I ’ m not saying that I ’ m not believing the al legations or

-- or write

- ups. I ’ m saying that it doesn ’ t, in my opinion, meet the criteri a that is

-- that is necess ary to c ou nt it as an index offense on the

-- on the Static. I don ’ t think tha t it supports that. But had I, yes, believed that it16

did su pport the requirements to be coun ted as an index, the score would have risen from a 1 to a 2, which is still very sma ll.
Based on the jury ’ s verdict
, Dr . Mauro failed t o per suade th e j uro rs that B rowning ’ s

two sexual misconduct cases w hile in prison had little or no significance

. See Mullens
,
92 S.W.3d at 887

. (2) Age and Its Significanc e
Next, Brow ning stresses his ad vanced age (sixty

- fo ur at the time of the trial )

.
B oth Dr. P r o ctor and Dr . Mauro took Brow n ing ’ s age into account when pe rforming

their analy s e s

— bo th identified it as a mitigating factor

.
Dr. Proct or explained how Brow ning ’ s ag e lowered his risk fa c tor signi ficant l y

yet did not eliminate it:
Q. A nd so when cond u c t ing a beh avioral a bnormality evaluation, do you typically consider protect ive factors?

A. Al ways.
Q. And did you identify any protective fac tors with Mr. Browning?

A. I did.
Q. Which

-- what pr otective factors did you find?

A. Well, the bigge st o ne is a ge. As a g roup, as individuals get older, their risk for reoffense goes down. Obviously [,] i t varies individually, but as a group that ’ s t ru e. So one of the things we look at is his age. Also h e ’ s enrolled in a sex

- offender treatment pr ogram

. I t ’ s the 9

- month pr ogram. H e ’ s stil l in that program. It ’ s

-- it ’ s, you know, not a very length y pro gram, but it still has some protective elements certainly.17 He has some socia l support, namely an aunt and a brother. He doesn ’ t have a lot of so cial supp or t , but there ’ s s ome. Th a t ’ s protecti ve. And then I also noted his increased

-- increase prob ably isn ’ t the best way to say it. His

-- his appar e nt improvement in his behavio r more recently that I hav e mentioned before.
Q. And so I want to ta lk a bout

- - you s aid age is a big p r otective factor for Mr. Browning; is that right?

A. That ’ s right.
Q. And on the Static we even saw that you c o uld lose three points on that ; is that correct?

A. Rig ht. I mean, the reason his score is not, y o u know, prett y
s i gnificant

-- it w ou ld be a 5 otherwise, which would be above average

-- is because of h is ag e subt racting points.
Q. So even on the Static, just his age does not compens ate for all of the other i tems he got a point for?

A. True.
Q. So h e still sco re s in the posit ive?

A. Th at ’ s right.

D r. Maur o also identified Browning ’ s age as a pro tect ive factor, but she

identified it as one of many factors and not necessari ly as the dominant one:
Q. Did he exhibit any protective factors?

A. Yes. In my opini o n, I thi nk he do es

. Q. And which ones were present in this case?

A. So, you know, you can l ook at protective

-- well, protective factors fo r him, some of these are

-- ar e included on the Static, and so I don ’ t want you to think

-- I can never predict how s o mebody is going t o think about what I say, of course, and I don ’ t want there to be li ke a18

tally. So I know this is already included on

-- on the Static, so it ’ s not li ke an extra protective fac tor is what I ’ m trying to say, but i t ’ s ag e.

So

- - so age i s

-- age is prote ct ive, but i t ’ s not something that, you know, adds an extra layer of p rotec tion or something like that beyond what ’ s alread y captured by the Static. It ’ s just clinically speaking and on the Static, age is protectiv e.

He ’ s

-- also he ’ s n o t in

-- i n

-- in th e best physical health. His

-- his offense with [ Cathy

] , with the f

irst victim, was pretty aggressive and violent. I th ink that he would have difficulty engaging in tha t type of offending behavior toda y. Inde ed [,] we haven ’ t se en tha t t ype o f vio lence from him in the prison, certainly in a long time. He ’ s had a fe w fights in prison, but nothing so violent and n ot in

-- not in many years.

Addi tional protective factors would be that he ’ s been in

-- in remissio n from his substance use fo r a lo ng ti me. However, I do need to highlight that if he did become intoxi cated or under the influence of drugs in the future, that in his specific case I would anticipate that would inc rease his risk. But right now he does se em to be in remissio n.

H e d oes h ave t he support of family. We know that life stability is

- - is impor tant for reducing criminal offending, so he does have sup port from his brother, possib le places to live, possibl e work, somebody that ’ s going to be able to help house, feed, and cl o the h im. That ’ s very important to reduce offending.

He ’ s also got a very signi ficant history of having appropriate adult

conse nsua l sexual intimate partner rel ationships. That means th at he is capable of getting his s exual ne eds met, which all p eople h a ve, f rom a n appropriate partner who doesn ’ t need to have a non

- consenting o r a

c hild sexual partner in order to gratify basic hu man sexual needs. He ’ s actually got a pretty lengthy histo ry of girlfriends and wives and t hings. He ’ s been able to co habit at e

. Ironically, as between Dr. Proctor and D r. Mauro, Dr. Procto r app eared to

p lace greater importance on Browning ’ s age as a mitigating factor. Rega rdless, neither

considered Bro wning ’ s age dispositive

. Bro wning ne ver theless argue s that he i s no19

l on g e r a threat due to his age. Browning explained the scope of his po st

- re lease

ambitions: “ I have a brother [,] and I have an aunt, and I ’ ll be living w ith my brother

out in the c ountry. And all I want to do is si t in the ro cking chair. I ’ m 64 years old

.
S i t in a rocking chair and drink some tea and just do time. ”

But a s an appellate court, we ma y not usurp the jury ’ s role in determin ing the
weight to be g

iven the w

itness ’ s testimony. Stoddard , 61 9 S.W.3d at 668

. The experts

consider ed the sam e eviden ce and came to different conclusions ; t he jury decides

which expert to believe. See Kirkpatrick , 862 S.W.2d at 772.

(3) Descriptions of the Offenses and Their Inconsist e nc ies

Dr. Proct or was concern ed about Browning ’ s inconsistencies :

You know, [Brownin g] was saying wi th both of these [offenses against children] that he very much regr ett ed doing them, had remorse for doing them, but, yo u know, wouldn ’ t

-- but was sti ll minimizin g elements of it. Bu t I think that was the thing that stuck o u t to me. And I g ues s I wou ld also add

. . . how

. . . he ’ s been very inconsistent. I mean, even re ce ntly really, seemingly from person to person, ch anging what he said about

w hat actually hap pened.
At trial, t here were many examples of B r owni ng ’ s giving inconsisten t a ns wer s.

Dr. P ro ctor noted the discrepan cy in the number of sexual partn ers that Browning

had reported :
Well, he said th at in the past he had a h ig h sex drive. And then in terms of th e sexual promiscuity, h e ’ s previously rep o rted having 300 or so sex p ar t ners

. With me, he said, [ “ W] ell, it ’ s actu ally more like 16 or 17. I d on ’ t know why I say stuff like that sometimes. Sometimes I just blurt stuf f ou t and it gets me in trouble. ”
When testifyi ng, Browning put t h e number at “ [p]robably abo ut 30. ”20

F o r Browning, e ven the n umber of vi ctims var ied. Whe n aske d at trial ho w many victi ms he had, Browni ng responded
, “ Three. ” But Browning acknowledged

that when he w as de posed and was aske d the same questi o n , h e had responded that

he had “ co mmit ted two cr im e s against tw o innoce nt pe o ple

. ” H e ha d to be remin ded

that Cathy was a victim as well

. Along the same lines , Browning stated at his dep osition that Betty had in it iated

the sex at le ast some of the time. At trial, Browning denied that Betty had initi at e d
any of the sex.

Dr. Mauro did not dispute t hat Browning had been inconsist ent regarding

Alice ’ s offen se:
Q. And you would agree that his statements regar ding the offense against [A l

ic e] ha [ve] been inconsistent throughout the records, would you a gr ee , just his version?

A. Mr. Browning ’ s?
Q. Yes.

A

. Oh, yeah. Early on he denied th e behavior for which he ’ s been convicte d and that he ’ s now admitted.
Q

. Would you agree that during his d epo sition, most of how he spoke about [Alice] was that it was a c cide ntal touching, it wasn ’ t intentional, that kind of thing?

A. That ’ s what it seeme d like, yes.
Q. Okay. But if yesterday he said it was all intentional and he

s aid that he touched her vag ina , touched her breasts, and it was all21

purposeful, you wo ul d agree that that ’ s a great difference between one
mont h to another?

A. It certainly is different. Whether or not, yo u know, he ’ s

a ccepting full responsibilit y or cal ling it accidental, there ’ s so me difference there.

Wh ile Dr. Mauro did not a ppear to place any particular weight or significanc e on Browning ’ s inconsistenc ies, t hey represented a re d f lag to Dr . Proctor

. Specifically, those inconsi st encies i llustrated to Dr. P roctor t h at Browning still ha s a prob lem with impulsivity and control:

There ’ s, you know, being irresponsible. So, like, no t holding down responsible jobs; violating trust in other people , like, you know, offending against the d aughter of his girlfriend; impulsiv i ty, very impulsive person, somebody who will say

-- I mean, he is t h e k ind who had to just pick up and go, couldn ’ t stay in one place long; makes d ecisions without thinking; some aggressiveness, including he has an

assau lt charg e involving a

-- a former w i fe, some dishonesty.
I mean, really, in the realm of

-- of pa tholo g ic a l lying, which is lying not just to get out of trouble but just for the sake of lying, like I mentioned when he was talking to me about some inco nsis tencies of what he had told me with others. [ “ ] It ’ s like, sometimes I just say stuff. I don ’ t kn ow wh y I say it. It ’ s not true, ends up, you know, k ind of coming back to bite me. [ ” ] All of those [ per sonality fea tures] are

-- are certainly ones that he has.

Incon si stent stor

i es can lend thems elves to negative inferen ces. See Univ. of T ex.

S w. Med. Ctr

. v . Vitetta , No. 05

- 1 9

- 00105

- CV, 202 0 WL 57 57393, at *21 (Tex. App.

— Dallas Sept. 28, 2020, no pet.) (mem. op.) ; Hill v. Spracklen , No. 05

- 17

- 00829

- CV,

2018 WL 3387452, at *7 (Tex. App.

— Dallas July 12, 2018, pet. denied) (mem. op.)

. A

rational factfi nd e r could have de t ermined that these inconsistencies undermined22

Browning ’ s credibility and
, in the pro cess, his trus tworthine ss. S ee Univ. of Tex. S w.

Med. Ctr.
, 2020 WL 5757393, at *21 ; Hill
, 2018 WL 3387452, at *7

. And a rational

fact finder could have furt her conclud ed that it is a short step from untru stworthiness

an d deception in speech to untrustwor thiness and de c eption in b ehavior. See Mullens
,
92 S.W .3d at 887 (

providing that from basic facts, a jury may draw reas o nable

inferences to ultimate fac ts ).

(4) Insigh t ( or Lack Thereof)

Dr. Pr octor also found troubling Browning ’ s explanation for why he had

of fended a gainst the two children : “ [ Browning ] said he really didn ’ t know. ” This

no ndescrip t r es ponse c aused Dr. Pro ctor conc ern:

A s far as the [child] victims, you k n ow, one of the things you ’ re wanting to see is someone develop some insight into wh y t hey did what they did. You know, if some one is like I don ’ t know why I did it , it

-- it ’ s not as big of a risk factor as you mi ght t hink on the surface, but it is rel ev a nt to how w ell someone ’ s doing in treatment and

-- and t heir ability to restrain th ems elves [

. Y] ou want to see them unders tand why they did what they did and how t hey can prevent it, and whe n someone doesn ’ t have a lot of what we call insight into that
, t hat ’ s a con cern. At trial, Browning confirmed this lac k of insight when h e asserted that he did not

know why h e ha d sexually assaulted Betty.

Dr. Mauro, on the o th er hand, cr edit ed Bro wning with having “ pretty good ”
insight : Q. Okay. So just loo ki n g at his treatment, and we ’ ll end here, do you believe that h e has good insight into his offending histo ry?23 A. I think it ’ s pretty good. Y ou know, despite the limite d actual opportunity he ’ s ha d to engage in sex offender treatment due to var ious iss ue s , lockdowns, and all of those that he can ’ t control. And, I m ean, his intellectual capacity and educatio n, I thi nk his insight is actually pr etty good.
Q. Do you belie ve he ’ s fully taken res ponsi bility for his offending?

A. Fully? You know, i f we ’ re going to give it, you know, a hundred percent, I don ’ t know if he would be missing a few points there, but h e

- - compa ratively speaking, yes, he takes very good responsibil it

y. I

-- I don ’ t know if y ou can say a hundred out of a hundred. I don ’ t know.
Q

. You would agree that he still engages in victim blame, for

exam ple, [Betty] ?

A. Just

-- just with [Betty]

. And it ’ s

-- it ’ s not completely in consistent with some of [Be tt y ’ s] own statements, but certainly I think he still accepts tha t he was in th e w rong. He was her father. He was older. He should have not done it.
Q. [ Betty ’ s] statements, you would agree that she said that he ps ychologically coerced her, sa id that he was going to ra pe her sister if she didn ’ t have sex with him, r ight?

A. Ye s, she said that.
Q. That he told her, you ’ re going t o do it my way, when she tried to resist him?

A. S he said that.
Q. Okay. So how is tha t inconsistent? Like, woul d you agree that that ’ s a se xual assault?

A. I didn ’ t say it wasn ’ t. You a sked if he was perhaps not doing

some

-- if he was perhaps doi ng some vic tim blaming in [Betty ’ s] statements, and [B etty] did say that there were

-- ther e were times where24

she, you k now, went along, didn ’ t re sist, and didn ’ t say anything, that she particip ated.
Q

. Okay.

A. That doesn ’ t make it right and it doesn ’ t make it

conse nsual

. . . .

(5) P edophili c D isorder

An o ther example of Dr . Pro ctor ’ s and Dr. Mauro ’ s viewin g th e same evidence

b ut dr awing different conclus ions was i n determining w hether Al ice was pr e pubescent
for pu r poses of d i agn osing whe t her Browning had a pedophilic disorder . D r. Pro c tor

as sumed that Alice was (

but acknowledged that he did not k now for certai n )
, so he

concluded that Brownin g had a p edophi lic disorder

. In contrast, Dr. Mauro e nt e rtained the possib i lity that Alice was not
prepubescent and
, for purposes of diagnosi ng Browning
, concluded that Alice was

no t

. Dr. Mauro explained, “[Alice i s] a child in the e ye s of the law, a legal minor, but

not clinically a child, so s he doesn ’t c ou n t. ”
Dr. Mauro also questio ned the lack of duration of Browning ’ s sexua l interest in

children

. She ex plain ed, “ There ’ s usually a stronger interest in chil dren, and we would
see that through more child victims, perh a ps through possession of ch ild

porno gr a phy, perhaps thr ough in prison you might continue to see the m keeping
pictures of child re n, writing, li ke, s exually deviant stories about children. ” Dr. Mauro
did not think that Browning met the crite r ia for pedophi lia.25 (6) Indicia of Sexually Sadis t i c Behavior

B ased primarily on the sexual assault on Cathy , D r

. Proctor thought that

Bro wn ing ’ s con duct sugge sted sexual sadism, which he defined as “ being s exually
aroused by causing pain [or h umili ation] to another person

. ” Dr . Pro ctor did not
,
however
, exp ressly diagnose Browning a s a sexual sadist but a ssi gned th is diagnosi s a

“ rul e

- out ” qualif

ier , which meant that “ it ’ s somethi ng that need s to be considered and

t h at I h ave considered diagnosing but

. . . stopped short of

. ” 9 Dr. Proctor t hought

that B r owning exhibited force with Alice and Betty

— mor e so with Be tty

— b ut that

the indications of sexual sadism were no t clear

- cut.

Dr. Maur o also found indicia of sexual sad ism , but she discounte d its
significance:
Q. Okay. And you found no evi dence of sexu a l sadi sm?

A. No. There was evide nce to the ext ent t hat I discussed. I considered it in that one

-- one offense where he used more fo rce than was required to commit an act of rape.
Q. And he al so made statements about wanting to humiliate her and degr a de her?

A. Correct.
Q. And do you rec all seeing durin g his deposition where he said he was aroused by that humiliation? Was that in a dep osition or with you?

9 See In re M.M. , No. 02

- 18

- 0 0337

- CV, 2019 WL 1575394, at *6 n.4 (Tex. App.

— F ort Worth Ap r. 11, 2019, no pet.) (m em. op.) ( “ A ‘ r ule [

- ] out ’ d iagnosis is a working diagnosis or one that c annot be diagn osed f rom a single visit. ”).26 A. Yes.
Q. But yet all of his off

ending is just simply opportunistic?

A. I d on ’ t

-- yes. (7) Su bstance

- Abuse Issues

Brown ing reported to Dr. Proctor th at he had a significant problem with

a lcohol when he was yo unger and that he had a history of using mari juana, pills, and

s timulants like cocaine and met hamphetamine. Dr. Procto r ackn owl edge d that drugs

and alc oho l w ere still av ailab le in pr ison but getting them

— Dr. Proctor assert ed

— was

difficult. To Dr. Procto r ’ s knowledge, nothing suggested that Bro wning was using
drugs in pri son, so Dr. Proct or listed any alcoholism or dru g a ddi ction as “ i n

remissio n. ” Dr. Proctor cau tioned
, though , that “ [i ]t can be ve ry different if you ’ r e in

a .

. . world where it ’ s much more accessible. ” Dr. Proctor noted that Browning had

admitted that he was under the in fluenc e during his sexual offens e s.

D r. Mau r o gave comparable testimony , that is, tha t Brown ing had a subs tance

abu se disorder

. B ecause Browning had been in pri son for about thirty years, she did

not think that substance abuse was a current prob le m for him

. Dr. Mauro t oo k the
positio n that becaus e drugs and alcoho l were av ailable in p ri son, if Browning had
wanted them, he could have gotten th em. Like Dr. Proctor, Dr. Mauro provided a

caveat: Additional protective factors would be that [Browni ng ’ s] be en in

- - in remission from his sub stance use fo r a lo ng time. However, I do need
t o highlight that if he did become intoxicated or under the in fluence of27

drugs in the future, that in his specific case I would anticipate that would incr ease his risk. But right n ow he does seem to be in re mission.

T h e jury did not h ave to re ly strictly on Dr. Proctor ’ s or Dr. Mauro ’ s testimony

a bout drugs an d alc ohol in pri son. Br owning spoke of his first

- hand exper ience.

Br owning did not dispute that getting drug s and al cohol in prison was not difficu lt.

He state d
, “ I can go anywhere on my block and get K2, weed, ICE, meth, wine. I can
get anything I want in the penitentiary because it ’ s there. ” Despite the availability of
drugs a nd al c ohol, Browning asserted, “ I ’ ve ne ver had a case , never one. ”

W he n asked if h e had ever used dru gs, Br owning responded, “ I ’ m a recovering

addict. ” He said that when he sexually assaulted Cathy , he was on an acid trip. When
offending against Al ice, Browning said t hat he was under the influence of “ [w]ee d. ”

But he de nied b eing un d er t he influence of alcohol or drugs when he sexually

assaulte d Betty. W hen asked why he would have told Dr . P roctor differently
,
Bro wning exp lained why he wa s not under the influ ence and expressed confusion :
Q. You ’ re saying you we re not?

A. We

-- w e h ad just moved to Bridgeport and Boyd. I didn ’ t know no dope fiends. I didn ’ t know no drug addicts. I didn ’ t kn ow no dope sellers.
Q. So you ’ re saying you did n ’ t know anyone. But were you under the influence of drugs or alco hol?

A

. I d id not know a n ybody in Wise County to buy dope from.
Q. So have you ever reported differently?

A. If I have, I don ’ t remembe r it.28 Q. Okay. So you don ’ t remember telling Dr. Pro ctor that you were high on mar

ijuana?

A

. If I did, I did, but I do n ’ t rem e mber sayin g t h at because I didn ’ t know anybody in Boyd, Texas, Bridgeport to buy any dope from. We had just moved up here.

( 8) Impetus for Commi tting the Offenses

Dr. Ma uro desc r ibed Browning ’ s o ffenses as “ opportun istic offending

. ” Sh e also question ed whether Br o wning ’ s behavior issues from thirty years ago persisted
today. The following ex change i l lu strates Dr. Mauro ’ s think ing:

A. I didn ’ t

-- I d idn ’ t say there ’ s no

-- no concern abo ut him reoffending, and I c ertainl y don ’ t apply opportunistic [o ffending when determining risk]

. I don ’ t think opportunistic offending and no risk are synonymous at all. But in his specific case, looking at all the v ariables that we d iscussed this mornin g and, I guess, into this a fternoo n , looking at all of those det ails together
, I don ’ t think that his opportunistic offending and the other details of the case relat es to a diagnosis or

-- Q. And with [Betty] , you th o ught that was oppo rtunistic as well?

A. Yes.
Q. Even though one of the f irst conversations they ev er had whe n t h ey were reintroduced to each other, he was asking her about her virginity; do you recall s eeing that?

A. She said that. I don ’ t know if t hat ’ s fact or not.
Q. Do you recall saying during your deposition tha t he wa s not

-- or I ’ m sorry

-- he wasn ’ t in m uch control of his impulses at the time or he just disregarded the consequences?

A. Yes.
Q. Woul d you agree that that is evidence of diff iculty controlling behavi or?29 A. It could be, but that ’ s 30 to 40 years ago. I don ’ t think that that exists today

. Q. Yo u ’ d agree that literature shows that sexual deviance is a chronic condition?

A. Yes. I mean, some disorders can remit

. Q. But f or Mr. Browning, w e ’ re not concerned a bout that chronicity?

A. W ell, I d on ’ t think he has a paraphi lia.
Q. You d on ’ t think he ’ s se xually deviant?

A. No. He ’ s committed illegal sexual offenses.

As with Dr. Mauro ’ s other testimon y, she acknowl edged Brow ning ’ s c onduct; she ju st

did not think that his conduct transl a ted into “ a be havioral abnormality t hat [made

him ] a person likely to engage in a predat ory act of sexual violence. ” See Tex. Hea lth

& Safety Code Ann. § 841 .003(a).

d

. Conclusion

U ltimat ely though, a reasonable factfin der could have cr e dited the disput e d

evidence in favor of the sexually

- violent

- preda t or find ing

. While Brow ning fault s

aspect s of Dr. Proctor ’ s testimony
, e ven if t he ju ry found po rtions of Dr. Proctor ’ s analyses unpe rsuasive, th e jury cou ld have neverthe less found his overall anal ysis

cor rect

. See Kirkpatrick
, 862 S.W.2d at 772

.
T he u ndisputed fa c ts support ed rather than undermined t he findin g

. No one
disputed t hat B rowning ’ s offense against Cathy wa s violen t or t hat his other two30

se xual offenses inv o lved c hildren under th e age of seve ntee n, both of whom were persons th at Brown ing sh o uld have protected rather than exploited. No one disputed
that Browning had com mitte d the offense against Cathy after serving time i n prison
and compl et

ing a period of man dat ory supervision or that he had committed t h e

sexual offenses again st Alice and B e tty while on mandatory superv ision for the sexual

offen se against Cathy

. N or wa s it disputed that Browning had two sex ual miscond uct

cases w hile in pr ison. The dispute was over what it all meant.

Dr. Ma uro c a m e to a differ ent conclusion than Dr. Proct o r , but a rational jur y

could have found (and the jury by its ver di ct did find ) h er an alysis suspect , especially
when ju xtaposed to Dr . Pro ctor ’ s. See id. A ratio nal jury co uld h ave concluded that

Dr. Maur o ha d con sis tently given Browning t he benefit o f a ny doubt , and that
ultimately could have undermined her overall credibil i ty

.
T he factfinder coul d th u s have found bey ond a reasonable doubt that
(1) Browning is a sexually violent p redator; (2) B rowning h a d serious diffi cu lty

controll ing h i s behavior at the time of t rial; and (3) Brown ing suffers from a

behavioral abnor mality th at makes him likely to eng a ge in a predator y act of sexual

violence

. Becau se t he statutory elements were met , t he eviden ce wa s th erefore
factually suffic ient

.
We ov errule Brown i ng ’ s fi rst issue.31

B. Limitation of E xamination of the V enire P anel

In Brown ing ’ s second issue, he contends that the tr ial court reversibly err ed by

limit ing his e xamination of the venire members re ga rding their capaci ty to afford hi m

a fa ir trial in a case involving a child victim

. W e view Br ownin g’s second issue as consisting of two components : (1) whether the trial court properly sustain ed the

St ate’s objection to Br owning ’ s qu estion , and (2) whether the trial court thereafter
precluded Browning f

ro m pursuing a valid line o f similar question ing. See Hyundai

Mot or C o. v. Vasquez

, 189 S.W.3d 74 3, 7 55, 758 (Tex. 2006) (addressing the “ question ”

in p art V of its analy sis ; add ressing “ [f]urther [q] uestions ” i n part VI of its opinion)

.
The S tate responds that Br owning did not p reserve error , and even if he did, the S tate

ar gues that the “ trial cou r t ’ s ruling was guided by controlling law. ”

1. The Re cord

Durin g the voir dire e xamination o f the venire panel, Browning’s t rial counsel

said: “S o, I’m asking you is this the right case for you? And w e can’t go into the
details, but , for example, if you were to hear that there’s a victi m that is related to this

case

-- you’re going t o hear some evidence about a victim who is a chil d.” The State’s
attorney obj e cted that Brow ning was asking a commitment question, and the t rial

court sustained t he State’s objection. Thereafter, Brow nin g’s trial counsel did not

a ttempt to rephrase the q uestion but, instead, mov ed on t o another topic and never

broache d the subject of chil d victims.32

2

. An alysis

If the trial court erred by sustain ing the objec tion, error is pr e ser ved as to that

sp ecific que stion

. See In re C ommitment o

f H ill , 334 S.W.3d 226, 228

– 29 (Tex . 2011)
( revers ing judgment after t he tr ial cour t unilat eral l y prohi bited defense co unse l from

aski ng “ whether [the] potenti al jurors could be fair to a person t hey believed to be a

homose xua l ” and asserting that “ t he questions [defense counsel] asked were proper,

and there was no need for him t o rephra se becau se t h ere w ere no defects for him to

cure ” ) ; In re Commitm ent of Kalati , 370 S.W.3d 435, 44 1 (Tex. App.

— Be a um ont 2012,

pet. den i ed

) ( reversing judgment after the t rial court improperly sustain ed the State ’ s

commit ment objection ; stating that the “ qu es tion

. . . was probative o f the potent ial
jurors ’ prejudices towards persons diagnosed with p edophilia [] a nd [t hat] the question

. . . did n ot ask the [venire] members

. . . for their opinions about the strength of the
evidence or suggest wh at we ight the y would gi ve to the evidence of [appella nt ’ s]
psychiatric diagnosis. ” ). Accordingly, we must f irst determine w he ther th e t rial court

abused its di scr etion by sustaining the State ’ s objection

.

a . Applicable Law

T he primary purpose of voir dir e is to inqui re about the ve ni re members ’
specific vi ews that would prevent or substantially im pair them as jurors from
perfor ming th eir duty in accordance with th eir instruct ions and o ath. Hyundai Motor

C o. , 189 S.W.3d at 7 49

. A ddition ally, trial courts shou ld allow the par ties br oad

latitude to discover any bias or preju dice by t he potential jurors so that c ounsel may33

intelli gently ex e rcise their pe remptory c hal lenges

. I d. A dif fer ence exi sts , however,

between (1) a q uestion that prob es the venire mem bers for bias es and p reju d i c es and
(2) a question tha t prob es the veni re member s to determine how they will vote on a specific factual i ssue in a case

. T he lat ter is a n improper commitment que stion. See id.

at 747, 756, 757

.

“ Counsel may ‘ question juror s abo ut bias or preju dice re sulting from a societal

i nfluence outside the case, ’

. . . . ” In re Commitment of Barnes
, No. 05

- 19

- 00702

- C V,

2020 WL 44 99795 , a t *6 ( Tex. App.

— Dallas Aug. 5, 2020, pet. denied) (mem. op.)
(quoting H

y undai Motor C

o. , 189 S.W.3d at 7 53 )

. Bu t a comm itme n t question tries to

“bind o r commit a prospective juror to a verdict based on a hy pothetical set of facts.”

I d. (quoting Standefer v. St ate , 59 S.W.3d 177, 179 (Tex. Crim. App. 2001) )

.

“ Commitment questions ‘ require a venireman to pr omise th at he wi ll b a se his verdict

or course of action on some s pecific set of facts before he has hea rd any evidence,

m uch less a ll of the evidence in its p roper context. ’ ” Id. (quoting Sanchez v. State
,
165 S.W.3d 707, 712 (Tex. Crim. App. 2005) )

. A t hree

- par t te st d eter m in e s whether a voir dire qu estion is an improper commitment question. Id. “ First , is the question a

commitm e nt question? Seco nd, if so , is it proper? Third, does the question contain
only the facts necessary to test whether a prosp ective j uror is chal l en geable for

cause? ” Id. ( citing Stande

fer , 59 S.W.3d at 179

– 82 ).34 b . Stan dard of Review
Ap pellate court s u s e an abuse of disc retion st andard when review ing a tria l

court ’ s ruling limiting voir dire questio ns

. See Hyundai Motor Co

. , 189 S.W .3d at 7 47.

A trial court abuses its d i scretion if it acts arbitrar il y, unreasonabl y , and with out reference to g uiding pr i nciples. Goode v. Shoukfeh , 943 S.W.2d 441, 446 (Tex. 1997)

.
In the c ontext of questions posed to the v enire panel , the supr eme c ou rt wro te,

P erm itti ng disclo s ures about the evi dence the jury will hear during the case i ncreases the potential for disc overing external biases, but inquiries to jurors after doing so should not spill over into attempts to preview the verdict based o n the f acts a s rep res ente d to the j urors. Balancing these com peting concerns depends on the fac ts in a case and on t he inquir ies posited to the jury. The trial judge is in a bette r position to achieve the proper balance.
Hyundai Motor Co

. , 189 S.W.3d at 755

.

c . App licat ion
(1) Commitme n t Question

Durin g voir dire , B rowning’s trial couns el said
, “ So, I’m a sk ing you is this th e right case for you? And we can’t go into the details, but, for exam ple, if you were to

hear that the re’s a victim that is relat ed to th is ca se

-- yo u’re going to h ear some

evidence abo ut a v

ictim who is a child. ” Kn owing t he case invo lved a child victim

coul d

— for some prospective jurors

— both det ermine and stop the analysis rega rd less
of any other evidence

. See Barnes
, 202 0 W L 4499795, at *6

– 7. D eterm i n ing and
stopping the an al y sis based solely on the fact that the case in volved a child vic tim
,

regar d less of any other evidence, would g ive ris e t o a vali d challenge for cause

. Id

.35

A n d the question was not limited to only tho se facts nece ssar y to t est f

or potential

bias or prejud ice but , instead, injected the additional fac t that the ju rors wo uld be
hearing evidence of a child victim. See id.

Co nsequen tly, b ecau se Browning ’ s counsel prefaced the question with “ you’re
going to hear som e ev

iden ce abo ut a vi ctim who is a c hild
, ” the tria l court could have

conclu ded that counse l was probin g the venire members for how they would vote on

a specific fa c tual issue in the case. See Hyundai Motor Co

. , 189 S.W.3d at 757

– 58.

Thu s, u n der th e se circum stan ces, t he t r ia l court d id not abuse its d iscretion by

d e termining that the in qu ir y w as an improper com mitment questi on and by re fu sing

to allow it

. See i

d.
Browning cites numerous cases for the prop osition that the question his

c ounse l a sked was not a n i mprope r co m mi t ment question. Much dep ends , however,
on how the question wa s a sked, and in each of Br o wning ’ s examples, the qu estions
lent themselves to inqui r ies exploring for external biases and unfair prej udi ces ra t her
than ques tions tes ting the ven ire member s ’ po s s ible verdicts b ased on cas e

- specific

relevant evidence. See
, e

.

g. , H i ll , 334 S.W.3d at 228

– 29 ( holding that the trial court

c ommitted reversible error by not allow ing defense counsel to question th e venire

members abo ut wh eth e r they could be fair t o a p e r son whom they b eli eved to be a

homosexual

) ; Barnes
, 2020 WL 4499795 , a t *6

– 8 ( holding th at “ if

” questions regarding
child victims and pedophilia were proper , so the trial court should not have susta ined

the State ’s com mitme nt o bjections , b ut f urther hold i n g that the tria l court did not36

abuse its discretion because defense co unsel made compara ble follow

- up questions to which the State did not object ) ; In re Commitment of Wiley
, No. 06

- 18

- 00056

- CV,

20 1 9 WL 490142 , at *1

– 4 (Tex

. Ap p.

— Texarkana Feb

. 8, 2 019, n o pet.) ( mem. op

. )
(holding that the trial court ’ s refusal to allow def ense counsel to as k “if

” questions
about elderly victims cons tituted revers ible error ); In re Commitment of Porter
, No. 11

-

18

- 0 0015

- CV, 2018 WL 6544 751
, a t *1

– 2 (Tex. Ap p.

— E a stlan d Dec. 13, 201 8 , no

pe t.) (mem. o p.) (hold ing that the trial court committed reversible error b y prohibiting

defense counsel from asking venire me mber s whether t hey would feel uncomfortable
hearing evidence about be stiality a nd, i f so, w hether t h at w ould i mpact t heir ab i lity to
be fair and imparti al

) ; In re Commitment of Miller
, No . 09

- 11

- 00450

- CV, 2012 WL

3031160 , at *1

– 3 (Tex. App.

— Beaumont July 26, 2012, pet

. d enied) (mem. op.)
( holding that the trial court comm itted revers ible error by proh ibi ting defen se coun sel

fro m asking the following two q uestions: “ (1) ‘ Can you set aside a ny bias if you fin d

there ’ s an offense against a child? Can you listen to all the e vidence and follow the

law? ’ or (2) ‘ Is anyone unabl e to hear to pics about chil dre n? Can you l isten t o the

e v idence and follow the law? ’ ” ) ; Kalati , 370 S.W.3d at 440

– 41 (h olding that the tr ial

court committed reversible error when it refus ed to allow defe nse counsel to ask the

venire members
, “ Would anybod y on the fir st ro w find it har d t o gi ve som eone wh o

has b e en diag

no sed by an expert a s a pedophile a fair trial? ” )

.37

Admi ttedly, at times, determin ing whether a question falls on one side of the

line or th e other can be troublesome . The Texas Supreme Court , however, h as

ad dressed that iss ue:

The Te xas Con stituti o n guara ntees a trial by a f air and impartial jury, and

our cou rts use voir dire to achieve that goal. Voir dire inquiries that explore external b iases and unfair prejudices further the effort, but those that t est j urors ’ possib le verd icts b ased on case

- s p ecific relevant evidence de tract from it. The distinction bet ween the two in so me cases is a fine

one. Thus, we vest trial judges with the discr etion to decide whether an inquiry constitutes the f

ormer or the latt er; as appell ate cou rts, w e shoul d defer to thei r judgment

. Hyundai Motor Co

. , 189 S.W.3d at 760

. On this record, we de f er to the t rial court ’ s ruling.
(2) Brow ning ’ s Other A rguments
Browning , however, further complain s that the trial c ourt gave t he St ate “ a full

o ppo rt un ity to th oro u ghly in d octrina te the venir e panel about children as sexual

assault vi ctims befor e the v enire p anel was turned over to Br owning’s trial counsel for

furthe r questioning on the very same topic

. ” To supp ort t his argument, Br o wni n g provid es thr ee ex a mp les. B rowning ’ s three ex amples , however, fail to support hi s

argument.

In th e first example , the S t ate said, “ So I’m just going to ask you

-- some times

these ca ses involve child victims; sometim es they invo lve s trangers; mal es; females;

inc est

. . . . ” Here, t he tr ial court could have re asonably determ ined that the S t ate was probing f or biases or prejudices should th e case involve a child victim. See i d. at 754

–38

55. The State di d not assert that the case, i n fact, involved a child victim
, and thus it

wa s not a sk

ing the venire membe rs to reveal how they would vo te on a fact issue

ahead of the trial itself

. S ee i d.

T h e seco nd example involved an exchange be tween the St at e and one venir e

member:
[St ate :] I just want to make s u re we ’r e on the same pa ge. S o if yo u hear about a certain dia gnosis or a specif ic victim
, are y ou saying that y ou will not be able to give Mr. Br owning a fair trial?
Prospective Juror: I think it wou ld be ext remel y hard, yes, if it was a child.
[ State: ]

. . . .
If it’s a child it’s di fficult, right?

. . . .

. . . . [State:]

. . . . Okay ? It i s difficult. It is hard. What I’m asking you is k nowing th at it’s difficult, knowing that it ’s hard a nd we ’re a sking a lot of you h e re, are you just done; can ’ t do it? That’s wh at I n ee d to know.

O n ce agai n, the tria l court coul d have reasonably concluded that the State wa s a sking

whe ther the involvement of a child woul d prevent the venir e member fro m gi ving
Browning a fair tr i al. See id. When asked in that manner, t he questi on was d esig n ed

to disclose an y biases or prejud ices.

And i n the third and last exam ple,
[S ta te:] I just need to make sure that, you know, if opp osing couns el aske d you these ques tions, we alrea dy have a n ide a o f what’s going on. So if yo u hear that [p e dophil ia ] di a gnosis or you hea r there’ s child victims or o ther kind of extremely vulnerable vic tims, I need to know39

have you already made up your m ind or are y o u oka y understand ing that’s a piece o f the p u zz le but you still have a l ot of evi dence to hear.
Okay

. So i s everyone here w ho hasn’ t already spoken to m e

-- are you okay at this point to g ive Mr. Browning a fair trial?

As wi th th e other two exam ples, the trial court c o uld h ave r easonably deduced that

the State was pro b ing for bia s es a nd prejudic es

. S ee i d.
(3) Preclusion of Prope r Line of Questioning

— Not Preserved
To preserve error when complaining about a trial court ’ s p urpor ted forecl o sure

of a proper line o f que stioning
, it is not enough that the trial court sustains an

oppo nent’s objectio n t o a partic ular voir dire question; the pro ponent must follow up

with ot her questions: “When the trial court determines that a pr of fered question ’ s

subs tance is confusing or s eeks to e licit a pre

- commit ment from the jury, counsel
should pr opose a differe nt que stion o r [a] specific area of inquiry to pr eserve error on

the desired l ine of inquiry . . . .” I d. at 758

. Explaining furthe r, th e supreme court

wrote, “C ounsel d oes not have to pre sent a list of questions to preserve error, but

aft er the trial co urt ’s ruling sustaining [the opponent’s] ob jection to the one presented,

it [is] incumbent on the [proponent] to request alterna tive appro aches to avoid t h e proble ms the t rial court was addr essing by its ruling.” Id. at 759. The court

conc luded, “We do n ot kno w wheth er the trial court would have allowed other sorts

of inquiries had counsel presented their substance. We therefore hold that the record

does not pres ent a su ffici ent basis for review of the trial court’s ruling foreclosing40

furt her inquiry int o” the propos ed subject matter

. Id. at 760; see In re C ommitment of

Tesson , 413 S.W.3d 514, 517 (Tex. App.

— Be aumont 2013, pet. denie d).

He re, after the trial co urt s ust ained the State ’s o bjection, Browning’s trial

counsel never broached t he subject of c hil d v ictims again. F urther, he failed to make

the trial court aware of the substance of “ other s orts of inquiries ” he wished to

pur s ue. See H

yundai Mot

or Co. , 1 89 S.W.3d at 7 60.

W e ag ree with the State that Browning has not preserved erro r on th e portio n

o f h is seco nd issue complaining ab ou t the trial court ’ s preclud ing a proper line of
questioning

. F or all these reasons, w e overrul e B ro wning ’ s second i ssue.

C. Exclusi on of E x pert ’s T es timony Regarding Le gislati ve Findings
In Browning ’ s third issue, he co mpla ins th at although D r. Mauro admitted

rel ying on the le gis lative fin d ing s when making he r dec ision , she was n ot allow ed t o

articulate the sub sta nce of the l egis lativ e findings to the jury. The State responds that

the trial court ’ s ruling was not an abu se of d iscretion but was guided by controlling

law and the Sexu ally Violent Pre d ator Act.

1. Standard of Review

A ppellate courts r eview a trial cour t’s evident iary rulings for an abuse of

discretion. Bay Area Healthcare Grp. , Ltd. v. McShane , 239 S.W.3 d 231, 234 (Tex. 2007)

.
A tri al court abuses its disc r etion if it acts wit hou t r ega rd for guiding rules or
princi pl es. Owens

– Corni n g Fiberg las Corp. v. Malone
, 972 S.W.2d 35, 43 (T ex. 1998).41

2. Application

Section 8 41.001 of the Texas Health and S afety Code
, entitled “ Legislati ve

Fi ndings, ” provide s in per tinent part
, “ The legisl atu re fin ds that a small but extreme ly

dan gerous group of sexua lly violen t predators exists and that thos e predators have a
behavioral abnormality that is not amenable to t radit ional m ental illness treat ment

modalities and t hat make s the predator s likely t o e nga ge in repeated predato ry acts of

sex ual violence

. ” Tex. Health & S afety Code Ann. § 841.001

. Brow ning complains

about the trial court ’ s pr ohibiting his expert from “ expl aining how the legislative

find ings informed he r opinio n

. ”

Th e Texas Supreme Court has reje cted Browning ’ s p ositi on : “ This ‘ small b ut
extremely dan gerous group ’ language, contained in the Act ’ s legislative findings, is not
part of the statute ’ s defi nitio n of ‘ s exual ly violent preda tor ’ and [is] not an element the
ju ry was required to find. ” S ee S toddard , 619 S.W.3d at 67 7 ; s ee also I n re Commitm ent o

f

Str att o n , 637 S.W.3d 87 0, 886

– 87 (T ex . App.

— Eas tland 2021, no pet.). Because the

“ small but extrem ely d angerou s gro up ” language in the legislative f indings is not part

of the definition of “ se xually violent p red ator , ” it is not an eleme nt that the jury is

re qui r ed to consider when det ermini n g whether the offende r suffers from a
behavioral abnormality a nd is , thus, not relevant. See S tratton , 637 S. W. 3d at 887
(citi ng Stoddard

, 619 S.W.3d at 677

– 78 ). Accordingly, a tri al cour t d oes no t

— and the

trial court he re did not

— abuse it s d is cret

ion by limiting Brow ning ’ s expert ’ s testimony in this way

. See id.42

We o verrule Brow ning ’ s third iss ue.

I V. C ON C LUSIO N

Havin g ov er ruled Brow n in g ’ s three issues, we affirm the t rial cour t ’ s judg men t.

/s/ Da na Womack

Da na Womac k J ustic e

Delivered: November 10, 2022