AFFIRMED and Opinion Filed August 12, 2021 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-20-00519-CV IN RE COMMITMENT OF VI CTOR DEWAYNE JACKSON On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. CV1970005

MEMORANDUM OPINION Before Justices Molberg, Goldstein, and Smith Opinion by Justice Goldstein Victor Dewayne Jackson appeals the trial court’s judgment civilly committing him for treatment and supervision pursua nt to the Texas Civil Commitment of Sexually Violent Predators Act (“SVP Act”). Jackson raises three issues on appeal. In his first and second issues, Jackson argue s the evidence is legally insufficient to prove that he is a sexually violent predat or due to infirmities in expert opinion offered by the State. In his third issue, Jackson asserts the evidence is factually insufficient to support the jury’s finding th at he is a sexually violent predator. The State argues that Jackson failed to preserve error on his first two issues, and that the evidence is both legally and factually sufficie nt to support the trial court’s judgment.–2– Civil commitment constitutes a significant deprivation of liberty mandating due process protections. Upon a review of the entire record, we affirm.
I. SVP Act Commitment Standards 1 A civil commitment proceeding under the SVP Act (“SVP case”) incorporates the “beyond a reasonable doubt” burden of proof typically reserved for criminal cases. In re Commitment of Fisher , 164 S.W.3d 637, 641 (Tex.), cert. denied , 546 U.S. 938 (2005). In a suit to co mmit a person as a sexually violent predator, the State must prove beyond a reasonable doubt that the person “(1) is a repeat sexually violent offender” who “( 2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.” T EX

. H EALTH & S AFETY C ODE A NN

. §§ 841.003(a), 841.062(a). A person is a “repeat sexually violent offender” if he has been convicted of more than one sexually violent offense and a sentence wa s imposed for at least one of the offenses. Id . § 841.003(b); see also id . § 841.002(8) (defining “sexually viol ent offense”). The SVP Act defines “behavioral abnormality” as “a congenital or acquired condition that, by affecting a person’s emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a me nace to the health and safety of a nother person.” T EX

. H EALTH & S AFETY C ODE ANN

. § 841.002(2). A

1 The record is silent as to the requisite statutor y evaluation process that preceded the case before us and therefore is not addressed in this opinion. See T EX

. H EALTH & S AFETY C ODE ANN

. §§ 841.001– 841.153.–3– “predatory act” is “an act directed towa rd individuals, including family members, for the primary purpose of victimization.” Id. § 841.002(5).
II. Background Jackson was twice convicted and senten ced for sexually violent offenses: • On October 25, 1985, in Cause No. 0244657D by the Criminal District Court No. 3 of Tarrant County, Texas, for aggravated sexual assault and sentenced to 10 years confinem ent in the Texas Department of Corrections. • On October 4, 1990, in Cause No. F90-03102-KU by the 291st Judicial District Court of Dallas County, Texas, for aggravated sexual assault with a deadly weapon, enhanced and sentenced to lifetime confinement in the Texas Department of Corrections. Jackson committed his first aggravat ed sexual assault on March 20, 1984, when he was 15 years old. The record re flects that Jackson went to a woman’s apartment, claiming he was sent to touch up paint and collect money. Once Jackson was inside, he asked whether other people were there or would be there soon. The woman became upset and argumentative, a nd something in Jackson snapped. He forced the woman into a closet, physically and sexually assau lted her, choked her with a belt and with his hands, bit her and struck her in the face with his fist, threatened her with a knife, and left her unconscious. The vict im was a stranger and Jackson did not know whether the woman was dead or alive when he left. Jackson waived a jury trial and pled guilty to sexua l assault and attempted murder by choking with a belt. He began a ten-year pris on sentence on March 25, 1985, and served–4– approximately four years before being rel eased on parole in April 1989. Jackson believed he would neve r sexually reoffend. Approximately one year into his parole , Jackson pled not guilty to committing a second sexual assault with a deadly wea pon on April 26, 1990. A jury found Jackson guilty and sentenced him to life in prison without parole. He was 21 years old. Jackson admits that he ostensibly we nt to recover some of his belongings from the home of his child’s grandmother but planned to physically assault her as punishment for allegedly mistreating children . Evidence reveals that, once inside, Jackson punched her in the fa ce, dragged her into a bedr oom, and raped her. Jackson held a knife to her throat and threatened to kill her. He tied her up with a telephone cord, but she managed to free herself. Jackson again physically assaulted her, retrieved a hammer and threatened to “b ash her skull” if she moved, tied her up again, and then took a copier from the house and left. The case was tried before a jury. Two experts and Ja ckson testified. In the charge, the jury was provided statutory definitions of “s exually violent predator,” “repeat sexually violent offender,” “behav ioral abnormality,” “predatory act,” and “sexually violent offense.” The trial cour t granted a directed verdict that Jackson was a “repeat sexually violent offender” on the ground that uncontested evidence showed that Jackson previously was conv icted and sentenced for more than one sexually violent offense. A unanimous jury found the State proved beyond a reasonable doubt that Jackson is a “sexually violent predator.” The court entered–5– judgment civilly committing Jackson for sex- offender treatment and supervision by the Texas Civil Commitment Office. Jacks on timely filed a motion for new trial and a notice of appeal.
III. Specific Legal Insufficiency Arguments In his first appellate issue, Jackson ar gues the trial record reveals that Dr. Clayton’s opinion is not competent eviden ce because he intruded upon the province of the jury by incorrectly asserting the law mandates use of his defi nition of “likely.” In his second issue, Jackson asserts th at Dr. Gaines’s opinions are baseless, conclusory, and amount to no evidence because Dr. Gaines’s trial testimony revealed her opinion was not based on the statutory definition of “behavioral abnormality.”
A. Error Preservation The State asserts that Jackson failed to preserve error on Issues One and Two because he made no objection at trial to the admissibility or reliability of either expert witness’s testimony, his motion for di rected verdict merely asserted the State had not met its burden of proof, and his motion for new trial offered no argument supporting his conclusion that the evid ence was legally insufficient. Jackson’s motion for new trial challenged the legal and factual sufficiency of evidence to support findings that he suffers from a be havioral abnormality that makes him likely to engage in a predatory act of sexual violence, that he has serious difficulty controlling his behavior, and that he is a sexually violent predator as statutorily defined. The motion also challenged the competence of expert opinion regarding–6– Jackson’s likelihood of reoffending, and as the statute fails to define “likely,” contended it is void, unconsti tutional, and rendered the e xpert opinion a guess as to the term’s meaning. Complaints of legal and factual insuff iciency of evidence raised in a motion for new trial generally are preserved for review. T EX

. R. A PP

. P. 33.1(a); T EX

. R.
C IV

. P. 324(b); In re Commitment of Ratliff , No. 05-16-01425-CV, 2018 WL 3829264, at *2 (Tex. App.—Da llas Aug. 13, 2018, no pet. ) (mem. op.). Under a legal sufficiency analysis, an expert’s opinion constitutes no more than a mere scintilla of evidence if the opinion is no t reliable under the sa me standards that govern admissibility, is sp eculative or conclusory on its face, or is based on unfounded assumptions. Gunn v. McCoy , 554 S.W.3d 645, 662

– 63 (Tex. 2018) (citing Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp ., 136 S.W.3d 227, 233 (Tex. 2004)). A distinction exists between challenges to an e xpert’s scientific methodology and no-evidence challenges alleging the face of the record demonstrates that expert opinion lacks probative value. City of San Antonio v. Pollock , 284 S.W.3d 809, 817 (Tex. 2009). When expert opinion is admitted in evidence without objection, it may be c onsidered probative ev idence even if the basis for the opinion is unreliable. W & T Offshore, Inc. v. Fredieu , 610 S.W.3d 884, 899 (Tex. 2020) (citing Pollock , 284 S.W.3d at 818). When a reliability challenge requires evaluation of the underlying methodology, technique, or foundational data used by an e xpert, failure to object at tr ial waives appellate review–7– because the trial court should conduct this analysis. Pollock , 284 S.W.3d at 817;
Gunn , 554 S.W.3d at 661–62. Fa ilure to object does not waive legal sufficiency challenges to the reliability of expert opinion where there is no need to go beyond the record to test whether the opinion is conclusory or speculative on its face, contains fatal gaps in analysis, or is simply incorrect. See Pollock , 284 S.W.3d at 817–18; Gunn , 554 S.W.3d at 662. A judgment ma y not be supported by conclusory expert testimony, even if a party did no t object to admission of such testimony, because it is consid ered no evidence. Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC , 572 S.W.3d 213, 222–23 (Tex. 2019). While Jackson failed to object to the admissibility of the experts’ testimony or the reliability of their underlying da ta and methodologies, his specific legal sufficiency challenges raised in Issues On e and Two can be eval uated on the face of the record before us and we will address them.
B. Standards of Reviewing Expert Testimony Although expert testimony ofte n provides valuable evidence, it is the basis of the witness’s opinion rather than the witn ess’s qualifications or bare opinions alone that can settle an issue as a matter of law; therefore a cl aim will not stand or fall on the mere ipse dixit of a credentialed witness. Pollock , 284 S.W.3d at 816 (citing Coastal Transp ., 136 S.W.3d at 232). If an expert opinion has no basis, the basis offered provides no supp ort, or the opinion assumes facts contrary to conclusively proven facts, it is conclusory and cannot be considered probative evidence. See–8– Gunn , 554 S.W.3d at 662–63; Pollock , 284 S.W.3d at 817

– 18. Opinion testimony that is conclusory or specu lative is “incompetent evidence” because it does not tend to make the existence of a material fa ct “more probable or less probable.” See T EX

. R. E VID

. 401; Pollock , 284 S.W.3d at 816.
1. Issue One Analysis Jackson contends the evidence is legally insufficient to prove he suffers from a behavioral abnormality that makes him likel y to engage in a predatory act of sexual violence because Dr. Clayton based his e xpert opinion on an incorrect belief that case law mandates he define “likely” as “probably or beyond a mere possibility.” Jackson asserts this was harmful because Dr . Clayton invaded the jury’s province to decide whether Jackson is likely to engage in future sexual vi olence by causing the jury to falsely believe the law mandate s use of Dr. Clayton’s definition. We have addressed this argument before. While expe rts in prior cases have testified that the term “likely” has been defined by case law to mean “more than a mere possibility,” this is incorrect, as ne ither the statute nor courts have defined “likely” in this context. In re Commitment of Hill , 621 S.W.3d 336, 342–43, 343 n. 3 (Tex. App.—Dallas 2021, no pet.). Even though courts have not mandated a particular definition of “lik ely,” courts have found evid ence legally and factually sufficient to support SVP fi ndings in cases where the expert’s working definition of–9– “likely” was “more than a mere possibility.” 2 This Court has stated the term ‘likely’ in the Act ‘does not require evidence of a specific percentage of risk, and the term should not be interpreted to mean ‘more likely than not.’ Rather, the expert’s personal definition of ‘likely’ goes to the wei ght the jury decides to give the expert’s testimony.’” Commitment of Hill , 621 S.W.3d at 343 n.3 (quoting Commitment of Johnson , 2019 WL 364475, at *3) (int ernal citation omitted). Here, Dr. Clayton stated his “understand ing” that case law has “examined” definitions of “likely” in the context of th e statute. When gi ven the choice between case law and a dictionary definition of “lik ely,” Dr. Clayton testified, “I’m going by the case law on this type of evaluation,” be cause he thought, “it’s better to use how it’s been defined within these evaluations.” Dr. Clayton asserted that he chooses to define “likely” in the same manner it was defined in prior expert evaluations that were found acceptable by previous courts in case law he has reviewed, and never affirmatively stated that case law mandate s his or the jury’s use of his proffered definition that “likely” in the context of the SPV Act means “probably or beyond a mere possibility.” Additionally, Dr. Clay ton agreed that (1) the statute does not

2 See, e.g., Commitment of Hill , 621 S.W.3d at 343–44; In re Commitment of Mendoza , No. 05-18- 01202-CV, 2019 WL 5205710, at *7 (Tex. App.—Dallas Oct. 16, 2019, pet. denied) (mem. op.); In re Commitment of Johnson , No. 05-17-01171-CV, 2019 WL 364475, at *3, 6 (Tex. App.—Dallas Jan. 30, 2019, no pet.) (mem. op.); In re Commitment of Rollings , No. 05-17-00938-CV, 2018 WL 6695731, at *5– 6 (Tex. App.—Dallas, Dec. 20, 2018, no pet.) (mem. op.); In re Commitment of Riojas , No. 04-17-00082- CV, 2017 WL 4938818, at *4 (Tex. App.—San Antonio Nov. 1, 2017, no pet.) (mem. op.); In re Commitment of Terry , No. 09-15-00500-CV, 2016 WL 7323299, at *13–14 (Tex. App.—Beaumont Dec. 15, 2016, no pet.) (mem. op.); In re Commitment of Muzzy , No. 09–13–00496–CV, 2014 WL 1778254, at *2–3 (Tex. App.—Beaumont May 1, 2014, pet. denied) (mem. op.).–10– define “likely,” (2) that it would be very misleading to assign a numerical probability to Jackson’s likelihood of engaging in a fu ture predatory act, (3) that his opinion is not a prediction of Jackson’s future actions, (4) that he is not an attorney, and (5) that he believes the jury is free to use th e dictionary definition of “likely.” As we have said, an expert’s “explanation of ho w he ‘conceptualizes’ the term ‘likely’” does not “render the evidence. . .lega lly or factually insufficient.” Commitment of Mendoza , 2019 WL 5205710, at *7; accord Commitment of Hill , 621 S.W.3d at 343. After reviewing all of Dr. Clayton’s trial testimony, we conclude that he did not misrepresent legal precedent when describing the working definition of “likely” he employed in reaching his opinion that Jack son meets the statutory definition of a sexually violent predator. Jackson also contends that the term “ likely” should have been defined in a manner that would ensure it does not apply to every repeat sex offender, but only to a “small but extremely dangerous group” of offenders “not amenable to traditional treatment modalities” in keeping with S ection 841.001’s statement of legislative purpose. We previously addressed this argument and found the legislative purpose language does not appear in the Act’s “se xually violent predator” definition, thus, are not elements the State must prove. Commitment of Johnson , 2019 WL 364475, at *3. Citing Commitment of Johnson with approval, the Texas Supreme Court expressly rejected this argument, holding th e legislative purpose la nguage is not part of the statute’s SVP definition and therefore is not an element the jury must find. In–11– re Commitment of Stoddard , 619 S.W.3d 665, 677–78 (Tex . 2020). We conclude that Dr. Clayton’s testimony regarding his definition of “likely” does not render the evidence in this case legally insufficient.
2. Issue Two Analysis Jackson asserts the evidence is legally insufficient because Dr. Gaines’s trial testimony revealed her conclu sions were based on a standa rd that pre-dates the SVP Act rather than the statutory definition of “behavioral abnormality,” proving her expert opinion is ipse dixit and conclusory. Specifica lly, Jackson contends Dr. Gaines’s testimony that the standard she uses to determine whether someone has a behavioral abnormality “has been ongoing fo r centuries the way a doctor approaches a patient” reveals her opinion has no basis because “a ‘behavioral abnormality’ is a statutory construct that did not exist prio r to being written into being by the Texas Legislature.” 3 To the extent Jackson suggests Dr. Gaines should have based her opinions on the Act’s legislative purpose language, we are bound to reject this argument. See Commitment of Stoddard , 619 S.W.3d at 677–78. Jackson’s argument also fails because the SVP Act does not mandate a particular methodology for experts to use in evaluating whether a person has a “behavioral abnormality.” While the statutory definition was created in 1999, the field of psychiatry and the

3 Jackson relies on the SVP Act’s legislative purpose la nguage and an intermedia te appellate decision reversed by the Texas Supreme Court after Jackson submitted briefing in this appeal. See In re Commitment of Stoddard , 601 S.W.3d 879 (Tex. App.—Fort Worth 2019), rev’d , 619 S.W.3d 665 (Tex. 2020).–12– methodologies employed to diagnose the myri ad of psychiatric disorders that can satisfy the SVP Act’s definition of “beh avioral abnormality” long pre-date the statute, as the Texas Legislature did not invent psychosis. We conclude that Dr. Gaines’s statements do not establish th at her opinions are baseless or legally insufficient. 4 Accordingly, we conclude the eviden ce is legally sufficient and overrule Issues One and Two.
IV. Issue Three - Sufficiency of Evidence In his third issue, Jackson contends th e evidence is factually insufficient to support the jury’s finding that Jackson is a sexually violent predator. Jackson does not challenge the directed verd ict that his prior convictions establish he is a “repeat sexually violent offender,” which satisfies the first element of the SVP Act’s definition of a “sexually violent predator.” Jackson instead challenges the evidence as factually insufficient to support th e second element of the SVP definition

— that he suffers from a behavioral abnormality that makes him likely to engage in a

4 Jackson also contends that Dr. Gaines merely as serted that her “testimony properly relied upon and utilized the principles involved in the field of psychiatry” and, like the expert rejected in Coble v. State , cited to no research, books, articles, journals, or work of other forensic psychiatrists who practice in this area to support her methodology. We note the trial recordreveals that Dr. Gaines offered a more detailed explanation of her methodology than Jackson portrays, that Coble is factually distinguishable, and that the expert in Coble was found lacking after the trial court c onducted a gatekeeper hearing upon a timely objection. See Coble v. State , 330 S.W.3d 253, 270 (Tex . Crim. App. 2010). Because Jackson’s failure to object at trial waived any appellate complaint that w ould require evaluation of Dr . Gaines’s qualifications or the reliability of her underlying methodologies, an d because we find that Jack son’s legal insufficiency arguments based on the face of the record have no mer it, the jury was entitled to consider the testimony of Dr. Clayton and Dr. Gaines as probative evidence. See Pollock , 284 S.W.3d at 817-18.–13– predatory act of sexual violence. Jacks on reiterates his contention that the expert opinion is unscientific and speculative, a nd argues this deficiency coupled with countervailing evidence of protective fact ors overcomes the weight of evidence supporting the experts’ c onclusions that he has such a behavioral abnormality.
A. Standards of Review If a party challenges both the legal and factual sufficiency of evidence, we first review for legal sufficiency and only reach a factual sufficiency review if the evidence is found legally sufficient. Windrum v. Kareh , 581 S.W.3d 761, 781 (Tex. 2019). In SVP cases, we employ the crim inal standard of review for legal sufficiency challenges. Commitment of Johnson , 2019 WL 364475, at *2. We must view the evidence in the light most fa vorable to the prosecution and determine whether any rational factfinder could have f ound the essential elements of the crime beyond a reasonable doubt. Commitment of Stoddard , 619 S.W.3d at 675 (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)). The Texas Supreme Court recently clarified the distinction betw een legal and factual sufficien cy standards of review in civil cases where, as here, the burde n of proof is beyond a reasonable doubt. Commitment of Stoddard , 619 S.W.3d at 668. In both legal and factual sufficiency review, we presume the factfinder resolved disputed evidence in favor of the finding if a reasonable factfinder coul d do so, but we must consider undisputed facts contrary to a finding. Commitment of Stoddard , 619 S.W.3d at 676. A distinction arises in treatment of disputed evidence that a reasonable factfinder could not have credited–14– in favor of a finding

— we disregard such disputed evidence in a legal sufficiency review, but we consider this disputed ev idence in a factual sufficiency review. Id. (emphasis added). Evidence is legally insu fficient to support a jury finding when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the eviden ce offered to prove a v ital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Gunn , 554 S.W.3d at 658.
B. Legal Sufficiency Analysis The State presented two expert witnesses

— Dr. Kyle Clayton and Dr. Sheri Gaines. Dr. Clayton, a psychologist licen sed in Texas since 2012, has a private practice in forensic psychology and is a clin ical assistant professor of psychiatry at UT Southwestern Medical Center, where he supervises forensic psychology students and has taught classes in forensics. He has been involved in approximately 50 behavioral abnormality evaluations and has performed over 100 sex offense risk assessments. Dr. Gaines is a licensed me dical doctor who is board certified both in psychiatry, and in child and adolescent psyc hiatry. She has been practicing forensic psychiatry for nearly 30 years and has te stified in over 100 SVP cases. While asking a jury to accept expert opini on based on their status as an expert will not suffice, an expert’s experience alone may provide a sufficient basis for expert testimony. Bombardier, 572 S.W.3d at 223, 227.–15– The experts each testified they follo wed a standard methodology that is in accordance with their training, accepted in their respective fields, and used by other evaluators performing behavioral a bnormality evaluations . The methodology Dr. Clayton employed included reviewing hundred s of pages of records relevant to Jackson’s case, conducting a three-to-four-hour, face-t o-face interview with Jackson, and administering and scoring risk assessments. Dr. Gaines reviewed results of the risk assessment tools Dr. Cl ayton administered to Jackson, reviewed relevant records, and conduc ted her own three-hour interview with Jackson. The records reviewed by both experts include doc uments from Jackson’s arrests, such as offense reports and witness statements, r ecords from his trials and incarcerations, disciplinary records, academic and occupa tional records, medical and psychiatric records, depositions, and prior expert evalua tions. The experts both testified that the risk assessments and records relied upon ar e the same types of assessments and records typically relied upon by other forensic psychologists and psychiatrists. This Court previously rejected assertions that expert opinion was speculative or conclusory where the expert was licen sed, experienced, fo llowed a standard methodology, reviewed the person’s records, interviewed the person, and used or reviewed testing and risk-assessment tools. See In re Commitment of Joiner , No. 05-18-01001-CV, 2019 WL 4126602, at *3

– 8 (Tex. App.—Dalla s Aug. 30, 2019,–16– pet. denied) (mem. op.); In re Commitment of Sawyer , No. 05-17-00516-CV, 2018 WL 3372924, at *7 (Tex. App.—Dallas July 11, 2018, pet. denied) (mem. op.). 5 Both doctors testified at length regard ing the factual bases of their shared conclusion that Jackson has behavioral a bnormalities that make him likely to engage in future predatory acts of sexual violence. They described risk factors that, if present, increase the likelihood a person w ill reoffend, and they discussed protective factors that militate against a predisposition to reoffend. The doctors testified that these factors arose from an accepted body of published research a nd are widely used in behavioral abnormality evaluations for SVP Act commitments. As each factor was discussed, the expert s described specific facts relied upon in determining whether the factor applies to Jackson. We summarize the trial testimony as follows:
1. Mental Health Diagnoses While a medical diagnosis of a mental hea lth disorder is not required evidence in SVP cases, it informs the relevant assessment whether the defendant has an abnormality affecting his emotional or vol itional capacity in a way that predisposes him to sexually violent conduct. In re Commitment of Bohannan , 388 SW.3d 296,

5 We note without comment that numerous courts have examined Dr. Gaines’s methodology for conducting behavioral abnormality evaluations a nd accepted her testimony as competent evidence. See , e.g., Commitment of Joiner , 2019 WL 4126602, at *2

– 8; In re Commitment of H.L.T. , 549 S.W.3d 656, 661

– 64 (Tex. App.—Waco 2017, pet. denied); In re Commitment of Arnold , No. 09-15-00499-CV, 2016 WL 4483181, at *7 (Tex. App.— Beaumont A ug. 25, 2016, pet. denied) (mem. op.); In re Commitment of Gollihar , 224 S.W.3d 843, 849

– 54 (Tex. App.—Beaumont 2007, no pet.).–17– 304–06 (Tex. 2012), cert. denied , 569 U.S. 1009 (2013). Both doctors diagnosed Jackson with antisocial personality disord er based upon documentary evidence and Jackson’s own statements during each of their personal interviews. Dr. Clayton explained that this disorder can affect a person’s emotional or volitional capacities and is defined by prolonged, persistent difficulties with conduct, difficulties with authority, defiance, not following rules, r eckless behavior, and impulsive behavior. He opined that antisocial personality disord er coupled with sexua l deviancy places a person at a higher risk to sexually reo ffend because the antisocial personality does not follow rules or laws, does not care if th ey harm other people, and is impulsive and reckless, making them more likely to act out on feelings of anger or aggression. Dr. Clayton stated it is one of the more di fficult disorders to treat and treatment is focused on the resulting behaviors because , once established by early adulthood, a person’s personality cannot be changed. Dr. Clayton’s re view of Jackson’s records revealed evidence of antisocial behaviors. Jackson exhibited behavioral difficulties in childhood and adolescence, including thef t, physical altercations, and committing his first sexual offense as a juvenile. His antisocial behaviors persisted into adulthood, as Jackson was arrested multip le times for non-sexual offenses during the one-year period between being released on parole for his first sexual assault and committing his second sexual assault. Additionally, Jackson received over 200 disciplinary infractions throughout his time in prison for breaking a variety of rules, including “disciplinaries” for sexual mi sconduct that included inappropriate sexual–18– relationships in prison a nd public masturbation toward guards. While anti-social behaviors tend to reduce over time with age, the doctors have not seen this in Jackson’s case. Dr. Clayton used the Diagnostic a nd Statistical Manual (DSM-V) in diagnosing Jackson with “unspecified paraph ilic disorder.” A paraphilic disorder is related to sexual devian cy and includes pedophilia, sexual sadism, sexual masochism, and exhibitionism. This disord er is a condition that affects a person’s emotional or volitional capacitie s and a person with this disorder is at a higher risk to commit a predatory act of sexual viol ence. Dr. Clayton diagnosed Jackson’s disorder as “unspecified” because it is not restricted to one aspect of paraphilia. Jackson’s disorder is characterized by se xual gratification from sexual acts against non-consenting people, exhibitionism, and se xual sadism. Dr. Clayton’s diagnosis was informed by details of Jackson’s sexual assaults, his sexual misconduct in prison, and interviews with Jackson. Ac cording to Dr. Clayton, Jackson’s history indicates his disorder is a long standing a nd well-ingrained issue that will require a considerable amount of prolonged treatment to make reasonable change possible, and Jackson has not had the type of pr olonged treatment necessary. The doctor opined that Jackson’s continued urges to act out sexually, conti nued rationalization, continued poor insight, and continued sexual misconduct in prison, are all evidence that his emotional and volitional capacitie s are still affected by his paraphilic disorder.–19– Dr. Gaines diagnosed Jackson with sexua l sadism disorder, which is sexual gratification derived from someone else’s humiliation, embarrassment, or pain. Dr. Gaines opined that Jackson acted in a se xually sadistic manne r when committing his sexual assaults and througho ut his time in prison, and that his public masturbation in prison also meets the criteria fo r diagnosis as an exhibitionist.
2. Risk Assessment Tools Dr. Clayton employed the Static-99R, whic h he described as the gold standard of actuarial risk measurement for predic ting the likelihood of sexually offending in the future. Jackson scored a six, which falls in the highest risk range when compared to others who have been convicted of a sexual offense. Dr. Clayton also used the Risk for Sexual Violence Protocol in his eval uation of Jackson. This instrument lists numerous risk factors identified by research for sexual offending and the evaluator notes which factors are relevant to the i ndividual being evaluated. The instrument does not yield a score, but puts the person in a category of low, moderate, or high risk of reoffending. Jackson fell into the high risk category. Dr. Clayton scored the Psychopathy Check list Revised (PCL-R) for Jackson. He explained that psychopathy is a rarer, more intense, and mo re problematic form of antisocial personality disorder, and that psychopathy affects every aspect of a person, impacting their thoughts, feelings, and behaviors. Jackson’s score of 31 indicates he has a psychopathic personality style. Dr. Clayton testified the research demonstrates that psychopathy increases a person’s risk for violent offending,–20– including sexual offending, because a psyc hopath can very easily manipulate and fool a potential victim. Dr. Gaines agr eed with Dr. Clayton’s descriptions of psychopathy as a risk factor and agreed Jackson has a psychopathic personality.
3. Risk Factors for Reoffending Dr. Clayton explained that some risk f actors weigh more heavily in suggesting a high likelihood of reoffending, and the docto rs agreed that research indicates the two strongest predictors of sexual reoffendi ng are the presence of sexual deviance and an antisocial personality. Jackson wa s diagnosed with antisocial personality disorder, psychopathic personality disorder , and more than one form of sexual deviance. Dr. Clayton pointed to facts fro m Jackson’s first sexually violent offense suggesting sexual deviancy and antisocial traits, including offending against a stranger, offending bot h physically and sexually, l eaving the scene and initially denying committing the crime, and eventually being convicted of aggravated sexual assault. Dr. Gaines described Jacks on’s use of extreme physical violence in committing his sexual crimes as “a gigantic ri sk factor,” as Jack son used force, bit and hit his victims, threatened them w ith and used weapons, and choked his first victim until she was unconscious. Dr. Gaines identified other risk factors, including escalation of sexual violence and the psychol ogical coercion used in both offenses, with Jackson entering the first home under false pretenses and taking advantage of a trust relationship to gain entry into the second.–21– Dr. Clayton identified the chronicity of sexual violence as a risk factor because Jackson sexually reoffended after a period of time, indicating the first sexual assault was not an isolated incident. He found it significant that Jackson committed a second sexually violent offense after be ing caught and convicted because most sexual offenders do not reoffend after de tection. Dr. Clayton explained that committing a second sexual assau lt while on parole also is consistent with antisocial psychopathy because it demonstrates Ja ckson’s problems with supervision and inability to control his behavior, even while still being supervised. Dr. Gaines agreed that Jackson’s “persistence after punishme nt” is significant, also identifying chronicity as a significant risk factor. Dr. Gaines observed that Jackson first offended at a very young age, itself a risk factor for repeating the behavior, and Jackson then repeated the behavior with a second sexual assau lt and continued his pattern of sexual misbehavior over decades in prison. She also noted that Jackson still exhibits an attitude that condones sexual violence. The doctors agreed that Jackson’s recei pt of approximately 200 disciplinaries in prison for failing to follow rules, for creating disturbances, and for both threatening and assaulting inmates and prison officials is evidence of his antisocial personality. They agree Jack son’s continued inability to control his sexual impulses and sexual deviancy is demonstrat ed by twenty-three sexual misconduct disciplinaries received from 1992 to 2017. Jackson received these for exposing himself to male and female officers, attempting and sometimes achieving an–22– inappropriate sexual relationship with fema le staff, and masturbating in front of female officers. Jackson told Dr. Clayton that sometimes he mast urbated in front of female guards for sexual gra tification because he believed they wanted him to, but sometimes he did this to re lease his anger towards an a ggressive or abrasive woman to punish her. Jackson descri bed having similar feelings as he had at the time of his sexual assaults

— sexual gratification and releasing a nger that he considered triggered by behavior of those he repe atedly referred to as “whor ish women” he desired to punish. Dr. Clayton ch aracterized Jackson’s statements as indicative of a general objectification of women, an tisocial psychopathic personality, and the risk factor of condoning sexual violence. The doctors agreed that lying and presen ting different versions of events is common for people with antisoc ial psychopathic personality. In his interview with Dr. Clayton, Jackson denied that he sexually assaulted his child’s grandmother, but admitted that he was angry with her, went to her home with intent to and in fact physically assaulted her, held a knife to her throat, and may have wanted to kill her. Jackson maintained that he was lying in previous statements when he admitted to her rape, but told Dr. Clayton that she dese rved what she got because of the way she treated children. Dr. Clayton explained that Jackson’s propensity to change details of his offenses in a way he believes will benefit him speaks to his antisocial personality, his failure to take responsibility, and a lack of insight into his own behavior. Dr. Clayton opined that Jackson s till displays psychopathic traits such as–23– grandiosity, narcissism, ly ing, and manipulation. On e example is that Jackson admits to running scams in prison and gami ng the system by faking suicide attempts to secure transfers to a psychiatric unit or another facility he pr eferred. His last transfer was in 2018. Dr. Clayton identified Jackson’s problem with self-awareness as another risk factor for reoffending. Rather than adm it he has problems that need treatment, Jackson denies or minimizes his sexual offenses, externalizes responsibility by blaming his inner rage on a desire to puni sh women due to mistreatment by females early in life, and rationalizes his sexual acting out as beyond his control because his anger is triggered. Dr. Cl ayton explained that Jackson’s planned physical attack to release his rage at his child’s grandmothe r and violent thoughts about female guards indicate the risk factor of violent ideation. Jackson admits to using masturbation to cope with stress, and Dr. Clayton characteri zed this as problematic due to Jackson’s sexual deviancy and histor y of sexual offenses. Dr. Gaines agreed that Jackson has a ll of the risk factors identified by Dr. Clayton. Additionally, Dr. Gaines explaine d that having a stranger as a victim is a risk factor because it means the pool of potential victims is very large, and that Jackson’s sexual misconduct in prison aimed at male correctional officers is a risk factor because it makes his pool of potential victims even larger. Our review of the record reveals that ample factual evidence supports the opinions of Dr. Clayton and Dr. Gaines, a nd therefore their conclusions cannot be–24– characterized as conclusory or speculative. We conclude the expe rt testimony of Dr. Clayton and Dr. Gaines is competent evid ence that the jury could rely upon in reaching their verdict. After reviewing th e evidence in the light most favorable to the prosecution, we conclude any ratio nal factfinder could have found beyond a reasonable doubt that Jackson is a sexually violent predator as defined by the SVP
Act. See Commitment of Stoddard , 619 S.W.3d at 675.
C. Factual Sufficiency Analysis The Texas Supreme Court recently clar ified the proper factual sufficiency standard of review for SVP Act cases. The Court stated: We hold that a properly conducted f actual-sufficiency review in an SVP case requires the court of appeal s to determine whether, on the entire record, a reason able factfinder could find beyond a reasonable doubt that the defendant is an SVP. In so doing, the appellate court may not usurp the jury’s role of determining the credibility of witnesses and the weight to be gi ven their testimony, and the court must presume that the factfinder resolved disputed evidence in favor of the finding if a reasonable factfinder could do so. If the remaining evidence contrary to the finding is so significant in light of the entire record that the factfinder coul d not have determined beyond a reasonable doubt that its finding was true, the evidence is factually insufficient to supp ort the verdict. Commitment of Stoddard , 619 S.W.3d at 668. Jackson contends the evidence is factuall y insufficient to support the jury’s finding that he is a sexually violent pr edator because countervailing evidence of protective factors was not sufficiently credited in his favor.–25– While the presence of protective factor s could provide evidence contrary to the jury’s finding, and being over 50 years of age is statistically protective, both experts devalued the protection this offe rs Jackson personally because he admitted to still having sexual urges and his sexual misconduct in prison was persistent and recent. The experts agreed that having a good support system is a protective factor. Jackson was married approximately ten year s ago while in prison, and he described recent communication with his sister, brothe r-in-law, and mother. However, neither doctor was able to ascertain the strength of Jackson’s support system as a protective factor because records indicate that Ja ckson’s relationships have not been consistently supportive. Jackson specifically argues the follo wing facts should be considered protective factors strong enough to render the jury’s finding that he is a sexually violent predator factually insufficient: (1) while undeterred by a four-year incarceration as a juvenile, he might now exercise control over his behavior after having served almost thirty years in prison; (2) his disciplinary infractions in prison were not serious enough to warrant pr osecution and he has not committed any “sexually violent offenses” during his thirty year incarceration; (3) targeting female guards for exhibitionist masturbation is a common problem in prisons; and (4) he worked to improve himself during incarceration by attaining a GED and by participating in prison programs such as anger management a nd cognitive therapy.–26– 1. Deterrent Effect of Time Served Jackson argues the deterrent effect of hi s incarceration for almost thirty years mitigates against the finding that he is a sexually violent predator. This court has rejected this argument, observing the i ssue is whether a defendant meets the definition of a “sexually violent predat or,” not whether the experience of incarceration may have ha d a deterrent effect. Commitment of Joiner , 2019 WL 4126602, at *9 (deterrent effect of thirty-year incarceration not considered in factual sufficiency review). The notion that SVP evidence can be rendered factually insufficient by being imprisoned befo re more offenses could be committed improperly adds a required element to th e statute because the SVP Act defines “sexually violent predator” in part as “a repeat sexual offender, ” which is satisfied by evidence of two convictions and at l east one sentence for sexually violent offenses. Id.
2. Lack of Recidivism The jury heard expert opinion that Jack son’s receipt of over 200 disciplinaries throughout his time in pris on was evidence that his antisocial and psychopathic personality disorders continue to affect his emotional and volitional capacities, and that the sexual nature of recent disciplinar ies shows that he still suffers from sexual deviancy. Jackson argues his disciplinar ies were received for conduct that does not meet the statutory definition of “sexually violent offense,” so his failure to commit additional sexually violent offenses du ring his thirty-year confinement should–27– overcome the evidence of his inability to c ontrol his behavior. Because the SVP Act requires only two sexually violent offenses to satisfy the “repeat sexual offender” element, we reject arguments that a lack of sexually vi olent recidivism, even during long periods of freedom, is evidence mitigating against a SVP finding. See Commitment of Joiner , 2019 WL 4126602, at *9 (evidence of ten-year gap between two sexual offenses when unconfined does not render SVP finding factually insufficient); Commitment of Mendoza , 2019 WL 5205710, at *7–8 (rejecting similar factual insufficiency argument that exhibitionist behavior in prison not “sexually violent”). Whether a “repeat sexual offender” is li kely to reoffend is not a separate element of proof in addition to whether the offender has a “behavioral abnormality” as defined by the SVP statute because the condition (behavioral abnormality) and the predisposition (likelihood) are one and the same. Commitment of Bohannan , 388 S.W.3d at 302

– 03. Thus, the only fact issue is whether a “repeat sexual offender” has a predisposition to commit a sexually violent offense due to impairments in emotional or volitional capacity–t he “behavioral abnormality.” Bohannan , 388 S.W.3d at 305. Our sister courts recognize that the prevalence of ordinary conduct is of limited value in a factual sufficien cy analysis because the SVP Act does not require a percentage statement of whether a person is likely to reoffend, and the question is whether there are sufficient i ndicia that a person has a condition causing predisposition toward violent sexual conduct. In re Commitment of Ausbie , No. 14-–28– 18-00167-CV, 2021 WL 1972407, at *8 (Tex. App.—Houston [14th Dist.] May 18, 2021, no pet.) (substitute mem. op.) (rejecting argument that two offenses over eight years unconfined showed defendant exercise d control 99.9993% of the time). Such an argument “belies the magnitude of viol ent sexual offenses. By [t]his reasoning, the captain of the Titanic might as well have boasted about how many icebergs he avoided.” See Commitment of Ausbie , 2021 WL 1972407, at *8, (quoting In re Commitment of Woods , No. 02-19-00155-CV, 2020 WL 3969958, at *8 (Tex. App.—Fort Worth June 11, 2020, pet. denied) (mem. op.)). We agree.
3. Disciplinary Infractions Commonplace At trial, Jackson minimized the validity and serious nature of his disciplinary infractions and testified th at all prisoners get discip linaries, while Dr. Gaines testified she has evaluated ma ny prisoners who received no disciplinaries. Jackson now argues the experts put too much wei ght on disciplinaries in forming their opinions and cites to evidence that it is common in prisons for inmates to target female guards for exhibitionist masturbati on. Jackson’s argument fails, as the Texas Supreme Court rejects factual insufficienc y arguments based on the notion that the SVP Act is aimed at the “worst of the wo rst,” making clear the Act merely “requires evidence of both repeat past sexually viol ent behavior and a present condition that creates a likelihood of such conduct in the future.” See Commitment of Stoddard , 619 S.W.3d at 678. Even if public ma sturbation and other sexual misconduct is–29– commonplace, this does not militate against fi nding the behavior is evidence that a predisposition remains that make s sexual reoffending more likely.
4. Education and Treatment as Protective Factors The jury heard Jackson’s testimony regarding his efforts to improve himself, including his prior participation in educa tional and therapeutic classes, his current participation in a sex offende r treatment program, and his Christian faith. Some of Jackson’s testimony was disputed, and the jury had the opportunity to weigh his credibility. Jackson testified he took anger management classes in prison, but there also was evidence that he was offered a nger management in 2014 and refused it. While Jackson received a GED and took some college courses in prison, there was evidence he was forced to discontinue some of the courses because of his behavior. The jury heard evidence that Jackson was participating in a nine-month sex offender treatment program that he began six months before trial, which was the first time sex offender treatment wa s offered to Jackson. Dr . Clayton testified the goal of treatment is to teach a person to manage his deviant sexual thoughts and behaviors. Jackson testified he is not ha ving any problems in treatment. The experts reviewed records indicating that during the educational phase, Jackson completed his assignments, participated in class, an d was attentive. Treatment notes indicated that during a later phase, Jackson still had issues with being accountable to the group, sometimes creating a disturbance in ther apy and sometimes deflecting from himself onto others. Jackson admitted he was reprimanded by the group for not–30– participating, but said he was never writte n up for failing to participate and denied an accusation that he caused one of his peer s to get a black eye. The records indicate that Jackson still rationalizes his past beha viors rather than taking full responsibility for his actions. At trial, Jackson denied th e truth of facts underlying convictions for unauthorized use of a motor vehicle and drug possession occurring during his one year of parole between sexual assaults a nd accused authorities and prior evaluators of lying about his statements to them. Dr . Gaines concluded th at until Jackson takes full responsibility, it will be very difficu lt for him to succeed in treatment. The jury heard evidence that, both be fore and midway through treatment, Jackson expressed that he did not need se x offender treatment. In his deposition, Jackson said he was willing to participate in the program because he had a lot to offer his peers so that they could receive the intervention necessary for them to avoid prison. Jackson told the parole board he wa s a “waste of beauty ” and he believed he could help others overcome their sexua l problems and anger. He wrote on a sex offender treatment worksheet that after he raped the first woman, he felt empowered, sexually satisfied, and “I fulfilled my fantas ies to be with a white woman sexually.” At trial, Jackson denied details of his sexu al offenses that he previously admitted during his deposition or prior evaluations a nd denied the truth of the information he wrote in sex offender treatment, stating: “In order to complete the sex offender program you’ve got to admit to the things th at are in the police report. If you don’t[,] you don’t leave prison, period.” Jackson testif ied that he has no triggers that would–31– cause him to reoffend, but he admitted a high-risk situation for him to reoffend sexually would be encountering abusive or aggressive women. He believes he is safe to be in the community because he will stay away from these women. Dr. Gaines believes that Jackson has a very limited understanding of his problems and a lot more work to do to change. Considering research-based protective f actors as well as risk factors, the doctors agree that Jackson currently su ffers from a behavioral abnormality that makes it more likely he will en gage in a predatory act of sexual violence. There was no contradictory expert testimony. Ev en though Jackson believes he won’t reoffend—which he also be lieved the first time he was released from prison—the experts believe he has yet to complete the extensive ther apeutic treatment necessary to gain an ability to control the dangerous behaviors he exhibi ted due to his sexual deviancy and antisocial/psychopathic persona lity disorder. Jackson testified before the jury and presented his evidence and ar guments to the contrary. In SVP cases, the jury is the sole judge of witness credib ility and the weight to be given testimony, and we may not substitute our judgment for a jury's reasonable assessment of the evidence. Commitment of Stoddard , 619 S.W.3d at 676 n. 12 (citing Commitment of Johnson , 2019 WL 364475, at *3). Viewing the entire record in a neutral li ght, we conclude th e evidence contrary to the verdict is not so significant that the factfinder could not have found beyond a reasonable doubt that Jackson is a sexually violent predator as defined by the SVP–32– Act. See Commitment of Stoddard 619 S.W.3d at 678. Finding the evidence factually sufficient, we overru le Issue Three and affirm th e trial court’s judgment.

200519F.P05 /Bonnie Lee Goldstein / BONNIE LEE GOLDSTEIN JUSTICE–33– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN RE COMMITMENT OF VICTOR DEWAYNE JACKSON

No. 05-20-00519-CV On Appeal from the 291st Judicial District Court, Dallas County, Texas Trial Court Cause No. CV1970005. Opinion delivered by Justice Goldstein. Justices Molberg and Smith participating. In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment entered this 12th day of August 2021.