In re Commitment of Cordova

618 S.W.3d 904

IN RE: the COMMITMENT OF Anthony CORDOVA.

No. 08-18-00220-CV

Court of Appeals of Texas, El Paso.

February 22, 2021

ATTORNEY FOR APPELLANT: Teresa Dunsmore, State Counsel For Offenders, PO Box 4005, Huntsville, TX 77342-4005.

ATTORNEYS FOR STATE: Melinda Fletcher, Appellate Attorney, Special Prosecution Unit, P.O. Box 1744, Amarillo, TX 79501, Yvonne Rosales, District Attorney, 500 E. San Antonio, Ste. 201, El Paso, TX 79901.

Before Rodriguez, C.J., Palafox, and Alley, JJ.

OPINION

GINA M. PALAFOX, Justice The State of Texas filed a petition to commit Appellant Anthony Cordova as a sexually violent predator. See TEX. HEALTH & SAFETY CODE ANN. §§ 841.001 - .153 (the SVP Act). At trial, after the court entered a directed verdict finding that Cordova was a repeat sexually violent offender, the jury returned a verdict finding that Cordova suffers from a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence. Based on these findings, the trial court rendered a final judgment and an order of civil commitment. Cordova timely appealed. In five issues, Cordova challenges the legal and factual sufficiency of the evidence, the admission at trial of 911 calls¹ placed by a victim of one of his prior sexual assaults (State's Exhibit 4), and the court's granting of a directed verdict on one of the two required elements of the SVP Act. Finding no error, we affirm the trial court's judgment and order of civil commitment.

I. BACKGROUND

A. The Civil Commitment of Sexually Violent Predators

This appeal arises out of a civil commitment proceeding to determine whether Cordova is a sexually violent predator (SVP) for the purposes of Chapter 841 of the Texas Health and Safety Code. See The Civil Commitment of Sexually Violent Predators Act, 76th Leg., R.S., ch. 1188, § 4.01, 1999 Tex. Gen. Laws 4143 (codified as amended at TEX. HEALTH & SAFETY CODE ANN. §§ 841.001 -.153). In enacting the SVP Act, the Legislature found:

[T]hat a small but extremely dangerous group of sexually violent predators exists and that those predators have a behavioral abnormality that is not amenable to traditional mental illness treatment modalities and that makes the predators likely to engage in repeated predatory acts of sexual violence ... Thus, the legislature finds that a civil commitment procedure for the long-term supervision and treatment of sexually violent predators is necessary and in the interest of the state.

TEX. HEALTH & SAFETY CODE ANN. § 841.001 ; see also In re Commitment of Fisher , 164 S.W.3d 637, 639-40 (Tex. 2005). An SVP is defined by two elements that must be proven at trial: (1) the person is a "repeat sexually violent offender"; and (2) the person "suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." TEX. HEALTH & SAFETY CODE ANN. § 841.003(a)(1), (2). The State bears the burden of proving beyond a reasonable doubt that a person is an SVP. TEX. HEALTH & SAFETY CODE ANN. § 841.062(a).

Here, the State filed a petition against Cordova, who was by then close to completing a nine-year concurrent sentence for two convictions of sexual assault and one conviction of aggravated sexual assault, alleging that Cordova was a repeat sexually violent predator who suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See TEX. HEALTH & SAFETY CODE ANN. § 841.041 (setting forth requirements for petition). Cordova generally denied the allegations and asserted several defenses to include an assertion that Chapter 841 did not apply to him as he was amenable to traditional treatment modalities. Both parties demanded a jury trial. See TEX. HEALTH & SAFETY CODE ANN. § 841.061(b) (providing for a jury trial on demand of either party).

At trial, the State presented two experts who both testified that, in their expert opinion, Cordova currently suffers from a behavioral abnormality as required by the elements of the SVP Act, while another expert testified for Cordova offering a contrary opinion. Each side also admitted a curriculum vitae from their respective experts to accompany their trial testimony. In its case-in-chief, the State also presented testimony from Cordova to include deposition testimony given by him prior to trial.² At his deposition, Cordova maintained he did not commit the prior sexual offenses and had no personal knowledge of certain details of the offenses. Nonetheless, at trial he acknowledged he had pleaded guilty to each of the offenses. Supplementing the experts' testimony, the State also admitted a penitentiary packet³ of Cordova's convictions for the prior sexual offenses, as well as a recording of a 911 call made by a female caller who was the victim of one of those convictions.

B. The expert testimony

1. The experts

Jason D. Dunham, Ph.D., a forensic psychologist, testified as the State's first witness. Dr. Dunham testified he had practiced as a licensed psychologist since 2001. During his career, he had conducted over 200 SVP evaluations in Texas cases.

Michael Arambula, M.D., Pharm.D., also testified for the State. Dr. Arambula testified he was a licensed medical doctor and a licensed pharmacist and was board certified in both general psychiatry and forensic psychiatry. He had practiced forensic psychiatry since 1992 and conducted over 150 SVP evaluations.

John Fabian, Psy.D., also a forensic psychologist and neuropsychologist, testified for Cordova. Dr. Fabian testified he was board certified in forensic psychology and clinical psychology. Although Dr. Fabian had conducted less than 15 SVP evaluations in Texas, he had conducted about 600 similar evaluations in total when considering his work in other states.

2. Methodology applied

All three experts reviewed voluminous documents relating to Cordova, conducted separate face-to-face interviews with him, and either employed commonly used testing instruments – in the case of Dr. Dunham and Dr. Fabian who were trained as psychologists – or utilized the test results of other experts pursuant to their training – in the case of Dr. Arambula who was trained as a medical doctor. In evaluating Cordova, each expert followed the methodologies upon which they were educated and trained.

3. Materials reviewed

The records reviewed by the experts included police reports from Cordova's offenses, victim and witness statements, court documents, parole summaries, prison disciplinary records, jail records, medical records, and prior evaluations. Once depositions had been taken of witnesses, the experts reviewed those as well.

a. Cordova's nonsexual criminal history

Cordova's criminal history began with a nonsexual offense. Over time, Cordova was arrested on more than 40 occasions, but many of those arrests were for nonviolent offenses. Eventually, he served prison time in Louisiana on three occasions. His final prison sentence in Louisiana was for a violent robbery. This robbery was the first sign of violence in Cordova's criminal history. Once Cordova completed his parole in Louisiana, he moved to El Paso in 2007 where he began his spree of sexual crimes.

b. Cordova's sexual criminal history

After moving to El Paso, Cordova committed three sexually violent offenses between 2007 and 2010, and he was convicted of all three upon his pleas of guilt. All three of Cordova's victims were strangers to him. He was 46-years' old at the time he committed his first sexual assault in 2007. The victim, M.F.,⁴ was intoxicated and walking to a convenience store at about 2:30 a.m. when Cordova drove by and grabbed her off the street. M.F. only remembered waking up in a bed while Cordova was on top of her. Although she tried to fight off Cordova, he vaginally raped her. Once Cordova fell asleep, M.F. retrieved her clothes, escaped, and despite having outstanding warrants, called police and reported that Cordova had raped her. Police were able to obtain DNA evidence from M.F., and the DNA later matched to Cordova.

Cordova's second conviction was for aggravated sexual assault committed in 2008, only three months after his first sexual assault. At about 2:30 a.m., Y.M., a 22-year-old female, was walking home after finishing a show as a mariachi singer. As she walked past a motel, Cordova grabbed her neck, threatened to kill her if she woke anyone up, and dragged her to a nearby apartment. Over the course of four hours, Cordova forced alcohol down her throat, forced her to inhale cocaine smoke, repeatedly punched her in her face, pulled her by her hair, forced his penis into her mouth, and attempted to force his penis into her vagina. Eventually, Y.M. managed to kick Cordova, and as he recoiled, she escaped the apartment, and soon called 911. When police arrived, Y.M. directed them to Cordova's apartment, and once there, she identified him on-scene, which led to his immediate arrest. At trial, a recording of Y.M.'s three-part call to 911 was admitted into evidence over Cordova's objections.

While on bond for his second offense, Cordova committed his third sexual assault in 2010. The victim, M.R., had been at a bar with friends, but as the bar closed and she stood outside with her friends, Cordova approached her, struck up a conversation, and offered her a drink. Once she took a drink out of Cordova's black bottle, she lost her memory and remembered waking up in a trailer park with Cordova on top of her and attempting to rape her. The next thing she recalled was waking up in his living room at about 6:30 a.m. with a laceration on her vagina and bruises on her body. Although she saw that the tires on her car outside had been slashed, she nonetheless drove it from the scene and sought help. Eventually, a rape kit was completed at a hospital, and police matched DNA evidence obtained from M.R. to Cordova.

4. Conditions diagnosed

The experts diagnosed Cordova using the Diagnostic and Statistical Manual of Mental Disorders, fifth edition – the DSM-5. The experts explained that the...