In re Commitment of Brown

656 S.W.3d 418

IN RE: the COMMITMENT OF Keith Scott BROWN

No. 08-21-00012-CV

Court of Appeals of Texas, El Paso.

October 20, 2022

ATTORNEY FOR APPELLANT: John C. Moncure, State Counsel for Offenders, P. O. Box 4005, Huntsville, TX 77342-4005.

ATTORNEYS FOR APPELLEE: Sarah Waller, Melinda Fletcher, Special Prosecution Unit-Civil Division, 1300 11th Street Ste. 520, Huntsville, TX 77340.

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

OPINION

GINA M. PALAFOX, Justice

A Midland County jury unanimously found, beyond a reasonable doubt, that appellant Keith Scott Brown is a sexually violent predator. See TEX. HEALTH & SAFETY CODE ANN. § 841.003. Accordingly, the trial court ordered Brown committed to supervision and treatment pursuant to Chapter 841 of the Texas Health and Safety Code, titled "Civil Commitment of Sexually Violent Predators" (the SVP Act). See id. ch. 841. In two issues, Brown challenges the legal and factual sufficiency of the evidence, as well as the constitutionality of the SVP Act, both facially and as applied to him. We affirm the trial court's judgment and the related order of civil commitment.¹

I. BACKGROUND

A. Dr. Dunham's expert testimony

Forensic psychologist Dr. Jason Dunham testified as the State's first witness. After detailing his training and experience as a specialist in sex-offender risk assessment, Dr. Dunham described that he met with and conducted an evaluation of Brown for the purpose of determining whether he suffered from a behavioral abnormality that subjected him to civil commitment under the SVP Act. He explained that his assessment of Brown was a type of future-based evaluation, which entailed making a risk assessment of future danger based on past behavior, along with other factors. He also explained that research showed past behavior was the best predictor of future conduct. Dr. Dunham testified he has been conducting evaluations of this nature for the past fifteen years.

Dr. Dunham testified that, as a forensic psychologist—meaning, a psychologist who applies psychology principles to legal questions—he was familiar with the statutory definition of "behavioral abnormality," a legal term. Explaining, Dr. Dunham testified that a behavioral abnormality is a congenital or acquired condition (i.e., a condition one is born with or develops over time) that affects a person's emotional or volitional capacity which, by impairing the person's ability to control their desires, impulses, and even thoughts, predisposes them to (or makes them likely to) commit a predatory act of sexual violence, legally defined as an act for the primary purpose of victimization. Because "likely" is not defined by the SVP Act, in accordance with the literature concerning application of the statute, Dr. Dunham defined it as, "there's a pretty good chance that something is going to happen." In other words, Dr. Dunham explained, a behavioral abnormality is "some type of psychological or even psychiatric condition that puts the person at a certain level of risk that makes them likely to commit a certain type of sexual offense."

1. Methodology employed

Since there is no clinical or scientific test that will directly indicate whether someone meets the statutory definition of behavioral abnormality, Dr. Dunham conducted his evaluation of Brown using a "clinically adjusted actuarial approach," a methodology generally accepted in the forensic psychology field. The methodology is named this way because it allows for the clinical adjustment of the overall statistical value of several factors, namely risk factors and protective factors, in arriving at an opinion after synthesizing data from various sources. Dr. Dunham described this methodology as a holistic one, focused not on isolated instances of behavior but on the person's exhibited patterns of behavior during his or her entire lifetime.

In arriving at his opinion that Brown suffered from a behavioral abnormality, Dr. Dunham interviewed Brown and reviewed various documents: reports concerning Brown's criminal history, including police reports and statements made by victims and Brown concerning his prior offenses; prison disciplinary, medical, sex-offender-treatment, and parole records; as well as previous evaluations done by other doctors, Brown's deposition transcript, and education records. Dr. Dunham also employed two testing instruments commonly used by experts in evaluating sex offenders for potential behavioral abnormalities under the SVP Act: (1) the Static-99R, which assesses an offender's risk for being re-convicted of a sex offense; and (2) the Psychopathy Checklist Revised (PCLR), which measures a person's psychopathy along a continuum.

Risk factors, which research shows correlate to sexual-offense recidivism, were also assessed in counterbalance with protective factors, which generally help reduce the risk of recidivism resulting from the presence of these risk factors.

2. Brown's sexual criminal history

In 1994, when Brown was seventeen years old, he sexually assaulted six-year-old A.A. Brown had been kicked out of his home and he was staying in Nebraska with A.A. and her family for roughly two weeks before the offense took place. The day of the offense, Brown was babysitting A.A. and her siblings. Thinking they were all asleep, Brown began watching an adult-pornography video. When A.A. came into the room, Brown continued to watch the video and became aroused by her. Brown then took A.A. to the bedroom, dressed her in her mother's lingerie, fondled her vagina, and then licked her vagina while masturbating. Brown admitted to Dr. Dunham that he was sexually aroused by A.A. within the first week of his stay at her family's residence; he remembered seeing her naked in the bathtub and masturbating to thoughts of her before he sexually assaulted her. Brown told Dr. Dunham that he found A.A. very attractive, that, although he was able to resist this attraction to her after he had first given her a bath when he had babysat, he continued to masturbate to thoughts of her until he "couldn't help himself any longer." Brown was convicted of first-degree sexual assault under Nebraska law and sentenced to a prison term of six-and-a-half to twelve years.

In 2022, or roughly two years after his release from prison in Nebraska, Brown sexually assaulted S.B., a ten-year-old autistic child who was intellectually disabled and hardly verbal. Brown became acquainted with S.B. after he and his wife moved to Midland. Brown's wife and S.B.’s mother became best friends and were inseparable. Consequently, Brown and his wife visited S.B.’s home on an almost-daily basis. One day, while in the bathtub, S.B. was able to indicate that Brown had put his finger inside her vagina: she said, "Ke" (which was how she referred to Brown) and pointed to her vagina. When examined by a nurse at the hospital, S.B. put her finger inside her vagina and said, "Ke" again. Brown admitted to police that he put his finger inside S.B.’s vagina, though Brown was inconsistent on whether he did this on one or two occasions, either on the side of the road when taking S.B. for ice cream, or in a vehicle in front of S.B.’s house, or both.

Brown's version to Dr. Dunham was that his wife and S.B.’s mother encouraged him to take S.B. for ice cream, which made him upset because they "put him in a position like that." He pulled over on the side of the road and put his hand down S.B.’s pants and fondled her vagina while masturbating to completion. Brown explained to Dr. Dunham that he became aroused by S.B. over time, thinking about her more and more as time passed. Before assaulting S.B., Brown would fantasize about her, even while having sex with his wife. He indicated his urges escalated to a point where he could no longer resist.

Brown was resentful that his wife would have him go over to S.B.’s house when she suspected that he was sexually attracted to S.B. and knew he was a convicted sex offender. Brown was sentenced to a twenty-year prison term for aggravated sexual assault of a child as a repeat offender.²

Dr. Dunham explained Brown's offenses against A.A. and S.B. were clinically violent given the children were unable to consent. Additionally, Brown's sexual-offense convictions were among the enumerated criminal offenses under the SVP Act.

3. Brown's nonsexual criminal history

Dr. Dunham testified that Brown had been in trouble with law enforcement from a young age and had been arrested six or seven times by the time he was fifteen years old. Brown began using drugs and alcohol at age ten or eleven, ran away from home, got in trouble for throwing rocks at a teacher, and was convicted of assault at age fifteen. He was sent to a boys’ home at age thirteen, at one point running away from there, too. At age seventeen, he was arrested for the unauthorized use of his mother's car and was kicked out of his house as a result. During the two years Brown was free between incarcerations, he reported using methamphetamine, LSD, alcohol, and prescription pills.

4. Diagnoses, risk factors, and protective factors

a. Diagnoses

Based on these problematic behaviors that Brown engaged in while he was a juvenile, Dr. Dunham diagnosed Brown with a conduct disorder, which in turn, supported a diagnosis of antisocial personality disorder—a congenital or acquired, and chronic, lifelong condition characterized by rule-breaking behavior, or not engaging in normative behavior based on the rules or laws of society, which can affect a person's emotional or volitional capacity. While antisocial personality disorder may manifest differently during a person's lifetime based on his or her setting—such as when he or she is institutionalized—it does not cease simply because the person becomes an adult or is incarcerated. Dr. Dunham explained that his diagnosis of Brown's antisocial personality disorder was supported by Brown's sexual and nonsexual criminal history, and there was evidence that this condition contributed to Brown's threat to the health...