In re Delarosa

1

In re Commitment of Juan Carlos Delarosa

No. 03-21-00541-CV

Court of Appeals of Texas, Third District, Austin

August 17, 2022

FROM THE 155TH DISTRICT COURT OF FAYETTE COUNTY NO. 2019V-277, THE HONORABLE JEFF R. STEINHAUSER, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Kelly and Smith

MEMORANDUM OPINION

Chari L. Kelly, Justice

In this civil commitment proceeding, the State petitioned to have appellant Juan Carlos Delarosa declared a sexually violent predator under the Sexually Violent Predator Act. See Tex. Health & Safety Code §§ 841.001-.153 (the Act). After a jury found beyond a reasonable doubt that Delarosa was a sexually violent predator under the Act, the trial court rendered a final judgment on the verdict and entered an order of civil commitment. Delarosa appeals, bringing two issues about the sufficiency of the evidence to support the jury's finding beyond a reasonable doubt that he is a sexually violent predator. See id. §§ 841.003, 841.062. We affirm.

BACKGROUND

While in his 30s, Delarosa sexually assaulted two of his nieces, C and G.,^[1] who were then about seven or eight years old, over the course of some years. After a delayed outcry by the girls, Delarosa pleaded guilty to one count of aggravated sexual assault of a child and two counts of indecency with a child by contact. His three judgments of conviction were all signed in 2005, and he received 15 years in prison for each conviction.

Delarosa was released on parole in early 2017, and both while he was in prison and after his release, he received forms of counseling or treatment. In some of his treatment sessions Delarosa admitted to additional sexual offenses, including molesting a four- or five-year-old girl when he was a teenager and getting "away with it" and also a five- or six-year-old boy and similarly escaping accountability. Delarosa in his testimony agreed that he is a sex offender and even admitted that he will "always need treatment."

In summer 2018, Delarosa's parole was revoked because he had child pornography on his phone, and he was sent back to prison.

As Delarosa's ultimate release from prison approached, the State petitioned the trial court to civilly commit Delarosa as a "sexually violent predator" under the Act. See id. § 841.003(a). The parties tried to a jury whether Delarosa is a sexually violent predator. At trial, the State called Dr. Darrel Turner, who is a psychologist who evaluated Delarosa, and then Delarosa. The court admitted exhibits offered by the State, including Dr Turner's CV and evidence of Delarosa's convictions for the sex offenses against his nieces and for other offenses. The jury unanimously found that Delarosa is a sexually violent predator, and the trial court rendered a final judgment and order of civil commitment accordingly.

APPLICABLE LAW AND STANDARD OF REVIEW

Chapter 841 provides for the involuntary "long-term supervision and treatment of sexually violent predators." See id. §§ 841.001, 841.007; see also id. §§ 841.002-.153; In re Commitment of Stoddard, 619 S.W.3d 665, 669 (Tex. 2020). Proving that a person is a sexually violent predator requires proof of two elements: (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 § 841.003(a); Commitment of Stoddard, 619 S.W.3d at 669. The burden of proof for the finding that a person is a sexually violent predator is "beyond a reasonable doubt." Tex. Health & Safety Code § 841.062(a); Commitment of Stoddard, 619 S.W.3d at 670.

"'Behavioral abnormality' means a congenital or acquired condition that, by affecting a person's emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person." Tex. Health & Safety Code § 841.002(2). "'Predatory act' means an act directed toward individuals, including family members, for the primary purpose of victimization." Id. § 841.002(5). And "sexually violent offense" includes the offenses of indecency with a child by contact and aggravated sexual assault of a child. See id. § 841.002(8)(A); Tex. Penal Code §§ 21.11(a)(1), 22.021(a)(1)(B), (a)(2)(B).

Because of the heightened burden of proof, appellate review of the sufficiency of the evidence to support a finding that a person is a sexually violent predator differs from the usual sufficiency review in civil appeals. The legal-sufficiency standard here requires deciding "whether, after viewing the evidence in the light most favorable to the [petitioner], any rational trier of fact could have found the essential elements . . . beyond a reasonable doubt." See Commitment of Stoddard, 619 S.W.3d at 675 (internal quotation omitted). The factual-sufficiency standard requires deciding "whether, on the entire record, a reasonable factfinder could find beyond a reasonable doubt that the defendant is" a sexually violent predator. Id. at 668. "[T]he appellate court may not usurp the jury's role of determining the credibility of the witnesses and the weight to be given their testimony . . . [and] must presume that the factfinder resolved disputed evidence in favor of the finding if a reasonable factfinder could do so." Id. "If the remaining evidence contrary to the finding is so significant in light of the entire record that the factfinder could not have determined beyond a reasonable doubt that its finding was true, the evidence is factually insufficient." Id.

"[I]n both types of review the appellate court may not ignore 'undisputed facts that do not support the finding' and must otherwise presume the factfinder resolved disputed evidence in favor of the finding if a reasonable factfinder could do so." Id. at 676 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). But the two types diverge over how they treat "disputed evidence that a reasonable factfinder could not have credited in favor of the finding." Id. "In a legal-sufficiency review, the court disregards such evidence in determining whether a rational factfinder could find the statutory . . . elements met beyond a reasonable doubt." Id. But "[i]n a factual-sufficiency review, the court considers whether that evidence, in light of the entire record, is so significant that the factfinder could not have determined beyond a reasonable doubt that the statutory elements were met." Id.

DISCUSSION

Delarosa's first issue concerns the legal sufficiency of the evidence to support the jury's finding that he is a sexually violent predator. He does not challenge the element that he "is a repeat sexually violent offender."^[2] See Tex Health & Safety Code § 841.003(a)(1). He instead challenges the element that he "suffers from a behavioral abnormality that makes [him] likely to engage in a predatory act of sexual violence," see id. § 841.003(a)(2), for the most part by attacking the expert-witness testimony given by Dr. Turner.

But only some of Delarosa's arguments about Dr. Turner's testimony are reviewable here. See In re Commitment of Cordova, 618 S.W.3d 904, 917 (Tex. App.-El Paso 2021, no pet.) ("At the outset, we hold that Cordova cannot challenge the reliability of the State's experts' opinions on appeal because he did not object on that basis in the trial court." (citing City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009))). Delarosa only challenged the State's evidence with a post-verdict motion for new trial. Because he did not object, or file any pre-trial motion, to preserve an expert-testimony challenge, he forfeited any challenge to the reliability of Dr. Turner's expert opinions or methodology. "When the expert's underlying methodology is challenged, the court 'necessarily looks beyond what the expert said' to evaluate the reliability of the expert's opinion." Pike v. Texas EMC Mgmt., LLC, 610 S.W.3d 763, 786 (Tex. 2020) (internal quotation omitted) (quoting Coastal Transp. Co. v. Crown Cent. Petrol. Corp., 136 S.W.3d 227, 233 (Tex. 2004)). Thus, "when a reliability challenge requires the court to evaluate the underlying methodology, technique, or foundational data used by the expert, an objection must be timely made so that the trial court has the opportunity to conduct this analysis." Id. (internal quotation omitted) (quoting Coastal Transp., 136 S.W.3d at 233). This means that "when an expert opinion 'is admitted in evidence without objection, it may be considered probative evidence even if the basis of the opinion is unreliable.'" Id. (quoting Pollock, 284 S.W.3d at 818).

On the other hand, the motion for new trial preserved challenges to the legal and factual sufficiency of the evidence, which can encompass challenges that Dr. Turner's testimony was speculative or conclusory. "[A] party need not object in order to challenge . . . expert testimony as conclusory or speculative on its face; it need only preserve a challenge to the legal sufficiency of the evidence, which it may do post-verdict." Id. Because Delarosa preserved his legal-sufficiency challenge through his motion for new trial, see In re D.T., 625 S.W.3d 62, 75 & n.8 (Tex. 2021), we may review his arguments that Dr. Turner's testimony was conclusory or speculative. This kind of review "is restricted to the face of the record." See Pike, 610 S.W.3d at 786 (internal quotation omitted) (quoting Coastal Transp., 136 S.W.3d at 233).

Conclusory-evidence or speculative-evidence arguments concern the basis for the expert's opinions and the connection between the basis and the opinions. Expert testimony "is conclusory (and an objection unnecessary)" either when "no basis for the opinion is offered" or when "'the basis offered...