In re McGarity

1

IN RE COMMITMENT OF MICHAEL MCGARITY

No. 12-23-00001-CV

Court of Appeals of Texas, Twelfth District, Tyler

June 30, 2023

Appeal from the 217th District Court of Angelina County, Texas (Tr.Ct.No. CV-01468-21-11)

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

MEMORANDUM OPINION

Brian Hoyle Justice

Michael McGarity appeals his civil commitment following the trial court's adjudication that he is a sexually violent predator. In two issues, McGarity contends that the evidence is legally and factually insufficient to support the trial court's judgment. We affirm.

Background

McGarity is an inmate, who currently is serving two twenty-five-year concurrent sentences for aggravated sexual assault of a child. On November 23, 2021, the State filed a petition seeking to have McGarity adjudicated a sexually violent predator and committed for treatment and supervision pursuant to Chapter 841 of the Texas Health and Safety Code. A jury found beyond a reasonable doubt that McGarity is a sexually violent predator. On that basis, the trial court entered a final judgment and order of civil commitment. McGarity filed a motion for new trial, which was overruled by operation of law. This appeal followed.

Evidentiary Sufficiency

In his first and second issues, McGarity argues that the evidence is neither legally nor factually sufficient to support the jury's finding that he is a sexually violent predator.

Standard of Review and Governing Law

Texas Health and Safety Code Chapter 841 provides for the involuntary "long-term supervision and treatment of sexually violent predators" meeting specified statutory criteria. TEX. HEALTH &SAFETY CODE ANN. § 841.001 (West 2017); In re Commitment of Stoddard, 619 S.W.3d 665, 669 (Tex. 2020). To meet its burden of proof in a sexually violent predator civil commitment case, the State must prove beyond a reasonable doubt that a person is a sexually violent predator. See TEX. HEALTH &SAFETY CODE ANN. § 841.062 (West Supp. 2022). A person is considered a "sexually violent predator" if he (1) is a repeat sexually violent offender, and (2) suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Id. § 841.003(a) (West 2017). A "behavioral abnormality" is defined 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 menace to the health and safety of another person. Id. § 841.002(2) (West 2017). "'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 offense of aggravated sexual assault of a child. See id. § 841.002(8)(A); TEX. PENAL CODE ANN. § 22.021(a)(1)(B), (a)(2)(B) (West 2019). If, after a trial, a trial court or jury determines that a person is a sexually violent predator, the judge must commit him for treatment and supervision. See TEX. HEALTH &SAFETY CODE ANN § 841.081(a) (West 2017).

Because of the heightened burden of proof, appellate review of the legal sufficiency of the evidence 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 In re Commitment of Stoddard, 619 S.W.3d at 675 (internal quotation omitted). "It is the fact finder's responsibility to fairly resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic to ultimate facts." In re Commitment of Stuteville, 463 S.W.3d 543, 544 (Tex. App.-Houston [1st Dist.] 2015, pet. denied); In re Commitment of Mullens, 92 S.W.3d 881, 887 (Tex. App.- Beaumont 2002 pet. denied) (stating fact finder may resolve conflicts and contradictions in evidence "by believing all, part, or none of the witnesses' testimony").

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. See In re Commitment of Stoddard 619 S.W.3d 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.

Statutory Construction

As part of his first issue, McGarity contends that our analysis turns on the meaning of a statute, which is a question of law we review de novo. See, e.g., Flores v. State 620 S.W.3d 154, 158 (Tex. Crim. App. 2021) (stating that "[s]ometimes, a sufficiency of the evidence issue turns upon the meaning of the statute under which the defendant is being prosecuted . . . [, and in] those situations, after viewing the evidence in the light most favorable to the verdict, we ask if certain conduct actually constitutes an offense under the statute, which is a question of law we review de novo"). McGarity correctly argues that this appeal turns on the statutory definition of "behavioral abnormality." His argument continues that this phrase is ambiguous, we should construe it in light of the legislative history, and accordingly, such an analysis inevitably leads to the conclusion that Chapter 841 was not intended to apply to him.

McGarity specifically asserts that the case law sheds little light on what the "behavioral abnormality" element means and, therefore, resolution of this question requires a judicial construction of the "behavioral abnormality" element according to traditional rules of statutory construction. He argues that, under these traditional rules, this Court should consider the Legislature's findings that Chapter 841 is intended to apply to "a small but extremely dangerous group of sexually violent predators," a group to which he does not belong. See TEX. HEALTH &SAFETY CODE ANN. § 841.001. We disagree with McGarity's analysis.

The Texas Supreme Court has clarified that the two statutory elements- repeat sexually violent predator and behavioral abnormality-are the only factors courts should consider in a sufficiency review. See In re Commitment of Stoddard, 619 S.W.3d at 676-78. It explained that the "'small but extremely dangerous group' language, contained in the Act's legislative findings, is not part of the statute's definition of 'sexually violent predator' and [is] not an element the jury [is] required to find." Id. at 677 (concluding appeals court erred in finding evidence insufficient where it found, among other things, that appellant was not part of small but extremely dangerous group referenced in legislative findings).

Other Texas courts have rejected similar arguments. See, e.g., In re Commitment of Atchison, No. 01-22-00424-CV, 2023 WL 4003066, at *7 (Tex. App.-Houston [1st Dist.] June 15, 2023, no pet. h.) (mem. op.) (dismissing request to consider whether appellant was part of "small but extremely dangerous group" mentioned in legislative findings in light of holding in Stoddard); see also In re Commitment of Tryon, 654 S.W.3d 29, 38 (Tex. App.-Eastland 2022, pet. denied) (noting "Stoddard has clearly foreclosed" argument that "behavioral abnormality" element must be construed as incorporating Act's legislative findings and legislative history); In re Commitment of Ausbie, No. 14-18-00167-CV, 2021 WL 1972407, at *11 (Tex. App.-Houston [14th Dist.] May 18, 2021, pet. denied) (mem. op.) (declining request, in light of Stoddard, to examine legislative history to construe intended meaning of "behavioral abnormality"). We agree with the reasoning in these opinions and likewise hold that Stoddard forecloses McGarity's argument that the evidence is legally insufficient to support a finding that he meets the legislatively intended definition of "behavioral abnormality."

The Evidence at Trial^[1]

The Texas Department of Criminal Justice (TDCJ) retained Dr. Darrel Turner, a psychologist, to evaluate McGarity and determine whether he has a behavioral abnormality. Dr. Turner has a bachelor's degree in psychology, a master's degree in counseling psychology, and a doctorate in clinical psychology with a focus in forensic psychology. He completed a predoctoral internship with the Federal Bureau of Prisons and worked as a staff psychologist at a United States federal penitentiary in Pollock, Louisiana. Dr. Turner is licensed in Texas and Louisiana. The jury was also provided his curriculum vitae.

As the...