in Re: Commitment of Cedric Ausbie
14-18-00167-CV
Tex. App.Aug 6, 2019Background
- Petitioner Cedric Ausbie was subject to a civil commitment proceeding under the Texas SVP Act after administrative referral; the trial court found him a sexually violent predator and committed him on October 3, 2017.
- Pen packets established two qualifying sexual convictions: a 2004 sexual assault of a 16‑year‑old female and a 2011 indecency with a child (nine‑year‑old boy); sentences were imposed and served.
- The State presented two experts: Dr. Timothy Proctor (forensic psychologist) and Dr. Sheri Gaines (psychiatrist). Both reviewed records, interviewed Ausbie (though interviews were limited by his severe mental impairment), applied actuarial tools (Static-99R), and diagnosed schizoaffective disorder and other conditions.
- Experts opined Ausbie has a behavioral abnormality—marked by sexual deviance, antisocial traits, serious mental illness, borderline intellectual functioning, substance history, violent features in offenses, and inability to complete sex‑offender treatment—that makes him likely to commit predatory sexual acts. Static‑99R score placed him in a high risk category.
- Ausbie moved for a new trial contending the evidence was legally and factually insufficient; the motion was overruled by operation of law and he appealed arguing three primary sufficiency-based claims.
Issues
| Issue | Plaintiff's Argument (Ausbie) | Defendant's Argument (State/Respondent) | Held |
|---|---|---|---|
| 1. Reliability of expert opinion basis | Experts relied on hearsay records (police/prison records); Ausbie may challenge foundational data on appeal | Expert testimony was admitted without a timely trial objection; experts may rely on collateral records and disclose bases under Rule 705 | Court: Ausbie waived new-found foundational attacks by failing to object at trial; experts' reliance on records permissible; challenge rejected |
| 2. Lack of volitional impairment / insufficiency to show inability to control behavior | Ausbie argued his long periods without reoffending show he could control behavior; evidence didn't prove serious volitional impairment | Experts testified Ausbie has serious difficulty controlling behavior due to disorganized thinking, schizoaffective disorder, other risk factors; actuarial and historical evidence support lack of volitional control | Court: Evidence (including expert testimony and Static‑99R) legally and factually sufficient to find impaired volitional capacity; Ausbie's time between offenses did not negate experts' opinions |
| 3. Applicability of the SVP Act given treatable mental illness and custody placement | Ausbie argued his condition is amenable to traditional mental‑health treatment and that the commitment order improperly places him under HHSC, suggesting Chapter 574 applies instead of SVP Act | State and record show experts did not conclude Ausbie is amenable to traditional treatment; commitment order tracks SVP statutory language and section 841.0835 for coordination with HHSC when psychiatric services are needed | Court: No evidence Ausbie is amenable to traditional mental‑illness treatment; commitment order complies with SVP statute; claim rejected |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes criminal sufficiency standard applied to SVP proceedings)
- Coastal Transport Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227 (Tex. 2004) (expert‑testimony foundational challenges require timely trial objection)
- City of San Antonio v. Pollock, 284 S.W.3d 809 (Timely objections required to preserve attacks on expert bases)
- Cole v. State, 839 S.W.2d 798 (Tex. Crim. App. 1990) (limits on hearsay exceptions for criminal investigative reports)
- In re Commitment of Harris, 541 S.W.3d 322 (discusses civil nature of SVP commitment and sufficiency review)
- In re Commitment of Kalati, 370 S.W.3d 435 (SVP Act does not require numerical recidivism probabilities)