in Re Commitment of Dennis Wayne Clemons, 09-15-00488-CV

Background

Clemons was civilly committed after a jury found he is a repeat sexually violent offender with a behavioral abnormality making him likely to commit predatory sexual violence. The trial court denied his motion for new trial and he appealed.
The State introduced Clemons’s certified penitentiary packets (multiple convictions including aggravated sexual assault and sexual assault) and his admissions to those convictions.
Two State experts (Dr. Turner, clinical psychologist; Dr. Clayton, forensic psychiatrist) reviewed records, interviewed Clemons, ran actuarials (PCL-R, Static-99R), diagnosed paraphilic disorder with sadistic features and antisocial personality disorder, and opined Clemons is currently sexually deviant and high risk to reoffend.
Clemons testified, denying most details of the sexual assaults, admitting a long criminal history and psychiatric problems, and saying he had not had sex-offender treatment and did not need it.
Clemons raised five appellate issues: (1) facial constitutional challenge to the amended SVP statute; (2) experts’ testimony unreliable because based on hearsay; (3) legal sufficiency of the evidence; (4) factual sufficiency of the evidence; (5) improper State questioning of Clemons about offense details. The court affirmed the commitment on all issues.

Issues

Issue	Plaintiff's Argument (Clemons)	Defendant's Argument (State)	Held
1. Facial constitutionality of Chapter 841 as amended by SB 746	SB 746 is facially unconstitutional because it eliminates outpatient-first options and forces oppressive confinement; fails Fisher intent-effects test	Statute remains civil, provides TCCO tiered supervision and procedures for less restrictive placements; challenge was not preserved	Issue waived for failure to raise at trial; even if considered, court follows In re Commitment of May and concludes statute remains civil — challenge rejected
2. Reliability of experts’ opinions (hearsay basis)	Experts’ opinions are speculative/conclusory because premised on unreliable hearsay records; thus legally insufficient	Experts relied on standard records, interviews, actuarials; Rule 705 disclosures permitted and limiting instructions given; testimony was detailed and probative	Experts’ testimony was not conclusory; reliance on records and interviews was proper; limiting instruction presumed followed; claim overruled
3. Legal sufficiency of evidence supporting behavioral abnormality	Evidence does not show current behavioral abnormality or explain late onset of sexual offenses; experts’ opinions unsupported	Experts linked historical violent sexual behavior, diagnoses, actuarials, lack of treatment, and current interviews to present dangerousness; jury may infer current risk from past acts and expert testimony	Legal sufficiency: viewing evidence in light most favorable to verdict, a rational trier of fact could find beyond a reasonable doubt Clemons has a behavioral abnormality — claim denied
4. Factual sufficiency / risk of injustice	Verdict is against the weight of the evidence; expert opinions incorrect or unsupported	Jury weighed credibility; multiple sources supported experts’ conclusions; Clemons’s own testimony and pen packets corroborate risk factors	Factual sufficiency: no risk of injustice warranting new trial; jury verdict stands
5. Prosecutor’s questioning of Clemons about offense details	State asked questions without good-faith expectation of eliciting admissions, thereby inserting inadmissible hearsay and prejudicial detail	Questions were relevant to present dangerousness and patterns; defense failed to timely object and subsequently elicited similar evidence without preserving error	Admission of questioning reviewed for abuse of discretion; defense’s late objection and subsequent failure to preserve waived appellate complaint; any error was harmless — claim overruled

Key Cases Cited

In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005) (framework for determining whether SVP statute is civil or punitive)
Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014) (concurring discussion re relief when penal statute later declared unconstitutional)
Ex parte Fournier, 473 S.W.3d 789 (Tex. Crim. App. 2015) (discussion of relief/retroactivity for criminal statutes declared unconstitutional)
Coastal Transp. Co. v. Crown Central Petroleum Corp., 136 S.W.3d 227 (Tex. 2004) (opinion testimony that is conclusory or speculative lacks probative value)
Arkoma Basin Exploration Co. v. FMF Associates 1990-A, Ltd., 249 S.W.3d 380 (Tex. 2008) (expert-opinion preservation/no-evidence principles)
In re Commitment of Mullens, 92 S.W.3d 881 (Tex. App.—Beaumont 2002) (standard for legal-sufficiency review in SVP commitment)
In re Commitment of Day, 342 S.W.3d 193 (Tex. App.—Beaumont 2011) (expert reliance on records and limiting instruction under Rule 705)
Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004) (waiver by presenting same or similar evidence after objection)