in Re: The Commitment of Mark David McCafferty, 02-20-00073-CV

Background

The State petitioned in April 2019 to civilly commit Mark David McCafferty as a sexually violent predator under Tex. Health & Safety Code ch. 841; trial and jury found him SVP and the court ordered commitment.
McCafferty has three relevant sexual-offense convictions: a 1990 sexual-assault conviction (nolo contendere), a 1993 solicitation of a child conviction, and a 2012 indecency-with-a-child conviction (CVS incident); he served prison time and sex-offender registration.
Two State experts (a forensic psychologist and a forensic psychiatrist) reviewed records, interviewed McCafferty, and administered/relied on tests (Static-99R, PCL-R) and diagnosed paraphilic disorder, concluding he suffers a behavioral abnormality making him likely to commit predatory sexual violence.
Experts emphasized risk factors: chronic sexual offending over decades, variety of victims (including minors and strangers), reoffending after treatment, denial/minimization of offenses; protective factors included age and medical problems but were outweighed by risks.
McCafferty denied or minimized the 1990 and 2012 offenses, admitted attending but not benefiting from treatment, and testified he believes he is not at risk to reoffend.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Trial court limited cross-examination of State expert about underlying facts of 1990 conviction	Prohibition prevented McCafferty from showing the expert’s opinion depended on a conviction he claims is factually false	Court and State: questions would improperly relitigate a final criminal conviction and were irrelevant to present behavioral abnormality	No abuse of discretion; limitation proper because collateral attack on conviction and not probative of current behavioral abnormality
2. Legal sufficiency of evidence that McCafferty suffers from a behavioral abnormality	Experts’ opinions were allegedly conclusory and rested improperly on the 1990 nolo plea; psychopathy not shown; prevalence of ordinary conduct argues against ‘‘likely’’ finding	State: experts relied on multiple records, interviews, diagnoses, validated instruments, and risk factors; statute allows use of convictions to show status	Evidence legally sufficient to prove behavioral abnormality
3. Factual sufficiency of behavioral abnormality finding	Disputed evidence (denials, lack of psychopathy, long periods without detected offending) so significant no reasonable juror could find beyond reasonable doubt	State: no disputed evidence that a reasonable factfinder could not credit; expert testimony and records support finding	Evidence factually sufficient under Stoddard standard
4. Legal sufficiency of repeat sexually violent offender element	McCafferty: Article 27.02(5) and Tex. R. Evid. 410 bar using nolo contendere plea/conviction in civil proceeding	State: Health & Safety Code §841.003 defines repeat offender and authorizes proving convictions/pleas for civil consequences; convictions and sentences were shown	Evidence legally sufficient; nolo plea/conviction may be used to establish repeat-offender status under Chapter 841

Key Cases Cited

In re Commitment of Short, 521 S.W.3d 908 (discussing legal-sufficiency review in SVP commitments)
In re Commitment of Stoddard, 619 S.W.3d 665 (Texas Supreme Court clarifying factual-sufficiency standard for SVP commitments)
In re Commitment of Eeds, 254 S.W.3d 555 (SVP proceedings do not permit collateral attack on final criminal convictions)
In re Commitment of Black, 522 S.W.3d 2 (same principle: convictions cannot be collaterally attacked in SVP proceeding)
City of San Antonio v. Pollock, 284 S.W.3d 809 (opinion testimony is inadmissible when conclusory or speculative)
Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150 (testimony is speculative if based on guesswork or conjecture)
Coastal Transp. Co. v. Crown Cent. Petrol. Corp., 136 S.W.3d 227 (standards for admissibility of opinion testimony)
Brooks v. State, 323 S.W.3d 893 (criminal factual-sufficiency review discussed and distinguished for SVP cases)
In re J.F.C., 96 S.W.3d 256 (abuse-of-discretion standard for evidentiary rulings)
Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35 (definition of abuse of discretion)
Pool v. Ford Motor Co., 715 S.W.2d 629 (courts of appeals retain right to factual-sufficiency review)
In re Commitment of Kalati, 370 S.W.3d 435 (chapter 841 does not require experts to provide numerical risk percentages)
In re Commitment of H.L.T., 549 S.W.3d 656 (psychopathy testing is not required to prove behavioral abnormality)