Opinion Released December 14, 2017

In re Commitment of Santos Gomez III, No. 13-16-00614-CV (Opinion by Justice Rodriguez; Panel Members: Justices Benavides and Longoria)

In this appeal from a judgment civilly committing the defendant as a sexually violent predator, the Thirteenth Court of Appeals examined what types of expert testimony and medical evidence are admissible and required to support the sexually violent predator finding.

On May 30, 2008, Santos Gomez III’s probation was revoked, and he was convicted in two causes of seven counts of aggravated sexual assault of a child and one count of indecency with a child by contact. Gomez was sentenced to two ten-year terms of confinement.

In January 2016, the State filed a petition for civil commitment, alleging that Gomez was a sexually violent predator and requesting that he be committed for treatment and supervision. The commitment proceeding was tried before a jury, and Gomez testified in his own defense.

According to Gomez, the first six convictions for sexual assault involved an allegedly consensual relationship between Gomez and his then-girlfriend’s 12-year-old sister while Gomez was living with his girlfriend’s family. Gomez claimed he had sex with the girl only once, but admitted that he told the police differently and that he was convicted for multiple incidents. Gomez was placed on probation for his sexual assault of his girlfriend’s sister. His probation was revoked because he spent time alone with his minor daughters, and he was then convicted for sexually assaulting his children. Gomez denied that he assaulted his children, even though he had confessed the assaults to the police. Gomez testified that he lied to the police because he was under the influence of alcohol and drugs, and he had not slept.

The State then called forensic psychologist Stephen Thorne as an expert witness, and Gomez called forensic psychologist and neuropsychologist Antoinette McGarrahan. Both experts examined the defendant before trial and agreed regarding the relevant methodology. Both doctors used the PCL-R test to determine whether Gomez was a psychopath under the definition provided in the Texas Health and Safety Code.

Dr. Thorne scored Gomez 23 out of 40 on the PCL-R test, and testified that this was in the moderate range of psychopathic traits, but opined that Gomez did not qualify for the diagnosis. Dr. McGarrahan scored Gomez 12 out of 40, and testified that— like “most people”—Gomez had a low level of psychopathic traits. The doctors also used the Static-99R test to determine the likelihood that Gomez would engage in sexual violence in the future. Both doctors scored Gomez 5 on this test. Both characterized this as the higher end of the moderate range in terms of risk of future action.

The doctors disagreed however, regarding their analysis of other risk factors. Dr. Thorne testified that Gomez’s history of sexual deviance was one of the biggest risk factors indicating that he would engage in future acts of sexual violence. Dr. Thorne further diagnosed Gomez with pedophilic disorder and recognized that Gomez’s previously diagnosed major depressive disorder could affect his judgment. Dr. Thorne also noted that Gomez likely met the criteria for multiple drug-related conditions. Moreover, Gomez’s repeated violations of social norms—for example his sexual crimes, convictions for theft, and disciplinary issues in prison—reflected antisocial behavior that Dr. Thorne diagnosed as a “V-Code condition.” The V-Code condition is not recognized by the DSM-V. Nonetheless, Dr. Thorne testified this was another of the biggest risk facts indicating that Gomez would reoffend.

Dr. McGarrahan however, testified that she did not believe Gomez would engage in sexually violent acts in the future because his sexual offenses were all incestuous and not predatory. Dr. McGarrahan further noted that, although Gomez’s history of substance abuse was a risk factor, the abuse predisposed him to commit sexual violence but not predatory sexual violence. Dr. McGarrahan also downplayed the importance of Gomez’s antisocial behaviors, testifying that he did not meet the criteria for an antisocial disorder because he did not exhibit antisocial characteristics before age 15.

The experts then discussed the mitigating factors that lowered Gomez’s risk of reoffending. Dr. McGarrahan found no mitigating factors, but Dr. Thorne recognized that Gomez might be less likely to offend since he had no stranger victims, he had no male victims, and he was not a diagnosable psychopath.

Ultimately, Dr. Thorne testified that Gomez had a behavioral abnormality that made him likely to engage in predatory acts of sexual violence, while Dr. McGarrahan testified he did not.

The trial court directed a verdict on the first element required for civil commitment—that Gomez was a repeat sexually violent offender—and the jury found that Gomez was a sexually violent predator. The trial court entered judgment in accordance with the verdict, and civilly committed Gomez for treatment and supervision. Gomez appealed.

Held: A medical diagnosis is not necessary to support a finding that an individual is a sexually violent predator.  Moreover, the experts’ opinions were admissible, as was the evidence and testimony regarding Gomez’s psychopathic characteristics. The judgment was affirmed.

Chapter 841 of the Texas Health and Safety Code allows a person to be civilly committed as a “sexually violent predator” if he is a repeat sexually violent offender who suffers from a behavioral abnormality that makes the person likely to engage in predatory sexual violence. A “behavior abnormality” includes a congenital or acquired condition that predisposes the person to commit a sexually violent offense, rendering the person a menace to the health and safety of others. The State must prove the existence of a behavioral abnormality beyond a reasonable doubt.

Legal Sufficiency

Gomez challenged the legal sufficiency of the evidence to support the jury’s finding that he suffered from a behavioral abnormality that made him likely to engage in a predatory act of sexual violence, and thus qualified as a sexually violent predator. Gomez argued that (1) the State was required to prove a diagnosable mental condition recognized by the DSM-V, and (2) there was an analytical gap between Dr. Thorne’s diagnosis of a V-code condition and the alleged behavioral abnormality.

The Thirteenth Court of Appeals first held that the “behavioral abnormality” requirement can be satisfied without a mental health diagnosis. The Texas Supreme Court held in In re Commitment of Bohannan, 388 S.W.3d 296 (Tex. 2012) that a medical diagnosis is not required and is not the key issue in a commitment hearing for a sexually violent predator. The Legislature made major changes to the sexually violent predator statute after Bohannan, but did not change the definition of a “behavioral abnormality” or otherwise add a diagnosis requirement. Thus, the Legislature is presumed to have agreed with the judicial construction, and no diagnosis is necessary.

The Thirteenth Court of Appeals next turned to Gomez’s “analytical gap” challenge. Gomez argued that, even is a DSM-V diagnosis was not required by the statute, it was required in this case because the antisocial V-Code condition did not support his alleged behavioral abnormality.

The court noted that other courts of appeals have rejected the argument and held that there is no analytical gap when the expert was licensed in the field, reviewed the defendant’s records, conducted an evaluation in accordance with the accepted methodology in the field, and explained his reasoning to the jury. Dr. Thorne was licensed in his field, interviewed Gomez, viewed Gomez’s history, followed all of the relevant standards, conducted the relevant evaluations, and explained his methodology and observed risk factors to the jury. His opinion was well-reasoned; there was no analytical gap. Moreover, both Dr. Thorne’s and Dr. McGarrahan’s testimony supported the jury’s verdict. Thus, Gomez’s challenges to the sufficiency of the evidence were rejected.

Admission of PCL-R Evidence

Gomez next argued that the trial court abused its discretion by admitting testimony about the PCL-R test and about Gomez’s psychopathic traits because it was irrelevant and did not lead to a diagnosis. Dr. Thorne explained the test to the jury, testifying that it was used by forensic psychologists to evaluate behavioral abnormalities. Gomez’s own expert testified regarding the same PCL-R test and referred to it as “the gold standard” for determining whether a person is a psychopath. The Thirteenth Court held that the evidence was not only admissible, but required by the Health and Safety Code. Furthermore, the Rules of Evidence provided for the disclosure of the bases for the experts’ opinions. The trial court did not abuse its discretion by admitting the testimony and evidence related to the PCL-R test.

Gomez’s challenges were overruled and the trial court’s judgment affirmed.

Read the Full Opinion Here