In Re: The Commitment of Randy Lee Gant v. the State of Texas

AFFIRM; and Opinion Filed May 31, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00671-CV

IN RE THE COMMITMENT OF RANDY LEE GANT

On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 90616

MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Smith
Opinion by Justice Smith
Respondent Randy Lee Gant appeals from a final judgment and an order of

commitment signed by the trial court on a jury’s finding that he is a

sexually violent predator. See TEX. HEALTH & SAFETY CODE ANN. §§ 841.001–

.153. In three issue, Gant challenges the legal and factually sufficiency of the

evidence to support the jury’s finding and the trial court’s requirement that he wear

a stun belt in the courtroom. We affirm the trial court’s final judgment and order of

commitment.
Factual and Procedural Background

In 1992, Gant was convicted of sexually assaulting his step-daughter W.P.,

who was eleven years old at the time. The trial court placed Gant on community

supervision for a term of ten years. While on community supervision, Gant sexually

assaulted H.R., an eight-year-old. In 1997, the trial court revoked Gant’s community

supervision and sentenced him to four years’ confinement. And, in 1999, Gant was

convicted of the aggravated sexual assault of H.R. and sentenced to forty-five years’

confinement. He is presently serving that sentence.

In 2021, the State filed a petition alleging that Gant is a sexually violent

predator and requesting that he be committed for treatment and supervision pursuant

to Texas Health and Safety Code Chapter 841, known as the Texas Civil

Commitment of Sexually Violent Predators Act (the Act). See id. According to the

petition, Gant’s participation in the state’s Sex Offender Treatment Program was

pending and could result in his early release on parole prior to his scheduled

discharge date in 2026.1 In April 2023, the trial court held a jury trial on the State’s

petition. The court admitted into evidence, among other exhibits, Gant’s

convictions, and Gant and the State’s expert, Darrel Turner, Ph.D., testified.

1
The Texas Department of Criminal Justice begins the commitment procedure by notifying “an
established multidisciplinary team of the anticipated release date of a person who is serving a sentence for
a sexually violent offense and ‘may be a repeat sexually violent offender.’” In re Commitment of Stoddard,
619 S.W.3d 665, 669 (Tex. 2020) (quoting TEX. HEALTH & SAFETY CODE ANN. § 841.021(a)).
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At the time of trial, Gant was sixty-one years old. He testified that he was

convicted of knowingly and intentionally causing the sexual organ of W.P. to contact

his mouth. He told police that he had performed oral sex on W.P., but he denied

doing so at trial. Gant was shown a parole interview in which he reported having

sexually abused W.P. every other week over the course of eight months, but he

testified that he did not recall making the report and did not believe that happened.

He admitted only to touching W.P.’s breasts over her clothes one time and, another

time, touching her buttocks. Gant acknowledged having a sexual attraction to

children at the time. He had learned that W.P. was sexually active and started having

sexual thoughts about her. He bought her clothes and gifts so she would engage in

sexual activity with him and assumed that W.P. wanted to engage in sexual activity

with him.

Gant testified that he did not learn anything from sex offender treatment he

received while serving community supervision for sexually offending W.P. And,

although he was not supposed to have unsupervised contact with children, he began

a romantic relationship with H.R.’s mother. Among other things, Gant asked H.R.

to put his penis in her mouth. Another time, according to Gant, H.R. encountered

Gant masturbating and took off her shorts; Gant helped her get on top of him, where

she “jumped up and down.” Gant also sexually abused H.R. in a backyard shed.

Gant was convicted of penetrating H.R.’s vagina with his penis, but denied doing so

at trial. He knew it was wrong to commit a sexual offense against a child, but did it

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anyway. He thought H.R. wanted to engage in sexual activity with him. Gant

testified that he “hadn’t learned about [his] patterns and stuff yet, so [he] didn’t think

anything was wrong with it at the time.”

Gant also testified to touching the breasts of his fourteen-year-old daughter,

with whom he reconnected while on community supervision. In a voluntary

statement for law enforcement, Gant had indicated that he tried to remove S.’s shorts,

touched her breasts under her clothes, and had fantasies about S. after their second

or third visit. At trial, he did not remember that. Gant had dated S.’s mother, then

sixteen years old, when he was twenty or twenty-one. S.’s mother became pregnant,

and Gant had been accused of committing a sexual offense against her.

Gant testified that he masturbated to sexual thoughts of children when he first

was in prison. He received “sexual misconducts” in prison for intentionally

exposing his genitals to correction officers. He also called female correction officers

over to his cell to watch him masturbate. According to Gant, that type of behavior

was common in prison; he did not know if the behavior was normal and

acknowledged that it was problematic for him. He was last disciplined for sexual

misconduct in 2015.

While in prison, Gant received job training, earned a workplace skills

education certificate, completed a construction safety class, and participated in a

faith-based program. In September 2022, he finished a nine-month sex offender

treatment program, receiving a rehabilitation program certificate from the Texas

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Department of Criminal Justice. During the program, he discussed offending W.P.,

but did not remember admitting that he performed oral sex on her. He also discussed

offending H.R., but did not remember if he discussed offending S. He learned about

offense cycles, irrational beliefs, and that he could not be with women that have

young children. He also learned strategies, including leaving certain situations and

adjusting his thinking, and the importance of accepting responsibility for his sexual

offending.

Gant planned to continue counseling and live with his brother if released on

parole. He wanted to work as a forklift driver. He also planned to stay away from

women with young children, not put himself in the presence of anyone under

seventeen, work his program, and find a mentor and sex offender support group.

Gant testified that, “as far as [he] know[s],” his sexual attraction to children had gone

away. However, he believed that, with his history, he is at risk to reoffend sexually.

Dr. Turner, a licensed clinical psychologist, testified that he was retained to

evaluate Gant and form an opinion on whether Gant had a behavioral abnormality

that made him likely to commit additional sexual offenses. Dr. Turner’s curriculum

vitae was admitted into evidence, and he testified about his education, training, and

experience. He reviewed Gant’s law enforcement, court, and prison records,

information about Gant’s medical psychiatric history, and deposition testimony that

Gant gave in this case. He also met with Gant via video conference. Relying on

these items and principles of forensic psychology, Dr. Turner formed the clinical

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opinion that Gant suffered from a behavioral abnormality that made him likely to

engage in predatory acts of sexual violence.

The jury found beyond a reasonable doubt that Gant was a sexually violent

predator. The trial court entered judgment in accordance with the jury’s finding and

ordered Gant committed for treatment and supervision to commence upon his release

from prison. Gant filed a motion for new trial, which was overruled by operation of

law, and this appeal followed.

Civil Commitment

The Act provides “a civil-commitment procedure for the long-term

supervision and treatment of sexually violent predators.” TEX. HEALTH & SAFETY

CODE ANN. § 841.001. At trial, the factfinder must determine “whether, beyond a

reasonable doubt, the [respondent] is a sexually violent predator.” Id. § 841.062(a).

A “sexually violent predator” is a “repeat sexually violent offender” who “suffers

from a behavioral abnormality that makes the [respondent] likely to engage in a

predatory act of sexual violence.” Id. § 841.003(a). A behavioral abnormality is “a

congenital or acquired condition that, by affecting [the respondent’s] emotional or

volitional capacity, predisposes the person to commit a sexually violent offense, to

the extent that the [respondent] becomes a menace to the health and safety of another

person.” Id. § 841.002(2).

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Sufficiency of the Evidence

In his first and second issues, Gant challenges the legal and factual sufficiency

of the evidence to support the trial court’s judgment and order of commitment.

Because the determination that a person is a sexually violent predator must be made

beyond a reasonable doubt, id. § 841.062(a), our legal-sufficiency standard of

review mirrors that of criminal cases. See Stoddard, 619 S.W.3d at 675. We review

the evidence in the light most favorable to the State to determine whether “any

rational trier of fact could have found the essential elements beyond a reasonable

doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). For a factual

sufficiency challenge, we determine “whether, in light of the entire record, the

disputed evidence a reasonable factfinder could not have credited in favor of the

verdict, along with the undisputed facts contrary to the verdict, is so significant that

the factfinder could not have determined beyond a reasonable doubt that the statutory

elements were met.” Id. at 678. Whether reviewing for legal or factual sufficiency,

we must presume that “the factfinder resolved disputed evidence in favor of the

finding if a reasonable factfinder could do so.” Id. at 676.

1. Legal Sufficiency

In his first issue, Gant asserts that the evidence is legally insufficient to

support the jury’s finding that he is a sexually violent predator because, without the

“misleading, conclusory, and speculative testimony” of Dr. Turner, no rational

factfinder could have found, beyond a reasonable doubt, the required elements for

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commitment. Specifically, Gant complains that Dr. Turner did not disclose the

material upon which he relied, his opinion was not based on statistical evidence, and

he did not discuss “levels of risk” associated with identified risk factors or

demonstrate that the risk factors were accepted within the scientific community as

valid or “actually accurate predictors of future behavior.” Gant also asserts that Dr.

Turner improperly addressed Gant’s likelihood of reoffending instead of “what

would make [him] as risk free as possible.”

An expert witness must link his conclusions to facts and explain the basis of

his assertions. Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572

S.W.3d 213, 223 (Tex. 2019). If the expert asserts a conclusion with no basis, his

testimony is conclusory. Id.; see Arkoma Basin Expl. Co. v. FMF Assocs. 1990–A,

Ltd., 249 S.W.3d 380, 389 (Tex. 2008) (expert testimony is conclusory if the expert

merely gives an unexplained conclusion or asks the jury to “take my word for it”

because of the expert’s status as an expert). Opinion testimony that is wholly

conclusory or speculative constitutes no evidence “because it does not tend to make

the existence of a material fact ‘more probable or less probable.’” City of San

Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (quoting Coastal Transp. Co.,

Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004)).

Gant largely challenges the methodology Dr. Turner followed in forming his

opinion, asserting that “Dr. Turner’s opinion was not based on statistical evidence

scientifically supporting his recidivism prediction” and that “Dr. Turner’s opinion is

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not based on data that supports his conclusions.” “[W]hen a reliability challenge

requires the court to evaluate the underlying methodology, technique, or

foundational data used by the expert, an objection must be timely made so that the

trial court has the opportunity to conduct this analysis.” Pollock, 284 S.W.3d at 817

(quoting Coastal Transp., 136 S.W.3d at 233). Here, Gant did not object that Dr.

Turner’s opinion was unreliable before or during trial, so he must show that there is

no basis to support it. See id. at 816–18.

Dr. Turner, who earned a doctorate degree in clinical psychology with a focus

on forensic psychology, testified about his credentials and extensive experience in

conducting behavioral abnormality evaluations. He explained that he relied on

principles of forensic psychology, a legitimate field of expertise, in forming his

opinion. He also described the methodology he followed, which included reviewing

relevant records on the offender to familiarize himself with the offender and the case,

considering the offender’s history of behavior and patterns of behavior and how the

offender responds and thinks, scoring a psychopathy test, and examining factors

shown by research to either increase or decrease an offender’s risk of reoffending.

Dr. Turner learned this methodology in school; it was in accord with his training in

forensic psychology and the same methodology used by others for these evaluations

in Texas and across the county. The records and other materials that Dr. Turner

reviewed were the types of materials relied on by experts in his field, and he

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performed his evaluation in accordance with his training as a professional in his

field.

Dr. Turner explained his understanding of the statutory definition of

behavioral abnormality and that, using the methodology he described, he had formed

the opinion that Gant suffers from a behavior abnormality that makes him likely to

offend sexually. Dr. Turner identified sexual deviance and antisocial personality

makeup, or evidence of psychopathy, as factors that pose the greatest risk for

reoffending sexually. He diagnosed Gant with both pedophilic disorder, a sexual

deviance characterized by an ongoing pattern of sexual arousal and attraction to

prepubescent children, and antisocial personality disorder. In doing so, he relied on

the DSM-5, a book containing criteria used by clinicians to diagnose certain

disorders.

Evidence relevant to Dr. Turner’s pedophilic disorder diagnosis included

Gant’s offenses, the ages of his victims, his pattern of giving himself access to his

preferred victim type, the existing family/parent-type relationships with his victims,

which resulted in a power differential, his inability to control his behavior, and his

use of grooming behaviors. Dr. Turner also testified that Gant’s inconsistent

reporting and minimization of his offending conduct was evidence of his current

sexualization of children and pedophilic interests. As further evidence, Dr. Turner

cited some of Gant’s trial testimony, which essentially blamed his victims. For

example, his testimony that H.R. removed her shorts and approached Gant while he

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was masturbating attributed sexual desires and motivations to a child and was very

strong evidence of active pedophilia and sexual deviance.

Dr. Turner acknowledged that Gant’s offenses occurred in the 1990s. But he

testified that, once a pattern is clear, pedophilic disorders are lifelong. Further, Gant

had reported to Dr. Turner that he had masturbated to thoughts of his child victims

four or five years earlier and had testified by deposition only months before trial that

he was sexually attracted to children. Gant also engaged in sexually deviant

behavior in prison and, when asked during his deposition why he masturbated to

female staff, he said something to the effect that there were no children in prison.

To Dr. Turner, Gant’s pedophilic disorder is currently affecting his emotional and

volitional capacity.

Dr. Turner also diagnosed Gant with antisocial personality disorder, which is

characterized by not caring about the rules or other people, a lack of empathy,

impulsiveness, and compulsive lying. Dr. Turner based the diagnosis on behaviors

Gant engaged in as a child, his lack of remorse, his blaming the victims, and his

lifestyle of offending and victimizing children. Although the intensity of the

disorder can lessen as people age, it is a congenital or acquired condition that does

not go away and can affect a person’s emotional or volitional capacity.

Dr. Turner assessed Gant for psychopathy using the Psychopathy checklist-

revised (PCL-R), an instrument on which Dr. Turner was trained and had scored

many tests. Gant received a score in the upper range of a high degree of

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psychopathic characteristics, a risk factor that indicates he currently has a high

degree of psychopathic traits. According to Dr. Turner, being a psychopath is “very

similar to having a strong case of antisocial personality disorder.” Dr. Turner also

considered a prior score that Gant received on the Static-99R, an actuarial risk

assessment used to measure an offender’s risk to be caught or convicted if they

reoffend. Gant scored at a below average risk level. Dr. Turner testified, however,

that he no longer scores the Static-99 himself because some circles of professionals

are finding problems with the instrument.

Dr. Turner acknowledged that one must have a conduct disorder by age fifteen

to be diagnosed with antisocial personality disorder, and Gant never had any juvenile

delinquency. Dr. Turner also identified protective factors, which may lower the risk

of Gant reoffending sexually. These included Gant’s age, job training and classes,

faith-based work, lack of nonsexual criminal history, and family support. Records

also indicated that Gant’s sex offender program graduating marks were good. For

Dr. Turner, however, those protective factors were not enough to change his opinion.

It was significant to Dr. Turner that Gant had admitted to more offending behavior

during the program than he did during his meeting with Dr. Turner, in his deposition,

or at trial. It indicated that Gant was reverting to minimizing the offenses. Dr.

Turner did not see that Gant had the serious insight into himself and his offenses that

would be needed to show that he no longer has a behavioral abnormality.

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Our review of the records shows that Dr. Turner explained the accepted

methodology that he followed, identified the facts that formed the basis of his

opinion, and explained why they did so. His testimony was neither conclusory nor

speculative. See, e.g., In re Commitment of Sawyer, No. 05-17-00516-CV, 2018 WL

3372924, at *7 (Tex. App.—Dallas July 11, 2018, pet. denied) (mem. op.) (expert’s

opinion that appellant suffered from behavioral abnormality was not conclusory or

without foundation where expert testified that: (1) she was forensic psychologist

who had performed more than sixty similar evaluations; (2) she used same

methodology followed by other experts; (3) she reviewed many records related to

appellant, including conviction and prison records; (4) she interviewed appellant;

and (5) she used PCL-R, STATIC-99R, and SVR-20 risk assessment measuring

tools); In re Commitment of Summers, No. 01-19-00738-CV, 2021 WL 3776751, at

*13 (Tex. App.—Houston [1st Dist.] Aug. 26, 2021, no pet.) (mem. op.) (when

experts (1) explained accepted and routinely-used methodology that they employed

to formulate opinions, (2) offered bases for their opinions, including interviews and

review of records, and (3) explained why information relied on supported their

opinions, experts’ testimony was not conclusory and had probative value.). Having

reviewed the evidence in the light most favorable to the State to determine whether

any rational trier of fact could have found the essential elements beyond a reasonable

doubt, we conclude that Dr. Turner provided some evidence to prove the required

behavioral-abnormality element and support the jury’s finding that Gant was a

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sexually violent predator. See TEX. HEALTH & SAFETY CODE ANN. §§ 841.002(2),

841.003(a). We overrule Gant’s first issue.

2. Factual Sufficiency

In his second issue, Gant contends the evidence is factually insufficient to

support the conclusion that he could not control a sexual impulse to commit a violent

offense. He points to the “undisputed” evidence that he completed treatment, his

risk is below average statistically, he has worked to improve himself through faith-

based and vocational courses, he does not have recent sexual misconducts, and his

last offense was decades ago. The jury, however, also heard Dr. Turner’s opinion

that Gant is sexually deviant and has an antisocial personality—significant risk

factors for sexually reoffending. The evidence showed that Gant persisted in

sexually offending after being caught and punished for sexually assaulting W.P. The

jury heard Gant’s own testimony denying and minimizing his sexual offenses against

W.P. and H.R. and admitting to sexual misconduct while incarcerated. Despite

receiving sex offender treatment on two occasions, Gant testified that he did not

know why he sexually offended W.P., H.R., and S. He testified that he was no longer

sexually attracted to children “as far as” he knew; Dr. Turner, however, testified that

Gant did not have the tools necessary to manage and control his sexual deviancy.

The jury, as factfinder, was charged with weighing the evidence, judging the

credibility of the testimony presented, and resolving any conflicts in the evidence.

See Stoddard, 619 S.W.3d at 668. We must presume that it resolved any disputed

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evidence in favor of its finding that Gant is a sexually violent predator. See id. at

668, 674. And, in light of the entire record, we cannot conclude that the disputed

evidence that a reasonable factfinder could not have credited in favor of the verdict,

along with undisputed facts contrary to the verdict, is so significant that the jury

could not have found beyond a reasonable doubt that Gant suffers from a behavioral

abnormality that makes him likely to engage in predatory acts of sexual violence.

See TEX. HEALTH & SAFETY CODE ANN. §§ 841.003(a)(2), 841.062(a). Accordingly,

we conclude that there was factually sufficient evidence to support the jury’s finding.

We overrule Gant’s second issue.

Stun Belt Use

In a third issue, Gant complains of the trial court’s “blanket policy” requiring

“felony defendants” to wear a stun belt in court. Gant failed to object to the policy

in the trial court and, except for fundamental error, appellate courts are not

authorized to consider issues not properly raised by the parties. Mack Trucks, Inc.

v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006); TEX. R. APP. P. 33.1. Gant asks the

Court to conclude that the policy is adverse to the public interest and, therefore,

fundamental error.

This commitment proceeding is civil in nature. See In re Commitment of

Fisher, 164 S.W.3d 637, 653 (Tex. 2005); In re Commitment of Martinez, 98 S.W.3d

373, 375 (Tex. App.—Beaumont 2003, pet. denied) (per curiam). And, as the State

correctly points out, the fundamental error doctrine is rarely applied in civil cases.

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See USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 510–15 (Tex. 2018); Cox

v. Johnson, 638 S.W.2d 867, 868 (Tex. 1982) (per curiam). At most, it applies when:

(1) the record shows on its face that the trial court lacked subject matter jurisdiction;

(2) the alleged error occurred in a juvenile delinquency case and falls within a

category of error as to which preservation of error is not required; and (3) the error

directly and adversely affects the interest of the public generally, as that interest is

declared by a Texas statute or the Texas Constitution. See Mack Trucks, 206 S.W.3d

at 577; In re B.L.D., 113 S.W.3d 340, 350–51 (Tex. 2003).

Here, Gant asserts that the trial court’s policy requiring felony defendants to

wear a stun belt “implicates the public interest, as any Texas citizen could be accused

of a crime and subjected to this indignity.” Gant, however, acknowledges that he is

not on trial for a felony and instead is a defendant in a civil commitment action,

which applies only to a limited class of people. Because Gant does not demonstrate

that the alleged error in this case directly and adversely affects the interest of the

public generally as that interest is declared by a Texas statute or the Texas

Constitution, we conclude the fundamental error doctrine does not apply.

Accordingly, we overrule Gant’s third issue.

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Conclusion

Having overruled each of Gant’s issues, we affirm the trial court’s final

judgment and order of commitment.

/Craig Smith/
CRAIG SMITH
JUSTICE
230671F.P05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

IN RE THE COMMITMENT OF On Appeal from the 354th Judicial
RANDY LEE GANT District Court, Hunt County, Texas
Trial Court Cause No. 90616.
No. 05-23-00671-CV V. Opinion delivered by Justice Smith.
Justices Partida-Kipness and Nowell
participating.

In accordance with this Court’s opinion of this date, the trial court’s final
judgment and order of commitment are AFFIRMED.

Judgment entered this 31st day of May 2024.

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