In Re: The Commitment of George Corliss--Appeal from 410th District Court of Montgomery County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-02-294 CV
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IN RE: THE COMMITMENT OF GEORGE CORLISS
On Appeal from the 410th District Court
Montgomery County, Texas
Trial Cause No. 01-09-05912-CV
MEMORANDUM OPINION

The State of Texas filed a petition to civilly commit George Corliss as a sexually violent predator. See Tex. Health & Safety Code Ann. 841.001-841.147 (Vernon Supp. 2003). A jury found that Corliss suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The trial court entered a final judgment and order of civil commitment from which Corliss appeals. Corliss raises four issues.

In issue one, Corliss argues the sexually violent predator statute is unconstitutional because it is punitive in nature and violates basic constitutional safeguards. We recently considered and rejected this argument in Beasley v. Molett, No. 09-01-078 CV, 2002 Tex. App. LEXIS 8967, at *35-39 (Tex. App.--Beaumont Dec. 19, 2002, no pet. h.) (citing Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997)). Issue one is overruled.

In issue two, Corliss maintains the State failed to prove he has serious difficulty in controlling his behavior. The State responds that Corliss did not preserve the issue. At trial, Corliss made a motion for directed verdict in which he claimed the evidence was not conclusive and the experts did not agree on whether Corliss would reoffend in a sexually violent manner. We conclude Corliss's motion was sufficient to preserve the issue for appellate review.

The United States Supreme Court in Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002), stated that before a person can be civilly committed as a sexually violent predator, there must be "proof of serious difficulty in controlling behavior." Addressing appellant's issue as a legal sufficiency challenge and employing the standard of review derived from criminal cases, we determine whether a rational factfinder could have found beyond a reasonable doubt that Corliss has serious difficulty in controlling his behavior. See In re Commitment of Mullens, No. 09-01-534 CV, 2002 Tex. App. LEXIS 8962, at *6; see Tex. Health & Safety Code Ann. 841.062 (Vernon Supp. 2003). We review all of the evidence in a light most favorable to the verdict. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

Dr. Rahn Bailey, a forensic psychiatrist, diagnosed Corliss with a behavioral abnormality, as defined by the statute, and concluded Corliss is likely to reoffend. Although Bailey indicated he did not specifically assess Corliss's ability to control his behavior, Bailey correctly pointed out that the statute itself has a volitional component. Dr. Bailey diagnosed Corliss as a pedophile who is likely to engage in future acts against children; Bailey explained that pedophilia refers to individuals whose sexualized thoughts and activities are focused upon younger children. Dr. Bailey based his opinion and report on a clinical interview of Corliss, psychological tests taken by Corliss and evaluated by Bailey, and Corliss's criminal history. The sexual offense history included prior convictions for sexual offenses against female children: indecency with a child, indecent exposure to an eight year old, and molestation of a seven year old.

Dr. William Reid expressed the opinion that Corliss is a pedophile who has poor impulse control with regard to exposing himself and fondling children. Reid explained that Corliss had indicated a willingness to participate in a sex offender program and acknowledged he has tendencies he needs to control. In Dr. Reid's opinion, if Corliss is around children and has the opportunity to commit a sexual offense without fear of getting caught, Corliss is likely to commit such an act again.

Dr. Branaman, a psychologist, agreed that Corliss is a pedophile with a behavioral abnormality and that he is likely to reoffend. Branaman indicated it was not clear, however, whether Corliss has chosen to engage in illegal behavior or whether he has a control issue.

George Corliss testified at trial. He acknowledged two of the prior convictions for sexual offenses, but denied he committed the 1997 indecency with a child conviction, even though he pleaded guilty to the offense. Corliss also acknowledged he is sexually attracted to children. He testified, "There are occasional times [when he is attracted to children], but usually it depends on them . . . how they act and so forth." "[T]here are some things they can do that . . . encourage me." He further testified, "They [children] can affect me, but I am hoping that I can get the help where I can overcome that." In response to the State's attorney's question as to whether the young girls consented in some way to his sexual advances, Corliss responded: "[M]ost of the time it was positive . . . that they did respond favorably." Corliss admitted to writing a poem describing explicit sexual acts between children and saving the poem for thirty years.

The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); see also Jones v. Tarrant Util. Co., 638 S.W.2d 862, 866 (Tex. 1982). Drs. Reid and Branaman disagreed with Dr. Bailey on his assessment of some of Corliss's answers on the psychological tests. The jury may resolve conflicts and contradictions in the evidence by believing all, part, or none of the witnesses' testimony. See Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986); see also Harker v. Coastal Eng'g, Inc., 672 S.W.2d 517, 520 (Tex. App.--Corpus Christi 1984, writ ref'd n.r.e.). Based on a review of the evidence in the light most favorable to the verdict, we conclude a rational factfinder could have found beyond a reasonable doubt that Corliss has serious difficulty controlling his behavior.

In issue three, Corliss contends the statute and the "final judgment and order of commitment" are unconstitutionally vague. He complains specifically of Tex. Health & Safety Code Ann. 841.082 (a)(4)(5)(9) (Vernon Supp. 2003). We recently considered and rejected this argument. See Beasley, 2002 Tex. App. LEXIS 8967, at *42. Issue three is overruled.

In issue four, Corliss argues that his "Fifth Amendment privilege against self-incrimination was violated when the court ordered [him] to submit to polygraph examinations as a condition of civil commitment." Corliss failed to preserve this claim for appellate review, as required by Tex. R. App. P. 33.1. See Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993). Moreover, we note this argument was also rejected in Beasley, 2002 Tex. App. LEXIS 8967, at *44-45. Issue four is overruled.

The judgment and order of the trial court are affirmed.

AFFIRMED.

PER CURIAM

 

Submitted on February 11, 2003

Opinion Delivered February 20, 2003

 

Before McKeithen, C.J., Burgess and Gaultney, JJ.