In Re Commitment of Danny Bruce Conley--Appeal from 435th District Court of Montgomery County
Annotate this Case
Download PDF
In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-10-00383-CV
________________
IN RE COMMITMENT OF DANNY BRUCE CONLEY
________________________________________________________________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 09-10-10592 CV
________________________________________________________________________
MEMORANDUM OPINION
The State of Texas filed a petition to commit Danny Bruce Conley as a sexually
violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.150 (West 2010). A
jury found that Conley is a sexually violent predator. The trial court rendered a final
judgment and an order of civil commitment. On appeal, Conley challenges the admission
of expert testimony and alleges the trial judge “show[ed] partiality” at trial. We affirm
the trial court‟s judgment.
Admission of Expert Testimony
In issues one and two, Conley challenges the trial court‟s failure to exclude the
testimony of the State‟s experts, Drs. Timothy Proctor and Sheri Gaines.
1
We review the trial court‟s determination regarding the admission of expert
testimony under an abuse of discretion standard. In re Commitment of Polk, No. 09-1000127-CV, 2011 Tex. App. LEXIS 1323, at *9 (Tex. App.—Beaumont Feb. 24, 2011,
pet. denied) (mem. op.). “If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702. Expert testimony
must also be relevant and reliable. State v. Cent. Expressway Sign Assocs., 302 S.W.3d
866, 870 (Tex. 2009). “To be relevant, the expert‟s opinion must be based on the facts;
to be reliable, the opinion must be based on sound reasoning and methodology.” Id.
“Conclusory or speculative opinion testimony is not relevant evidence because it
does not tend to make the existence of material facts more probable or less probable.”
Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 637 (Tex. 2009).
“Bare, baseless
opinions will not support a judgment even if there is no objection to their admission in
evidence.” City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009). “When a
scientific opinion is admitted in evidence without objection, it may be considered
probative evidence even if the basis for the opinion is unreliable.” Id. at 818. “But if no
basis for the opinion is offered, or the basis offered provides no support, the opinion is
merely a conclusory statement and cannot be considered probative evidence, regardless
of whether there is no objection.” Id. “[W]hen a reliability challenge requires the court
2
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.”
Id. at 817 (quoting Coastal Transp. Co. v. Crown Cent.
Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004)).
Dr. Proctor, a forensic psychologist, testified that he based his evaluation on the
statutory definition of “behavioral abnormality.” Proctor reviewed records, completed
psychological tests, interviewed Conley, and subsequently formed an opinion about
whether Conley has a behavioral abnormality. Proctor testified that this methodology is
followed by experts in his field. The documents he reviews for purposes of an evaluation
include criminal history and offense records, police records, victim statements, prison
records, medical records, disciplinary records, and court records. According to Proctor,
these records are typically relied on by experts in his field, and he relied on the facts and
data contained in the records when formulating his opinion. Proctor testified that, based
on his training as a forensic psychologist and the standards in the field of forensic
psychology, he conducted an interview with Conley.
Using the DSM-IV, a manual commonly used to make a mental health diagnosis,
Proctor diagnosed Conley with paraphilia not otherwise specified (“NOS”), alcohol
dependence, cannabis abuse, and personality disorder NOS with antisocial traits and
psychopathy. Proctor explained that paraphilia NOS is a disorder of sexual deviancy that
is based on Conley‟s sexual offenses against non-consenting adults. Proctor testified that
3
Conley‟s alcohol dependence has been in remission during his incarceration and that
Conley has a history of marihuana use. Proctor testified that alcohol played a role in
Conley‟s sexual offenses and that Conley needs more comprehensive alcohol treatment.
Proctor did not make a full diagnosis of antisocial personality disorder because he lacked
evidence that Conley had a conduct disorder before the age of fifteen. Proctor explained
that Conley‟s personality disorder involves conduct that is harmful to others, “criminaltype things.”
Proctor testified that although personality disorders typically can be
managed with treatment, they tend to be present throughout a person‟s lifetime. Proctor
testified that the diagnoses show that Conley “has an antisocial psychopathic disposition,
[] breaks rules, has done things that have harmed other people, has been violent, maybe
even takes some pleasure -- sexual pleasure in that violence” and is “willing to force
others into sex and may even be gratified by the forced aspect of it and that contributing
to this is alcohol, which disinhibits people, and . . . adds to his risk.”
As part of his evaluation, Proctor administered the Hare Psychopathy ChecklistRevised (“PCL-R”), the Static-99, the Static-99R, and the Minnesota Sex Offender
Screening Tool-Revised (“MnSOST-R”). Proctor testified that the PCL-R is a list of
twenty factors of a psychopath and that Conley scored a thirty on the test. Proctor
identified the factors that contributed to Conley‟s score and testified that Conley would
be classified as a psychopath, an “extreme type of antisocial personality.”
Proctor
explained that the Static-99 and Static-99R address factors that do not tend to change
4
much over time and might be related to commission of future offenses. Proctor testified
that Conley scored a four on the Static-99, which places him in the moderate high range
for reoffending. Proctor testified that the Static-99R places greater emphasis on age;
thus, Conley, age sixty, scored a one on the Static-99R, which places him in the low
range for reoffending. In Proctor‟s opinion, the Static-99R underestimated Conley‟s risk.
Given Conley‟s “age when he committed the sexual offenses, the psychopathy, the other
actuarials,” and information Proctor learned from Conley, Proctor concluded Conley‟s
risk of reoffending would be high. Proctor testified that Conley scored a nine on the
MnSOST-R, which places Conley in the high range of risk for reoffending. In Proctor‟s
opinion, Conley‟s MnSOST-R score accurately reflects Conley‟s risk because, based on
all the available information, Proctor believed that Conley does not fall in the low range.
Proctor testified that the four tests he conducted are typically used in behavioral
abnormality evaluations and have been studied, peer reviewed, and accepted as valid by
experts in his field.
Proctor testified that he conducted a risk assessment that considers factors related
to sexual reoffending. Proctor identified the following risk factors regarding Conley: (1)
sexual deviance, (2) sexual promiscuity, (3) multiple sex offenses, (4) unrelated victims,
(5) lengthy sex offending history, (6) sex offending while under supervision, (7) use of
force during sexual offenses, (8) multiple sex acts with a single victim, (9) lack of sex
offender treatment, (10) alcohol dependence, (11) lack of full substance abuse treatment,
5
(12) some adolescent antisocial behavior, (13) significant adult antisocial behavior and
lifestyle, (14) history of non-sexual violence, (15) presence of psychopathy, (16) lack of
remorse and failure to take responsibility, and (17) unstable employment history. Proctor
also considered the following protective factors, which lower a person‟s risk of
reoffending: (1) age, (2) a long-term live-in relationship, (3) absence of non-contact sex
offenses, (4) no stranger victims, (5) no male victims, (6) no history of sexual offenses in
public places, and (7) absence of victims in multiple age groups. Proctor testified that
Conley‟s risk factors outweigh his protective factors.
Proctor testified that no book exists to tell a person how to conduct a behavioral
abnormality evaluation and that actuarial tests do not say that a person has a behavioral
abnormality. Proctor explained that the actuarial test scores and diagnoses are “piece[s]
of the puzzle” for the behavioral abnormality determination. Proctor testified that he
looks at the “whole picture” to determine if a person has a behavioral abnormality.
Proctor explained that the diagnoses, actuarial scores, and risk factors show that Conley
is a significant risk for reoffending. Based on his education, training, experience, and the
procedures used, Proctor concluded that Conley suffers from a behavioral abnormality.
Dr. Gaines, a forensic psychiatrist, testified that she evaluated Conley to determine
whether he suffers from a behavioral abnormality. Gaines explained that her testimony is
within the scope of psychiatry and forensic psychiatry.
She testified that when
conducting an evaluation, she utilizes the principles of forensic psychiatry, her training,
6
and her experience as a psychiatrist.
She indicated that she has training in risk
assessment, and she has been found to be an expert in determining whether a person has a
behavioral abnormality. To conduct an evaluation, Gaines testified that she reviews
documents, such as psychological evaluations, prison records, police records, victim
statements, medical records, and deposition transcripts. She indicated that these types of
documents are relied on by experts in her field and that she relies on the facts and data in
these documents when forming her opinion. Gaines explained that Conley‟s history is
important because “past behaviors are the best predictor of future behaviors.” During her
interview of Conley, Gaines used her training as a psychiatrist and the accepted standards
in the field of psychiatry. She testified that the methodology she followed when
evaluating Conley is also the methodology followed by experts in her field. Gaines
testified that she based her opinion on her knowledge, training, continuing education,
articles, and other sources.
Using the DSM-IV, which Gaines described as a guidebook for mental health
professionals, Gaines diagnosed Conley with sexual abuse of an adult, alcohol
dependence, cannabis dependence, and antisocial personality disorder. Gaines explained
that her diagnosis of sexual abuse of an adult is based on Conley‟s severe maltreatment
and abuse of people and violent offenses. Gaines testified that alcohol and cannabis
dependence interferes with a person‟s “functioning ability.” Gaines testified that
Conley‟s alcohol abuse contributed to his sexual offenses, affects his impulsivity, and
7
lowers his inhibitions. Gaines described antisocial personality disorder as “[d]ifficulty
conforming to societal norms, lying, stealing, doing something to infringe upon a person
or infringe upon property[.]” Gaines testified that a personality disorder is usually a
“lifelong pattern of behaviors” that will likely continue.
Gaines testified that her
expertise allowed her to think broadly enough to reach this diagnosis, even though the
records do not show whether Conley had a conduct disorder before the age of fifteen.
Gaines indicated that these diagnoses would affect Conley‟s volitional and emotional
capacity such that he is predisposed to commit a predatory act of sexual violence.
Gaines testified that she considers Conley an untreated sex offender. Gaines
identified several risk factors, such as poor insight, lack of remorse, victim blame, violent
offenses, substance abuse, “poor future plans,” disciplinary cases in prison, reoffending
while on parole, and difficulty following rules. Gaines testified that Conley‟s protective
factors include his age and high school diploma. Gaines indicated that Conley had failed
to take responsibility, which means he is not likely to improve. Based on her expertise,
the records, and her interview with Conley, Gaines concluded that Conley suffers from a
behavioral abnormality.
On appeal, Conley challenges Gaines‟s and Proctor‟s testimony as conclusory,
non-probative, speculative, and legally insufficient. He contends that an analytical gap
exists between the facts and the experts‟ conclusions, the experts‟ opinions are lacking in
methodology and authoritative support, Gaines relied on facts that were not in the record,
8
and Gaines was unfamiliar with some of the facts of Conley‟s case. Conley contends that
Gaines‟s testimony was lacking in scientific support or methodology and, therefore,
unreliable. Conley asserts that Proctor misapplied the actuarial tests, which Conley
argues have not been validated for behavioral abnormality purposes and do not “evaluate
the risk of re-arrest or reconviction for a sexually violent offense.” (Emphasis in original).
Conley‟s complaints regarding Proctor‟s use of actuarial tests and the experts‟
failure to provide authoritative support for their opinions concern the foundational data
used or relied on by the experts in reaching their opinions. See In re Commitment of
Sprague, No. 09-10-00228-CV, 2011 Tex. App. LEXIS 4503, at **28-29 (Tex. App.—
Beaumont June 16, 2011, no pet.) (mem. op.). Likewise, a complaint that an analytical
gap exists in an expert‟s testimony or a complaint that the expert‟s testimony is not based
on the facts of the case is a challenge to the methodology used by the expert. In re
Commitment of Robertson, No. 09-09-00307-CV, 2010 Tex. App. LEXIS 7421, at **2829, 31 (Tex. App.—Beaumont Sept. 9, 2010, pet. denied) (mem. op.). Conley did not
object to Proctor‟s testimony on the grounds he now raises on appeal.
Although Conley objected to Gaines‟s testimony, Conley‟s objection was made
after the deadline in the trial court‟s docket control order for challenging expert
testimony. The trial court stated that Conley had not shown any reason why he should be
allowed to untimely object to Gaines‟s testimony. See Tex. R. Civ. P. 166 (A trial court
has the discretion to enter a docket control order to assist in the disposition of the case.);
9
see also Closs v. Goose Creek Consol. Indep. Sch. Dist., 874 S.W.2d 859, 868 (Tex.
App.—Texarkana 1994, no writ) (“A docket control order controls the subsequent course
of the action unless modified at trial to prevent manifest injustice.”).
Accordingly,
Conley‟s objection to Gaines‟s testimony was untimely. See Tex. R. App. P. 33.1(a)(1).
Under these circumstances, Conley‟s reliability challenge to the experts‟ testimony is not
preserved for appellate review. See Pollock, 284 S.W.3d at 816-17; see also Sprague,
2011 Tex. App. LEXIS 4503, at *29; Robertson, 2010 Tex. App. LEXIS 7421, at *29; In
re Commitment of Barbee, 192 S.W.3d 835, 843 (Tex. App.—Beaumont 2006, no pet.).
To the extent Conley challenges the experts‟ opinions as baseless, the experts‟
testimony is neither conclusory nor speculative. Both Proctor and Gaines are licensed in
their respective fields. They interviewed Conley, Proctor conducted risk assessments, and
both experts reviewed records regarding Conley‟s background, offenses, and
incarceration. Proctor administered actuarial tests and testified that these tests are
generally accepted in his field. The experts relied on the types of records relied on by
experts in their respective fields and performed their evaluations in accordance with their
training as professionals and the standards in their respective fields. Proctor and Gaines
based their opinions on the facts and data gathered from the records they reviewed, their
interviews with Conley, and the results of risk assessments and actuarial tests. They
explained in detail the facts and evidence they found relevant in forming their opinions
and the role those facts played in their evaluations. Both experts concluded that Conley
10
suffers from a behavioral abnormality as defined by the SVP statute. Their testimony is
not so speculative or conclusory as to be completely lacking in probative value. See
Sprague, 2011 Tex. App. LEXIS 4503, at **29-30; see also Barbee, 192 S.W.3d at 843.
In addition to the experts‟ opinions that Conley suffers from a behavioral
abnormality, the jury heard about Conley‟s risk factors, actuarial test scores, criminal
history, violent sexual assaults, sexual deviancy, alcohol dependence that disinhibits and
contributed to Conley‟s sexual offenses, harmful conduct towards others, “antisocial
psychopathic disposition,” classification as a psychopath, status as an untreated sex
offender, various diagnoses, and lifetime personality disorder. “The jury is the sole judge
of the credibility of the witnesses and the weight to be given their testimony.” In re
Commitment of Mullens, 92 S.W.3d 881, 887 (Tex. App.—Beaumont 2002, pet. denied).
The jury may resolve conflicts and contradictions in the evidence by believing all, part, or
none of the witnesses‟ testimony. Id. The jury could conclude, beyond a reasonable
doubt, that Conley is a sexually violent predator. See Tex. Health & Safety Code Ann. §
841.062(a) (West 2010); In re Commitment of Burnett, No. 09-09-00009-CV (Tex.
App.—Beaumont Dec. 31, 2009, no pet.). The evidence is legally sufficient to support
the jury‟s verdict. We overrule issues one and two.
11
Partiality of the Trial Court
In issue three, Conley contends that the trial court showed partiality by belittling
Conley‟s counsel and sustaining the State‟s objections on grounds that had not been
raised.
“A judge should be fair and impartial and not act as an advocate for any party” or
as “any party‟s adversary.” Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.—Houston
[1st Dist.] 1994, writ denied). “The judge is responsible for the general conduct and
management of the trial.” Id. “[A] trial court may properly intervene to maintain control
in the courtroom, to expedite the trial, and to prevent what it considers to be a waste of
time.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). “„[J]udicial rulings
alone almost never constitute a valid basis for a bias or partiality motion,‟ and opinions
the judge forms during a trial do not necessitate recusal „unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.‟”
Id. at 240
(quoting Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474
(1994)). “„Thus, judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge.‟” Id. “Further, „[n]ot establishing bias or partiality
. . . are expressions of impatience, dissatisfaction, annoyance, and even anger . . . . A
judge‟s ordinary efforts at courtroom administration -- even a stern and short-tempered
judge‟s ordinary efforts at courtroom administration -- remain immune.‟” Id. (quoting
12
Liteky, 510 U.S. at 555-56). “[O]bjection to a trial court‟s alleged improper conduct or
comment must be made when it occurs if a party is to preserve error for appellate review,
unless the conduct or comment cannot be rendered harmless by proper instruction.” Id. at
241 (citing State v. Wilemon, 393 S.W.2d 816 (Tex. 1965)); In re Commitment of
Vanzandt, 156 S.W.3d 671, 674 (Tex. App.—Beaumont 2005, no pet.).
According to Conley, on various occasions, the trial court made comments to
Conley‟s counsel in an “overbearing and disrespectful manner” and in an attempt to
disparage counsel‟s abilities and suggest to the jury that counsel was not adept. Conley
further contends that the trial court showed partiality to the State by sustaining the State‟s
objections on grounds different from those asserted by the State. The record does not
demonstrate that Conley objected to the trial court‟s actions. Our review of the trial
court‟s allegedly improper conduct, in the context of the record, does not show that
Conley was denied a fair trial. See Liteky, 510 U.S. at 555-56; see also Francis, 46
S.W.3d at 240-41; In re Commitment of Fields, No. 09-09-00005-CV, 2009 Tex. App.
LEXIS 9548, at **12-13 (Tex. App.—Beaumont Dec. 17, 2009, pet. denied) (mem. op.),
cert. denied, Fields v. Texas, 131 S.Ct. 912, 178 L.Ed.2d 762, 79 U.S.L.W. 3399
(2011). We do not find error that, in the absence of Conley‟s objection, would require
reversal. See Francis, 46 S.W.3d at 241; see also Fields, 2009 Tex. App. LEXIS 9548, at
**13-14; Barbee, 192 S.W.3d at 847-48; Vanzandt, 156 S.W.3d at 674. We overrule
issue three.
13
Having overruled Conley‟s three issues, we affirm the trial court‟s judgment.
AFFIRMED.
________________________________
STEVE McKEITHEN
Chief Justice
Submitted on September 20, 2011
Opinion Delivered September 29, 2011
Before McKeithen, C.J., Kreger and Horton, JJ.
14
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
