In Re Commitment of Mike Robert Weisinger v. the State of Texas

Affirmed and Memorandum Opinion filed November 14, 2023.

In The

Fourteenth Court of Appeals

NO. 14-22-00210-CV

IN RE COMMITMENT OF MIKE ROBERT WEISINGER

On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 492764Z

MEMORANDUM OPINION

In this appeal from a final determination, a jury found that Mike Robert
Weisinger is a sexually violent predator as defined in chapter 841 of the Texas
Health and Safety Code (otherwise known as the Texas Civil Commitment of
Sexually Violent Predators Act) and therefore subject to civil commitment. See Tex.
Health & Safety Code Ann. §§ 841.001-.151. On appeal, Weisinger contends the
evidence is legally and factually insufficient to “support the ‘behavioral
abnormality’ element of the State’s case.” We affirm.
THE TEXAS CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS ACT

The Texas Civil Commitment of Sexually Violent Predators Act (the “Act”)
provides for the civil commitment of sexually violent predators based on legislative
findings that “a small but extremely dangerous group of sexually violent predators
exists and that those predators have a behavioral abnormality that is not amenable to
traditional mental illness treatment modalities and that makes the predators likely to
engage in repeated predatory actions of sexual violence.” Tex. Health & Safety
Code Ann. § 841.001. The Legislature expressly found that “a civil commitment
procedure for the long-term supervision and treatment of sexually violent predators
is necessary and in the interest of the state.” Id.

Under the Act, a person is a sexually violent predator if the person (1) is a
repeat sexually violent offender,1 and (2) suffers from a behavioral abnormality that
makes the person likely to engage in a predatory act2 of sexual violence. Id. §
841.003(a). A person must be administratively determined to be a sexually violent
predator before the State files suit. Id. §§ 841.021-.023; In re Commitment of
Bohannan, 388 S.W.3d 296, 298 (Tex. 2012). When the administrative
determination is made, notice is given to an attorney representing the State. Tex.
Health & Safety Code Ann. § 841.023.

Once the person is referred to the State, an attorney representing the State may
file a civil commitment proceeding in the court of conviction for the person’s most
recent sexually violent offense. Id. § 841.041(a). If a judge or jury determines that

1
“Sexually violent offense” means, among other things, (1) an offense under Texas Penal
Code sections 21.02 (Continuous Sexual Abuse of Young Child or Disabled Individual),
21.11(a)(1) (Indecency with a child), 22.011 (Sexual Assault), or 22.021 (Aggravated Sexual
Assault); and (2) an offense under prior state law that contains elements substantially similar to
the elements of an offense listed above. See id. § 841.002(8)(A), (F).
2
“‘Predatory act’ means an act directed toward individuals, including family members, for
the primary purpose of victimization.” Id. § 841.002(5).

2
the person is a sexually violent predator, the trial court must commit the person for
treatment and supervision to begin on the date of release from prison and to continue
“until the person’s behavioral abnormality has changed to the extent that the person
is no longer likely to engage in a predatory act of sexual violence.” See id. §
841.081(a).

BACKGROUND

Weisinger is an inmate serving two forty-year concurrent sentences for
aggravated sexual assault of a child. On July 13, 2020, the State filed a petition
alleging Weisinger is a sexually violent predator and requesting that he be committed
for treatment and supervision. In November 2021, the case proceeded to trial and
the jury heard evidence from two witnesses: Weisinger and the State’s expert, Dr.
Kyle Clayton.

I. Dr. Clayton’s Testimony

Dr. Clayton, a psychologist, performed a clinical assessment of Weisinger
while preparing his expert opinion about whether Weisinger suffers from a
behavioral abnormality that makes him likely to engage in a predatory act of sexual
violence. Clayton has a master’s degree and doctorate in clinical psychology, is
board certified, and his specialization is forensic psychology. He has been licensed
in Texas since 2012, has a private practice in forensic psychology, and is a clinical
assistant professor of psychiatry at UT Southwestern Medical Center. He has been
involved in approximately 50 behavioral abnormality evaluations and has performed
hundreds of sex offense risk assessments.

Clayton’s methodology for conducting a behavioral abnormality evaluation is
to review records, conduct an interview, and perform testing. At trial, he identified
and discussed numerous risk factors that he considered while evaluating whether

3
Weisinger has a behavioral abnormality. While forming his expert opinion, Clayton
reviewed relevant psychologist’s evaluations and assessments, police investigative
documents, victim statements, court documents, prison records, criminal history
records, sexual history, medical records, treatment records, and Weisinger’s
deposition. After reviewing this information and interviewing and testing
Weisinger, Clayton concluded that he has a behavioral abnormality that makes him
likely to engage in a predatory act of sexual violence.

Sexual Offending History

In forming his opinion that Weisinger suffers from a behavioral abnormality,
Clayton considered the underlying facts and details of Weisinger’s prior convictions
for sexual offenses against children as well as the allegations and admissions of
sexual offenses that did not lead to convictions. According to the records and
Weisinger’s interview with Clayton, Weisinger started exposing his genitals to
prepubescent females at the age of 12 and exposed himself on multiple occasions to
prepubescent girls until he was 17.

The first time Weisinger got “into legal trouble” for indecent exposure was
when he was around 16 or 17 years old “and had some sort of diversionary program
that he was referred to due to that offense.” Weisinger also engaged in contact sexual
offenses while he was a juvenile. Records indicate that at age 13 “he gave oral sex
to an 8-year-old male cousin.” Clayton considered the juvenile sexual offending
history to be important because it shows Weisinger’s “sexual offending started early
and then persisted throughout the course of his life.” Clayton also considered the
fact that Weisinger engaged in contact and noncontact offenses “because those who
have both types of offenses are at a higher risk for reoffending in the future.”

As an adult, Weisinger continued committing contact and noncontact sexual
offenses against children. He admitted repeatedly exposing himself to prepubescent

4
girls and reported two contact offenses that happened when he was 18 years old and
in his mid-20s, respectively.

Weisinger was charged with indecency with a child after he exposed himself
several times to a 12-year-old girl at his apartment complex. He denied the incident,
or exposing himself to Heather in general, but he admitted to exposing himself to
other individuals during that time.

Weisinger’s first conviction as an adult at age 29 was for sexual abuse of a
child. His victims were a nine-year-old boy named Scott and an eight-year-old boy
named Jimmy B.; both victims were strangers. Weisinger claimed that Scott had
approached him in October 1981 and asked if he was interested in performing oral
sex. Weisinger performed oral sex on Scott. Clayton testified that Weisinger’s
description of the event was significant because it reflects (1) Weisinger at the time
“felt it to be a consensual non-harmful act”; and (2) Weisinger’s “dysfunctional
thinking around the issue of sexually acting out with children” showing his sexual
deviance. Weisinger was arrested for the offense against Scott but released on bond.
While on bond, Weisinger reoffended in May 1982 against Jimmy B. Weisinger
told Clayton that he approached Jimmy B. outside their apartment complex and
Weisinger performed oral sex on him. When Clayton asked Weisinger why he
committed the offense against Jimmy B., Weisinger stated that it was “an impulsive
decision” which (according to Clayton) is significant because (1) it speaks to
Weisinger’s lack of insight and (2) “a person who has a sexually deviant interest or
condition combined with impulsivity increases their risk for offending because
they’re less likely to be able to control their behavior or urges.”

Clayton explained this conduct shows Weisinger’s emotional and volitional
capacity is “extremely limited” especially “as it relates to his sexual acting out or
sexual offending, sexual behaviors.” According to Clayton, these offenses are

5
important with regard to Weisinger’s “functioning not only in the past, but also his
thinking and his dysfunction that continues. So, his current report of what happened,
his current understanding or insight into what happened is relevant to his current
functioning.”

For his offenses against Scott and Jimmy B., Weisinger was convicted for
sexual abuse of a child and sentenced to ten years’ confinement. He did not serve
the full sentence and was released on parole. Under his parole conditions, Weisinger
was prohibited from having contact with children and was required to participate in
sex offender treatment. While on parole, Weisinger stopped receiving treatment,
was unable to control his sexual urges, and reoffended against multiple victims.

He was first charged with indecency with a child for exposing himself from
his apartment window to a girl named Teresa, whose mother reported Weisinger to
the police. An investigation revealed multiple children had reported him for similar
conduct. During his interview with Clayton, Weisinger denied the incident with
Teresa and claimed “someone else” must have exposed himself. He also was
charged with indecency with a child committed against 13-year-old Manuel.

Records further show that Weisinger met 10-year-old Jerry and 12-year-old
Jimmy A. through Manuel, performed oral sex on Jerry and Jimmy A., and paid them
both. Weisinger was 34 and 35 years old at the time he offended against the boys.
During his interview with Clayton, Weisinger stated that Manuel brought the boys
to his apartment, “that the boys wanted him to perform oral sex on them. That he
agreed. That it was a consensual act that they all agreed to at the time.” Clayton
explained Weisinger’s belief that these sexual acts were consensual is significant
because “it speaks certainly to his dysfunctional thinking about sexual behaviors
involving children that was present at the time and still present to some degree now.”
According to Clayton, the offenses against the boys show that his emotional and

6
volitional capacity is significantly limited and impaired.

Clayton also explained that giving the boys money for the sexual acts is
significant because it “falls under the category of grooming, in that [Weisinger]’s
establishing a relationship with these boys for the purpose of having sexual contact
with them and then coercing them in a way to not only see this behavior as
appropriate, but to be able to reengage in this behavior. And then also developing
sort of a bond to where they would be less likely to report this behavior. So, it’s sort
of an act of disguising the behavior as well.” Clayton also believed Weisinger
engaged in grooming behavior because records showed that “oftentimes he would
have these boys at his apartment to listen to music or to look at photographs or to
talk about his guitar or — he had a bird, a pet bird that the boys liked to look at —
things that it appeared he was using to establish a relationship and time spent with
these boys.” Clayton opined that using these grooming techniques is significant
because it speaks to the severity of his sexual deviancy as “his behavior was being
dictated by his sexual interests and he was understanding that he was establishing a
relationship with these boys for the purpose of . . . sexual contact with them.”

For his offenses against Jerry and Jimmy A., Weisinger was convicted of
aggravated sexual assault of a child on September 21, 1988, and sentenced to 40
years’ confinement. Records indicate that the charges related to Manuel and Teresa
were dropped after Weisinger was convicted of committing aggravated sexual
assault against Jimmy A. and Jerry.

Diagnoses

Using the Diagnostic and Statistical Manual,3 Clayton diagnosed Weisinger

3
The Diagnostic and Statistical Manual is the general code book of psychiatric or
psychological disorders relied upon by psychologists and psychiatrists.

7
with exhibitionistic disorder because he has a significant persistent history of “a
sexual desire and gratification or interest in exposing [himself] to non-consenting
persons.” Clayton explained that this diagnosis factors into his opinion that
Weisinger has a behavioral abnormality because “it’s part of his sexual deviancy.
It’s part of his condition that predisposes him to act out sexually.”

Clayton further diagnosed Weisinger with pedophilic disorder. He questioned
Weisinger regarding any fantasies Weisinger may have about children. Clayton
testified that Weisinger generally “indicated that he continues to have some issue
with having sexual interest or desire with children, in particular around the 12, 13,
14 age range males.” When Clayton questioned Weisinger “whether or not he has
masturbated to thoughts of children since he’s been convicted,” Weisinger initially
claimed that he had not done so for many years but then admitted that “it does
continue and has continued at times but that he tries not to do it.” Clayton explained
this is significant because Weisinger “still has this sexual desire and interest, and he
is at times acting upon it.”

Clayton testified that Weisinger’s pedophilic disorder is a congenital or
acquired condition that affects his emotional or volitional capacity and is a lifelong
condition (especially in terms of sexual interest and urges). When asked why he
concluded that Weisinger still has a pedophilic disorder despite not having
committed another sexually violent offense against a child since being imprisoned,
Clayton explained his opinion is “not only just based on his history, but based on
evidence that he continues to have sexually deviant interests towards children, that
that [sic] thinking remains present. He hasn’t had the opportunity to act on it in
prison, but the interest is still there.”

Clayton also diagnosed Weisinger with “other specified personality disorder
with mixed personality features” which does not go away but tends to persist

8
throughout a person’s life. Finally, Clayton diagnosed Weisinger with a remitted
cannabis use disorder based on Weisinger’s extensive abuse and use. However,
because Weisinger abstained from using cannabis for a long period of time, the order
is considered in remission.

Risk Factors

Clayton explained that there are research-based risk factors which increase a
person’s risk of sexually reoffending. He identified sexual deviancy as Weisinger’s
primary risk factor, but also explained why the following numerous risk factors he
found for Weisinger were significant in his determination that Weisinger suffers
from a behavioral abnormality:

• Committing contact and noncontact offenses;

• Offending against victims who are strangers;

• Reoffending while on bond despite being detected for offending;

• Reoffending while on parole and persistence despite punishment;

• Offending either during or after attending sex offender treatment while
on parole;

• Dysfunctional thinking in the past and “to some degree now” that
sexual acts with children were consensual;

• Use of grooming techniques;

• Personality disorder;

• Chronicity of sexual violence, “history of offending over many, many
years”;

• Diversity of violence, male/female victims and contact/noncontact

9
victims;

• Minimization and/or denial of sexual violence;

• Escalation of sexual violence, increase in frequency and severity;

• Psychological coercion;

• Problems with self-awareness;

• Dysfunctional thought patterns in general;

• Problems with stress and coping combined with sexually deviant
interests; and

• History of child abuse.

Protective Factors

Clayton identified Weisinger’s age as his sole protective factor; he is 69 years
old. Clayton testified that generally research suggests the risk to sexually reoffend
decreases as people age. Nonetheless, Clayton opined that Weisinger’s age does not
negate his behavioral abnormality. He stated that Weisinger’s age “doesn’t exclude
the fact that he still has a condition that makes him likely to reoffend. So, he’s still
a high risk.”

Test Results

Clayton used the Psychopathy Checklist Revised (PCL-R), which is “the gold
standard measure for looking at psychopathy or psychopathic personality traits” to
evaluate whether Weisinger is a psychopath or has psychopathic traits. Clayton
explained that the maximum score on the PCL-R is 40 and that a person’s score is
based on all available information and the person’s entire history. Clayton testified
that Weisinger’s score was 19, which is a moderate range. A score between 25 and
30 indicates a definite psychopathy. Clayton opined that Weisinger is not “at a level
10
of being a psychopath or having definite psychopathy, but he does have some traits.”

To further evaluate Weisinger, Clayton used the Static-99R and the Risk for
Sexual Violence Protocol (RSVP) instruments, which are types of tests formulated
to determine whether a person is likely to sexually reoffend. Clayton explained that
the Static-99R is an actuarial risk assessment that places a person into a risk category
based on 10 different risk factors. Weisinger received a score of three, which placed
him “in the top of the average category.” Nonetheless, Clayton opined that
Weisinger is at a high risk or above average risk to reoffend based on the totality of
the information reviewed, including testing instruments, Weisinger’s clinical
interview, historical information, and numerous other risk factors that are more
considered in the RSVP. Clayton testified that under the RSVP, Weisinger’s score
fell in the high risk range for sexual offending in the future.

Sex Offender Treatment and Prison Conduct

Additionally, Clayton testified that at the time of trial Weisinger was in an 18-
month sex offender treatment program in prison. During his interview, Weisinger
told Clayton that (1) he “didn’t see himself at risk”; (2) he did not need the treatment
to reduce or manage his risk; (3) “most of the things he had learned so far were things
that he already knew or that he had already taught himself”; (4) if given the
opportunity to seek treatment out in the free world, “he wouldn’t do it because he
didn’t think he really needed it”; and (5) because the treatment was being offered,
“he felt like it was good to get all the tools he could.”

Clayton testified that his review of Weisinger’s treatment records shows the
“results have been mixed” because Weisinger has been described as cooperative and
engaged at times, but other times as “regressing back to dysfunctional ideas of seeing
his victims as not being victims, being consensual behavior, rationalizing his
behavior.” Clayton opined that the mixed results show a need for continued

11
treatment. He also testified that, based on his interview with Weisinger and his
review of all the records, Weisinger does not have all the tools necessary to manage
and control his sexual behaviors.

II. Weisinger’s Testimony

The jury also heard testimony from Weisinger. He admitted starting to expose
himself at the age of 12; his first victim was a three-year-old girl who lived with his
family at the time. He testified that he continued exposing his genitals to young girls
— usually his sister’s friends but also to strangers. He testified that the girls seemed
to like it when he exposed himself because they giggled and “didn’t act like they
were appalled.” Although he was worried about getting in trouble, he did not stop
exposing himself.

Weisinger admitted that at the age of 13, he sexually abused his eight-year-
old male cousin by performing oral sex on him. When Weisinger was 16 years old
and on probation for shoplifting, he was caught exposing himself to a little girl. He
testified that he saw her playing alone in a parking lot, so he drove up to her, exposed
his genitals, and then drove off. The case against him was later dropped. After he
got caught for the exposure in the parking lot, he participated in group therapy. He
testified that despite therapy and even after becoming an adult, he continued
exposing himself but not as frequently. He admitted having difficulties controlling
his impulses exposing his genitals but claimed he does not have a problem now.

Weisinger agreed that he is currently sexually attracted to male children, even
today. He admitted that he used to have sexual fantasies about children, masturbated
to those fantasies, and repeatedly acted on those fantasies by seeking out children
for sexual contact. Although he could not remember the number of male children
with whom he had sexual contact, he estimated the number to be approximately 15.

12
Weisinger described having sexual contact “approximately ten times” with
10-year-old Forrest when he was 16 years old.

Weisinger further testified that when he was 24 years old, he had sexual
contact with two 14-year-old boys: Johnny and Tucker. He testified that he
repeatedly had sexual contact with Johnny. Weisinger described it as “mutual oral
sex” and did not believe what he was doing with Johnny was wrong.

Regarding his sexual contact with nine-year-old Scott, he admitted
performing oral sex on Scott when he was almost 29 years old. He never thought to
not engage in sexual activity with Scott.

Weisinger testified that after he was arrested and released on bond for his
offenses against Scott, he “went prowling to find someone” and committed a sexual
offense against nine-year-old Jimmy B. Weisinger admitted that his way of coping
with the stress of being charged for offenses against Scott was to find another child
to sexually abuse. Weisinger claimed this had been the first time he went “hunting”;
he admitted to losing control over his sexual impulses but claimed he found his
actions “[g]ratifying, but not sexually.”

Weisinger admitted engaging in sexual activities with brothers Jimmy A. and
Jerry after his release from prison on mandatory supervision at the age of 35. He
testified that when he was released, he did not feel he “had a problem with the sexual
attraction to children” and “needed help for that.” Weisinger denied engaging in
sexual activity with Manuel, although he admitted being sexually attracted to him.
Weisinger further admitted that he engaged in sexual activity with a 15-year-old boy
named Tim. He admitted he was sexually attracted to Tim, could not control his
sexual impulses, and mostly performed oral sex on Tim.

Weisinger testified that he thinks he needs sex offender treatment but not for

13
“sexual issues.” He believes his sexual issues are not the root cause of his sexual
problems; instead, he claims his sexual problems are caused by “motivation erosion,
avoidance, failure to assume reasonable initiatives, fear of vulnerability, fear of
rejection, desire to be admired.” He denied telling Clayton that he had thoughts
about children and continued to masturbate to those thoughts “within the past few
years.” He agreed that he needs “to stay away from children” if he is released from
prison. He claimed he “learned tools to help” him avoid reoffending, but admitted
“there is always the possibility.”

Weisinger testified that he considers himself bisexual; he is interested in men,
women, and male children. He acknowledged that his sexual attractions will not
change but stated that he has been learning in his sex offender treatment how to
control his attraction and not reoffend. He testified that he feels he is doing really
well in treatment, although he acknowledged that his therapist at times indicated to
him “that that’s not correct.” He stated that he now understands that the boys he
offended against were harmed by his actions. He also testified that he was affected
by being sexually abused at the age of five because, shortly thereafter, he became
sexually active. Weisinger stated that he does not believe he will commit another
sexual offense because he now knows how his actions damaged the boys he abused.
He testified that he will “probably always have that attraction to boys. I don’t think
that will go away. I have to learn how to cope with it and how to deal with it.” He
testified that he plans on “keeping busy and staying active so” he does not reoffend
when he gets released from prison.

After considering the evidence presented, the jury found Weisinger to be a
sexually violent predator. The trial court signed a final judgment and order of
commitment on November 16, 2021. Weisinger filed a motion for new trial and an
amended motion for new trial, which was overruled by operation of law. See Tex.

14
R. Civ. P.329b(c). Weisinger filed a timely appeal.

ANALYSIS

In two issues, Weisinger contends the evidence is legally and factually
insufficient to support the “behavioral abnormality” element of the State’s case.

I. Standard of Review and Governing Law

The Act requires the State to prove beyond a reasonable doubt that a person
is a sexually violent predator. Id. § 841.062(a); In re Commitment of Baiza, 633
S.W.3d 743, 749 (Tex. App.—Houston [14th Dist.] 2021, no pet.); see also In re
Commitment of Fisher, 164 S.W.3d 637, 639-41 (Tex. 2005).

For a legal sufficiency challenge, we employ the criminal standard of review
in cases brought under the Act. See In re Commitment of Stoddard, 619 S.W.3d 665,
675 (Tex. 2020). We must view the evidence in the light most favorable to the
prosecution and determine whether any rational factfinder could have found the
essential elements of the crime beyond a reasonable doubt. Id. (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)); In re Commitment of Thedford, No. 14-21-
00070-CV, 2023 WL 107121, at *2 (Tex. App.—Houston [14th Dist.] Jan. 5, 2023,
no pet.) (mem. op.). The Supreme Court of Texas clarified the distinction between
legal and factual sufficiency standards of review in civil commitment cases when,
as here, the burden of proof is beyond a reasonable doubt. In re Commitment of
Stoddard, 619 S.W.3d at 668; In re Commitment of Baiza, 633 S.W.3d at 749.

In both legal and factual sufficiency reviews, we presume the factfinder
resolved disputed evidence in favor of the finding if a reasonable factfinder could do
so, but we may not ignore undisputed facts contrary to a finding. In re Commitment
of Stoddard, 619 S.W.3d at 676; In re Commitment of Baiza, 633 S.W.3d at 749. A
distinction arises in the treatment of disputed evidence that a reasonable factfinder

15
could not have credited in favor of a finding — we disregard such disputed evidence
in a legal sufficiency review, but we consider this disputed evidence in a factual
sufficiency review. In re Commitment of Stoddard, 619 S.W.3d at 676; In re
Commitment of Baiza, 633 S.W.3d at 749.

Evidence is factually insufficient to support a jury finding under the Act when
the evidence contrary to the finding is so significant in light of the entire record that
the factfinder could not have determined beyond a reasonable doubt that its finding
was true. In re Commitment of Stoddard, 619 S.W.3d at 668, 678; In re Commitment
of Baiza, 633 S.W.3d at 749.

As provided in the Act, a person is a sexually violent predator if he (1) is a
repeat sexually violent offender, and (2) suffers from a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence. Tex. Health &
Safety Code Ann. § 841.003(a). A person is a repeat sexually violent offender if, as
relevant here, the person is convicted of more than one sexually violent offense and
a sentence is imposed for at least one of the offenses. Id. § 841.003(b). A behavioral
abnormality is defined as “a congenital or acquired condition that, by affecting a
person’s emotional or volitional capacity, predisposes the person to commit a
sexually violent offense, to the extent that the person becomes a menace to the health
and safety of another person.” Id. § 841.002(2). A predatory act is defined as “an
act directed toward individuals, including family members, for the primary purpose
of victimization.” Id. § 841.002(5).

II. Sufficiency of the Evidence

We begin by addressing Weisinger’s legal sufficiency challenge.

Legal Sufficiency

As part of his first issue, Weisinger asserts that the evidence is legally

16
insufficient to support the “legislatively intended definition of ‘behavioral
abnormality’” because “Chapter 841 indicates that it was not intended to apply to
non-psychopathic, elderly persons who are about to be released from prison after
having served long and ‘non-lenient’ prison sentences.” Weisinger contends that the
resolution of this claim requires a judicial construction of the “behavioral
abnormality” element according to traditional rules of statutory construction. He
contends that, under these statutory-construction rules, we should consider chapter
841’s legislative history and legislative findings that “Chapter 841 is meant to apply
to ‘a small but extremely dangerous group of sexually violent predators’” to which
he does not belong. See id. § 841.001.

However, the Supreme Court of Texas has clarified that the two statutory
elements — repeat sexually violent predator and behavioral abnormality — are the
only factors courts should consider in a sufficiency review. See In re Commitment
of Stoddard, 619 S.W.3d at 676-78. The supreme court explained that the “‘small
but extremely dangerous group’ language, contained in the Act’s legislative
findings, is not part of the statute’s definition of ‘sexually violent predator’ and [is]
not an element the jury [is] required to find.” Id. at 677 (concluding appeals court
erred in finding evidence insufficient when it found, among other things, that
appellant was not part of small but extremely dangerous group referenced in
legislative findings). Two of our sister courts already have rejected the argument
Weisinger advances here. In re Commitment of McGarity, No. 12-23-00001-CV,
2023 WL 4308666, at *2-3 (Tex. App.—Tyler June 30, 2023, no pet. h.) (mem. op.)
(rejecting request to consider whether appellant was part of “a small but extremely
dangerous group” mentioned in legislative findings in light of holding in Stoddard);
In re Commitment of Atchison, No. 01-22-00424-CV, 2023 WL 4003066, at *7 (Tex.
App.—Houston [1st Dist.] June 15, 2023, no pet. h.) (mem. op.) (same).

17
Other courts, including this one, have rejected similar arguments. In re
Commitment of Tryon, 654 S.W.3d 29, 38 (Tex. App.—Eastland 2022, pet. denied)
(noting “Stoddard has clearly foreclosed” argument that “behavioral abnormality”
element must be construed as incorporating Act’s legislative findings and legislative
history); In re Commitment of Summers, No. 01-19-00738-CV, 2021 WL 3776751,
at *14 (Tex. App.—Houston [1st Dist.] Aug. 26, 2021, no pet.) (mem. op.) (declining
request to consider whether appellant was part of “small but extremely dangerous
group” mentioned in legislative findings in light of supreme court’s holding in
Stoddard); In re Commitment of Ausbie, No. 14-18-00167-CV, 2021 WL 1972407,
at *11 (Tex. App.—Houston [14th Dist.] May 18, 2021, pet. denied) (mem. op.)
(declining request, in light of Stoddard, to examine legislative history to construe
intended meaning of “behavioral abnormality”). We also conclude that Weisinger’s
argument that the evidence is legally insufficient to support a finding that he meets
the legislatively intended definition of “behavioral abnormality” is foreclosed by
Stoddard.

Besides Weisinger’s argument we addressed above, the only other contention
he makes in challenging the legal sufficiency of the evidence is to state:

The evidence is legally (and factually) insufficient to support the
“behavioral abnormality” element of the State’s case also because of
Clayton’s undisputed testimony that he did not know for sure whether
Mr. Weisinger would be “good to go” upon his anticipated successful
completion of the TDCJ 18-month sex-offender treatment program.
This would have to make the evidence legally (and factually)
insufficient to support a finding that Mr. Weisinger would be at
“increased risk” to sexually reoffend upon successful completion of this
program.
First, we note that Weisinger fails to explain how this alleged testimony would
render the evidence legally insufficient in light of Clayton’s other extensive
testimony explaining why it is his opinion that Weisinger suffers from a behavioral

18
abnormality. Second, Weisinger neglects to present Clayton’s testimony in context.
Clayton responded to questioning from Weisinger’s attorney as follows:

Q. I think you testified — I think you testified on direct examination
that the successful completion of a sex offender treatment program
brings down risk?
A. Yes.
Q. What you can’t tell a jury is how much; is that right?
A. It depends — right. It depends on the individual for sure.
Q. So, if Mr. Weisinger in a couple of months out gets his
certificate, he may be good to go; is that right?
A. I don’t know.
Q. You don’t know?
A. I would say unlikely, but I don’t know for sure.

Clayton never testified that successful completion of treatment eliminates the risk of
reoffending so as to negate his conclusion that Weisinger suffers from a behavioral
abnormality. Third, Clayton considered it a risk factor that Weisinger had
reoffended back when he was on parole after his convictions for sexual abuse of a
child even though he had attended sex offender treatment. He stated that individuals
who reoffend post-participation in treatment tend to reoffend at a higher rate.

Fourth, Clayton also considered Weisinger’s view regarding his need for sex
offender treatment; Weisinger had told Clayton that (1) he “didn’t see himself at
risk”; (2) he did not need the treatment to reduce or manage his risk; (3) “most of
the things he had learned so far were things that he already knew or that he had
already taught himself”; (4) if given the opportunity to seek treatment out in the free
world, “he wouldn’t do it because he didn’t think he really needed it”; and (5)
because the treatment was being offered, “he felt like it was good to get all the tools
he could.” Clayton explained why Weisinger’s “view on his need for sex offender
treatment” is significant:
19
I mean, it definitely relates to not only his insight into his sexual interest
and sexual dysfunction and need to manage his risk, but a person’s
motivation towards treatment tends to oftentimes really impact how
well they can do in treatment, how well they can progress, how quickly
they can progress, and then how well they can take the things from
treatment with them once treatment is over. So, motivation and insight
definitely impacts your treatment response.
Fifth, with regard to Weisinger’s current sex offender treatment, Clayton testified
that his review of Weisinger’s treatment records shows the “results have been
mixed” because Weisinger has been described as cooperative and engaged at times,
but other times as “regressing back to dysfunctional ideas of seeing his victims as
not being victims, being consensual behavior, rationalizing his behavior.” Clayton
opined that the mixed results show a need for continued treatment. He also testified
that, based on his interview with Weisinger and his review of all the records,
Weisinger does not have all the tools necessary to manage and control his sexual
behaviors.

Finally and as discussed in detail above, Clayton based his opinion that
Weisinger suffers from a behavioral abnormality on a holistic evaluation of
Weisinger, considering (1) Weisinger’s extensive sexual offending history that
started when he was a juvenile and persisted throughout adulthood; (2) numerous
research-based risk factors; (3) that Weisinger has (a) an exhibitionistic disorder
which is part of his sexual deviancy and “part of his condition that predisposes him
to act out sexually,” (b) an “other specified personality disorder with mixed
personality features” which tends to persist throughout a person’s life, and (c) a
pedophilic disorder that is a congenital or acquired condition that affects his
emotional or volitional capacity and is not something that goes away, even with age,
but is a lifelong condition; (4) test results that revealed psychopathic traits under the
PCL-R, a Static-99R score that placed Weisinger “in the top of the average
category,” and a RSVP score that fell in the high risk range for sexual offending in
20
the future; (5) the success of past sex offender treatment and current treatment; and
(6) Weisinger’s conduct in prison.

Viewing the evidence in the light most favorable to the jury’s verdict, we
conclude the evidence presented at trial is legally sufficient to support a finding
beyond a reasonable doubt that Weisinger has a behavioral abnormality that makes
him likely to engage in a predatory act of sexual violence. Accordingly, we overrule
Weisinger’s first issue.

Factual Sufficiency

In his second issue, Weisinger contends the evidence is factually insufficient
to support the “behavioral abnormality” element of the State’s case because the
evidence is undisputed that (1) his age is advanced; (2) he served over 30 years in
prison so that his past behavior outside of prison is not a good predictor of his future
behavior; (3) he scored a “3” on the Static-99R; (4) he scored less than “30” on the
PCL-R; (5) he is not a psychopath; and (6) it is anticipated that he will successfully
complete the sex offender treatment program in prison. We disagree.

First, chapter 841 does not mention age, and “‘no court has the authority,
under the guise of interpreting a statute, to engraft extra-statutory requirements not
found in a statute’s text.’” In re Commitment of McGarity, 2023 WL 4308666, at
*7 (quoting PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d 296, 305 (Tex. 2019)
(citing Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 872 (Tex. 2014))). Although
Weisinger was 69 years old at the time of trial, his age does not negate his behavioral
abnormality. See id.; In re Commitment of Tryon, 654 S.W.3d at 41 (holding that
advanced age, standing alone, is insufficient to reverse a jury’s verdict); In re
Commitment of Fielding, No. 08-22-00026-CV, 2022 WL 17485580, at *9-10 (Tex.
App.—El Paso Dec. 7, 2022, no pet.) (mem. op.) (holding evidence factually
sufficient when expert explained why he rejected advanced age as protective factor);

21
In re Commitment of Delarosa, No. 03-21-00541-CV, 2022 WL 3403347, at *8-9
(Tex. App.—Austin Aug. 17, 2022, no pet.) (mem. op.) (finding evidence factually
sufficient despite appellant’s advanced age). Clayton may have identified
Weisinger’s age as his sole protective factor, but Clayton also opined that
Weisinger’s age does not negate the fact that he suffers from a behavioral
abnormality and it “doesn’t exclude the fact that he still has a condition that makes
him likely to reoffend. So, he’s still a high risk.”

Second, Weisinger’s contention that his past behavior outside of prison is not
a good predictor of his future behavior because over 30 years have passed since his
last offense is negated by Clayton’s testimony. Clayton testified several times that
it is “highly relevant” to consider a person’s whole history when determining
whether a person has a behavioral abnormality. He explained why he looked at
historical information in determining whether “Weisinger has a behavioral
abnormality today” as follows:

Well, I’d say two things in particular. One is that in order to understand
a person today, it’s relevant and important to understand everything
about that person’s background that contributes to where they’re at in
the present moment, that your present moment is a compilation of your
entire history. So, the more I know about your history, the better, more
clearer, more exhaustive picture I’m getting about the person.
The other thing that’s relevant is that . . . [t]hat past behavior is a good
predictor of future behavior. So, understanding previous behavior is
relevant to understanding a person’s risk for that type of behavior in the
future.
In Clayton’s expert opinion, past behavior is a relevant and good predictor of future
behavior. Clayton firmly rejected Weisinger’s attorney’s accusation that Clayton
made assumptions based on “what happened 50 years ago, 40 years ago, 30 years
ago.” Clayton stressed that he formed his opinion based on his examination and the
totality of the information. Further, Clayton disagreed with an implication that

22
Weisinger would not reoffend if released from prison because “nothing” occurred in
prison in over 30 years “that would suggest that he won’t function as appropriately
in society.”

Third, with regard to Weisinger’s Static-99R and PCL-R scores, Clayton
explained that although the scores on these two instruments were in the moderate
range and “in the top of the average category,” respectively, he believed Weisinger’s
risk of reoffending to be above average. Clayton based his opinion on Weisinger’s
RSVP score, which fell in the high-risk range for sexual offending in the future, and
“the totality of the information, including instruments and clinical interview and
history information.”

Fourth, we already rejected the argument that the evidence is insufficient to
support a finding of behavioral abnormality because the person was not determined
to be a psychopath. See In re Commitment of Hutyra, No. 14-17-00669-CV, 2018
WL 3911136, at *6 (Tex. App.—Houston [14th Dist.] Aug. 16, 2018, pet. denied)
(mem. op.). Instead, we found that “the only question a jury must answer in a civil
commitment trial is whether a person suffers from a behavioral abnormality that
makes that person predisposed to committing sexually violent acts.” Id. (citing In
re Commitment of Bohannan, 388 S.W.3d at 306). Even though a medical diagnosis
of a person’s mental health may inform an assessment of whether that person has
such a behavioral abnormality, determining whether a person suffers from a
predisposing condition does not rest solely on such a diagnosis. Id. at *6; see also
In re Commitment of Bohannan, 388 S.W.3d at 306.

Lastly, we conclude that Weisinger’s contention that the evidence is factually
insufficient because it is anticipated that he will successfully complete sex offender
treatment in prison lacks merit. Although successful completion of treatment may
be a protective factor, Weisinger had not completed his treatment at trial. Weisinger

23
offers no authority to support his position that anticipated completion of sex offender
treatment renders the evidence insufficient to support the jury’s finding. Further,
Clayton testified that, based on treatment records, Weisinger’s participation and
progress in the treatment program had mixed results because Weisinger had been
described as cooperative and engaged at times, but other times as “regressing back
to dysfunctional ideas of seeing his victims as not being victims, being consensual
behavior, rationalizing his behavior.”

There was no assurance at trial that he would complete the program
successfully, especially since he did not appreciate the benefits thereof. In that
respect, Clayton testified that Weisinger told Clayton (1) he “didn’t see himself at
risk”; (2) he did not need the treatment to reduce or manage his risk; (3) “most of
the things he had learned so far were things that he already knew or that he had
already taught himself”; (4) if given the opportunity to seek treatment out in the free
world, “he wouldn’t do it because he didn’t think he really needed it”; and (5)
because the treatment was being offered, “he felt like it was good to get all the tools
he could.”

We have reviewed the entire record in accordance with the applicable standard
of review. After doing so, we cannot conclude that there is any evidence so
significant that the jury could not have determined beyond a reasonable doubt that
Weisinger has a behavioral abnormality. Accordingly, we overrule Weisinger’s
second issue.

CONCLUSION

We affirm the trial court’s final determination.

24
/s/ Meagan Hassan
Justice

Panel consists of Justices Zimmerer, Spain, and Hassan.

25