In Re Commitment of Michael McGarity v. the State of Texas

NO. 12-23-00001-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE § APPEAL FROM THE 217TH

COMMITMENT OF § DISTRICT COURT

MICHAEL MCGARITY § ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

Michael McGarity appeals his civil commitment following the trial court’s adjudication
that he is a sexually violent predator. In two issues, McGarity contends that the evidence is
legally and factually insufficient to support the trial court’s judgment. We affirm.

BACKGROUND

McGarity is an inmate, who currently is serving two twenty-five-year concurrent
sentences for aggravated sexual assault of a child. On November 23, 2021, the State filed a
petition seeking to have McGarity adjudicated a sexually violent predator and committed for
treatment and supervision pursuant to Chapter 841 of the Texas Health and Safety Code. A jury
found beyond a reasonable doubt that McGarity is a sexually violent predator. On that basis, the
trial court entered a final judgment and order of civil commitment. McGarity filed a motion for
new trial, which was overruled by operation of law. This appeal followed.

EVIDENTIARY SUFFICIENCY
In his first and second issues, McGarity argues that the evidence is neither legally nor
factually sufficient to support the jury’s finding that he is a sexually violent predator.
Standard of Review and Governing Law
Texas Health and Safety Code Chapter 841 provides for the involuntary “long-term
supervision and treatment of sexually violent predators” meeting specified statutory criteria.
TEX. HEALTH & SAFETY CODE ANN. § 841.001 (West 2017); In re Commitment of Stoddard,
619 S.W.3d 665, 669 (Tex. 2020). To meet its burden of proof in a sexually violent predator
civil commitment case, the State must prove beyond a reasonable doubt that a person is a
sexually violent predator. See TEX. HEALTH & SAFETY CODE ANN. § 841.062 (West Supp.
2022). A person is considered 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. Id. § 841.003(a) (West 2017). 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) (West
2017). “‘Predatory act’ means an act directed toward individuals, including family members, for
the primary purpose of victimization.” Id. § 841.002(5). And “sexually violent offense”
includes the offense of aggravated sexual assault of a child. See id. § 841.002(8)(A); TEX.
PENAL CODE ANN. § 22.021(a)(1)(B), (a)(2)(B) (West 2019). If, after a trial, a trial court or jury
determines that a person is a sexually violent predator, the judge must commit him for treatment
and supervision. See TEX. HEALTH & SAFETY CODE ANN. § 841.081(a) (West 2017).
Because of the heightened burden of proof, appellate review of the legal sufficiency of
the evidence requires deciding “whether, after viewing the evidence in the light most favorable
to the [petitioner], any rational trier of fact could have found the essential elements . . . beyond a
reasonable doubt.” See In re Commitment of Stoddard, 619 S.W.3d at 675 (internal quotation
omitted). “It is the fact finder’s responsibility to fairly resolve conflicts in the testimony, weigh
the evidence, and draw reasonable inferences from basic to ultimate facts.” In re Commitment
of Stuteville, 463 S.W.3d 543, 544 (Tex. App.—Houston [1st Dist.] 2015, pet. denied); In re
Commitment of Mullens, 92 S.W.3d 881, 887 (Tex. App.— Beaumont 2002, pet. denied)
(stating fact finder may resolve conflicts and contradictions in evidence “by believing all, part, or
none of the witnesses’ testimony”).
The factual sufficiency standard requires deciding “whether, on the entire record, a
reasonable factfinder could find beyond a reasonable doubt that the defendant is” a sexually

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violent predator. See In re Commitment of Stoddard, 619 S.W.3d at 668. “[T]he appellate court
may not usurp the jury’s role of determining the credibility of the witnesses and the weight to be
given their testimony . . . [and] must presume that the factfinder resolved disputed evidence in
favor of the finding if a reasonable factfinder could do so.” Id. “If the remaining 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, the evidence is factually
insufficient.” Id.
“[I]n both types of review the appellate court may not ignore ‘undisputed facts that do not
support the finding’ and must otherwise presume the factfinder resolved disputed evidence in
favor of the finding if a reasonable factfinder could do so.” Id. at 676 (quoting In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002)). But the two types diverge over how they treat “disputed evidence
that a reasonable factfinder could not have credited in favor of the finding.” Id. “In a legal
sufficiency review, the court disregards such evidence in determining whether a rational
factfinder could find the statutory . . . elements met beyond a reasonable doubt.” Id. But “[i]n a
factual sufficiency review, the court considers whether that evidence, in light of the entire record,
is so significant that the factfinder could not have determined beyond a reasonable doubt that the
statutory elements were met.” Id.
Statutory Construction
As part of his first issue, McGarity contends that our analysis turns on the meaning of a
statute, which is a question of law we review de novo. See, e.g., Flores v. State, 620 S.W.3d
154, 158 (Tex. Crim. App. 2021) (stating that “[s]ometimes, a sufficiency of the evidence issue
turns upon the meaning of the statute under which the defendant is being prosecuted . . . [, and
in] those situations, after viewing the evidence in the light most favorable to the verdict, we ask
if certain conduct actually constitutes an offense under the statute, which is a question of law we
review de novo”). McGarity correctly argues that this appeal turns on the statutory definition of
“behavioral abnormality.” His argument continues that this phrase is ambiguous, we should
construe it in light of the legislative history, and accordingly, such an analysis inevitably leads to
the conclusion that Chapter 841 was not intended to apply to him.
McGarity specifically asserts that the case law sheds little light on what the “behavioral
abnormality” element means and, therefore, resolution of this question requires a judicial
construction of the “behavioral abnormality” element according to traditional rules of statutory

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construction. He argues that, under these traditional rules, this Court should consider the
Legislature’s findings that Chapter 841 is intended to apply to “a small but extremely dangerous
group of sexually violent predators,” a group to which he does not belong. See TEX. HEALTH &
SAFETY CODE ANN. § 841.001. We disagree with McGarity’s analysis.
The Texas Supreme Court 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. It 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 where it found, among other things, that appellant was not part of small but
extremely dangerous group referenced in legislative findings).
Other Texas courts have rejected similar arguments. See, e.g., 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.) (dismissing request to consider whether appellant was part of
“small but extremely dangerous group” mentioned in legislative findings in light of holding in
Stoddard); see also 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 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 agree with the reasoning in these opinions and likewise hold that Stoddard
forecloses McGarity’s argument that the evidence is legally insufficient to support a finding that
he meets the legislatively intended definition of “behavioral abnormality.”

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The Evidence at Trial1
The Texas Department of Criminal Justice (TDCJ) retained Dr. Darrel Turner, a
psychologist, to evaluate McGarity and determine whether he has a behavioral abnormality. Dr.
Turner has a bachelor’s degree in psychology, a master’s degree in counseling psychology, and a
doctorate in clinical psychology with a focus in forensic psychology. He completed a
predoctoral internship with the Federal Bureau of Prisons and worked as a staff psychologist at a
United States federal penitentiary in Pollock, Louisiana. Dr. Turner is licensed in Texas and
Louisiana. The jury was also provided his curriculum vitae.
As the jury viewed the legal definition of “behavioral abnormality,” Dr. Turner explained
his understanding of its meaning. He explained that his job as a forensic evaluator is to provide
expert testimony to assist the factfinder, in this case the jury, in reaching its decision. Dr. Turner
told the jury that he has performed over 400 behavioral abnormality evaluations in the past ten
years. Dr. Turner explained that he performed his evaluation of McGarity in accordance with his
training as a psychologist and within the acceptable standards within the field of forensic
psychology.
According to Dr. Turner, there is no test that can definitively determine whether someone
has a behavioral abnormality. His methodology for conducting a behavioral abnormality
evaluation consists of a review of the individual’s records (court documents, police investigative
documents, statements from the individual and victims, medical records, prison records, and
criminal history information), an interview, evaluation, and testing of McGarity, from which he
then compiles all the information to form an ultimate opinion, if possible. He testified that he
also used research related to sexual recidivism and reviewed McGarity’s subsequent deposition
in forming his opinion in this case. Dr. Turner ultimately concluded that it is his opinion that
McGarity suffers from a behavioral abnormality that predisposes him to engage in sexually
violent acts.

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In the instant case, McGarity testified that he currently is serving sentences on two convictions for
aggravated sexual assault of a child. The trial court admitted a judgment into evidence demonstrating McGarity’s
convictions. Therefore, the record reflects that McGarity is a repeat sexually violent offender. See TEX. HEALTH &
SAFETY CODE § 841.002(8)(A) (West 2017); TEX. PENAL CODE § 22.021(a)(1)(B), (a)(2)(B) (West 2019). Neither
party disputes that the first element is satisfied. Accordingly, only the second element is disputed.

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History of Prior Sexually Violent Crimes
McGarity testified that he had a normal childhood, but he began abusing alcohol and
marijuana in his twenties. He abused both substances at the time of the offenses and continued
using them until he was sent to prison. He experienced at least two “black out” moments. He
has not used either substance in prison. McGarity has not completed any treatment for substance
abuse issues. Due to the length of his sobriety, McGarity does not believe he needs treatment for
substance abuse. However, when asked why he has not imbibed, he explained that the alcohol
available in prison is dangerous to consume because it is made in prison, of poor quality, and can
result in serious health problems.
At the time of the underlying offenses, McGarity’s live-in girlfriend had a three-year-old
son. Although McGarity remembers no details concerning the incidents, police records indicate
that McGarity began sexually abusing this young boy in 2000 and continued abusing the boy for
several weeks. McGarity testified that it was possible the police records are accurate. McGarity
gave a statement to the police when he was arrested for sexually abusing the boy. The statement
related that McGarity and the boy were bathing together and the boy landed on McGarity’s lap.
McGarity stated it is possible that his penis entered the boy’s anus at that time, and that his penis
went inside of the boy’s mouth. At the time of this civil trial, McGarity had no recollection of
ever taking a bath with the boy and had no idea why he might have offended against him.
McGarity also has a daughter. When she was about eighteen months old, McGarity
sexually abused her. As with the other offense, McGarity had no independent memory of that
crime. In the statement McGarity gave to police, he admitted penetrating the girl’s anus and
vagina, maybe more than once, while cleaning her. He explained to this civil jury that he was
just “too rough” when cleaning his daughter. However, McGarity admitted it is possible he did
these things to his daughter with sexual intent. Also, according to the records, McGarity’s acts
caused his daughter anal and vaginal tearing. At the same time the tears were found, it was also
discovered that she had a yeast infection in her throat.
McGarity was convicted for aggravated sexual assault against his daughter and against
his girlfriend’s son. He was sentenced to twenty-five years in prison for each count. McGarity
admitted it was possible that he sexually offended against other children during other blackout
moments. He testified at this civil commitment trial that he does not now, nor has he ever, had a
problem with sex.

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McGarity’s future plan, should he be released, is to stay away from children so that he is
not again accused of sexual abuse. McGarity testified that he would be placed in a high-risk
situation if someone brought alcohol, marijuana, or certain magazines to his home, and that
certain television shows could also present high-risk situations for him. He explained that being
around children would be high risk because then accusations could be made. Although
McGarity believed children would be safe around him, he believed that he is not safe around
them. When asked whether his sexual offending occurred because of his drug and alcohol abuse,
McGarity responded, “I won’t want to speculate, but it had most likely something to do with it.”
McGarity testified that he had no idea why he sexually offended against the children. He
explained that it might have been for revenge against his girlfriend for neglect.
Risk Factors
Dr. Turner explained that research-based risk factors show whether a sex offender is at a
higher risk of reoffending sexually than the average sex offender for whom the factors are not
present. Dr. Turner stated that academic research reveals the two largest risk factors for sexually
reoffending are having sexually deviant interests and an antisocial personality. Sexual deviance
is a chronic sexual attraction or drive that requires victimizing another person to satisfy.
According to Dr. Turner, McGarity is sexually deviant. He has a severe lack of insight into his
sexual attraction to very young children and his risk to reoffend in the future. Dr. Turner
bolstered this conclusion with McGarity’s characterization of a three-year-old child as possibly
sexually promiscuous. Dr. Turner believes that McGarity’s sexual deviance is evidence that his
emotional or volitional capacity has been affected as required by the statute.
McGarity also has behaviors consistent with an antisocial personality. Dr. Turner
explained that the academic research shows that a person with both a sexual deviance and an
antisocial personality are at an especially increased risk for reoffending. He described McGarity
as lacking remorse and empathy, and focusing on self-satisfaction, conning, manipulative, and
lying behaviors. Dr. Turner testified that the research shows sex offenders who displace personal
responsibility and blame amnesia or blackouts ignore the underlying attractions that made them
offend. According to Dr. Turner, people like McGarity, who accept no responsibility and feel no
remorse or empathy, have a “seriously compromised” ability to not reoffend.
Risk factors Dr. Turner identified from McGarity’s offenses include: (1) offending
against very young children; (2) offending against a male; (3) offending while intoxicated; (4)

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reoffending against the same children; (5) offending both inside and outside of the family; (6)
progressing from touching to penetrating; and (7) grooming the children not to disclose the
abuse.
Dr. Turner further testified that if McGarity returns to substance abuse, his risk of
sexually reoffending will drastically increase. He acknowledged that many people become very
intoxicated and never sexually offend.
Positive and Protective Factors
Positive factors can prevent a person’s risk of reoffending from increasing. Protective
factors decrease a person’s risk of reoffending. McGarity’s use of prison programs and his
behavior in prison are positive factors. McGarity completed numerous vocational and self-help
classes and worked several different jobs while incarcerated. McGarity attended the prison’s
four-month sex offender education program. Through this program and other prison programs,
McGarity learned that he can remove himself from undesirable situations, and through his
training, he has more to offer the world than just being a sex offender. However, when McGarity
was interviewed in 2021 for the sex offender treatment program, Dr. Turner noted he completely
denied his offenses and blamed his girlfriend for falsely accusing him. Based on McGarity’s
deposition, it appears that he learned in treatment to be aware of his surroundings and his
thoughts. McGarity’s trial testimony—that he can become intoxicated and be around children
and the children will be safe—showed Dr. Turner “how little he took away” from the short
program.
McGarity’s age of fifty-one is also a protective factor. Advanced age is generally
protective for sexual offenders, but Dr. Turner explained that this is less so for those who offend
against children.
McGarity intends to live with his younger brother, who believes McGarity is innocent of
all charges. Family support is generally protective, but McGarity’s family believes that he is
innocent. Members of McGarity’s family wrote letters to TDCJ, believing their own children are
safe around him. Dr. Turner believes this fact negates the protective factor, and he stated that if
they do not believe what McGarity did, they will not prevent McGarity from reoffending.
McGarity received no major disciplinary actions while in prison and only two minor
infractions, the most recent of which occurred in 2004.

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Nevertheless, Dr. Turner opined that McGarity’s positive and protective factors are not
enough to counter the clear evidence of his behavioral abnormality.
Diagnoses
Using the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM),
Dr. Turner made diagnoses of McGarity. Dr. Turner stated that the statutory definition of
“behavioral abnormality” does not require a DSM diagnosis, and similarly, a “behavioral
abnormality” is not a diagnosis in the DSM.
Dr. Turner assigned McGarity a “provisional” diagnosis of pedophilic disorder, meaning
there is very strong evidence of the disorder. In this case, the diagnosis is provisional because
the diagnosis requires proof spanning a period of at least six months. The evidence against
McGarity spans several months, but less than six months. Dr. Turner testified that McGarity’s
denials of sexual attraction to children does not negate him being a pedophile. Dr. Turner opined
that McGarity’s repeated offending against two very young children is strong evidence that he
has a pedophilic disorder. He related that the condition is chronic and lifelong.
McGarity also presents adult antisocial personality behaviors. Antisocial people have no
regard for the rights of others. They break the laws and rules of society and often end up in
prison. To make the diagnosis of antisocial personality disorder, there must be evidence of a
conduct disorder prior to the age of fifteen. Although there was some evidence of McGarity’s
antisocial behavior at an early age, there was not enough for Dr. Turner to make the full
diagnosis. McGarity’s substance abuse was prolific. His work history was sporadic. According
to Dr. Turner, McGarity’s refusal to take responsibility for his actions, and his efforts to lie and
talk his way out of taking responsibility for them, are current evidence of his antisocial
personality.
Dr. Turner diagnosed McGarity with severe alcohol use disorder and severe cannabis use
disorder, both in sustained full remission. McGarity’s extended sobriety does not lower his risk
of relapse once he is returned to normal society. The relapse rate after treatment is over fifty
percent. McGarity has not had any treatment, which Dr. Turner concluded makes him even more
likely to relapse.
Testing
Dr. Turner utilized the Static-99R, an actuarial measure based on risk factors. It does not
consider all risk factors and the authors of the instrument recommend that evaluators also

9
consider other factors. Dr. Turner testified that the Static-99R is a helpful tool and an initial
gauge, not a final answer. It does not test for a behavioral abnormality.
Dr. Turner’s conservative score for McGarity was a zero, which places him in the group
at below-average risk for being rearrested or reconvicted for another sexual offense. Offending
against very young children, as McGarity did, is considered lower risk, but Dr. Turner said that
this may just be because of a lower rate of reporting for sexual crimes against very young
children. The Static-99R does not consider: a person’s diagnoses, the ages of the victims, the
degree of violence accompanying the sexual assaults, substance abuse, patterns of abuse, or lack
of insight. For example, Dr. Turner related the flaws in the Static-99R when he proclaimed that
even if McGarity were to announce his intent to molest the first child he encounters, his score on
the Static-99R would not change.
Dr. Turner also utilized the Hare Psychopathy Checklist Revised, which measures a
person’s degree of psychopathic traits. McGarity’s psychopathic traits are listed in the previous
discussions about his antisocial personality. McGarity received a score of nineteen, indicating he
is not a true psychopath.
Behavioral Abnormality
Dr. Turner opined that McGarity has a behavioral abnormality that makes him likely to
engage in additional predatory acts of sexual violence to the extent that he is a menace to others.
He explained, “I’m basing that on my education, training and experience having done so many of
these, and done so much work with sex offenders in general, and I am talking about that
likelihood and the probability based on what the history is and the current functioning.” Dr.
Turner opined that McGarity is at high risk to sexually reoffend—significantly higher than the
average sex offender.
Discussion
McGarity contends that the evidence is legally and factually insufficient to support the
jury’s finding that he is a sexually violent predator because of his advanced age, he is not a
psychopath, and the State could not prove he has a pedophilic disorder.
First, we note that age is not mentioned in the Act. “[N]o court has the authority, under
the guise of interpreting a statute, to engraft extra-statutory requirements not found in a statute’s
text.” PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d 296, 305 (Tex. 2019). At the time of trial,
McGarity was fifty-one years old. McGarity’s age does not negate his behavioral abnormality.

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See In re Commitment of Tryon, 654 S.W.3d at 41 (holding advanced age, standing alone, is not
sufficient to reverse the 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 Fielding’s advanced age as
protective factor); 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 Delarosa’s advanced age). McGarity admitted that he is still a sexual person,
and that he masturbates and has sexual fantasies, including “[s]light bondage” fantasies.
As to his second argument, a finding of psychopathy is not required for civil
commitment. The statute requires the initial evaluator to test for psychopathy. TEX. HEALTH &
SAFETY CODE ANN. § 841.023(a) (West 2017). However, there are no guidelines for subsequent
evaluators and no requirements of any particular testing results. See In re Commitment of
Hebert, 578 S.W.3d 154, 159 (Tex. App.—Tyler 2019, no pet.) (holding psychopathy not a
requisite finding in sexually violent predator civil commitment case); 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.) (same). There is no authority to support McGarity’s position
that, because he is not a psychopath, he cannot be civilly committed as a sexually violent
predator.
Finally, McGarity contends that because the State could not prove he has a pedophilic
disorder, as defined by the DSM, the evidence is insufficient. However, the statute does not
require a DSM diagnosis. Our sister courts have rejected the argument that an expert’s failure to
make a DSM diagnosis renders the evidence legally and factually insufficient. See In re
Commitment of Dever, 521 S.W.3d 84, 87 (Tex. App.—Fort Worth 2017, no pet.); In re
Commitment of Atchison, 2023 WL 4003066, at *7 (rejecting similar insufficiency argument
that, because Dr. Turner’s behavioral abnormality determination rested largely on “provisional”
diagnosis of antisocial personality disorder, which does not fully satisfy DSM criteria for
disorder, State could not fully prove basis upon which Dr. Turner relied resulting in factually
insufficient evidence). The Act requires what the State must prove, not how the State has to
prove it. In re Commitment of Dever, 521 S.W.3d at 87. This conclusion is supported by the
Texas Supreme Court’s explanation that “[a] medical diagnosis of a person’s mental health may
certainly inform an assessment of whether he has a . . . behavioral abnormality, but the principal

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issue in a commitment proceeding is not a person’s mental health but whether he is predisposed
to sexually violent conduct.” In re Commitment of Bohannan, 388 S.W.3d 296, 306 (Tex.
2012); see In re Commitment of Lewis, 495 S.W.3d 341, 347 (Tex. App.—Beaumont 2016, pet.
denied) (reasoning that “a mental disorder is not a prerequisite to commitment” under sexually
violent predator commitment statute).
It is solely the role of the jury to determine the weight and credibility to assign the
evidence. In re Commitment of Stoddard, 619 S.W.3d at 677. Although the jury may have
considered McGarity’s age, lack of psychopathy, and lack of full diagnosis for a pedophilic
disorder, the jury still determined that McGarity is a sexually violent predator. We do not
substitute our judgment for the jury’s. See id.
The jury had before it the testimony of a man convicted of two counts of aggravated
sexual assault, one for a three-year-old boy and another for his eighteen-month-old daughter.
There were also allegations of McGarity committing other sexual assaults against both children.
McGarity told the police that he might have used his penis to penetrate the boy’s anus and
mouth. McGarity also told the police that he might have used his fingers to penetrate his
daughter’s anus and vagina on more than one occasion. McGarity told the jury that he could not
remember committing the offenses. Despite his testimony that he may have committed these
acts, and maybe similar acts to other children that were never reported, he believes he is not a
danger to children. Even after completing a sex offender education program, McGarity declared
his problems were limited to drugs and alcohol, and that the allegations were made by a vengeful
girlfriend. He further testified that it was possible that he committed these acts, and that if he
committed the offenses against the children, he has no idea why.
The jury also had before it Dr. Turner’s testimony and opinion. Dr. Turner explained the
allegations, the associated risk factors, positive factors, and protective factors for McGarity. Dr.
Turner explained his diagnoses and his provisional diagnoses of McGarity. Dr. Turner explained
the tests he used and explained his interpretations of the instruments. Ultimately, Dr. Turner
opined that McGarity has a behavioral abnormality that makes him likely to engage in a
predatory act of sexual violence. Dr. Turner opined that McGarity is at high risk to sexually
reoffend—significantly higher risk than the average sex offender.

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Summation
After reviewing the evidence in the light most favorable to the verdict, we conclude that a
rational trier of fact could find the statutory elements required for commitment beyond a
reasonable doubt. See TEX. HEALTH & SAFETY CODE ANN. §§ 841.002(2), 841.003(a); see In re
Commitment of Stoddard, 619 S.W.3d at 675. Furthermore, after reviewing the entire record,
we cannot conclude that there is any contrary evidence so significant that the factfinder could not
have determined beyond a reasonable doubt that the finding was true. See id. at 668.
Accordingly, we hold that the evidence is legally and factually sufficient to support the jury’s
finding and the judgment granting commitment. See id. at 678.
McGarity’s first and second issues are overruled.
DISPOSITION

Having overruled McGarity’s two issues, we affirm the trial court’s judgment.

BRIAN HOYLE
Justice

Opinion delivered June 30, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 30, 2023

NO. 12-23-00001-CV

IN RE COMMITMENT OF MICHAEL MCGARITY,

Appeal from the 217th District Court
of Angelina County, Texas (Tr.Ct.No. CV-01468-21-11)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this Court that there was no error in
the judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.

Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. and Bass, J.