Martinez waived a jury trial and his right to attend trial. The State read excerpts of his deposition testimony into the record. Martinez testified he had sexual fantasies involving children. He testified that in New Mexico in the early nineteen eighties he molested his then seven or eight-year old nephew. The molestation continued for approximately one year. He was convicted in 1993 for an offense against the child.

While on probation, he went to a tennis resort to interview for a job and while on the premises, molested another child he had never met. He pled guilty in 1994 to indecency with the child. In 2000, he pled guilty to and was convicted of offenses in El Paso County that occurred while he was in a park with children. The victims ranged in age from six to ten years old.

The State also read the deposition testimony of Dr. Lisa Clayton, a forensic psychiatrist. She testified regarding her educational background and training. Dr. Clayton testified that prior to her interview with Martinez, she reviewed his file and scoring data on actuarials. She diagnosed Martinez with pedophilia, nonexclusive type, and antisocial personality traits. Dr. Clayton testified that Martinez has a behavioral abnormality as defined in the statute, and that he has serious difficulty in controlling his behavior. In her opinion, Martinez holds a high risk of re-offending in a sexually violent manner.

During the State's reading of Dr. Clayton's deposition testimony, appellant made numerous objections, each time challenging Dr. Clayton's competency as an expert witness or the reliability of her testimony. The trial court overruled the objections. On appeal, Martinez argues Dr. Clayton's testimony was not reliable. He contends the State offered no evidence to satisfy the reliability factors set out in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 553-54 (Tex. 1995).

Tex. R. Evid. 702 allows expert testimony in scientific, technical, or other specialized areas if the "witness [is] qualified as an expert by knowledge, skill, experience, training, or education[.]" The proponent bears the burden of establishing the witness's expert qualifications. See United Blood Servs. v. Longoria, 938 S.W.2d 29, 31 (Tex. 1997). The trial court acts as a gatekeeper to screen out unreliable expert evidence. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002). To preserve a complaint that scientific evidence is unreliable and constitutes no evidence, a party must object before trial or when the evidence is offered. See Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 251-52 (Tex. 2004)(citing Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998)). Admission of expert testimony that does not meet the reliability requirement is an abuse of discretion. Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 810 (Tex. 2002). ⁽¹⁾

The party opposing the admission of particular evidence has the burden of timely and specifically objecting to that evidence. Wilkins v. Royal Indem. Co., 592 S.W.2d 64, 66 (Tex. Civ. App.--Tyler 1979, no writ); see Tex. R. Evid. 103. A specific objection enables the trial court to understand the issue of law raised and to make an informed ruling, and allows the offering party the opportunity to correct the identified problem if possible. de los Angeles Garay v. Tex. Employers' Ins. Ass'n, 700 S.W.2d 657, 659 (Tex. App.--Corpus Christi 1985, no writ); see also Tex. Mun. Power Agency v. Berger, 600 S.W.2d 850, 854 (Tex. Civ. App.--Houston [1st Dist.] 1980, no writ); Univ. of Tex. Sys. v. Haywood, 546 S.W.2d 147, 150 (Tex. Civ. App.--Austin 1977, no writ). "Shotgun" objections, citing many general grounds for the objection without argument and obscuring a specific valid basis, do not preserve the complaint for appellate review. See Webb v. State, 899 S.W.2d 814, 818 (Tex. App.--Waco 1995, pet. ref'd); Berry v. State, 813 S.W.2d 636, 638-40 (Tex. App.--Houston [14th Dist.]) pet. ref'd, 821 S.W.2d 616 (Tex. Crim. App. 1991). In Berry, the court explained that counsel should not "conceal valid objections in a sophistic fog[.]" Id. at 640.

Many of the objections at trial were general in nature. Martinez argues that although his objections vary in wording, "the main point of the objections is that Dr. Clayton is not an expert, her opinion lacks scientific, technical, or other specialized knowledge, her opinion is not helpful to the finder of fact, and her opinion is not reliable." We understand these challenges to be to Dr. Clayton's qualifications. The expertise of a witness to express an opinion is a preliminary matter for the trial court to determine. Tex. R. Evid. 104(a); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998).

Dr. Clayton received her bachelor's degree in psychology from the University of Oklahoma. She is a graduate of Emory Medical School. She also completed a one-year internship at Emory Medical School. She has completed psychology and psychiatry residency training. After receiving specialized training during her fellowship in forensic psychiatry, she has been in private practice. As part of her outpatient practice, she has treated inmates for about eight hours a week for eight years at the Dallas County Jail. Dr. Clayton has evaluated and treated juveniles, including sex offenders, committed to the Texas Youth Commission and at the state school in Gainesville. At the time of her deposition she still evaluated defendants for the criminal courts in Dallas, Montague, Tarrant, and Collin Counties. On this record, the trial court did not abuse its discretion in finding Dr. Clayton to be qualified as an expert in the field of psychiatry and qualified to testify to the opinions she expressed.

Martinez also argues the State presented no evidence that the underlying techniques used by Clayton to form her opinions satisfy the Robinson factors. The Court in Robinson held that the following factors are to be considered in determining the admissibility of scientific knowledge:

(a) the extent to which the theory has been or can be tested;

(b) the extent to which the technique relies upon the subjective interpretation of the expert;

(c) whether the theory has been subjected to peer review and/or publication;

(d) the technique's potential rate of error;

(e) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and

(f) the non-judicial uses which have been made of the theory or technique.

Robinson, 923 S.W.2d at 557. Some of Martinez's trial objections to Dr. Clayton's deposition testimony were that her testimony failed to satisfy certain Robinson factors, and those objections appear to challenge the foundational data and methodology used in forming her opinion.

Dr. Clayton testified she arrived at her diagnosis or conclusions as to Mr. Martinez primarily "through review of all the records and the clinical interview . . . with Mr. Martinez." She testified her opinion that Martinez holds a high risk of re-offending in a sexually violent manner was based on her "past experience and training in evaluating sex offenders" and on Martinez's "long history of pedophilia and his victimization of both little girls and boys[.]" Dr. Clayton testified she based her opinion that Martinez suffered from a "behavioral abnormality" upon her review of his file and actuarial data and upon a two-hour interview with him. She explained that during the clinical interview, they discussed Martinez's childhood history, medical situation, relationship history, sexual history, current living situation, and his attempts to abide by the rules for released offenders. They discussed his sexual offenses, and she evaluated him for any psychotic or thought disorder. Dr. Clayton stated she thought Martinez tried to misinform her regarding his compliance with sex offender treatment, presented himself in the best possible light in how he described his offenses, and tended to blame his victims. She explained the DSM-IV states that with pedophilia, "the course is usually chronic, especially in those attracted to males. The recidivism rate for individuals with pedophilia involving a preference for males is roughly twice those who prefer females."

The Texas Supreme Court has held Tex. R. Evid. 702's requirements of relevance and reliability are applicable to all expert testimony. See Gammill, 972 S.W.2d at 726-27. The Court acknowledged that "the considerations listed in Daubert and in Robinson for assessing the reliability of scientific evidence cannot always be used with other kinds of expert testimony." Gammill, 972 S.W.2d at 726. The Court has left it to the trial court, as "gatekeeper," to determine how to assess the reliability of particular testimony. ⁽²⁾

See id; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In Gammill, the Court upheld the trial court's application of the test used by the United States Supreme Court in General Electric Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), that is, whether there was too great an analytical gap between the data and the expert's opinion. 972 S.W.2d at 726-27. Generally, the questions a judge addresses in considering the relevance and reliability of an expert's testimony are whether the testimony is based on sufficient facts or data, whether the testimony is grounded in reliable principles and methods, and whether those principles and methods were applied reliably to the facts of the case. If not, the analytical gap between the data and the opinion may be too great and the opinion unreliable.

Dr. Clayton based her testimony on facts and data gathered in her interview from Martinez himself, the tests conducted, his prior offenses, and his records. She explained the work method she used in forming her opinion and how she applied the information to reach her opinion. The trial court was within its discretion in concluding that she based her testimony on sufficient facts and data and on a reliable method used in her field of expertise for forming an opinion, and that she applied that method reliably to the facts in this case. We see no analytical gap in her testimony and no abuse of discretion by the trial court in admitting her testimony into evidence.

Martinez next contends there is legally insufficient evidence to support the trial court's finding that Martinez is a sexually violent predator suffering from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Specifically, Martinez argues the State presented no evidence to suggest that Dr. Clayton's diagnosis of pedophilia meets the legal definition of "behavioral abnormality" or that Martinez was different from a typical recidivist.

The statute requires the State to prove a person meets the "sexually violent predator" criteria beyond a reasonable doubt. See Tex. Health & Safety Code Ann. § 841.062(a) (Vernon 2003); In re Commitment of Fisher, 164 S.W.3d 637, 641 (Tex.), cert. denied, ___U.S.___, 126 S.Ct. 428, 163 L.Ed.2d 326 (2005). Because this is the same burden of proof required in criminal cases, although this is a civil proceeding, we apply the appellate standard of review used in criminal cases for sufficiency of the evidence. See In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.--Beaumont 2002, pet. denied) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In a legal sufficiency review, we review all of the evidence in a light most favorable to the finding and examine whether a rational factfinder could have found, beyond a reasonable doubt, that Martinez suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See Mullens, 92 S.W.3d at 885; see also Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The trier of fact may draw reasonable inferences from the evidence and is the exclusive judge of the witnesses' credibility and the weight to give testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996); Bruno v. State, 922 S.W.2d 292, 293 (Tex. App.--Amarillo 1996, no pet.).

The State presented sufficient evidence to show Martinez suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See Mullens, 92 S.W.3d at 885. Dr. Clayton testified to the reasons she reached her conclusion, and her testimony is based on the considerable evidence we have already summarized and addressed in reviewing the reliability of her testimony. The State presented evidence differentiating Martinez from a typical recidivist. "[P]roof of serious difficulty in controlling behavior" is required in order to civilly commit a defendant. See Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). The inability to control behavior "must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." Id. Dr. Clayton testified that Martinez admitted he will always have a problem with a desire for young children and that if he has thoughts of them, he knows he has to get the thoughts out of his mind. Martinez also testified that he has sexual fantasies involving children and that he committed the offenses because "it seemed easy and I was sexually attracted to those kids at that time." Martinez's lack of volitional control may be inferred from his past behavior, his history of violating probation conditions, and from his own testimony. A rational trier of fact could find beyond a reasonable doubt Martinez has serious difficulty in controlling his behavior and suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.

Appellant's issues are overruled. We affirm the judgment and order of civil commitment.

AFFIRMED.

_________________________________

DAVID GAULTNEY

Justice

Submitted on May 26, 2006

Opinion Delivered August 24, 2006

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

1.In Kumho Tire Co. v. Carmichael, the United States Supreme Court held that a trial court "must have the same kind of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether that expert's relevant testimony is reliable." 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (emphasis in original).

2. This case was a bench trial in which the trial court heard extensive testimony on Dr. Clayton's qualifications and the bases for her conclusions. In Olin Corp. v. Smith, the Austin Court of Appeals addressed the trial court's discretion in assessing reliability when the court is also the fact-finder:

As both gatekeeper and fact-finder, the trial court was in a position to assess the reliability of the technical and specialized knowledge proffered by the experts and to determine whether the testimony would assist the trier of fact to understand the evidence and to determine the facts in issue as contemplated by Rule 702. The court was in a position to evaluate whether the opinion proffered 'comport[ed] with applicable professional standards outside the courtroom' and had 'a reliable basis in the knowledge and experience of the discipline' in question. Gammill, 972 S.W.2d at 726-27 (quoting Watkins v. Telsmith, Inc., 121 F.3d 984 (5th Cir. 1997)).

Olin Corp. v. Smith, 990 S.W.2d 789, 796-97 (Tex. App.--Austin 1999, pet. denied) (footnote omitted). The Court noted that "the confluence of the 'gatekeeper' and fact-finder functions in the trial court served to ventilate fully any Robinson issues." Id. at 796 n.1.