In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00157-CV
____________________
IN RE COMMITMENT OF MICHAEL ANTHONY LUCERO
__________________________________________________________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 13-07-07143 CV
__________________________________________________________________
MEMORANDUM OPINION
The State of Texas filed a petition to civilly commit Michael Anthony
Lucero (Lucero) as a sexually violent predator under the Sexually Violent Predator
Act. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp.
2014) (SVP statute). A jury found Lucero suffers from a behavioral abnormality
that makes him likely to engage in a predatory act of sexual violence. Id. § 841.003
(West Supp. 2014). The trial court entered a final judgment and an order of civil
commitment under the SVP statute.
Lucero raises four issues on appeal. In his first issue, he argues that the trial
1
court erred by admitting “as substantive evidence” hearsay of details of charged
and uncharged offenses. In his second and third issues, he argues that the evidence
is legally and factually insufficient to support a finding that he has a behavioral
abnormality. And in his fourth issue he contends that this Court’s decision in In re
Commitment of Richard, No. 09-13-00539-CV, 2014 WL 2931852 (Tex. App.—
Beaumont June 26, 2014, pet. denied) (mem. op.), renders Chapter 841
unconstitutional. We overrule his issues and affirm the judgment of the trial court.
THE SVP STATUTE
Under the SVP statute, the State bears the burden of proving beyond a
reasonable doubt that the person it seeks to commit for treatment is a sexually
violent predator. Tex. Health & Safety Code Ann. § 841.062 (West Supp. 2014).
As defined by the Legislature, a sexually violent predator is a person who “(1) is a
repeat sexually violent offender; and (2) suffers from a behavioral abnormality that
makes the person likely to engage in a predatory act of sexual violence.” Id.
§ 841.003(a) (West Supp. 2014). 1 Under the statute, a “‘[b]ehavioral abnormality’”
is “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
1
The term “likely” is not defined in the SVP statute. See Tex. Health &
Safety Code Ann. § 841.002 (West Supp. 2014) (Definitions).
2
person.” Id. § 841.002(2) (West Supp. 2014). Previously, we have stated that “[a]
condition which affects either emotional capacity or volitional capacity to the
extent a person is predisposed to threaten the health and safety of others with acts
of sexual violence is an abnormality which causes serious difficulty in behavior
control.” In re Commitment of Almaguer, 117 S.W.3d 500, 506 (Tex. App.—
Beaumont 2003, pet. denied).
UNDERLYING FACTS AND TESTIMONY
Lucero was convicted in 1994 of the aggravated sexual assault of his four-
year-old child, D.L. Lucero claims he was drunk at the time he committed the
sexual assault, and he testified he did not remember if he had assaulted the child on
other occasions. He received a ten-year sentence for the sexual assault of D.L. He
was released from prison in July of 2003, and he was required to register as a sex
offender. He refused to register as required, and he moved into a residence that was
one block from an elementary school. In 2006, he pleaded guilty to two counts of
violating the terms of his release. In 2006, he was also convicted of indecency with
a child by sexual contact, and he was sentenced to eight years in prison. E.B. was
the victim in the 2006 offense, and she was the six-year-old child of Lucero’s
girlfriend.
At Lucero’s commitment trial, the State read Lucero’s responses to Requests
for Admissions into the record. Therein, Lucero admitted that he knew it was
3
wrong to sexually offend against D.L. and E.B., that he did not need sex offender
treatment, that he had never completed a Sex Offender Treatment Program, and
that he was “a sex offender.” Lucero admitted at trial that he had other arrests and
at least one conviction for theft that occurred before his conviction for the
aggravated sexual assault of his four-year-old daughter. The State also offered and
the trial court admitted the penitentiary packets for Lucero into evidence. In
response to questions from the State’s attorney, Lucero agreed that on or about
October 31, 1992, he committed the sexual offense of aggravated sexual assault
against his four-year-old daughter. The records related to the 1992 sexual assault
were admitted into evidence and reflect the details of Lucero’s sexual assault on
the child. When questioned about the details of the sexual assault, Lucero stated
that he could not remember what he did to his child because at the time he had
been drinking. Lucero also said he could not remember if he had sexually assaulted
his daughter on other occasions.
When questioned about his 2006 conviction, Lucero agreed that he “sexually
assaulted” six-year-old E.B. and that he was charged with and convicted for
indecency with a child by sexual contact. He told the jury that he was at a picnic
with E.B.’s mother, and that he and E.B.’s mother were “making out” when E.B.
came running to where I was and she jumped in my lap and she got in
between my legs and I was aroused already because [E.B.’s mother]
was there, kissing on me and making out with me. And [E.B.] was in
4
between my legs and I had an erection, and I used her as an object and
I grabbed her hand and I rubbed my -- her hand on my penis.
With respect to the sexual assault of E.B., Lucero further explained that he “seized
the opportunity” because E.B. was there, and he agreed that he was just using E.B.
to sexually gratify himself. Lucero was also questioned about a “hickey” he put on
E.B.’s neck on a different occasion; but he told the jury E.B. saw a “hickey” on her
mother’s neck and that E.B. asked Lucero about it and wanted one too, so he then
grabbed her skin and twisted it to give her one.
At trial, Lucero also stated that he had triggers such as depression, rejection,
low self-esteem, and inadequacy. He told the jury some situations present a high
risk and trigger him to think about sexually offending, including “skimpy clothes,
clubs, pornography, hanging around girls who give me a lot of attention . . .
[h]anging in malls with girls or at -- or places where children are at, swimming
pools, areas like that, drinking alcohol.” Lucero also testified that at the time of the
trial he was in the sixteenth month of an eighteen-month sex offender program, but
that even if he completes the program and is released, he believes his need for
treatment is “constant” and he will continue to go to therapy. He also stated that he
felt “it would be a wise idea” for him to stay away from children, even his
grandchildren and his own child. With respect to his own child he stated:
I believe that if I was to see her, I would need to have
supervision, like I said, until I know that this treatment is working.
5
Because it’s one thing to be here in prison, it’s another thing to put it
out in practice in the free world.
When he was asked whether he thought he was at risk to reoffend, Lucero stated,
“I think I’m maybe a moderate risk maybe, but—I mean, I think treatment can
work for me, and I think putting it to practice would prove that.”
Dr. Self, a medical doctor who is board certified in general psychiatry,
testified on behalf of the State. He explained to the jury that there are some broad
categories of risk factors associated with increased risk of recidivism such as
“sexual criminal history, sexual deviancy, lifestyle instability and criminality,
intimacy deficits, and response to treatment and supervision.” Dr. Self testified
further that the facts of the offenses can be important in helping him reach his
opinion as to whether Lucero has a behavioral abnormality, and that he relied upon
Lucero’s convictions and legal documents, the victim characteristics, and the other
offenses that did not result in an indictment or conviction.
Dr. Self explained to the jury that he used the same methodology used by
other forensic psychiatrists performing behavioral abnormality evaluations. He
diagnosed Lucero with pedophilia, and he explained to the jury that pedophilia is
“a chronic condition.” According to Dr. Self, he found it “very significant” that
Lucero spent ten years in prison for sexually offending against one child, then he
sexually offended against another child within two years of being released from
6
prison for the earlier offense. Dr. Self stated, “I don’t think he can control it[.]” He
also described Lucero as having “adult antisocial behavior.” As noted by Dr. Self,
Lucero has done well in prison, but not in the free world. According to Dr. Self,
this is frequently true of pedophiles. He also diagnosed Lucero with alcohol
dependence in institutional remission. Dr. Self explained that Lucero’s history of
alcohol abuse and dependence is significant in that it elevates his risk of
reoffending.
Dr. Self reached the opinion that Lucero “suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual
violence[.]” Dr. Self told the jury that the SVP statute does not define “likely.” He
defines “likely” as “[m]ore than a mere possibility.” Dr. Self stated there is no
percentage assigned to the term. He explained that because sexual offenses have
severe and lasting effects on the victims, even small percentages are “of concern.”
Dr. Self found Lucero’s risk to be “unacceptable” and higher than the general
population of sex offenders. Some of the risk factors he identified for Lucero
include pedophilia (a sexual deviance), two convictions for sexually violent
offenses, failing to report while being supervised, lifestyle instability, and alcohol
dependence.
Dr. Tennison, a medical doctor and board certified psychiatrist, testified on
behalf of Lucero. Dr. Tennison testified that Lucero meets the definition of a
7
pedophile “in terms of behaviors and history.” Dr. Tennison also agreed that
Lucero has alcohol dependence. He stated that the offenses committed by Lucero
did not show that there was a history of Lucero “active[ly] seeking out” victims.
According to Dr. Tennison, because Lucero’s sexual offenses were against familial
children his risk of reoffending is lower than an offender who offends against non-
family members. He agreed that Lucero has displayed adult antisocial behavior but
not a personality disorder. Dr. Tennison agreed that previous convictions for sex
offenses are a risk factor. According to Dr. Tennison, “the statistics have shown
that, as the number of offenses go up . . . the risk of future sexual recidivism,
generally, is higher as well.” He does not believe Lucero’s alcohol dependence is a
risk factor, because he does not believe the influence of alcohol is a congenital or
acquired condition. Dr. Tennison also stated that a person’s nonsexual criminal
history or his antisocial behavior should not be risk factors. He testified that in his
opinion Lucero does not suffer from a behavioral abnormality. According to Dr.
Tennison, Lucero scored a 2 on the Static-99R, which falls into the low-moderate
risk range. Dr. Tennison testified that based on the Texas norms, a score of 2 puts
the person at a 0%-to-6.7% chance of recidivism. Dr. Tennison does not consider
Lucero to have a behavioral abnormality because he does not believe Lucero is
“likely” to reoffend. Dr. Tennison explained that his definition of “likely” requires
more than a 50% chance of reoffending.
8
ADMISSION OF EVIDENCE
In Lucero’s first issue, he contends that
the trial court erred in admitting as substantive evidence for its truth[,]
hearsay of various details of the charged and convicted 1992 offense
and 2005 offense[,] and hearsay that Lucero committed numerous
uncharged and unadjudicated offenses against the complainant in the
1992 case, the complainant in the 2005 case[,] and the sister of the
complainant in the 2005 case.
Lucero admits the trial court purportedly admitted the hearsay evidence as
“basis” evidence. He further acknowledges that the trial court gave the jury an
instruction not to consider the hearsay evidence for its truth but only for the limited
purpose of explaining the basis of the expert’s opinion, and further that it allowed
Lucero a “running” hearsay objection to the admission of this evidence. However,
he argues “it is apparent that this evidence was also admitted (and used by the
SPU) as substantive evidence for its truth without any limitation.”
The State argues that Lucero failed to preserve this issue for appellate
review. In order to preserve an issue for appellate review, a timely objection must
be made in the trial court, and a ruling on the objection must be received. Tex. R.
App. P. 33.1(a). An issue on appeal that does not comport with an objection made
at trial is waived. See In re Commitment of Weissinger, No. 09-12-00486-CV, 2013
WL 3355758, at *3 (Tex. App.—Beaumont June 27, 2013, pet. denied) (mem. op.)
9
(citing Moser v. Davis, 79 S.W.3d 162, 169 (Tex. App.—Amarillo 2002, no pet.)
and Tex. R. App. P. 33.1(a)).
During Dr. Self’s testimony, the State asked Dr. Self about the various risk
factors, and the following exchange occurred:
Q. Well, how many sexual offenses, I guess, does he -- how many
sexual offense convictions does Mr. Lucero have that go under this
sexual criminal history category?
A. Well, he’s got two violent contact sexual offenses.
Q. Okay.
A. He’s got aggravated sexual assault of a child, I believe, in 1993,
that was a biologic [sic] daughter of his that he was -- he was indicted
for rectal --
[DEFENSE ATTORNEY]: Objection. Your Honor, at this point the
testimony that is being elicited from this witness is hearsay. I would
ask for a limiting instruction at this point on hearsay.
THE COURT: All right. Ladies and gentlemen, hearsay is an issue,
it’s an objection as to the evidence. Hearsay is a statement other than
one that is made by a declarant or a witness while testifying in trial or
a hearing, which is offered to prove the truth of the matter which is
being asserted. However, there are certain types of hearsay and
information contained in records reviewed by experts which is
admitted to you through the expert’s testimony. Such hearsay is being
admitted only for the purposes of showing the basis of the expert’s
opinion and cannot be considered as evidence to prove the truth of the
matter asserted.
[DEFENSE ATTORNEY]: Your Honor, may I have a running
objection to the hearsay testimony of Dr. Self?
THE COURT: Any objection to a running objection?
10
[STATE’S ATTORNEY]: No, Your Honor.
THE COURT: That being the case, fine. Thank you.
[DEFENSE ATTORNEY]: Thank you, Judge.
On appeal, Lucero argues that the trial court erred by admitting hearsay “as
substantive evidence for its truth.” Lucero never received a ruling on his hearsay
objection at trial, but he did ask for a limiting instruction. The trial court gave a
limiting instruction to the jury as requested. Lucero also asked for a running
objection to “the hearsay testimony of Dr. Self[,]” which the record indicates the
court allowed.
The admission of evidence is reviewed under an abuse of discretion
standard. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.
1998); In re Commitment of Salazar, No. 09-07-345 CV, 2008 WL 4998273, at *2
(Tex. App.—Beaumont Nov. 26, 2008, pet. denied) (mem. op.). A trial court
abuses its discretion when it acts without reference to any guiding rules or
principles. E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558
(Tex. 1995). A judgment will not be reversed based on the admission of evidence
unless the appellant establishes that the trial court’s ruling was in error and that the
error was reasonably calculated to cause and probably did cause the rendition of an
11
improper judgment. Salazar, 2008 WL 4998273, at *2; see also Tex. R. App. P.
44.1(a).
Under Rule 705 of the Texas Rules of Evidence, an expert may disclose on
direct examination, or be required to disclose on cross-examination, the underlying
facts or data on which he bases his opinion. Tex. R. Evid. 705(a); In re
Commitment of Yaw, No. 09-08-042 CV, 2008 WL 5096511, at *1 (Tex. App.—
Beaumont Dec. 4, 2008, no pet.) (mem. op.). Rule 705(d) provides as follows:
When the underlying facts or data would be inadmissible in evidence,
the court shall exclude the underlying facts or data if the danger that
they will be used for a purpose other than as explanation or support
for the expert’s opinion outweighs their value as explanation or
support or are unfairly prejudicial. If otherwise inadmissible facts or
data are disclosed before the jury, a limiting instruction by the court
shall be given upon request.
Tex. R. Evid. 705(d). “When an expert relies upon hearsay in forming his opinion,
and it is of a type reasonably relied upon by such experts, the jury is generally
permitted to hear it.” Salazar, 2008 WL 4998273, at *4.
We conclude that it was not error for the trial court to allow Dr. Self to
testify about the details of the underlying charged and uncharged offenses or about
the contents of the files, as to the 1992 or 2005 offenses or as to whether or not he
also assaulted E.B.’s sister. Dr. Self explained that he reviewed that information
along with all the other items regarding Lucero. Dr. Self further stated that the
facts related to Lucero’s past offenses, the convictions, and the other allegations of
12
charged and uncharged offenses were relevant to his determination of whether
Lucero has a behavioral abnormality. Dr. Self stated that the information contained
in the records relating to Lucero’s past behavior is generally relied upon by experts
in making these types of reviews; and he explained to the jury how and why the
underlying offenses and factual information as provided by the victims assisted
him in evaluating Lucero and in determining whether Lucero has a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
Even if we assume, as argued by Lucero on appeal, that the trial court implicitly
overruled Lucero’s hearsay objection and that Lucero had adequately preserved the
objection he now makes on appeal, it was not error for the trial court to admit the
testimony as evidence showing the basis of the experts’ respective opinions as
basis evidence. See Tex. R. Evid. 703, 705.
Under Rule 705(a) of the Texas Rules of Evidence, an expert may disclose
on direct examination, or be required to disclose on cross-examination, the
underlying facts or data that formed the basis of the expert’s opinion, including the
defendant’s prior offenses. See, e.g., In re Commitment of Camarillo, No. 09-12-
00304-CV, 2013 WL 2732662, at **3-4 (Tex. App.—Beaumont June 13, 2013, no
pet.) (mem. op.); In re Commitment of Day, 342 S.W.3d 193, 197-99 (Tex. App.—
Beaumont 2011, pet. denied). Given the purpose for admitting the evidence under
Rule 705 and the trial court’s limiting instructions, the trial court could have
13
reasonably concluded that the evidence was admissible. See Tex. R. Evid. 705(d);
In re Commitment of Simmons, No. 09-11-00507-CV, 2013 WL 2285865, at **2-5
(Tex. App.—Beaumont May 23, 2013, no pet.) (mem. op.); In re Commitment of
Ford, No. 09-11-00425-CV, 2012 WL 983323, at *2 (Tex. App.—Beaumont Mar.
22, 2012, no pet.) (mem. op.); Day, 342 S.W.3d at 197-99.
Furthermore, no judgment may be reversed on appeal on the ground that the
trial court made an error of law unless the court of appeals concludes that the error
complained of probably caused the rendition of an improper verdict or probably
prevented the appellant from properly presenting the case to the court of appeals.
Tex. R. App. P. 44.1(a)(1), (2). Lucero has not alleged that the trial court’s ruling
prevented him from presenting his points on appeal. Additionally, Lucero does not
explain how the court’s ruling along with the limiting instruction probably caused
the rendition of an improper verdict. The trial court gave the jury an oral limiting
instruction and a written limiting instruction relating to the particular testimony at
issue. Lucero did not object to either instruction at trial, nor does he argue on
appeal that the instructions were in any way deficient. We presume that the jury
followed the court’s instructions. See Day, 342 S.W.3d at 198-99. We overrule his
first issue.
14
LEGAL AND FACTUAL SUFFICIENCY
In his second issue on appeal, Lucero argues that the evidence is legally
insufficient to support a finding that Lucero has a behavioral abnormality. And in
his third issue he argues the evidence is factually insufficient to support a finding
that he has a behavioral abnormality.
In SVP cases, the State must prove the elements of its case beyond a
reasonable doubt. See Tex. Health & Safety Code Ann. § 841.062(a). Because the
statute places upon the State the burden of proof employed in criminal law, this
Court has adopted the appellate standard of review in criminal cases for legal
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 (1979)). In a legal sufficiency review, this court reviews all of the
evidence in a light most favorable to the verdict. Id.
We must determine if a rational factfinder could have found, beyond a
reasonable doubt, that Lucero is a sexually violent predator. Under Texas law, a
person is a “sexually violent predator” under the statute if the person: “(1) is a
repeat sexually violent offender; and (2) suffers from a behavioral abnormality that
makes the person likely to engage in a predatory act of sexual violence.” Tex.
Health & Safety Code Ann. § 841.003(a). A “[b]ehavioral abnormality” is “a
congenital or acquired condition that, by affecting a person’s emotional or
15
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). To prevail on his legal sufficiency issue, Lucero is
required to demonstrate that no evidence supports the jury’s finding. See Croucher
v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Christus St. Mary Hosp. v. O’Banion,
227 S.W.3d 868, 873 (Tex. App.—Beaumont 2007, pet. denied). “[W]hether a
person ‘suffers from a behavioral abnormality that makes the person likely to
engage in a predatory act of sexual violence’ is a single, unified issue.” In re
Commitment of Bohannan, 388 S.W.3d 296, 303 (Tex. 2012), cert. denied, 133
S.Ct. 2746 (2013).
Lucero complains on appeal that the evidence is legally and factually
insufficient because the State’s expert, Dr. Self, used a definition of “likely” to
mean “more than a mere probability.” According to Lucero, the evidence at trial
shows a likelihood of only 0% to 6.7% that Lucero will reoffend. Lucero argues
that the Legislature could not have meant for the term “likely” to mean “more than
a mere possibility.” Lucero contends that “likely” should be construed as meaning
a “degree of probability greater than five on a scale of one to ten,” and as it is most
often used to mean “more likely than not.” 2
2
Lucero cites to language from a section of this Court’s opinion in In re
Commitment of Weatherread, No. 09-11-00269-CV, 2012 WL 5960196, at *3
16
We have previously concluded that Dr. Self’s working definition of “more
than a mere possibility” does not render the evidence in an SVP case legally or
factually insufficient. See In re Commitment of Muzzy, No. 09-13-00496-CV, 2014
WL 1778254, at *2 (Tex. App.—Beaumont May 1, 2014, pet. denied) (mem. op.).
In Muzzy we stated:
First, Muzzy complains of the experts’ definitions of “likely.” Self
defined “likely” as “[m]ore than a mere possibility.” Dunham
explained that the meaning of “likely” is “up to each individual
evaluator or clinician[,]” but that he believed “likely” to mean “a
pretty good chance something is going to happen.” Muzzy argues that
both these definitions fail to “comport with the constitutional
requirements for involuntary civil commitment.” However, this Court
has rejected the notion that the term “likely” has a precise definition
of the type associated with any certain assigned percentage of risk. In
re Commitment of Kalati, 370 S.W.3d 435, 439 (Tex. App.—
Beaumont 2012, pet. denied). Additionally, the experts’ testimony is
not insufficient merely because the term “likely” is not defined by the
statute or case law. In re Commitment of Kirsch, No. 09-08-00004-
CV, 2009 Tex. App. LEXIS 5436, at *17 (Tex. App.—Beaumont July
16, 2009, pet. denied) (mem. op.). Nor does an expert’s explanation of
the term “likely,” in and of itself, render the evidence insufficient to
support a jury’s finding that a person suffers from a behavioral
abnormality. Id. at *19. Rather, an expert’s definition merely goes to
the weight that the jury might give the expert’s testimony. Id.
Id.
(Tex. App.—Beaumont Nov. 29, 2012, pet. denied) (mem. op.). But in
Weatherread, we acknowledged and reaffirmed our earlier rulings that expert
testimony defining “likely” as “beyond a mere possibility” is “consistent with how
dictionaries commonly define that term and with the Bohannan Court’s
construction of the statute[.]” Weatherread, 2012 WL 5960196, at *3.
17
As noted in Muzzy, we have rejected the argument that the term “likely”
requires a certain assigned percentage of risk. Rather, the expert’s definition of
“likely” in the context of the statute goes to the weight that the jury might give the
expert’s testimony. See also Kalati, 370 S.W.3d at 439 (“We reject the implication
raised by [the appellant’s] argument that the term ‘likely’ has a precise definition
of the type associated with any certain assigned percentage of risk.”); In re
Commitment of Rushing, No. 09-11-00268-CV, 2012 WL 4466421, at *2 (Tex.
App.—Beaumont Sept. 27, 2012, no pet.) (mem. op.) (“Noticeably absent from the
statute describing a sexually violent predator is any requirement that the person’s
behavioral abnormality make the person more likely than not to engage in a
predatory act of sexual violence.”) (emphasis in original). Consistent with our prior
rulings, we reject Lucero’s argument that “likely to engage” requires the expert to
find a specific percentage or risk, and we refuse the invitation from Lucero to
rewrite the statutory provision to include the phrase “more likely than not.”
Dr. Self and Dr. Tennison explained their methodology to the jury, and they
had a difference of opinion regarding whether Lucero suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
It was up to the jury to resolve the conflicts in the experts’ testimony and to
determine the weight to be given thereto. Mullens, 92 S.W.3d at 887. Viewed in a
light most favorable to the verdict, a rational trier of fact could have found beyond
18
a reasonable doubt that Lucero is a sexually violent predator. Therefore, the
evidence is legally sufficient. See id. at 885. Accordingly, the second issue is
overruled.
In issue three, Lucero contends that the evidence is factually insufficient to
support the jury’s verdict. Under a factual sufficiency review, we weigh the
evidence to determine “whether a verdict that is supported by legally sufficient
evidence nevertheless reflects a risk of injustice that would compel ordering a new
trial.” Day, 342 S.W.3d at 213.
The jury heard evidence regarding Lucero’s criminal history, including his
sexual offenses. Lucero admitted his convictions for two sexual offenses, as well
as other criminal convictions, including failure to register as a sex offender. Lucero
also admitted that he still needs “supervision,” that he does not know if his
treatment is working, and that he has some situations that present a high risk and
trigger him to think about sexually offending, including “skimpy clothes, clubs,
pornography, hanging around girls who give me a lot of attention . . . [h]anging in
malls with girls or at -- or places where children are at, swimming pools, areas like
that, drinking alcohol.”
Dr. Self testified that Lucero suffers from a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence. Dr. Self
diagnosed Lucero with pedophilia, adult antisocial behavior, and alcohol
19
dependence in institutional remission. He further testified that pedophilia is a
chronic condition. Dr. Self explained that Lucero has the following risk factors:
pedophilia (a sexual deviance), two convictions for sexually violent offenses,
failing to report while being supervised, lifestyle instability, and alcohol
dependence. Dr. Tennison testified that Lucero does not have a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence,
although he agreed that Lucero has pedophilic disorder and alcohol dependence.
On the record before us, we find there is no risk of injustice that would
demand ordering a new trial. A difference of opinion from the competing experts
does not render the evidence in this case factually insufficient. “It is the
responsibility of the trier of fact to fairly resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts. See In re Commitment of Myers, 350 S.W.3d 122, 130 (Tex. App.—
Beaumont 2011, pet. denied). The absence of expert testimony that Lucero is
“more likely than not to commit a future predatory act of sexual violence” does not
render the evidence legally or factually insufficient to sustain the finding that
Lucero suffers from a behavioral abnormality that makes him likely to engage in a
predatory act. Dr. Self’s explanation that he defines the term “likely” to mean
beyond a mere possibility does not render the evidence insufficient to support a
jury’s finding that Lucero suffers from a behavioral abnormality that makes him
20
likely to engage in a predatory act of sexual violence. See Muzzy, 2014 WL
1778254, at *2. In addition to the competing expert opinions, the jury was
presented with evidence and details of Lucero’s convictions for sexually violent
offenses, with his refusal to register as a sex offender, and his failure to report
while being supervised, and with evidence that he was a pedophile, had a lifestyle
instability, alcohol dependence, and other risk factors. Additionally, the jury heard
Lucero admit that he continues to need sex offender treatment and that “it would
be a wise idea” if he stayed away from children, including his grandchildren and
his own child. We conclude that the jury’s verdict is supported by factually
sufficient evidence. See Myers, 350 S.W.3d at 130 (citing to In re Almaguer, 117
S.W.3d at 505-06). We overrule Lucero’s third issue.
IN RE COMMITMENT OF RICHARD
In his fourth and final issue, Lucero argues that this Court’s decision in In re
Commitment of Richard, No. 09-13-00539-CV, 2014 WL 2931852 (Tex. App.—
Beaumont June 26, 2014, pet. denied) (mem. op.), renders Chapter 841 both
facially unconstitutional and unconstitutional as applied to Lucero.
To preserve a complaint for appellate review, Lucero must have presented to
the trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling. See Tex. R. App. P. 33.1. Even a constitutional challenge
can be waived if not properly raised in the trial court. See Loftin v. Lee, 341
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S.W.3d 352, 356-57 n.11 (Tex. 2011) (a party that did not raise constitutional
issues in the trial court cannot argue them on appeal). The complaining party must
also show that the trial court ruled on the request, objection, or motion “either
expressly or impliedly.” Tex. R. App. P. 33.1(a)(2)(A).
Lucero does not contend that he raised this issue or argument at trial. Rather,
he argues in his reply brief that he raised it “as soon as he could[,]” but he says that
this Court’s Richard decision was decided after Lucero’s trial, and therefore he
could not have made the argument to the trial court. 3 At trial, Lucero did not
challenge the SVP statute or its application to him on any constitutional grounds.
To the extent Lucero is now attempting on appeal to make a constitutional
challenge to the SVP statute that he failed to make at trial, he failed to preserve his
challenge. See Tex. R. App. P. 33.1(a) (requiring issues to be raised and ruled on
by the trial court in order to preserve them for appellate review); Dreyer v. Greene,
871 S.W.2d 697, 698 (Tex. 1993) (holding even constitutional claims must be
timely asserted).
3
Alternatively, in his Reply Brief, Lucero cites to Texas Rule of Appellate
Procedure 2, and he asks this Court to suspend the requirements of Texas Rule of
Appellate Procedure 33.1. We find no basis in the record before us to suspend the
application of Rule 33.1. Lucero fails to explain how a suspension of our rules
would “expedite a decision” and he also fails to demonstrate “good cause” for this
Court to suspend the operation of Rule 33.1.
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Notably, Lucero fails to specify which sections of Chapter 841 are
unconstitutional and which constitutional rights have been violated. With respect to
his facial constitutional challenge, Lucero also fails to demonstrate that the statute
is on its face unconstitutional in every respect. Wilson v. Andrews, 10 S.W.3d 663,
670 (Tex. 1999); see also Fisher, 164 S.W.3d at 654-55. And with respect to his
as-applied challenge he fails to demonstrate how the statute, as applied to him, is
unconstitutional. Instead, he contends our ruling in Richard “renders Chapter 841
unconstitutional.” We overrule Lucero’s facial constitutional challenge and his as-
applied challenge.4
Furthermore, to the extent Lucero’s fourth issue is an invitation for this
Court to revisit, overrule, or otherwise modify our finding in In re Commitment of
Richard, we decline his invitation. Lucero argues that the effect of Richard is that a
State’s expert is not required to make a “mental diagnosis” and that then renders
Chapter 841 unconstitutional because it allows a person to be civilly committed
based solely on a finding of dangerousness or increased risk of sexually violent
conduct. Lucero contends that the Supreme Court’s ruling in Kansas v. Hendricks,
521 U.S. 346, 358-59 (1997), requires some type of “mental condition” or “ailment
4
Lucero complains that the ruling in Richard allows the civil commitment
of a person who has not been diagnosed with any mental disorder or condition. But
the record demonstrates that Lucero was diagnosed by Dr. Self and Dr. Tennison to
have pedophilia. Dr. Self also diagnosed Lucero with “adult antisocial behavior,”
and he concluded that Lucero has a “behavioral abnormality.”
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of the mind,” even though a “mental illness” is not required. Lucero further
contends that the standard outlined in Richard, when combined with the testimony
of Dr. Self in this case, allows Lucero to be civilly committed as a sexually violent
predator when he has almost a zero percent risk of reoffending, which Lucero
argues is contrary to the Supreme Court’s decision in Hendricks.
Lucero has misapplied the holding in Richard and Hendricks. Our decision
in Richard is entirely consistent with Hendricks and it does not render the statute
unconstitutional. In Richard, this Court stated that a finding of a “mental
diagnosis” is not a prerequisite for civil commitment. 2014 WL 2931852, at *2
(The State’s expert “was not required to make any mental diagnosis[.]”). Similarly,
in Hendricks, the Supreme Court rejected the argument that a finding of a “mental
illness” is a prerequisite for civil commitment. 521 U.S. at 358-59.
And our analysis in Richard applies to Lucero. In Richard, we concluded
that the evidence was legally and factually sufficient to sustain the verdict, that the
expert’s definition of “likely” and competing testimony of the experts would go to
the weight of the evidence, and that the jury could rationally have determined that
Richard is a sexually violent predator after considering Richard’s own testimony,
his past behavior, and the testimony of all of the experts. 2014 WL 2931852, at *3.
The evidence is also legally and factually sufficient to sustain the jury’s verdict
regarding Lucero. The jury could rationally have determined that Lucero is a
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sexually violent predator after considering the evidence in the record, including but
not limited to Lucero’s own testimony, his past behavior, and the testimony of all
of the experts.
Furthermore, as we have previously explained, the plain wording of Chapter
841 does not require a medical diagnosis or a mental illness as a prerequisite for
commitment. Richard, 2014 WL 2931852, at *2; see also Bohannan, 388 S.W.3d
at 306. Under Texas law, a person is a “sexually violent predator,” under the
statute if the person: “(1) is a repeat sexually violent offender; and (2) suffers from
a behavioral abnormality that makes the person likely to engage in a predatory act
of sexual violence.” Tex. Health & Safety Code Ann. § 841.003(a). The statute
contains a definition of “behavioral abnormality,” and “sexually violent predator.”5
As explained by the Texas Supreme Court, “boiling it down,” the definition of
behavioral abnormality is “‘a . . . condition that . . . predisposes’ sexually violent
conduct.” Bohannan, 388 S.W.3d at 303. And “the import of predisposition and
likelihood is exactly the same: increased risk.” Id. at 302-03; see also In re
Commitment of Anderson, 392 S.W.3d 878, 885-87 (Tex. App.—Beaumont 2013,
pet. denied). Our Richard ruling does not render Chapter 841 facially
unconstitutional, nor does it operate to make the statute unconstitutional as applied
to Lucero. We overrule Lucero’s fourth issue.
5
See Tex. Health & Safety Code Ann. §§ 841.002(2), 841.003.
25
Appellant’s issues are overruled. The judgment is affirmed.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on November 21, 2014
Opinion Delivered February 5, 2015
Before Kreger, Horton, and Johnson, JJ.
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