in Re Commitment of Michael Anthony Lucero

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.

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 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.
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 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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