In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-12-00529-CV
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IN RE COMMITMENT OF RAUL FERNANDO BARRON
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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 12-02-01799-CV
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MEMORANDUM OPINION
Raul Fernando Barron challenges his civil commitment as a sexually violent
predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 &
Supp. 2012) (the SVP statute). We conclude that the statute is constitutional, the
trial court’s exclusion of evidence does not support a reversal, and the evidence is
sufficient to support the jury’s verdict.
THE CONVICTIONS
Barron was arrested in 1971 for indecent exposure when he was fourteen
years old. He was convicted and placed on two years of probation. In 1977, Barron
was convicted of murder and received a fifteen year sentence. He was released on
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mandatory supervision in 1983. In 1984, while on mandatory supervision, Barron
pleaded guilty to indecency with a child and received a ten year sentence. In 1987
he was released on mandatory supervision. In 1988, he was indicted on two counts
of indecency with a child by contact. Barron fled to New Mexico. He returned to
Texas in 1993 and was arrested. His mandatory supervision was revoked in 1994
when he pleaded guilty to the two counts of indecency with a child by contact. He
received two twenty-five-year sentences, to run concurrently. He was released
again on mandatory supervision in 2003. His mandatory supervision was revoked
in 2006. At the time of trial, he was serving his sentences for the two convictions
of indecency with a child by contact.
THE STATUTE
The State was required to prove beyond a reasonable doubt that Barron is a
sexually violent predator. See Tex. Health & Safety Code Ann. § 841.062(a) (West
2010). A person is a “sexually violent predator” subject to commitment 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.” Id. § 841.003(a) (West 2010). A “behavioral 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
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the extent that the person becomes a menace to the health and safety of another
person.” Id. § 841.002(2) (West Supp. 2012). “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).
CONSTITUTIONALITY CHALLENGE
Barron maintains that the Texas Supreme Court’s decision in In re
Commitment of Bohannan, interpreted portions of the SVP statute in a way that
rendered the statute facially unconstitutional. 388 S.W.3d 296 (Tex. 2012), cert.
denied, 2013 WL 1499264 (U.S. May 28, 2013). Barron contends that Bohannan
relieves the State of the burden of demonstrating that a person has a mental illness.
As this Court has previously stated, “Bohannan did not eliminate any proof
required by the statute for a sexually-violent-predator finding, nor did the Supreme
Court change the statute or render it unconstitutional.” In re Commitment of
Anderson, 392 S.W.3d 878, 885 (Tex. App.—Beaumont 2013, pet denied). We
overrule issue one.
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EVIDENTIARY CHALLENGE
In issue two, Barron challenges the trial court’s ruling excluding the
evidence of a victim’s recantation. Barron argues the evidence was offered to show
that he does not have a behavioral abnormality that makes him likely to engage in a
predatory act of sexual violence.
Barron argues that his expert, Dr. Tennison, would have testified, based on
one of the victim’s (Barron’s niece’s) recantation, that Dr. Tennison believed Mr.
Barron to be actually innocent of the offense against her. In response to the State’s
requests for admissions, Barron admitted to pleading guilty to the sexually violent
offenses (indecency with a child by contact) against his two nieces, and he was
convicted of those offenses. Based on the two prior convictions, the trial court
granted a directed verdict on the issue of whether Barron qualified as a repeat
sexually violent offender. The trial court explained that it would not allow the
evidence of any alleged recantation by Barron’s niece because that offer
represented a collateral attack on the underlying convictions.
A trial court’s exclusion of expert testimony is reviewed on appeal for an
abuse of discretion. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).
The convictions have not been set aside, and Barron was serving the sentences for
the convictions. This is not the proceeding for a collateral attack on the judgments
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of convictions. See In re Commitment of Hinkle, No. 09-09-00584-CV, 2011 WL
2420884, at *6 (Tex. App.—Beaumont June 16, 2011, pet. denied); see also Tex.
R. Evid. 401, 402, 702. The trial court did not abuse its discretion in excluding the
evidence. Issue two is overruled.
SUFFICIENCY OF THE EVIDENCE
Barron challenges the legal and factual sufficiency of the evidence to
support a finding that he has serious difficulty controlling his behavior and that he
is likely to engage in a predatory act of sexual violence in the future. See In re
Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet.
denied) (legal sufficiency standard of review). Specifically, Barron argues that the
opinion of the State’s expert, Dr. Self, “does not meet the standard enunciated” by
Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), and that
his “definition of ‘likely’ falls short of the level of dangerousness the State must
show to justify involuntary civil commitment.” In re Commitment of Day, 342
S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet. denied) (factual sufficiency
standard of review).
Barron testified that he has a history of exposing himself and that he has
done it so often that he cannot provide a number of how many times. He stated that
he prefers to expose himself to girls under the age of ten, that many times he
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exposed himself and did not get caught, and that he could not control his urges
when he committed the exposure offenses. Barron admitted he pleaded guilty to
the indecency-with-a-child-by-contact offenses, but denied that he committed the
offenses. Upon release, he plans on living with his mother and brother. His brother
is a sex offender.
Barron explained that he did not complete sex offender treatment. From the
sex offender treatment he did receive, he believes that he “will not reoffend” and
“will not create another victim.” He testified that he does not know what triggered
him to sexually offend against little girls, and in the past he felt a rush when he
exposed himself. Although he admitted that he lost control of his sexual urges on
multiple occasions in the past, he testified that the urges have stopped and he did
not do anything to stop them. He does not believe he will sexually offend in the
future and does not believe he currently has a problem with sexual behavior. He
does not believe he needs sex offender treatment.
Dr. Self, a forensic psychiatrist, testified for the State. He testified that
Barron has a behavioral abnormality that makes him likely to engage in a predatory
act of sexual violence. Self’s methodology included reviewing records and
conducting an interview with Barron. The records reviewed included criminal
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records, legal documents, psychiatric and medical records, prison records, parole
records and other documents.
Dr. Self diagnosed Barron with pedophilia, sexual deviancy, exhibitionism,
adult antisocial behavior, and a history of substance abuse. Dr. Self stated that
although Barron is “a reasonably intelligent man,” the fact that he spent “25 years
or more of his 61 years locked in the penitentiary” mostly for sexual offenses
demonstrates that he has difficulty controlling his sexual urges and behaviors. Self
explained that Barron’s history of reoffending after being released on parole shows
that his condition affects his volitional capacity. Dr. Self testified that studies of
pedophilia note that the disease is chronic and “does not go away.” He testified that
some pedophiles may be able over time to learn not to act on their urges and
therefore the condition may “diminish to some extent in its urgency or intensity,
but it doesn’t go away.”
Dr. Self testified that men older than Barron act out on their pedophilia, that
the disorder is a persisting disorder that one does not “age out” of, and that the best
predictor of Barron’s future behavior is his past behavior. Dr. Self testified that
Barron’s “kind of magical thinking” that his urges “just went away” is
“implausible.” Barron testified in his deposition and told Dr. Self that basically
Barron’s impulses just overwhelmed his ability to control.
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Dr. Tennison, a forensic psychiatrist, testified for Barron. Tennison
interviewed Barron and reviewed records to aid Tennison in determining whether
Barron suffers from a behavioral abnormality. Dr. Tennison disagreed with Dr.
Self’s diagnosis of pedophilia. Dr. Tennison testified that he does not believe
Barron has the behavioral abnormality described in the law, and that Barron is not
likely to engage in a predatory act of sexual violence. Dr. Tennison concluded
there is no evidence of Barron’s “lacking control with regard to anything that
would be considered sexually violent” and that “there’s no evidence of him having
volitional impairment with the exception of past exhibitionistic behavior, which
appears to be very unlikely at this time.”
The jury determines the credibility of the witnesses and the weight to be
given their testimony, and whether to believe some testimony and disbelieve other
testimony. In re Commitment of Mullens, 92 S.W.3d at 887. The jury may draw
reasonable inferences from the evidence. See Lacour v. State, 8 S.W.3d 670, 671
(Tex. Crim. App. 2000). Barron’s difficulty in controlling his behavior can be
inferred from his past behavior, his own testimony, and Dr. Self’s testimony. See
In re Commitment of Burnett, No. 09-09-00009-CV, 2009 WL 5205387, at *4
(Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.); In re Commitment of
Wilson, No. 09-08-00043-CV, 2009 WL 2616921, at *5 (Tex. App.—Beaumont
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Aug. 27, 2009, no pet.) (mem. op.). The jury heard evidence of the offenses,
Barron’s testimony that he did not know what triggered his urges, the expert
testimony regarding Barron’s risk for reoffending, and evidence of Barron’s
repeated reoffending while on mandatory supervision. Considering all the evidence
in the light most favorable to the verdict, we conclude the jury could reasonably
find beyond a reasonable doubt that Barron has a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence. We conclude the
record does not reflect a risk of injustice that compels granting a new trial. Issues
three and four are overruled. The judgment is affirmed.
AFFIRMED.
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DAVID GAULTNEY
Justice
Submitted on May 24, 2013
Opinion Delivered July 11, 2013
Before McKeithen, C.J., Gaultney and Horton, JJ.
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