                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-12-00296-CV
                          ____________________

          IN RE COMMITMENT OF ROBERT JOSEPH FIERRO
_______________________________________________________          ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 11-10-10852 CV
________________________________________________________          _____________

                         MEMORANDUM OPINION

      The State of Texas filed a petition to commit Robert Joseph Fierro as a

sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151

(West 2010 & Supp. 2012). A jury found that Fierro is a sexually violent predator

and the trial court rendered a final judgment and an order of civil commitment. On

appeal, Fierro challenges the State’s comments made during closing arguments, the

legal and factual sufficiency of the evidence, one of the conditions of civil

commitment, and the constitutionality of the SVP statute. We affirm the trial

court’s judgment.



                                        1
                            Sufficiency of the Evidence

      In issues two and three, Fierro challenges the legal and factual sufficiency of

the evidence to support the jury’s verdict. The State must prove, beyond a

reasonable doubt, that a person is a sexually violent predator. Tex. Health & Safety

Code Ann. § 841.062(a) (West 2010). Under a legal sufficiency review, we assess

all the evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could find, beyond a reasonable doubt, the elements required

for commitment under the SVP statute. In re Commitment of Mullens, 92 S.W.3d

881, 885 (Tex. App.—Beaumont 2002, pet. denied). It is the factfinder’s

responsibility to fairly resolve conflicts in the testimony, weigh the evidence, and

draw reasonable inferences from basic facts to ultimate facts. Id. at 887. Under

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.” In re Commitment of Day, 342

S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet. denied).

      A person is a “sexually violent predator” if he is a repeat sexually violent

offender and suffers from a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence. Tex. Health & Safety Code Ann. §

841.003(a) (West 2010). A “behavioral abnormality” is “a congenital or acquired

                                         2
condition that, by affecting a person’s emotional or volitional capacity, predisposes

the person to commit a sexually violent offense, to the extent that the person

becomes a menace to the health and safety of another person.” Id. at § 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).

        According to the record, Fierro pleaded guilty to indecency with a child,

sexual assault, and aggravated sexual assault. Fierro testified that he is incarcerated

for sexually assaulting two sixteen-year-old girls. He denied approaching women

on the streets and grabbing their breasts, but admitted being charged with public

lewdness for such offenses. Fierro testified that he participated in sex offender

treatment while on deferred adjudication, but subsequently sexually offended. He

admitted losing control of his sexual urges on multiple occasions throughout his

life.

        However, Fierro testified that he is not a sex addict and no longer has a

problem with sex or a desire to reoffend. Fierro explained that sex offender

treatment has taught him about negative beliefs and anger, rational thoughts,

                                          3
relapse prevention, and stopping deviant fantasies. He acknowledged that he had

hurt the victims, the victims’ families, and his own family, and that he is to blame.

Fierro explained that sexual assault is wrong. He testified that he wants to move on

with his life and that reoffending would let both himself and his family down. He

promised not to sexually assault again and testified that he would be at fault if he

reoffended.

      Dr. Antoinette McGarrahan, a forensic psychologist, testified that Fierro is

sexually aroused by, interested in, and acts on urges and fantasies related to

inflicting harm and humiliation upon other people. She described this behavior as

sexually deviant. She diagnosed Fierro with sexual sadism and frotteurism.

McGarrahan explained that Fierro has no remorse, does not believe he is at fault,

takes no responsibility, and makes excuses for his behavior. Dr. Lisa Clayton, a

medical doctor specializing in psychiatry and forensic psychiatry, testified that

Fierro is gratified and aroused by physically and psychologically threatening or

harming women. Clayton diagnosed Fierro with sexual sadism, frotteurism,

paraphilia not otherwise specified, alcohol abuse in remission, cocaine dependence

in remission, and antisocial personality disorder. She explained that Fierro is

sexually deviant, is a serial rapist, exhibits assaultive violence, and portrays




                                         4
himself as a victim. McGarrahan and Clayton testified that sexual sadism is

chronic and McGarrahan explained that this condition requires intensive treatment.

      McGarrahan opined that Fierro has difficulty following the rules, as

evidenced by the fact that he engaged in violent acts even when under significant

constraints. According to McGarrahan, the ramifications of being caught and

punished did not deter Fierro from offending. She noted that Fierro was a leader in

a prison gang, participated in prison riots and fighting, spent time in administrative

segregation, and was found in possession of shanks. Clayton testified that Fierro

minimizes his violent conduct in prison and his gang affiliation.

      McGarrahan testified that Fierro claims to have previously participated in

sex offender treatment, but she testified that Fierro continued to sexually offend.

She testified that Fierro is currently participating in treatment, but continues to

show no remorse and continues to deny that he did anything wrong, is a sex

offender, needs sex offender treatment, or is sexually deviant. Clayton testified that

Fierro lacks victim empathy, sees himself as a victim, and takes no responsibility

for his offenses. She did not believe that Fierro’s current sex offender treatment

will help him and testified that the treatment may even have a counter-productive

effect. She explained that treatment had not deterred Fierro from escalating, may

have given him more ideas, and will not stop his serial raping.

                                          5
      McGarrahan testified that, based on Fierro’s score on the Hare Psychopathy

Checklist, Fierro is a psychopath. Fierro’s psychopathic characteristics include

pathological lying, lack of remorse or guilt, callousness, impulsivity, failure to

accept responsibility, and poor behavioral controls. Clayton agreed that Fierro is a

psychopath and she pointed to evidence of his gang involvement, manipulation of

others, attitude toward others, and lack of conscience, guilt, or remorse.

McGarrahan testified that Fierro’s score on the Static-99R places him in the

moderately high range for reoffense and his score on the Minnesota Sex Offender

Screening Tool Revised placed Fierro at a high risk for sexually violent offense.

She identified several factors that increase Fierro’s risk of reoffense: denial and

minimization, stranger and unrelated victims, substance abuse, non-sexual

violence, use of a weapon during offenses, lack of an emotionally intimate

relationship with an adult, psychopathy, sexual deviancy, and offenses that

occurred in public, after Fierro was caught and punished, and during supervision.

Clayton testified that Fierro’s ability to obtain employment is a positive factor, but

that he has numerous risk factors: multiple time periods of sexually deviant

behavior, use of violence and force, history of assaultive and violent behavior,

gang association and violent conduct in prison, lack of victim empathy, failure to




                                          6
take responsibility, good health and young age, sexual assault while in a

relationship, and sexual offenses after sex offender treatment.

      Clayton testified that Fierro’s emotional or volitional capacity has been

affected because Fierro cannot think about sex without his thoughts progressing to

sexual deviancy, he cannot control his urges, in the free world he will be presented

with many potential victims, and he is not deterred by the possibility of spending

life in prison. McGarrahan testified that Fierro’s sexual offenses and sexual

deviancy constitute evidence that his emotional and volitional capacity have been

affected:

             The willingness -- the volitional capacity -- the willingness to
      engage in violent, humiliating sexual acts with women, his
      willingness to do that without consideration of the consequences for
      the victim or even for himself means that his emotional capacity has
      been affected. That is the way he thinks about the world, the way he
      feels, the way he perceives things is not normal. It’s been affected
      because of this condition and it is affected to the point at which it -- it
      makes him likely to engage in another predatory act of sexual
      violence.

McGarrahan and Clayton both concluded that Fierro suffers from a behavioral

abnormality that makes him likely to engage in a predatory act of sexual violence.

      On appeal, Fierro argues that the experts’ testimony was too conclusory to

support a finding that he suffers from a behavioral abnormality or has serious

difficulty controlling his behavior. We disagree. Both doctors are licensed in their

                                          7
respective fields. See In re Commitment of Burnett, No. 09-09-00009-CV, 2009

Tex. App. LEXIS 9930, at *14 (Tex. App.—Beaumont Dec. 31, 2009, no pet.)

(mem. op.). They interviewed Fierro and reviewed records regarding his

background, offenses, and incarceration. See id. McGarrahan administered

actuarial tests and testified that these types of tests are generally accepted in her

field. The experts relied on the types of records relied on by experts in their

respective fields and performed their evaluations in accordance with their training

as professionals in their respective fields. See id. The doctors based their opinions

on the facts and data gathered from the records they reviewed, their interviews

with Fierro, and the risk assessments they conducted. See id. They explained in

detail the facts and evidence they found relevant in forming their opinions and how

those facts played a role in their evaluations. See id. Both experts concluded that

Fierro suffers from a behavioral abnormality as defined by the SVP statute. See id.

Their testimony is not so conclusory as to be completely lacking in probative

value. See id.

      In addition to the experts’ opinions that Fierro has a behavioral abnormality

that makes him likely to engage in predatory acts of sexual violence, the jury heard

evidence of Fierro’s risk factors, actuarial test scores, criminal history, sexual

offenses, and diagnoses. The jury was entitled to infer current serious difficulty

                                         8
controlling behavior based on Fierro’s past behavior, Fierro’s testimony, and the

experts’ testimony. See id. at *13; see also In re Commitment of Grinstead, No. 09-

07-00412-CV, 2009 Tex. App. LEXIS 228, at *20 (Tex. App.—Beaumont Jan. 15,

2009, no pet.) (mem. op.). The jury could reasonably conclude that Fierro has

serious difficulty controlling his behavior and is likely to commit predatory acts of

sexual violence directed toward individuals for the primary purpose of

victimization. See Mullens, 92 S.W.3d at 887; see also Almaguer, 117 S.W.3d at

506; Burnett, 2009 Tex. App. LEXIS 9930, at *13. Such conclusions are implicit

in a finding that Fierro suffers from a behavioral abnormality that makes him likely

to engage in a predatory act of sexual violence. See Grinstead, 2009 Tex. App.

LEXIS 228, at *16; see also In re Commitment of Bailey, No. 09-09-00353-CV,

2010 Tex. App. LEXIS 6685, at **12-13 (Tex. App.—Beaumont Aug. 19, 2010,

no pet.) (mem. op.).

      Reviewing all the evidence in the light most favorable to the verdict, a

rational jury could have found, beyond a reasonable doubt, that Fierro has a

behavioral abnormality that predisposes him to commit a predatory act of sexual

violence; therefore, the evidence is legally sufficient. See Kansas v. Crane, 534

U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002); see also Mullens, 92

S.W.3d at 885. Weighing all of the evidence, the verdict does not reflect a risk of

                                         9
injustice that would compel ordering a new trial. See Day, 342 S.W.3d at 213. We

overrule Fierro’s second and third issues.

                                  Jury Argument

      In issue one, Fierro contends that the State engaged in improper and harmful

jury argument. To obtain a reversal based upon improper jury argument, the

appellant must demonstrate (1) an error (2) that was not invited or provoked, (3)

that was preserved by the proper trial predicate, such as an objection, a motion to

instruct, or a motion for mistrial, (4) was not curable by an instruction, a prompt

withdrawal of the statement, or a reprimand by the judge, and (5) that the argument

by its nature, degree, and extent constituted reversibly harmful error. Standard Fire

Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979). “[T]he complainant must

show that the probability that the improper argument caused harm is greater than

the probability that the verdict was grounded on the proper proceedings and

evidence.” Id. at 840.

      During closing arguments, the State began to argue, “First off, these first

five offenses, yes, he went up to women, he grabbed them and eventually –[.]”

Fierro’s counsel objected that the State’s argument assumed facts not in evidence,

but the trial court overruled the objection. The State proceeded with its argument

and discussed the five offenses. Subsequently, in rebuttal, the State argued that

                                         10
Fierro “went up to women on the street and grabbed their breasts[]” and “raped

women in cars.” Fierro did not object to the State’s argument. When the State

argued that Fierro had shown “no empathy when he talked about his ten victims

today[,]” Fierro’s counsel objected that the State’s argument assumed facts not in

evidence. The trial court overruled the objection.

      On appeal, Fierro contends that his guilt for these alleged crimes was not

before the jury and, consequently, the State’s argument was improper. Fierro

asserts that the State’s arguments suggested to the jury that it should consider

whether these other offenses occurred and punish Fierro for those offenses.

According to Fierro, the State failed to limit its closing argument to the evidence

presented at trial and encouraged the jury to consider irrelevant facts when

rendering a verdict.

      However, the record does not indicate that Fierro objected to similar

arguments or requested a running objection to the State’s argument. Additionally,

as to the arguments objected to, the evidence was such that the probability that the

State’s argument caused harm is not greater than the probability that the verdict

was based on the proper proceedings and evidence. See Reese, 584 S.W.2d at 840.

We conclude that the State’s arguments that were not objected to were not so

inflammatory that a timely instruction would not have alleviated the harm, if any,

                                         11
caused by the argument. See Nat’l Freight, Inc. v. Snyder, 191 S.W.3d 416, 421

(Tex. App.—Eastland 2006, no pet.). We overrule issue one.

                          Conditions of Civil Commitment

      In issue four, Fierro argues that the trial court’s civil commitment order

imposes a condition that is too vague for a person of ordinary intelligence to apply

and understand. Specifically, the trial court found it appropriate to establish a child

safety zone and ordered that Fierro shall not “participate in an activity that at any

time provides athletic, civic or cultural affairs to persons 17 years of age or

younger[.]” At trial, Fierro sought clarification as to this condition and the trial

court responded as follows:

             The statute allows me to establish a child safety zone in every
      case, which I do. Okay? This is enforced by the Counsel for Sex
      Offender Treatment Providers that you are going to get to meet. Upon
      release from prison, they are going to be the ones that pick you up.
      Okay?
      ...

             It says that the Court has determined that it is appropriate to
      establish child safety zones such that Robert Joseph Fierro shall not
      participate in any activity that at any time provides athletic, civic and
      cultural affairs to persons 17 years of age or younger or be within
      1,000 feet of a perimeter where children gather, including school,
      daycare facility, playground, tennis, swimming pool or video arcade.
      Okay? It states exactly what it means. Okay? So, that’s what it says,
      and that’s the way it’s going to be followed.




                                          12
      On appeal, Fierro contends that this condition lacks guidelines for uniform

application, requiring Fierro to guess at its meaning and, therefore, violates due

process. He contends that this condition gives substantial discretion to the police

and may also lead to infringement of First Amendment rights. The record does not

indicate that Fierro presented these complaints to the trial court either when he

sought clarification of the condition or at any time thereafter. See Tex. R. App. P.

33.1(a); see also In re Commitment of Sprague, No. 09-10-00228-CV, 2011 Tex.

App. LEXIS 4503, at *31 (Tex. App.—Beaumont June 16, 2011, no pet.) (mem.

op.). Thus, issue four is not preserved for appellate review.

                                Supplemental Issue

      In a supplemental issue, Fierro argues that the Texas Supreme Court’s

decision in In re Bohannan, ___ S.W.3d ___, No. 10-0605, 2012 Tex. LEXIS 734

(Tex. Aug. 31, 2012) (not yet released for publication) interpreted portions of the

SVP statute in such a way as to render the statute facially unconstitutional. In

Bohannan, the Texas Supreme Court explained that a behavioral abnormality is a

condition that predisposes sexually violent conduct. Bohannan, 2012 Tex. LEXIS

734, at *14. The Court explained that “condition and predisposition are one and the

same[,]” and “whether a person ‘suffers from a behavioral abnormality that makes




                                         13
the person likely to engage in a predatory act of sexual violence’ is a single,

unified issue.” Id. at **16-17.

      Fierro contends that Bohannan relieves the State of the burden of

demonstrating that a person has a mental illness or disorder. However, this Court

has previously concluded that “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.” See In re Commitment of

Anderson, ___ S.W.3d ___, No. 09-11-00613-CV, 2013 Tex. App. Lexis 607, at

*17 (Tex. App.—Beaumont Jan. 24, 2013, no pet. h.) (not yet released for

publication). We, therefore, reject Fierro’s arguments and affirm the trial court’s

judgment.

      AFFIRMED.



                                             ________________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice



Submitted on February 20, 2013
Opinion Delivered March 7, 2013
Before McKeithen, C.J., Gaultney and Horton, JJ.




                                        14
