                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                             ____________________
                                NO. 09-12-00529-CV
                             ____________________

          IN RE COMMITMENT OF RAUL FERNANDO BARRON
_______________________________________________________            ______________

                     On Appeal from the 435th District Court
                          Montgomery County, Texas
                        Trial Cause No. 12-02-01799-CV
________________________________________________________            _____________

                           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 His mandatory supervision was revoked in 1994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 His mandatory supervision was revoked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

                                             8
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.

                                             _____________________________
                                                   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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