                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                              ________________
                              NO. 09-14-00274-CV
                              ________________


         IN RE COMMITMENT OF ERVIN THOMAS SORRELLS

__________________________________________________________________

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 13-11-12740 CV
__________________________________________________________________

                         MEMORANDUM OPINION

      The State of Texas filed a petition to commit appellant Ervin Thomas

Sorrells as a sexually violent predator. See Tex. Health & Safety Code Ann. §§

841.001-.151 (West 2010 & Supp. 2014). A jury found that Sorrells is a sexually

violent predator, and the trial court signed a final judgment and an order of civil

commitment. In three appellate issues, Sorrells challenges the legal and factual

sufficiency of the evidence supporting the finding that he has a behavioral

abnormality and the constitutionality of Chapter 841 of the Texas Health and

Safety Code. We affirm the trial court’s judgment and order of civil commitment.

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                            ISSUES ONE AND TWO

      In issue one, Sorrells challenges the legal sufficiency of the evidence that he

suffers from a behavioral abnormality. In issue two, Sorrells challenges the factual

sufficiency of the evidence that he suffers from a behavioral abnormality. We

address issues one and two together.

      When reviewing the legal sufficiency of the evidence, we assess all of 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 a 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 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.” In re Commitment of Day, 342

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

      Under the SVP statute, 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 &


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Safety Code Ann. § 841.003(a) (West Supp. 2014). 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

the extent that the person becomes a menace to the health and safety of another

person.” Id. § 841.002(2).

      During the trial, the jury heard testimony from psychiatrist Dr. Sheri Gaines

that Sorrells has a behavioral abnormality that makes him likely to engage in

predatory acts of sexual violence. Gaines explained that Sorrells’s “big risk

factors” are Sorrells’s “deviant sexual acts and his unstable lifestyle.” Gaines

testified that she diagnosed Sorrells with “pedophilic disorder, nonexclusive type,

[with] male and female victims, and limited to incest” as well as antisocial

personality disorder, psychopathic traits, and polysubstance use. The jury heard

Gaines testify that Sorrells’s sexual convictions are evidence of his sexual

deviance. Gaines also opined that Sorrells minimizes his offenses against his

daughter, and she explained that Sorrells denied committing the offense against his

son. In addition, Gaines explained that Sorrells participated in a sex offender

treatment program while on parole, but nevertheless committed a new sexual

offense. Gaines testified that Sorrells’s positive factors, such as his age, marital




                                         3
status, good behavior in prison, and the existence of a support system for him, do

not outweigh his risk factors.

      Sorrells testified that the first offense for which he was convicted was the

sexual assault of his daughter when she was seven years old, and he admitted that

he was sexually aroused when he was assaulting her. Sorrells testified that he also

pleaded guilty to aggravated sexual assault of his son and received a fourteen-year

sentence for that offense. Sorrells testified that he has been enrolled in a nine-

month sex offender treatment program, and he explained that he does not think he

has problems controlling his sexual urges.

      Licensed professional counselor Dr. Anna Shursen testified on behalf of

Sorrells. Shursen testified that she did not diagnose Sorrells with pedophilia, and

she explained that “[i]ncest offenders have the lowest rate of recidivism of any

offenders.” Shursen also testified that Sorrells’s “good institutional adjustment”

indicates that he does not suffer from antisocial personality disorder. Shursen also

noted that Sorrells has done “very well” in sex offender treatment. Shursen opined

that Sorrells does not suffer from a behavioral abnormality that makes him likely to

commit predatory acts of sexual violence.

      As sole judge of the weight and credibility of the evidence, the jury could

reasonably conclude that Sorrells suffers from a behavioral abnormality that makes


                                         4
him likely to engage in a predatory act of sexual violence. See In re Commitment of

Lowe, No. 09-14-00098-CV, 2014 WL 4363624, at *2 (Tex. App.—Beaumont

Sept. 4, 2014, no pet.) (mem. op.); see also Mullens, 92 S.W.3d at 887. Viewing

the evidence in the light most favorable to the verdict, a rational jury could have

found, beyond a reasonable doubt, that Sorrells has a behavioral abnormality;

therefore, the evidence is legally sufficient. See Tex. Health & Safety Code Ann.

§§ 841.002(2), 841.003(a); see also Kansas v. Crane, 534 U.S. 407, 413 (2002);

Mullens, 92 S.W.3d at 885. In addition, weighing all of the evidence, the verdict

does not reflect a risk of injustice that would compel ordering a new trial. See Day,

342 S.W.3d at 213. We overrule issues one and two.

                                  ISSUE THREE

      In his third issue, Sorrells contends that this Court’s decision in In re

Commitment of Richard 1 renders Chapter 841 unconstitutional. We have

previously addressed and rejected this argument. See In re Commitment of Lucero,

No. 09-14-00157-CV, 2015 WL 474604, at **9-10 (Tex. App.—Beaumont Feb. 5,

2015, no pet. h.) (mem. op.). For the same reasons outlined in Lucero, we reject




      1
      In re Commitment of Richard, No. 09-13-00539-CV, 2014 WL 2931852
(Tex. App.—Beaumont June 26, 2014, pet. denied) petition for cert. filed, ___
U.S.L.W. ___ (U.S. Feb. 10, 2015) (mem. op.).
                                      5
Sorrells’s constitutional arguments. See id. Accordingly, we overrule issue three

and affirm the trial court’s judgment and order of civil commitment.

      AFFIRMED.



                                            ________________________________
                                                   CHARLES KREGER
                                                         Justice


Submitted on January 27, 2015
Opinion Delivered April 9, 2015

Before McKeithen, C.J., Kreger, and Horton, JJ.




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