                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-15-00134-CV
                             ____________________

          IN RE COMMITMENT OF SAMUEL SAN-MIGUEL
__________________________________________________________________

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 14-07-07301 CV
__________________________________________________________________

                          MEMORANDUM OPINION

      The State of Texas filed a petition to commit Samuel San-Miguel as a

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

(West 2010 & Supp. 2015). A jury found that San-Miguel is a sexually violent

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

commitment. In two appellate issues, San-Miguel challenges the legal and factual

sufficiency of the evidence. We affirm the trial court’s judgment and order of civil

commitment.

      In issues one and two, San-Miguel contends the evidence is legally and

factually insufficient to support the finding that he has a behavioral abnormality

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

San-Miguel’s issues together. 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 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).

      In an SVP case, 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). 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. Id. § 841.003(a) (West

Supp. 2015). A “behavioral abnormality” is “a congenital or acquired condition

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

                                         2
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) (West Supp.

2015). “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).

      San-Miguel admitted that he was convicted of two cases of aggravated

sexual assault of a child. San-Miguel also admitted that he received over fifty

disciplinary cases while in prison, over thirty of which were classified as major. In

addition, San-Miguel admitted that during his incarceration, he received multiple

disciplinary cases for attempting to establish an inappropriate relationship with a

staff member, 1 as well as multiple disciplinary cases for sexual misconduct.

      Clinical psychologist Dr. Darrel Turner testified that after reviewing all of

the records and interviewing San-Miguel, he determined that San-Miguel suffers

from a behavioral abnormality that makes him likely to engage in a predatory act

of sexual violence. Turner testified that San-Miguel is sexually deviant, and he
      1
       One of the prison staff members testified that she wrote between thirty-five
and fifty disciplinary cases against San-Miguel for breaking the rules, including
conduct he directed towards her, and she described him as a “[s]talker and
psychotic.”
                                          3
explained that San-Miguel had raped a thirteen-year-old girl and orally raped a six-

year-old girl and had been convicted of sexual offenses.

      Turner testified that in forming his opinion that San-Miguel has a behavioral

abnormality, he relied upon San-Miguel’s convictions and admissions of other

sexual offenses, as well as his own finding that San-Miguel is sexually deviant.

Turner explained that he diagnosed San-Miguel as suffering from hebephilia

(sexual attraction to children who have begun to develop secondary sexual

characteristics), antisocial personality disorder, sexual abuse of a child, and

polysubstance abuse in partial remission. Turner testified, “[i]t’s clear that there is

a sexual deviance. It’s clear that there is some paraphilia which is . . . a term that

means an attraction to something outside of the norm.” Turner testified that San-

Miguel laughed about the fact that the younger sister of his thirteen-year-old victim

was also in the bed while he was sexually assaulting the victim. Turner explained

that San-Miguel forced his sexual organ into that younger child’s mouth.

According to Turner, San-Miguel “is not remorseful[,]” “seems to still take

pleasure in what happened[,]” and “almost seemed proud of it.” Turner explained

that San-Miguel’s lack of remorse is “further evidence that he has a behavior

abnormality today[.]” Turner testified, “I really got a glimpse of what this offender

is really like, and it was scary.”

                                          4
      Turner identified as risk factors the young age of San-Miguel’s victims, use

of force, San-Miguel’s relatively young age, tendency to denigrate and blame his

victims, polysubstance abuse in partial remission, and hebephilia. Turner also

discussed San-Miguel’s deviant sexual behavior in prison, such as exposing his

sexual organ to female staff members, masturbating in front of female staff

members, trying to establish inappropriate relationships with female staff

members, and “noncontact homosexual behaviors[.]”

      According to Turner, during his interview with San-Miguel, San-Miguel

leered at a female correctional officer, which Turner testified evidences “a lack of

impulse control and just this predatory nature.” Turner described San-Miguel’s

staring at the officer as a “psychopathic reptilian predatory stare.” Turner

explained that a lack of impulse control indicates a behavioral abnormality that

would make someone likely to engage in a predatory act of sexual violence, and he

opined that San-Miguel’s sexual offenses and current sexual deviancy constitute

evidence that San-Miguel’s emotional and volitional capacity has been affected.

According to Turner, San-Miguel’s sexually deviant behavior is evidence of

antisocial personality disorder.

      Turner also testified that San-Miguel’s score on the Hare psychopathy

checklist was “[e]xtremely high.” Additionally, Turner testified that San-Miguel’s

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actuarial scores placed him in a “high to moderate range of risk for reoffending[,]”

and San-Miguel has not had sex offender treatment. Turner also testified that San-

Miguel’s release plan did not address preventative measures to keep him from

reoffending. Turner opined that San-Miguel has a behavioral abnormality that

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

      Psychiatrist Dr. Sheri Gaines testified that she evaluated San-Miguel and

relied upon principles of forensic psychiatry in doing so. Gaines explained that

standard methodology involves a face-to-face interview, as well as reviewing

police records, victim statements, depositions of other experts, and other ancillary

information. Gaines testified that she interviewed San-Miguel for approximately

two hours and reviewed the records from Turner, another expert, and San-Miguel’s

deposition. Gaines opined that, based upon her education, training, experience, and

the methodology she used, San-Miguel suffers from a behavioral abnormality that

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

      According to Gaines, the main reasons for her findings were San-Miguel’s

risk factors of sexual deviancy and unstable lifestyle. Gaines explained that the

facts and data surrounding San-Miguel’s sexual convictions also constituted risk

factors and helped her to formulate her opinion about whether San-Miguel is likely

to reoffend. Gaines testified that San-Miguel told her his thirteen-year-old victim

                                         6
had made advances toward him. Gaines explained that the age of San-Miguel’s

victims, San-Miguel’s substance abuse, his use of force, and his belief that he does

not need sex offender treatment are risk factors. In addition, Gaines testified that

San-Miguel’s “stoic description of these horrific events indicated his lack of

remorse.” Gaines testified that San-Miguel had received disciplinary cases in

prison for refusing to work, not obeying orders, assault, contraband, “dirty

urinalysis,” use of drugs and alcohol, masturbation, and attempting to establish an

inappropriate relationship with a staff member.

      Gaines explained that she diagnosed San-Miguel with paraphilic disorder,

antisocial personality disorder, and “substance use disorder with many different

substances.” According to Gaines, Turner’s diagnosis of hebephilia and her

diagnosis   of   paraphilic   disorder   are   “not   really   differences.   They’re

complementary[;] they have a lot of the same characteristics. Just a different

approach to the terminology.” Gaines identified San-Miguel’s support system with

his family and his high school diploma as positive factors. Gaines testified that, in

her expert opinion, San-Miguel suffers from a behavioral abnormality that makes

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

      San-Miguel testified that he is currently incarcerated for two convictions of

aggravated sexual assault of a child. San-Miguel testified that when the offenses

                                         7
occurred, he was using drugs and alcohol with the father of the victims. San-

Miguel denied raping the thirteen-year-old victim or using force against her, and he

denied forcing the six-year-old victim to perform oral sex. San-Miguel testified

that many of his disciplinary cases involved sexual misconduct.

      Psychologist Roger Saunders testified that he met with San-Miguel for

approximately two hours at the prison, and he did not see San-Miguel leer or stare

at the female prison staff. According to Saunders, although the public believes a

high percentage of sex offenders will reoffend, “[t]he known re[-]offense rates are

actually pretty low.” Saunders testified that denial and minimization do not predict

an offender’s likelihood of reoffending. Saunders explained that he saw no

evidence that San-Miguel groomed his victims. Saunders opined that San-Miguel

does not have a behavioral abnormality. In addition, Saunders testified that he does

not consider San-Miguel a repeat sex offender “[b]ecause in the treatment

community we understand this is a single event. Even though there was more than

one victim, we understand it as a single sexual event.” Saunders opined that San-

Miguel’s substance abuse history is “the prevailing factor in most of his criminal

offenses.” Saunders testified that “it’s not a likelihood” that a person will repeat a

crime he committed in an alcohol and drug-induced state. In addition, Saunders

testified that because San-Miguel has had the opportunity to sexually assault but

                                          8
did not act on it, San-Miguel does not have a serious difficulty with impulse

control. According to Saunders, San-Miguel has “many antisocial personality

characteristics based on his history[.]” Saunders also opined that based upon San-

Miguel’s age, he is no longer in the highest risk category for re-offense. During

cross-examination, Saunders testified that a reasonable psychologist or psychiatrist

could conclude that San-Miguel has antisocial personality disorder and is a

psychopath.

      As discussed above, San-Miguel admitted that he was convicted of two

cases of aggravated sexual assault of a child, and that he had received multiple

disciplinary cases during his incarceration. Turner opined that San-Miguel suffers

from a behavioral abnormality that makes him likely to engage in a predatory act

of sexual violence, San-Miguel is sexually deviant, and San-Miguel suffers from

hebephilia, antisocial personality disorder, abuse of a child, and polysubstance

abuse in partial remission. Turner also noted that San-Miguel lacked remorse, and

he identified as risk factors the young age of San-Miguel’s victims, San-Miguel’s

use of force, San-Miguel’s relatively young age, tendency to denigrate and blame

his victims, polysubstance abuse in partial remission, and hebephilia. Turner also

testified that San-Miguel’s scores on actuarial instruments place him in the high to

moderate range of risk for reoffending.

                                          9
      Gaines also testified that San-Miguel suffers from a behavioral abnormality

that makes him likely to engage in a predatory act of sexual violence, and she

explained that the age of San-Miguel’s victims, San-Miguel’s substance abuse, use

of force, and his belief that he does not need sex offender treatment are risk factors.

Gaines diagnosed San-Miguel with paraphilic disorder, and “substance use

disorder with many different substances.”

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

reasonably conclude that San-Miguel suffers from a behavioral abnormality that

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

Commitment of Richard, No. 09-13-00539-CV, 2014 Tex. App. LEXIS 6974, at *7

(Tex. App.—Beaumont June 26, 2014, pet. denied) (mem. op.). Viewing the

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

found, beyond a reasonable doubt, that San-Miguel is a sexually violent predator;

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

841.062(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, including the testimony

of San-Miguel and Saunders, 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




                                          10
issues one and two and affirm the trial court’s judgment and order of civil

commitment.

      AFFIRMED.
                                           ______________________________
                                                  STEVE McKEITHEN
                                                      Chief Justice

Submitted on November 10, 2015
Opinion Delivered December 10, 2015

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




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