                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             __________________
                              NO. 09-12-00187-CV
                             __________________


          IN RE COMMITMENT OF JUAN ANTONIO FUENTES

__________________________________________________________________

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 11-08-08774 CV
__________________________________________________________________

                          MEMORANDUM OPINION

      The State of Texas filed a petition to commit Juan Antonio Fuentes as a

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

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

predator, and the trial court signed a final judgment and order of civil commitment.

In two appellate issues, Fuentes challenges the trial court’s exclusion of testimony

from his expert regarding diagnostic criteria for pedophilia and the factual

sufficiency of the evidence that he has a “mental condition” or “serious difficulty

controlling behavior[.]” In a supplemental issue, Fuentes also argues that the
                                         1
“Texas Supreme Court’s recent construction of the SVP civil commitment statute

renders the statute facially unconstitutional under the Fourteenth Amendment’s due

process clause.” We affirm the trial court’s judgment.

                                    ISSUE ONE

      In his first issue, Fuentes challenges the trial court’s exclusion of testimony

from his expert witness, psychologist Dr. Marisa Mauro, regarding the diagnostic

criteria for pedophilia. Specifically, Fuentes complains of the trial court’s

exclusion of testimony from Mauro concerning the basis of her opinion that

Fuentes is not a pedophile.

      Mauro testified that although Fuentes’s first victim was approximately four-

and-one-half years old and the second victim was approximately eleven years old,

she did not diagnose Fuentes with pedophilia. Mauro testified that “[t]he incidents

were about 15 years apart, and pedophilia is a recurrent deviant arousal to

prepubescent children, and I didn’t find that that arousal was recurrent. They were

specific isolated incidents 15 years apart.” Mauro explained that according to the

DSM, “recurrent” means something that has happened continuously for six

months. According to Mauro, “not all child molesters are pedophiles. That’s

widely accepted in research, and one reason for that is that there might be an

isolated incident or two over a long period of time versus recurrent behavior, urges,

                                         2
fantasies, what you see in . . . pedophilia.” Mauro characterized Fuentes as a child

molester, but not a pedophile.

      On cross-examination, Mauro explained that she did not find Fuentes to

have a behavioral abnormality. Mauro testified that pedophilia is a chronic

condition and would be a risk factor, but she did not diagnose Fuentes with

pedophilia. According to Mauro, Fuentes did not meet the criteria for pedophilia

even though Fuentes admitted he was sexually aroused by performing oral sex on a

four-year-old and an eleven-year-old. Mauro explained that at her deposition, she

had testified that she did not diagnose Fuentes with pedophilia because he did not

meet the “continuous requirement for six months[,]” but admitted that the word

“continuous” is not contained in the DSM-IV. The State began questioning Mauro

concerning the meaning of the word “recurrent” in the DSM-IV, and the following

exchange occurred:

             Q. And the modification that recurrent somehow modifies over
      a period of at least six months, where do you get that from?

            A. Well, there’s been a lot of controversy over this, whether it
      needs to actually be in the six-month period of continuous time or
      over a longer period of time; and actually the supervisor for the work
      group in the DSM-V has actually --

            [State’s counsel]: Objection, relevance.

            THE COURT: Well, you asked her where this comes from.

                                         3
            [State’s counsel]: No, not from – that’s not even published.

            THE COURT: What was your question exactly?

            [State’s counsel]: Where does her idea of “recurrent” as it
      applies to six months come from?

            THE COURT: I think she’s given it to you.

            [State’s counsel]: That hasn’t even been published yet.

            THE COURT: Well, that’s okay. You asked the question.
      You want to withdraw the question? I mean, she’s going to give you
      the answer she wants to give you to your question.

            [State’s counsel]: Fine. I’ll withdraw the question.

            Q. [by State’s counsel] What is your definition of the word
      recurrent?

           A. Recurrent is something that happens a few times, I guess,
      something that you re[-]experience.

The State’s cross-examination of Mauro later continued as follows:

            Q. So Dr. Dunham diagnosed [Fuentes] with pedophilia,
      correct?

            A. Right.

            Q. And Dr. McGarrahan diagnosed him with pedophilia,
      correct?

            A. Right.

            Q. And Dr. Self diagnosed him with pedophilia.

            A. Right.
                                        4
            Q. But somehow you’ve read this and interpreted this correctly?

            A. Yes.

            Q. And everyone else is doing it wrong?

             A. As I had mentioned before, there’s a divergent opinion on
      the six-month criteria.
      ...

            Q. And you would tell this jury that Mr. Fuentes has been
      sexually aroused by an 11 year old, a four year old[,] and a one year
      old over the span of 13 years, but he’s not a pedophile?

            A. Right.

            Q. Just a child molester?

            A. Right.

            Q. And you would also tell this jury that Mr. Fuentes has been
      sexually aroused by an 11 year old, a four year old[,] and a one year
      old over the span of 13 years, but he does not have a behavioral
      abnormality.

            A. Right.

During re-direct examination, the following exchange occurred between Mauro

and Fuentes’s counsel:

             Q. With regards to the fact that you did not diagnose Mr.
      Fuentes with pedophilia, what is the support for your position, that it
      has to be recurrent over six months?

            A. It isn’t the --


                                        5
             [State’s counsel]: Objection, relevance. I wasn’t allowed to
      ask this.

            [Fuentes’s counsel]: She withdrew it.

            THE COURT: We’re not going to go into any books that
      haven’t been published.

            [Fuentes’s counsel]: Well, if she can answer without talking
      about any books that haven’t been published.

            A. Right. It’s in a published report to the --

            [State’s counsel]: Objection, relevance.

            THE COURT: Show the published report to me so I can read
      it. Okay?

            [Fuentes’s counsel]: Do you have it?

            THE WITNESS: I don’t have it with me.

             THE COURT: Okay, then show that it’s been published and
      that you can provide [it to] me right now.

            THE WITNESS: I’m sorry.

            [Fuentes’s counsel] That’s fine, Dr. Mauro, but you’re
      confident that you’re applying the diagnostic criteria for pedophilia
      properly in your evaluation of Mr. Fuentes; is that right?

            A. Yes.

Fuentes complains that during the above exchanges, the State “successfully

prevented Dr. Mauro from testifying about the basis of her opinion, which was

grounded in research, that not all child molesters are pedophiles, and that two
                                        6
isolated incidents separated by more than a decade are not sufficient alone to

diagnose a person with pedophilia.”

      We review the exclusion of expert testimony for abuse of discretion. In re

Commitment of Day, 342 S.W.3d 193, 218 (Tex. App.—Beaumont 2011, pet.

denied); see also Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43

(Tex. 1998). An appellate court should not determine whether a trial court abused

its discretion in excluding evidence unless the complaint has been preserved for

review. See McInnes v. Yamaha Motor Corp., U.S.A., 673 S.W.2d 185, 187 (Tex.

1984); Sink v. Sink, 364 S.W.3d 340, 346 (Tex. App.—Dallas 2012, no pet.). To

preserve error on appeal, a party must present to the trial court a timely request,

motion, or objection, wherein the party states the specific grounds therefor, and

obtain a ruling that appears in the record. Tex. R. App. P. 33.1(a); Wal-Mart

Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999).

      To challenge the trial court’s exclusion of evidence on appeal, the

complaining party must present the excluded evidence to the trial court by an offer

of proof unless the substance of the evidence is apparent from the contest within

which the questions were asked. Tex. R. Evid. 103(a); see Tex. R. App. P. 33.1;

see also Day, 342 S.W.3d at 199; In re Commitment of Briggs, 350 S.W.3d 362,

368 (Tex. App.—Beaumont 2011, pet. denied). “‘[T]he record should indicate the

                                        7
questions that would have been asked, what the answers would have been[,] and

what was expected to be proved by those answers.’” Day, 342 S.W.3d at 199-200

(quoting Lopez v. S. Pac. Transp. Co., 847 S.W.2d 330, 336 (Tex. App.—El Paso

1993, no writ)). When the complaining party fails to make an offer of proof in the

trial court, the party must introduce the excluded testimony into the record by a

formal bill of exception. Tex. R. App. P. 33.2. Without an offer of proof, an

appellate court cannot determine whether the exclusion of the evidence was

harmful. Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331, 335 (Tex. App.—Dallas

2008, no pet.); see also In re Commitment of Dees, No. 09-11-00036-CV, 2011

WL 6229555, at *5 (Tex. App.—Beaumont Dec. 15, 2011, pet. denied) (mem.

op.).

        The record reflects that Fuentes did not make an offer of proof in the trial

court concerning the excluded testimony, nor did Fuentes offer a formal bill of

exception. The record does not show what questions would have been asked or

what the answers would have been, and the substance of the excluded evidence

was not apparent from the content. Therefore, Fuentes failed to preserve the issue

for review. See Tex. R. App. P. 33.1(a); Tex. R. App. P. 33.2; Briggs, 350 S.W.3d

at 368. Accordingly, we overrule issue one.



                                          8
                                       ISSUE TWO

      In his second issue, Fuentes challenges the factual sufficiency of the

evidence that he has a mental condition or serious difficulty controlling his

behavior. Specifically, Fuentes argues that the State’s evidence that he has a

mental condition or serious difficulty controlling his behavior was so inadequate

that the risk of injustice necessitates a new trial. Fuentes asserts that the testimony

from the State’s experts was conclusory and speculative.

      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 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.” Day, 342 S.W.3d at 213.

      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

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)

                                          9
(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).

      Forensic psychologist Dr. Antoinette McGarrahan testified that the State

asked her to provide an opinion concerning whether Fuentes has a behavioral

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

McGarrahan testified that in performing her evaluation of Fuentes, she reviewed a

set of records referred to as the “referral packet[,]” interviewed Fuentes in person

for approximately two and a half hours, and scored various actuarial instruments.

McGarrahan testified that this methodology is typically used by experts in her

field, and this methodology is “standard” and “recommended.” According to

McGarrahan, the records she reviewed pertaining to Fuentes included TDCJ

records, classification records, disciplinary records, medical records, and

psychiatric records, as well as Fuentes’s unit file, parole records, penitentiary

packets, employment records, victim statements, records from evaluations

performed by other examiners, and Fuentes’s deposition.



                                        10
      McGarrahan explained that she relied upon the facts and data contained in

the records in forming the basis of her opinion. McGarrahan conducted her

evaluation in accordance with her training as a psychologist and in accordance

with accepted standards in the field of forensic psychology. McGarrahan testified

that based upon her education, training, experience, and the methodology she

applied, she concluded that Fuentes suffers from a behavioral abnormality that

makes him likely to commit a predatory act of sexual violence. McGarrahan

explained that Fuentes displayed “significant indications of sexual deviancy[,]”

antisocial personality traits, borderline personality traits, and risk factors.

      McGarrahan diagnosed Fuentes with pedophilia, antisocial psychopathic

borderline personality traits, and a large number of risk factors. McGarrahan

testified that sexual deviancy “is a very strong predictor of one’s risk to engage in

sexually violent offenses in the future.” According to McGarrahan, Fuentes’s

sexual deviancy is “predominantly pedophilia[,]” and she explained that she used

the DSM-IV in arriving at her pedophilia diagnosis. McGarrahan testified that the

records she reviewed show that Fuentes’s first victims were a sister and brother,

who were ages four and one-and-a-half, respectively. According to McGarrahan,

the risk factors for the offense were a male victim, a victim under age four, and the



                                           11
fact that the victims were strangers to Fuentes. McGarrahan also found it

significant that Fuentes lied to his family about the nature of his offense.

         McGarrahan testified that Fuentes’ next offense occurred a number of years

later, when he performed oral sex on an eleven-year-old male who was the son of a

co-worker. McGarrahan explained that Fuentes gave inconsistent accounts

concerning the offense, and that Fuentes also tended to blame the victim.

McGarrahan explained that Fuentes met the diagnostic criteria for pedophilia

because “[w]e have two known instances, one in 1984 and one in 1998. That’s 14

years.     That clearly is occurring across at least six months.” According to

McGarrahan, the DSM-IV does not require that the person sexually offend against

a child or have sexually arousing fantasies continuously for six months.

         McGarrahan opined that pedophilia is one of the “strongest, most potent risk

factors of someone engaging in sexually violent offenses in the future, so

pedophilia is [Fuentes’s] primary sexual deviancy.” McGarrahan opined that

Fuentes has antisocial personality traits and borderline traits, such as impulsivity,

dysfunctional coping mechanisms, pathological lying, and poor work history, but

she “did not give [Fuentes] a full diagnosis of a personality disorder.” McGarrahan

explained that Fuentes had a moderate level of psychopathic characteristics, but

was not a psychopath.

                                          12
      McGarrahan scored the Static 99-R and the Minnesota Sex Offender

Screening Tool Revised (MnSOST-R), and she testified that Fuentes’s score on the

Static 99-R indicated a moderately high level of risk for recidivism, and his score

on the MnSOST-R reflected “a high level of likelihood for engaging in a sexually

violent offense in the future.” In evaluating Fuentes, McGarrahan also noted that

Fuentes had incurred a number of major and minor disciplinary cases during his

incarceration. McGarrahan testified that she was also concerned that Fuentes had

not received sex offender treatment. McGarrahan summarized her testimony

concerning behavioral abnormality as follows:

             I think it’s the three broad areas that we talked about first today,
      which is his sexual deviancy which certainly encompasses the
      pedophilia, but possibly also adolescent males, which is present today
      and ongoing, his personality traits that make him impulsive,
      irresponsible[,] and likely to not follow the rules in combination with
      the very large number of risk factors that we’ve talked about. I think
      together taken as a whole has led me to my opinion that he does have
      a behavioral abnormality that makes him likely to engage in predatory
      acts of sexual violence.

      Forensic psychiatrist Dr. David Self testified that the State retained him to

determine whether Fuentes has a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence. During the course of his evaluation,

Self reviewed records, including a referral packet, and interviewed Fuentes for

approximately two hours. Self explained that the records he reviewed are of the

                                          13
type relied upon by experts in his field for such evaluations, and that he relied upon

the facts and data contained in the records in forming the basis of his opinion. Self

testified that he conducted the evaluation in accordance with his training as a

psychiatrist and with accepted standards in the field of forensic psychiatry. Self

opined that Fuentes suffers from a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence.

      Self explained that Fuentes “suffers from a sexual disorder of paraphilia, we

call it, where you have abnormal focus of sexual arousal, gratification behavior. In

this case, I think it’s pedophilia, which is defined . . . as sexual arousal or attraction

or behavior towards prepubescent children . . . .” According to Self, Fuentes’s

“sexual criminal history” is significant. Self testified that Fuentes has borderline

personality disorder, which is also significant in determining whether Fuentes has a

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

violence.

      Self opined that Fuentes’s sexual offenses, coupled with his pedophilia, are

“the prime evidence we have that he has a sexual arousal that he will carry into

action regarding prepubescent children.” Self identified Fuentes’s offenses against

a four-year-old girl, one-year-old boy, and eleven-year-old boy as supportive of the

diagnosis of pedophilia, as well as Fuentes’s admission that he was sexually

                                           14
aroused by the offenses. Self also testified that Fuentes sometimes denied

responsibility for his offenses and instead blamed the victims.

      According to Self, Fuentes’s sexual interest in prepubescent children

persisted for longer than six months, and pedophilia is “a chronic condition” that

“doesn’t go away.” Like McGarrahan, Self explained that all of the sex acts need

not occur within six months to meet the DSM-IV criteria for pedophilia.

According to Self, Fuentes’s lying and impulsivity were indicative of his

borderline personality disorder, as are Fuentes’s fighting while in prison and his

depressive episodes. Self opined that Fuentes’s antisocial traits do not “contribute

much in this case” toward the determination of whether Fuentes suffers from a

behavioral abnormality. Self explained that Fuentes has some elements of

psychopathy, lies, and lacks remorse, but Fuentes is not a psychopath. When asked

whether Fuentes’s emotional or volitional capacity has been affected to the extent

that Fuentes is predisposed to commit a sexually violent offense, Self testified,

      One, his predilection for prepubescent children, I mean, the fact that
      they arouse him and excite him; the fact that he has shown that he is
      tolerant of assault on those children . . .; the fact that he is highly
      impulsive as a result of his personality disorder; the fact that he’s as
      emotionally unstable as he is and in need of reassurance.

      According to Self, Fuentes’s lack of sex offender treatment also raises his

risk. Self noted that Fuentes lacked genuine remorse, and Fuentes engaged in

                                         15
denial and minimization. Self identified male victims and stranger victims as

additional risk factors for Fuentes. Self testified that Fuentes’s “non-negative”

factors included his ability to remain free on bond, his age, and his employment

history. Self opined that Fuentes’s risk of sexual re-offense is moderately high.

      As previously discussed, Fuentes argues that the experts’ testimony was too

speculative and conclusory to support a finding that he suffers from a behavioral

abnormality or has serious difficulty controlling his behavior. We disagree.

Doctors McGarrahan and Self are both licensed in their 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

Fuentes 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 Fuentes, 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

                                         16
evaluations. See id. Both experts concluded that Fuentes suffers from a behavioral

abnormality as defined by the SVP statute. See id. The experts’ testimony is not so

conclusory or speculative as to be completely lacking in probative value. See id.

      In addition to the experts’ opinions that Fuentes has a behavioral

abnormality that makes him likely to engage in predatory acts of sexual violence,

the jury heard evidence of Fuentes’s risk factors, actuarial test scores, criminal

history, sexual offenses, and diagnoses. The jury was entitled to infer current

serious difficulty controlling behavior based on Fuentes’s past behavior, Fuentes’s

own 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 Fuentes 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 In re Commitment of

Mullens, 92 S.W.3d 881, 887 (Tex. App.—Beaumont 2002, pet. denied); 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 Fuentes 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

                                        17
Bailey, No. 09-09-00353-CV, 2010 Tex. App. LEXIS 6685, at **12-13 (Tex.

App.—Beaumont Aug. 19, 2010, no pet.) (mem. op.).

      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. Accordingly,

we overrule Fuentes’s second issue.

                                  Supplemental Issue

      In a supplemental issue, Fuentes 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

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

unified issue.” Id. at **14, 16-17.

      Fuentes contends that Bohannan relieves the State of the burden of

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

previously concluded that “Bohannan did not eliminate any proof required by the

                                        18
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 602, at *17 (Tex.

App.—Beaumont Jan. 24, 2013, no pet. h.) (not yet released for publication). For

the same reasons articulated in Anderson, we reject Fuentes’s arguments and

affirm the trial court’s judgment.

      AFFIRMED.




                                            ________________________________
                                                   STEVE McKEITHEN
                                                        Chief Justice


Submitted on February 19, 2013
Opinion Delivered February 28, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.




                                       19
