                                     In The

                              Court of Appeals
                    Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-11-00600-CV
                          ____________________

             IN RE COMMITMENT OF GILBERT S. SOTO JR.
_______________________________________________________          ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 11-05-04911 CV
________________________________________________________          _____________

                        MEMORANDUM TO CLERK

      You are directed to make the following correction in the Opinion dated June

13, 2013:

      On page 2, in the first sentence under the heading CONSTITUTIONAL

CHALLENGE, delete the word See. On the next line change (Tex. Crim. App. 2013)

to (Tex. 2012) and on the next line change 2113 to 2013. You will give notice of

the corrections to the original opinion by sending a copy of corrected page 2,

accompanied by this memorandum, to all interested parties who received a copy of

the original opinion.



                                        1
Entered this 17th day of June, 2013.


                                       PER CURIAM




                                  2
                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-11-00600-CV
                            ____________________

             IN RE COMMITMENT OF GILBERT S. SOTO JR.
_______________________________________________________             ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 11-05-04911 CV
________________________________________________________             _____________

                          MEMORANDUM OPINION

      Gilbert S. Soto Jr. challenges his civil commitment as a sexually violent

predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 &

Supp. 2012). He raises a constitutional challenge and argues the evidence is

factually insufficient to support a finding that he is a sexually violent predator. We

find no reversible error and affirm the judgment.

                                   THE STATUTE

      The State was required to prove beyond a reasonable doubt that Soto 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

                                          3
offender and suffers from a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence. Id. § 841.003(a). 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) (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).

                              CONSTITUTIONAL CHALLENGE

      Soto contends that the Texas Supreme Court’s opinion in In re Bohannan,

388 S.W.3d 296 (Tex. 2012), cert. denied, 2013 WL 1499264 (U.S. May 28,

2013), interpreted the SVP statute in such a way as to render sections

841.002(2) and 841.003(a)(2) of Chapter 841 facially unconstitutional. See Tex.

Health & Safety Code Ann. § 841.002(2) (West Supp. 2012), § 841.003(a)(2)

(West 2010). He argues that Bohannan has the effect of eliminating the

requirement of a mental illness or disorder and the requirement of serious

                                         4
difficulty controlling behavior. We have considered and rejected these arguments

before. See In re Commitment of Anderson, 392 S.W.3d 878, 885-86 (Tex. App.—

Beaumont 2013, pet. denied). We concluded Bohannan did not eliminate a

statutory requirement or alter the proof required to find that a person is a sexually

violent predator. See id.; see also Tex. Health & Safety Code Ann. §§ 841.002(2),

841.003(a)(2). We overrule issue one.

                              FACTUAL SUFFICIENCY

      In issue two, Soto challenges the factual sufficiency of the evidence to

support a finding beyond a reasonable doubt that he is a sexually violent predator.

See In re Commitment of Day, 342 S.W.3d 193, 206 (Tex. App.—Beaumont 2011,

pet. denied) (factual sufficiency standard of review). Soto contends the State did

not prove he currently has a behavioral abnormality and is likely to recidivate, and

that the expert witnesses did not take into account multiple positive factors that

would indicate a reduced tendency to reoffend. He asserts that because the State

did not produce evidence that he committed any sex offenses or engaged in sexual

misconduct during his last incarceration (nine and one-half years), the State did not

establish that he is likely to commit sexually violent predatory acts. The lack of

prison sexual misconduct, argues Soto, demonstrates he is able to control his

behavior. Further, Soto argues that, in arriving at their conclusions, the expert

                                         5
witnesses used only their clinical judgment, which is “subjective and speculative at

best.”

         The State presented testimony from Dr. Dunham, a forensic psychologist,

and Dr. Gaines, a forensic psychiatrist. Both testified that Soto has a behavioral

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

Their methodology included reviewing records and conducting an in-person

interview with Soto. Dr. Dunham explained that his evaluation included review of

police reports, victim statements, prison records, medical records, parole reviews,

deposition transcripts, reports from other treating psychologists for Soto’s victims,

CPS reports, the victims’ medical records, and Soto’s prison disciplinary records.

Dr. Gaines reviewed similar records. Both experts testified that these records are

the type of records relied on by experts in their fields, and that this methodology is

accepted in the fields of psychiatry and psychology.

         Both Dr. Dunham and Dr. Gaines diagnosed Soto with pedophilia and sexual

deviancy. Dr. Dunham also diagnosed Soto with adult antisocial behavior and

found him to have psychopathic traits.

         In 1991, Soto was convicted of sexual assault of his stepdaughter. He

sexually assaulted the child from the time she was eight years old until she was

approximately fifteen. The sexual assaults occurred almost daily for the last “two

                                          6
or so” years. Soto threatened to kidnap and kill the child if she did not say she

enjoyed the acts. He slapped her when she screamed. When she was fifteen, he

wanted her to sign a contract stating that she could never leave him and that she

would start having his babies when she turned eighteen. He threatened to hit her

brothers and her mother. Upon conviction of sexual assault, he was sentenced to

eight years in prison. While in prison, he wrote her letters and asked her to send

him pictures of herself.

      Released from prison in 1999, Soto lived in Houston and in 2001 he went to

live with his parents in Lubbock. He was forty-seven or forty-eight years old. His

brother and his brother’s family, including Soto’s three-year-old niece, also lived

in the home. When Soto’s mother went to work, Soto was left in the home with the

three-year-old child. The records reveal that in 2001 and 2002, he committed

multiple sex acts against the child over a period of nine and one-half months.

Under a plea agreement, he pleaded no contest to indecency with a child. The trial

court sentenced him to ten years in prison.

      Soto denied he committed the offenses. He asserted the victims lied. He

maintained he was impotent and could not have committed the offenses. Soto

claimed his ex-wife (mother of the first victim) was physically abusing the child;

he blamed his ex-wife for his difficulties; he alleged his brother or an uncle must

                                         7
have committed the sexual offenses against the second child; and he blamed CPS

workers. As Dr. Dunham explained, Soto’s pattern was to blame everyone else.

When asked how he felt about his victims, he explained that he would forgive them

for putting him in jail.

      At the time of trial, Soto was participating in the Sex Offender Education

Program. He had refused to participate in the Sex Offender Treatment Program, an

in-depth, individualized treatment program designed to help the person change the

dynamic risk factors and take responsibility for his conduct. As Dr. Dunham

related, Soto indicated he is not a sex offender and does not need the sex offender

treatment program.

      Soto argues that the absence of any sexual misconduct disciplinaries while

he was in prison shows that he has the ability to control his behavior, and that the

risk of reoffending is not present. The State’s experts, however, testified that his

lack of disciplinaries in prison is not indicative of his future conduct, because

children (his target population) are not accessible to him in prison.

      Dr. Dunham conducted actuarial tests, which are often used by psychologists

to aid in determining the likelihood the defendant will reoffend with a sexual

offense. Dunham scored Soto in the low to moderate range on both actuarials.

Dunham concluded that, under the circumstances in this case, the actuarial tests are

                                          8
irrelevant, because they do not take into consideration that the sexual offenses were

repeated over a long period of time---seven or eight years against one child and

nine and one-half months against the other. Dr. Dunham concluded that the Static-

99 “grossly underestimate[es] [Soto’s] true risk.” And the MnSOST-R, the other

actuarial, is not designed to be used for people who commit sex offenses against a

family member. Both of the offenses were against Soto’s family members.

Dunham explained that the recommended approach is a clinically adjusted

actuarial approach where the evaluator looks at the actuarial scores and then uses

his clinical judgment to decide whether the scores should be higher or lower. In his

opinion, Soto is at high risk for reoffending.

      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 881, 887 (Tex. App.—

Beaumont 2002, pet. denied). The jury may draw reasonable inferences from the

evidence. See Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). Soto’s

difficulty controlling his behavior can be inferred from his past behavior, his own

testimony, and the experts’ testimony. 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

                                           9
2616921, at *5 (Tex. App.—Beaumont Aug. 27, 2009, no pet.) (mem. op.). The

jury heard evidence of the offenses, the multiple acts of sexual deviancy, and his

reoffending against another child after being in prison for sexual assault of the first

child. A rational jury could find beyond a reasonable doubt that Soto has serious

difficulty in controlling his behavior and has a behavioral abnormality that makes

him likely to commit future acts of sexual violence. We conclude the evidence is

factually sufficient to support the verdict. Issue two is overruled.

      The judgment is affirmed.

      AFFIRMED.

                                               ________________________________
                                                      DAVID GAULTNEY
                                                            Justice

Submitted on April 10, 2013
Opinion Delivered June 13, 2013

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




                                          10
