                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-12-00085-CV
                            ____________________

               IN RE COMMITMENT OF ALFRED VILLEGAS
____________________________________________________________________                 _

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 11-07-07862-CV
____________________________________________________________________                 _

                           MEMORANDUM OPINION

      The State of Texas filed a petition to commit Alfred Villegas as a sexually

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

& Supp. 2012). A jury found that Villegas is a sexually violent predator and the

trial court rendered a final judgment and an order of civil commitment. Villegas

presents several appellate issues challenging the trial court’s jurisdiction, the legal

and factual sufficiency of the evidence, the admission of hearsay evidence,

statements made during voir dire, and the constitutionality of the SVP statute. We

affirm the trial court’s judgment.



                                          1
                                     Jurisdiction

      In issues one and two, Villegas contends the trial court lacked jurisdiction

over the State’s petition for civil commitment. 1 Villegas argues that the SVP

statute does not apply to individuals who are facing parole instead of unconditional

release. He further contends that, if the statute does apply, the present case was not

ripe because it depended upon speculation regarding when he might be paroled.

This Court has previously held that the SVP statute “does not distinguish between

those anticipated to be released on parole and those anticipated to be released

unconditionally as a result of completion of their sentences.” In re Commitment of

Evers, ___ S.W.3d ___, No. 09-11-00430-CV, 2012 Tex. App. LEXIS 10274, at

*4 (Tex. App.—Beaumont Dec. 13, 2012, pet. filed) (not yet released for

publication). We further held that “[w]hether the person is convicted of another

offense after the State files a petition seeking civil commitment . . . or whether a

person is released on parole or released unconditionally, there is nothing in [the

SVP statute] that indicates the Legislature intended to divest the trial court of

jurisdiction.” Id. at **12-13. For these reasons, we reject Villegas’s jurisdictional

arguments.
      1
        The State contends that Villegas failed to preserve his complaint for
appellate review. However, the ripeness component of subject matter jurisdiction
cannot be waived and may be raised for the first time on appeal. Waco Indep. Sch.
Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000).
                                          2
      In its amended petition filed in the 435th District Court in Montgomery

County, the State alleged that Villegas is “a sexually violent predator” and “a

repeat sexually violent offender who suffers from a behavioral abnormality that

makes him likely to engage in a predatory act of sexual violence.” The petition lists

Villegas’s two convictions for sexually violent offenses. The State alleged facts

that affirmatively demonstrated the trial court’s subject matter jurisdiction. See

Tex. Health & Safety Code Ann. § 841.041(a) (West 2010) (requiring that the

State allege in its civil commitment petition that the person is a sexually violent

predator, state facts sufficient to support that allegation, and file its petition “in a

Montgomery County district court other than a family district court”). Because the

trial court had subject matter jurisdiction over the commitment proceeding, we

overrule issues one and two.

                             Sufficiency of the Evidence

      In issues three through eight, Villegas challenges the legal and factual

sufficiency of the evidence to support findings that he is a menace to the health and

safety of another person, is likely to engage in a predatory act of sexual violence,

has a behavioral abnormality, and has serious difficulty controlling his behavior.

Villegas argues that: (1) no evidence showed that he is dangerous in prison or will

be dangerous in the free world; (2) the experts’ paraphilia diagnosis was based on

                                           3
two offenses that occurred years apart and was not supported by general diagnostic

features; and (3) his past crimes cannot support serious difficulty in controlling his

behavior.

      The State must prove, beyond a reasonable doubt, that “the person is a

sexually violent predator.” Tex. Health & Safety Code Ann. § 841.062(a) (West

2010). Under 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, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts. Id. at 887. Under 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).

      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. §

                                           4
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)

(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).

      Dr. Jack Randall Price, a clinical and forensic psychologist, and Dr. Sheri

Gaines, a medical doctor with a specialty in psychiatry, both determined that

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

predatory act of sexual violence. Price and Gaines diagnosed Villegas with

paraphilia not otherwise specified, polysubstance dependence in remission, and

antisocial personality disorder. Gaines testified that paraphilia and antisocial

personality disorder are chronic conditions. She explained that paraphilia not

otherwise specified means that the diagnosis does not “neatly fit into another

category.” Price testified that Villegas’s polysubstance dependence and lack of

control over his sexual deviance in the free world “lessen[] his behavioral

                                         5
controls.” Price explained that the combination of sexual deviance and antisocial

personality disorder involves a lack of empathy for others and a lack of

responsibility for one’s own criminal conduct, which increases the chance that

Villegas will act on his sexually deviant thoughts and arousal. Gaines explained

that Villegas’s polysubstance dependence and antisocial personality disorder

increase the risk that he will commit future acts of sexual violence. Price affirmed

that paraphilia affects Villegas’s emotional or volitional capacity to the extent that

he is a menace to the health and safety of others. He explained that the fact

Villegas has no other sexual offenses in his past does not change the fact that he

has convictions for two serious sexual offenses. Gaines testified that, even today,

Villegas blames the victims and only takes partial responsibility for his offenses.

      Price conducted actuarial tests and testified that Villegas’s score on the

psychopathy checklist was moderately high, which indicates an increased risk of

reoffending. On the Static-99R, Villegas fell within the moderate to high level of

risk for reoffending. Price and Gaines identified the following factors as indicative

of Villegas’s increased risk of reoffending: history of diverse sexual offenses,

commission of a sexual offense while on community supervision, commission of

an offense after incarceration, failure to follow probation and parole, use of alcohol

or drugs during sexual offenses, use of violence and coercion during an offense,

                                          6
minimization or denial of sexual offenses, lack of empathy for victims, antisocial

personality disorder, vague plan upon release, lack of insight, and lack of adult

intimate relationships. Price and Gaines also identified some protective factors:

older age, relatively good disciplinary history in prison, some education, some

family support, no evidence of a major mental illness, good institutional

adjustment, participation in sex offender treatment and substance abuse classes,

involvement in religion, and potential employment skills.

      Villegas testified that he had no one to teach him the rules, was negatively

influenced by others, and was apathetic towards others. He explained that he now

sees life differently, wants to change, and understands that he cannot hurt others.

Villegas testified that he has obtained a GED and auto mechanic certification,

completed the “Changes” program and substance abuse programs, participated in

sex offender treatment, and converted to Judaism, which he testified taught him

empathy. He acknowledged that other people are not the reason for his behavior in

the free world and he testified that he accepts responsibility for his behavior.

      Villegas described himself as a “[p]rogressing sex offender” because of his

past actions and agreed that he is not cured. He explained that, to avoid a lapse, he

must be aware of the situation and base his decisions on the consequences.

Villegas planned to make a “daily inventory” of himself as a reminder of the “risk

                                           7
factors” so that he could better handle himself. He planned to attend substance

abuse classes, register as a sex offender, attend therapy, and seek a mentor. He

believed his behavior has changed and that he can control his behavior.

      Price, however, opined that Villegas’s past behavior indicates that he cannot

control his behavior in the free world. Price and Gaines both believed that the sex

offender treatment Villegas has received in prison is insufficient to change the fact

that he has a behavioral abnormality. Gaines expressed concern about whether

Villegas will be able to maintain his sobriety once in the free world. Price

explained that, unlike the free world, prison is highly structured.

      In light of the evidence presented to the jury, we conclude that the record

contains legally and factually sufficient evidence by which the jury could

determine that Villegas is a sexually violent predator. The jury heard the experts’

opinions that Villegas has a behavioral abnormality that makes him likely to

engage in predatory acts of sexual violence, as well as evidence of Villegas’s risk

factors, actuarial test scores, criminal history, sexual offenses, and diagnoses of

paraphilia, polysubstance abuse, and antisocial personal disorder. The jury also

heard Price expressly state that Villegas’s paraphilia diagnosis affects his

emotional or volitional capacity to the extent that he is a menace to the health and




                                          8
safety of others and that he did not believe Villegas could control his behavior in

the free world.

        The jury was entitled to infer current serious difficulty controlling behavior

based on Villegas’s past behavior, Villegas’s testimony, and the experts’

testimony. See In re Commitment of Burnett, No. 09-09-00009-CV, 2009 Tex.

App. LEXIS 9930, at *13 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem.

op.); 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 Villegas 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 Mullens,

92 S.W.3d at 887; see also Almaguer, 117 S.W.3d at 505-06; Burnett, 2009 Tex.

App. LEXIS 9930, at *13. Such conclusions are implicit in the jury’s finding that

Villegas is a sexually violent predator, which the charge defined as one who

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 Bailey, No. 09-09-00353-CV, 2010 Tex. App.

LEXIS 6685, at **12-13 (Tex. App.—Beaumont Aug. 19, 2010, no pet.) (mem.

op.).

                                           9
      Reviewing all the evidence in the light most favorable to the verdict, a

rational jury could have found, beyond a reasonable doubt, that Villegas has a

behavioral abnormality that predisposes him to commit a predatory act of sexual

violence; therefore, the evidence is legally sufficient. See Kansas v. Crane, 534

U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002); see also Mullens, 92

S.W.3d at 885. 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 Villegas’s third, fourth, fifth, sixth, seventh, and eighth issues.

                                  Evidentiary Issues

      In issues nine and ten, Villegas challenges the admission of alleged hearsay

evidence. Villegas complains that the trial court allowed Price to testify that

Villegas committed his first sexual offense in the presence of the victim’s child,

may have attempted inappropriate behavior with his niece, may have sexually

assaulted his second victim on more than one occasion, and was found to have a

behavioral abnormality by the multidisciplinary team coordinator.

      “We review a trial court’s evidentiary rulings for abuse of discretion.”

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see In re

Commitment of Salazar, No. 09-07-345 CV, 2008 Tex. App. LEXIS 8856, at *19

(Tex. App.—Beaumont Nov. 26, 2008, pet. denied) (mem. op.). Error may not be

                                           10
predicated upon a ruling which admits evidence unless the party’s substantial

rights are affected. Tex. R. Evid. 103(a). We will not reverse for an error of law

unless the error probably caused the rendition of an improper judgment or probably

prevented the appellant from properly presenting the case to the appellate court.

Tex. R. App. P. 44.1(a).

      Assuming without deciding that the trial court abused its discretion by

allowing the complained-of testimony, we cannot say that Villegas’s substantial

rights were affected. See Tex. R. Evid. 103(a); see also Tex. R. App. P. 44.2(a).

During Price’s testimony, the trial court gave the jury a limiting instruction

regarding the use of hearsay evidence. During cross-examination, Gaines testified

that another doctor reached the same conclusions as both Price and herself. During

arguments, the State focused on the elements required to prove sexually violent

predator status, specifically how the evidence established a behavioral abnormality.

The State mentioned that the first victim was assaulted in her daughter’s presence

and that a third person found that Villegas has a behavioral abnormality. The

record does not indicate that the State mentioned acts against Villegas’s niece or

additional acts against the second victim. In its charge, the trial court advised the

jury that hearsay found in the records reviewed by the experts cannot be considered

to prove the truth of the matter asserted.

                                             11
      We presume the jury followed the trial court’s instructions regarding

hearsay. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 771 (Tex.

2003). Additionally, without the complained-of testimony, the record contains

sufficient evidence from which the jury could find Villegas to be a sexually violent

predator. We cannot conclude that any error in the admission of Price’s testimony

probably caused the rendition of an improper judgment. See Tex. R. App. P.

44.1(a). We overrule issues nine and ten.

                                      Voir Dire

      In issue eleven, Villegas complains of comments made to the venire panel

that he alleges minimized the jury’s role in the case. A trial court has broad

discretion when conducting voir dire, and we apply an abuse of discretion standard

to the trial court’s decisions regarding voir dire examination. Hyundai Motor Co. v.

Vasquez, 189 S.W.3d 743, 753 (Tex. 2006); In re Commitment of Larkin, 161

S.W.3d 778, 780-81 (Tex. App.—Beaumont 2005, no pet.).

      After the State explained to the venire members that the behavioral

abnormality issue is a “yes” or “no” question, the trial court interjected with:

“[T]he effect of that question, by the legislature, has been left up to me.” The State

subsequently told the panel that “nobody is going to prison or losing their liberty in

this case.” Villegas argues that these comments were inaccurate and permitted the

                                         12
jury to minimize its role and the effect of its verdict. However, the record does not

indicate that Villegas objected to these statements. See Tex. R. App. P. 33.1(a); see

also Jones v. Scott, No. 07-04-0077-CV, 2011 Tex. App. LEXIS 8391, at *9 (Tex.

App.—Amarillo Oct. 20, 2011, no pet.) (mem. op.). Therefore, issue eleven is not

preserved for appellate review. Accordingly, we overrule issue eleven.

                                 Supplemental Issue

      In a supplemental issue, Villegas argues that the Texas Supreme Court’s

decision in In re Bohannan, 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 violate due process and 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 **16-17.

      Villegas contends that Bohannan permits civil commitment based solely on

a predisposition to violence and eliminated the “condition” requirement, which

effectively eliminates any requirement that the person have serious difficulty

                                          13
controlling his behavior. However, this Court has previously addressed these

arguments and concluded that “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,

___ 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). We,

therefore, overrule Villegas’s supplemental issue and affirm the trial court’s

judgment.

      AFFIRMED.




                                           ______________________________
                                                  STEVE McKEITHEN
                                                     Chief Justice


Submitted on December 4, 2012
Opinion Delivered February 21, 2013
Before McKeithen, C.J., Gaultney and Horton, JJ.




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