                                       In The

                                 Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-14-00159-CV
                            ____________________


                 IN RE COMMITMENT OF JOHN LUCERO

_______________________________________________________             ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 13-08-09024 CV
________________________________________________________             _____________

                          MEMORANDUM OPINION

      John Lucero challenges his commitment as a sexually violent predator. See

Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2014) (the

SVP statute). In two issues presented for his appeal, Lucero challenges the legal

and factual sufficiency of the evidence supporting the jury’s verdict. We hold the

evidence is legally and factually sufficient, and we affirm the trial court’s judgment

and order of civil commitment.

      In the trial of a civil commitment filed under Chapter 841 of the Texas

Health and Safety Code, the State must prove, beyond a reasonable doubt, that the

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person to be civilly committed is a sexually violent predator. Id. § 841.062(a).

When we consider a challenge to the legal sufficiency of the evidence supporting

the jury’s finding that a person is a sexually violent predator, 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). As the factfinder, the jury has

the 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 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).

      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).1 A “‘[b]ehavioral abnormality’ means a congenital or acquired

      1
       Lucero does not challenge his status as a repeat sexually violent offender in
his appellate brief.

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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).

“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).

      Lucero contends the evidence is legally and factually insufficient to support

the jury’s verdict because the State failed to present evidence that he is volitionally

impaired.2 He argues the State’s experts neither asserted an opinion nor offered

any information from which a jury could reach a conclusion that he currently has

serious difficulty controlling his behavior.

      Lucero was convicted on two counts of indecency with a child by contact for

offenses he committed in 2006 against two different eight-year-old victims.

Lucero, who was twenty-seven years of age at the time of the civil commitment

trial, admitted to having had sexually arousing fantasies involving sexual activity

      2
       Lucero did not challenge the sufficiency of the evidence during the trial, but
he presented legal and factual sufficiency arguments in a post-judgment motion for
new trial.
                                           3
with prepubescent female children in the past, beginning when he was age sixteen.

When asked if he still has a sexual preference for little girls, Lucero replied, “Not

as strong as it was.” Lucero admitted to still engaging in sexual fantasies about

adolescent girls at the time of an interview eight or nine months before trial, but in

the testimony he gave during the trial, he claimed his most recent sexual fantasy

about an under-aged girl occurred approximately eighteen months before his trial.

Lucero stated that he completed a sex offender treatment program, and that he was

able to work through his sexual thoughts about thirteen and fourteen-year-old girls.

Lucero admitted to giving untruthful answers in his sworn deposition, but he

explained that at that time, he was still in denial of his illness and, since that time,

he has neutralized many of the deviant fantasies he experienced in the past.

      Lucero further admitted that, in the past, he had a problem controlling his

behavior. He started having fantasies of prepubescent girls when he was about

sixteen years old. Sexual fantasizing about under-aged girls preceded the sexual

offenses for which he was convicted. When the urge became too great, Lucero

acted out on his urges. He realized that what he was doing was wrong, but he could

not control himself. Lucero stated that he was diagnosed with impulse control

disorder in his early teens. Having completed a nine-month sex offender treatment

program, Lucero believes he now has good control of his sexual urges.

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      Before his incarceration, Lucero spent four or five months in Cypress Creek

Rehabilitation Center, where he was diagnosed with bipolar disorder and impulse

control disorder. Lucero testified that he is currently treated with lithium. He

started on lithium when he entered prison, ceased treatment because he thought he

was cured, and resumed his medication three months before trial because he

realized he is not cured.

      Three experts testified at trial. The State presented opinion testimony from a

psychologist, Dr. Christine Reed, and a psychiatrist, Dr. Michael Arambula. 3 A

psychologist, Dr. Marisa Mauro, testified on behalf of Lucero.

      Dr. Arambula testified that he evaluated Lucero for a behavioral abnormality

and he was able to form an opinion that Lucero has a behavioral abnormality that

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

explained that he does not predict what the person will do in the future, but,

focusing on the person as they presently are, Dr. Arambula assesses the risk

associated with the person because of his illness. Factors that formed the basis of

Dr. Arambula’s opinion include Lucero’s sexual deviance—pedophilia—which

according to Dr. Arambula is one of the most significant risk factors for

recidivism. Dr. Arambula noted that Lucero’s sexual thoughts about children
      3
        Lucero does not challenge the reliability of the experts or their methodology
in his appellate brief.
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began when he was a teenager, several years before he was arrested for the sexual

offenses, and Lucero admitted that those thoughts continued while he was in

prison. Dr. Arambula explained that sexual arousal such as that Lucero admitted to

experiencing with eight-year-old children represented a large risk for recidivism

because children have no secondary sex characteristics and the sexual pathology

rests entirely in the perpetrator’s imagination.

      Lucero’s personality pathology presents an aggravating factor. Dr. Arambula

diagnosed Lucero with personality disorder not otherwise specified because Lucero

displays the confusion and anger problems that are the hallmark of borderline

personality disorder. Dr. Arambula noted that Lucero had anger problems since his

youth, having been diagnosed with an explosive disorder. According to Dr.

Arambula, the intensity of mood change associated with explosive disorder and

borderline personality disorder causes people with that pathology to do “some

pretty surprising things because they just lose control.” Dr. Arambula was

disappointed with Lucero’s deposition testimony because Lucero exhibited no

recognition of his offense cycle although he had received months of sex offender

treatment. Dr. Arambula stated it was very obvious that Lucero had not

internalized the sex offender treatment material and was not managing his illness.

Lucero’s sex offender treatment notes indicated he had been actively participating

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in the program, and Dr. Arambula surmised that the lack of progress was due to

Lucero’s personality disorder and not to a failure of the treatment program.

Lucero’s young age—twenty-seven—provided another aggravating factor,

although Dr. Arambula recognized that older men who are pedophiles are at about

the same risk as younger men.

      Dr. Arambula identified Lucero’s protective factors, which include his

taking courses to improve his employment skills and parenting skills. Dr.

Arambula was not sure why Lucero would take parenting courses when he is

childless. He noted that Lucero graduated from high school and has a supportive

family. He added that taking medication would help with the instability of

Lucero’s personality. Dr. Arambula testified that civil commitment is for

particularly dangerous sex offenders with numerous risk factors for recidivism

because their illness is more severe. In his opinion, Lucero falls within that

category not only because he committed the two sexually violent offenses, but also

because Lucero’s history showed that he had been struggling with his pedophilia at

least since he was seventeen years old and his past indicated that his illness is more

severe, to the point that he had been suicidal because he felt he could not control it.

This severe condition was further aggravated by reckless substance abuse, an




                                          7
unstable personality, and disappointing feedback about Lucero’s progress in

treatment.

      Based on her education, training, experience, and methodology, Dr. Reed

testified that she also reached the opinion that Lucero has a behavioral abnormality

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

explained that pedophilia is a chronic condition that can affect a person’s

emotional or volitional capacity. In response to a question asking whether she saw

present-day signs and symptoms of Lucero’s pedophilia, Dr. Reed replied that it is

a chronic condition and within the last year before trial, Lucero reported still

having the sexual thoughts or fantasies. Borderline traits associated with Lucero’s

personality disorder include impulsivity and self-damage associated with his

recurrent suicidal threats, affective instability demonstrated by unstable moods,

and inappropriate intense anger or difficulty controlling his behavior throughout

his life. During their interview, which occurred approximately eight months before

the trial, Lucero described violent incidents that occurred while he was in prison

and explained to Dr. Reed that he has a problem with his temper. Lucero told her

that he tried to commit suicide two weeks before their interview. During their

interview, Lucero displayed no signs of anxiety until Dr. Reed pressed him about

his offenses, at which time he jumped up and claimed he was about to have a panic

                                         8
attack. Dr. Reed considered this behavior to be a function of his personality

disturbance, which significantly impairs his judgment. Although it did not change

her opinion, Dr. Reed acknowledged that Lucero did not receive any disciplinary

action for sexual misconduct while he was imprisoned.

      Dr. Mauro, testifying on behalf of Lucero, stated her opinion that Lucero

does not have a behavioral abnormality. In evaluating a person for a behavioral

abnormality, she considers whether the person is on medication for a mental

illness. Dr. Mauro explained that medication might remedy the mental illness and

remove it as a consideration for determining whether a behavioral abnormality

exists. Dr. Mauro made a provisional diagnosis of pedophilic disorder

nonexclusive, because Lucero admitted to having pedophilic thoughts over a long

period of time but he engaged in the acts over a short period of time when he was

only twenty years old and, he indicated he is also attracted to adult females. Dr.

Mauro did not make a personality disorder diagnosis because as a twenty-year-old

offender, Lucero was too young to have demonstrated a persistent trait pattern

across time.

      Dr. Mauro stated that Lucero’s lack of non-sexual criminal history was

important because general criminality is associated with the risk of recidivism.

According to Dr. Mauro, Lucero is probably capable of maintaining a stable

                                        9
lifestyle and employment if he avoids drugs and alcohol. She stated that Lucero

has a very extensive substance abuse history and she noted that substance abuse

makes a differential diagnosis difficult because his behavior could be caused either

by substance abuse or by an underlying mental condition. Dr. Mauro gave Lucero a

score of 4 on the Static-2002R, which she stated was associated with a low to

moderate risk of recidivism and a predicted rate of recidivism of 3.6 percent. In Dr.

Mauro’s opinion, a 3.6 percent predicted rate of recidivism did not equate to

“likely.” Dr. Mauro recognized Lucero’s pedophilia as a risk factor, but she stated

his mental health history was a greater risk and noted that Lucero received past

mental health treatment and medication that stabilized his mental illness. Lucero’s

completion of the prison sex offender treatment program was significant because

researchers have found it reduced observed recidivism rates by about ten percent.

Dr. Mauro observed that Lucero lied both in his testimony and to her. In her

opinion, she could not state whether Lucero had serious difficulty controlling his

behavior in the past, but she does not believe that Lucero has a behavioral

abnormality now. She stated that she had no information that Lucero actually

preferred children to adults as sexual partners.

      Lucero contends the State’s expert witnesses only cursorily addressed

volitional impairment and he argues that they failed to present a basis for

                                          10
concluding Lucero has serious difficulty controlling his behavior. Lucero

explained to the jury that he knew what he was doing was wrong but he could not

control himself in 2006 when he committed the sexually violent acts that resulted

in his incarceration from 2007 until the time of the civil commitment trial. By his

own admission, Lucero had an impulse disorder. Lucero’s testimony indicates he

habitually engaged in sexual arousal to fantasies about under-aged girls when he

committed the offenses and that the fantasies continued during his incarceration.

Lucero claimed that his sexual preference for little girls is not as strong as it had

been in the past, but he did not suggest that he no longer has such a preference.

      Dr. Mauro agreed that pedophilia is thought to be a lifelong, chronic

condition, but she stated it was impossible for her to state whether Lucero had

serious difficulty controlling his behavior when he committed the sexually violent

offenses because she did not evaluate him at that time. Because Dr. Arambula’s

interview with Lucero occurred approximately four months before trial, Lucero

argues that Dr. Arambula could not point to any evidence of volitional impairment

at the time of trial. Dr. Arambula stated that he cancelled his plans to conduct a

second interview with Lucero after reviewing Lucero’s deposition testimony given

two months before trial and observing that Lucero displayed no progress in sex

offender treatment. According to Dr. Arambula, after several months into the

                                         11
program, Lucero had not internalized the treatment material notwithstanding his

active participation in the program. Lucero told the jury he has progressed since his

deposition, but the jury could reasonably have rejected his statement, especially in

light of Lucero’s and Dr. Mauro’s testimony that Lucero lied about his condition

and Dr. Reed’s testimony that Lucero’s inconsistent testimony made Lucero an

unreliable source regarding whether he can control himself.

      The jury heard conflicting opinion testimony from Dr. Arambula and Dr.

Mauro concerning the danger Lucero currently presents to the public, but the jury

could reasonably accept Dr. Arambula’s assessment that Lucero falls within the

subset of dangerous sex offenders who have numerous risk factors for recidivism,

and reject Dr. Mauro’s opinion that Lucero is not currently suffering from a

behavioral abnormality that makes him likely to commit a sexually violent offense.

      Dr. Arambula’s and Dr. Reed’s opinion testimony represents “a reasoned

judgment based upon established research and techniques for his [or her]

profession and not the mere ipse dixit of a credentialed witness.” Day, 342 S.W.3d

at 206. The jury, acting in its exclusive role as the sole judge of the credibility of

the witnesses and the weight to be given their testimony, resolved any conflicts and

contradictions in the evidence and accepted the opinions of the State’s experts. See

In re Commitment of Kalati, 370 S.W.3d 435, 439 (Tex. App.—Beaumont 2012,

                                         12
pet. denied). Viewing all the evidence in the record in the light most favorable to

the verdict, we conclude that a rational jury could have found, beyond a reasonable

doubt, that Lucero is a sexually violent predator. See Mullens, 92 S.W.3d at 885.

Furthermore, weighing all of the evidence, we conclude 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 hold the evidence is legally and factually sufficient, overrule Lucero’s

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

      AFFIRMED.



                                             ________________________________
                                                     CHARLES KREGER
                                                           Justice



Submitted on January 20, 2015
Opinion Delivered May 14, 2015

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




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