                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-12-00430-CV
                          ____________________

            IN RE COMMITMENT OF WALTER RAY ALLEN
_______________________________________________________         ______________

                   On Appeal from the 435th District Court
                        Montgomery County, Texas
                      Trial Cause No. 12-01-00210-CV
________________________________________________________         _____________

                         MEMORANDUM OPINION

      Walter Ray Allen challenges his civil commitment as a sexually violent

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

Supp. 2012) (the SVP statute). The State was required to prove beyond a

reasonable doubt that Allen is a sexually violent predator. See Tex. Health &

Safety Code Ann. § 841.062(a) (West 2010). A person is a “sexually violent

predator” subject to commitment if the person: “(1) is a repeat sexually violent

offender; and (2) suffers from a behavioral abnormality that makes the person

likely to engage in a predatory act of sexual violence.” Id. § 841.003(a) (West

2010). A “behavioral abnormality” is “a congenital or acquired condition that, by

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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).

      Allen pleaded guilty in 1991 to two counts of indecency with a child and

was sentenced to ten years of confinement for each charge. In 1995 he was

released on mandatory supervision. In 1996, his mandatory supervision was

revoked. He was released on mandatory supervision again in 1998. His mandatory

supervision was revoked in 2002. He was released on mandatory supervision in

2003. He was arrested in 2005 for failure to register as a sex offender. He pleaded

guilty to sexual assault in 2011 and was sentenced to two years of confinement.

The civil commitment trial occurred about three weeks after Allen’s release from

prison in 2012. A jury found that he is a sexually violent predator.




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                         CONSTITUTIONALITY CHALLENGE

      Allen maintains that the Texas Supreme Court’s decision in In re

Commitment of Bohannan interpreted portions of the SVP statute in a way that

rendered the statute unconstitutional and in violation of the Fourteenth

Amendment’s due process clause. 388 S.W.3d 296 (Tex. 2012), cert. denied, 133

S.Ct. 2746, 186 L.Ed.2d 202 (2013). We have rejected a similar argument before,

noting “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, 392 S.W.3d 878, 885

(Tex. App.—Beaumont 2013, pet. denied). We overrule issue one.

                           SUFFICIENCY OF THE EVIDENCE

      In issues two and three, Allen challenges the legal and factual sufficiency of

the evidence to support the jury’s finding that he is a sexually violent predator.

Allen argues the State did not show that he has a mental condition that can be

linked to a finding of future dangerousness, that he has serious difficulty

controlling his behavior, or that he is currently a menace to the health and safety of

another person and is likely to commit an act of predatory violence. See In re

Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet.

denied) (legal sufficiency standard of review). He also argues that the evidence is

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factually insufficient 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, 213

(Tex. App.—Beaumont 2011, pet. denied) (factual sufficiency standard of review).

      Allen admitted that he committed the two indecency-with-a-child offenses.

Although he pleaded guilty to the sexual assault, he testified that he did not

sexually assault the child but was indecent with the child. The offense occurred

when he was sixty years old and after he had finished sex offender treatment. Allen

denied being sexually attracted to boys, but he admitted he lost control of his

sexual urges on multiple times with young boys and that it was wrong. He

acknowledged he committed the offenses because he just wanted to “try it.” He

testified that he does not have any issues that will cause him to sexually offend in

the future. Although he indicated that he has health problems, Allen had the same

health problems when he last offended.

      Dr. Sheri Gaines, a forensic psychiatrist, testified Allen has a behavioral

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

Gaines’s methodology included reviewing records and conducting an interview

with Allen. The records reviewed included criminal records, legal documents,

medical records, prison records, parole records and other documents, and a report

from another expert. To the extent that Allen’s complaints concern the

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foundational data or methodology used or relied on by Gaines in reaching her

opinion, Allen did not preserve his complaint for appeal. See City of San Antonio v.

Pollock, 284 S.W.3d 809, 816-17 (Tex. 2009); see also In re Commitment of

Barbee, 192 S.W.3d 835, 843 (Tex. App.—Beaumont 2006, no pet.); In re

Commitment of Burnett, No. 09-09-00009-CV, 2009 WL 5205387, at *1 (Tex.

App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.)

      Dr. Gaines diagnosed Allen with sexual deviancy, pedophilia, personality

disorder not otherwise specified, and alcohol abuse. Gaines explained that the

records indicated that Allen has a history of committing both sexual and nonsexual

offenses. Gaines testified that Allen committed one of the sexual offenses after he

had been convicted of indecency, had been in prison, and had received sex

offender treatment. Gaines stated that this demonstrates Allen’s serious difficulty

controlling his impulses because he knew the consequences but still was unable to

control his behavior. According to Gaines, even though Allen had previous sex

offender treatment, he was unable to describe how his actions affected his victims,

had no remorse, could not identify an offense cycle or triggers, and was not able to

describe coping skills to keep him from reoffending. Gaines believes Allen was

sexually deviant in the past, and, based on his pattern of past behavior and

diagnosis of pedophilia, he continues to currently have problems with sexual

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deviancy. He committed his last offense when he was sixty years old. Gaines

explained that pedophilia is treatable but not curable. When she interviewed Allen

four months before trial, Allen told her he did not need treatment and he did not

indicate that he was planning on getting treatment.

      The jury determines the credibility of the witnesses and the weight to be

given their testimony. In re Commitment of Mullens, 92 S.W.3d at 887. A jury may

draw reasonable inferences from the evidence. See Lacour v. State, 8 S.W.3d 670,

671 (Tex. Crim. App. 2000). In addition to Dr. Gaines’s testimony concerning

Allen’s condition, Allen’s difficulty in controlling his behavior can be reasonably

inferred from his past behavior and his own testimony. See In re Commitment of

Burnett, 2009 WL 5205387, at *4; In re Commitment of Wilson, No. 09-08-00043-

CV, 2009 WL 2616921, at *5 (Tex. App.--Beaumont Aug. 27, 2009, no pet.)

(mem. op.). The jury heard evidence of the offenses, Allen’s admission that he

committed the offenses because he lost control of his sexual urges, the expert

testimony regarding his risk for reoffending, and evidence of Allen’s reoffending

while on mandatory supervision. Sufficient evidence supports the verdict. Issues

two and three are overruled. The judgment is affirmed.




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      AFFIRMED.

                                           ________________________________
                                                  DAVID GAULTNEY
                                                         Justice

Submitted on July 29, 2013
Opinion Delivered September 19, 2013

Before Gaultney, Kreger, and Horton, JJ.




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