                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-14-00098-CV
                             ____________________

          IN RE COMMITMENT OF JAMES VERNON LOWE
__________________________________________________________________

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 13-07-07672 CV
__________________________________________________________________

                         MEMORANDUM OPINION

      The State of Texas filed a petition to commit James Vernon Lowe as a

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

(West 2010 & Supp. 2014). A jury found that Lowe is a sexually violent predator

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

three appellate issues, Lowe challenges the legal and factual sufficiency of the

evidence to support the jury’s verdict and the denial of his request to have an

attorney present during the State’s post-petition expert examination. We affirm the

trial court’s judgment and order of civil commitment.



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                          Legal and Factual Sufficiency

      In issues one and two, Lowe contends the evidence is legally and factually

insufficient to support the jury’s verdict because the State failed to present

evidence demonstrating that Lowe is volitionally impaired. 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, weigh the

evidence, and 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).

      In an SVP case, 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 Supp. 2014). A person is a “sexually violent predator” if he is a

repeat sexually violent offender and suffers from a behavioral abnormality that

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

(West Supp. 2014). 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. 2014). “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).

      During trial, the jury heard Lowe’s admissions that he has two convictions

for indecency with a child and one conviction for aggravated sexual assault of a

child. Lowe admitted that he had been sexually aroused by children, he sexually

offended although he knew it was wrong, his offenses were sexually gratifying, he

was aroused during his offenses, and his offenses were impulsive. Lowe also

admitted committing another sexual offense after completing sex offender

treatment. According to Lowe, he reoffended because the treatment was

ineffective. At the time of trial, Lowe was participating in sex offender treatment a

second time. He testified that the treatment would help him manage his fantasies

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and has helped him develop empathy. Lowe explained that he now understands

that children cannot be intimate and that, at the time of his offenses, he did not

understand the seriousness of the injury caused to the victims. Lowe testified that

he wants to avoid situations where the potential temptation exists, he pays more

attention to his thoughts and actions, and he is learning how to apply the tools he

was taught in treatment. He testified that he rarely has deviant thoughts about

children, but is still attracted to them at times. Lowe admitted that he is a sex

offender and testified that he accepted sole responsibility for his offenses. He

admitted that there is always a possibility that he will reoffend.

      Dr. Michael Arambula, a medical doctor specializing in general and forensic

psychiatry, testified that Lowe has a behavioral abnormality that makes him likely

to engage in a predatory act of sexual violence. Arambula testified that Lowe is

sexually deviant and suffers from pedophilia and personality disorder not

otherwise specified. He explained that the following factors increase Lowe’s risk

of re-offense: sexual deviance, long-term disease, multiple victims and incidents,

treatment failure, and unstable relationships with peers.

      On cross-examination, defense counsel asked whether it is correct that a

pedophilia diagnosis does not automatically imply that the person has current

difficulty controlling his emotional and volitional capacity. In response, Arambula

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testified that anything is possible, but that it was hard to agree with counsel’s

proposition, given that pedophilia is a chronic disease that includes daily fantasies

or thoughts. Arambula further testified that Lowe’s testimony at trial demonstrates

that he has responded to treatment and shown improvement regarding the concepts

covered in sex offender treatment, but that Lowe’s testimony did not change

Arambula’s opinion. He explained that Lowe must be able to apply what he has

learned and, given the severity of Lowe’s disease, he still suffers from a behavioral

abnormality.

      The jury heard Arambula’s testimony that Lowe has a behavioral

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

as well as evidence of Lowe’s risk factors, sexual offenses, and diagnoses. The

jury heard Lowe’s testimony and admissions, including admissions that he

committed an offense after treatment, he is sometimes still attracted to children,

and Arambula’s testimony that there is a possibility Lowe will reoffend. The jury

was entitled to infer Lowe’s current dangerousness from Arambula’s testimony,

Lowe’s past behavior, and Lowe’s own testimony. See In re Commitment of

Wilson, No. 09-08-00043-CV, 2009 Tex. App. LEXIS 6714, at *14 (Tex. App.—

Beaumont Aug. 27, 2009, no pet.) (mem. op.). Whether a person suffers from an

emotional or volitional defect so grave as to cause behavior that makes him a

                                         5
menace is included in the determination of whether he has serious difficulty in

controlling behavior. Almaguer, 117 S.W.3d at 505-06. As sole judge of the weight

and credibility of the evidence, the jury could reasonably conclude that Lowe

suffers from a behavioral abnormality that makes him likely to engage in a

predatory act of sexual violence. See In re Commitment of Bernard, No. 09-10-

00462-CV, 2012 Tex. App. LEXIS 4681, at **7-8 (Tex. App.—Beaumont June

14, 2012, pet. denied) (mem. op.); see also Wilson, 2009 Tex. App. LEXIS 6714,

at *14; Almaguer, 117 S.W.3d at 506; Mullens, 92 S.W.3d at 887.

      Viewing the evidence in the light most favorable to the verdict, a rational

jury could have found, beyond a reasonable doubt, that Lowe is a sexually violent

predator; thus, the evidence is legally sufficient. See Tex. Health & Safety Code

Ann. § 841.062(a); see also Kansas v. Crane, 534 U.S. 407, 413 (2002); 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 issues one and two.

                                  Right to Counsel

      In issue three, Lowe complains of the denial of his request to have an

attorney present at the pre-trial expert examination. We have held that neither the

SVP statute nor the Fourteenth Amendment requires that counsel be present during

                                         6
a psychiatrist’s post-petition examination. See In re Commitment of Smith, 422

S.W.3d 802, 807 (Tex. App.—Beaumont 2014, pet. denied). Lowe argues that our

holding in Smith is based mainly on a concession by Smith that the SVP statute

defines a civil commitment proceeding as a “trial or hearing” and does not appear

to encompass a pre-trial psychiatric examination. See id. at 806. In Smith, we

merely noted that Smith made this concession. Id. at 804-07. Additionally, we have

followed Smith in other cases and have declined to revisit our ruling in Smith. See

In re Commitment of Richard, No. 09-13-00539-CV, 2014 Tex. App. LEXIS 6974,

at **10-11 (Tex. App.—Beaumont June 26, 2014, no pet.) (mem. op.); In re

Commitment of Speed, No. 09-13-00488-CV, 2014 Tex. App. LEXIS 4444, at *2

(Tex. App.—Beaumont Apr. 24, 2014, pet. filed) (mem. op.); In re Commitment of

Lemmons, No. 09-13-00346-CV, 2014 Tex. App. LEXIS 3888, at **1-2 (Tex.

App.—Beaumont Apr. 10, 2014, pet. denied) (mem. op.). For the reasons

discussed in Smith, we overrule issue three and affirm the trial court’s judgment

and order of civil commitment.

      AFFIRMED.


                                            ________________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice


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Submitted on August 11, 2014
Opinion Delivered September 4, 2014

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




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