                                Fourth Court of Appeals
                                        San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-17-00082-CV

                            IN RE COMMITMENT OF Estevan RIOJAS

                      From the 290th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016-CI-02857
                          The Honorable Lamar McCorkle, Judge Presiding

Opinion by:       Irene Rios, Justice

Sitting:          Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: November 1, 2017

AFFIRMED

           Based on a jury’s finding that Estevan Riojas is a sexually violent predator (SVP), the trial

court ordered him to be civilly committed pursuant to section 841.081 of the Texas Health and

Safety Code (“Code”). On appeal, Riojas challenges the legal and factual sufficiency of the

evidence to support the jury’s finding that he suffers from a behavioral abnormality that makes

him likely to engage in a predatory act of sexual violence. Riojas also contends the trial court

abused its discretion in admitting certain testimony. We affirm the trial court’s judgment.

                                 SEXUALLY VIOLENT PREDATOR ACT

           Under chapter 841 of the Code, a trial court must commit a person for treatment and

supervision if a factfinder determines the person is a SVP. TEX. HEALTH & SAFETY CODE ANN.

§ 841.081(a) (West 2017). A person is a SVP if he “(1) is a repeat sexually violent offender; and
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(2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act

of sexual violence.” Id. at § 841.003(a). A person is a repeat sexually violent offender if he “is

convicted of more than one sexually violent offense and a sentence is imposed for at least one of

the offenses....” Id. at § 841.003(b). A “behavioral abnormality” means “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).

                                 SUFFICIENCY OF THE EVIDENCE

       In his second and third issues, Riojas challenges the legal and factual sufficiency of the

evidence to support the jury’s finding that he suffers from a behavioral abnormality that makes

him likely to engage in a predatory act of sexual violence. Riojas does not challenge the jury’s

finding that he is a repeat sexually violent offender.

       A.      Standard of Review

       Because the State was required to prove “beyond a reasonable doubt” that Riojas is a SVP,

we apply the legal sufficiency standard used in criminal cases. In re Commitment of Mares, 521

S.W.3d 64, 71-72 (Tex. App.—San Antonio 2017, pet. denied); In re Commitment of Short, 521

S.W.3d 908, 911 (Tex. App.—Fort Worth 2017, no pet.). Viewing the evidence in the light most

favorable to the verdict, we determine whether any rational trier of fact could have found, beyond

a reasonable doubt, each of the elements required for commitment. In re Commitment of Mares,

521 S.W.3d at 72; In re Commitment of Short, 521 S.W.3d at 911. “‘In reviewing the factual

sufficiency of the evidence in a civil case in which the burden of proof is beyond a reasonable

doubt, an appellate court weighs [all] the evidence to determine whether a verdict that is supported

by legally sufficient evidence nevertheless reflects a risk of injustice that would compel ordering



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a new trial.’” In re Commitment of Mares, 521 S.W.3d at 72 (quoting In re Commitment of Day,

342 S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet. denied)).

       B.      Evidence

       The jury in this case heard testimony from Riojas and from three experts.

       1.      Dr. Jason Dunham

       Dr. Jason Dunham, a forensic psychologist, testified he specializes in sex offender

evaluations and sex offender risk assessment which involves determining the likelihood or risk of

a person reoffending. In the underlying case, Dr. Dunham was asked to offer an opinion regarding

whether Riojas has a behavioral abnormality that makes him likely to engage in a predatory act of

sexual violence. Dr. Dunham explained the term “likely” is not defined in the Code but “means

there’s a pretty good chance something is going to happen.” Dr. Dunham stated he finds

individuals do not have behavioral abnormalities in approximately one-third of the evaluations he

performs. Dr. Dunham’s methodology in undertaking an evaluation is to review a “referral

packet,” conduct a face-to-face evaluation of the individual, perform and review testing and

additional records, and write a report. Dr. Dunham stated the same methodology is used by all

experts conducting evaluations.     The “referral packet” generally contains basic information

regarding the individual’s convictions and any other charges against the individual, disciplinary

reports from the prison system, parole case summaries, and the report from the individual’s clinical

interview with the sex offender treatment program. After conducting the face-to-face interview,

Dr. Dunham then receives additional records.

       In Riojas’s case, Dr. Dunham testified the face-to-face interview was shorter than normal

because Riojas denied the offenses and did not elaborate on his answers. Riojas’s additional

records included more detail regarding his convictions, his nonsexual criminal history, and witness

depositions. Dr. Dunham stated he relied on the facts and data in Riojas’s records in forming the
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basis of his opinion that Riojas suffers from a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence.

       One of the factors Dr. Dunham considered was the details of Riojas’s sexual convictions.

Dr. Dunham explained the type of victims, the timing and frequency of the offenses, and the

circumstances of the offenses all can correlate to higher risks of reoffending. Dr. Dunham testified

Riojas was convicted of two counts of aggravated sexual assault of a child involving the three-

year-old granddaughter of Riojas’s girlfriend with whom he was living. The offenses occurred

over a period of five months. Riojas was fifty-two when he began the assaults. Dr. Dunham stated

the offenses against the three-year-old girl surfaced after Riojas was charged with three counts of

aggravated sexual assault against his five-year-old granddaughter. The five-year-old girl reported

that Riojas would perform oral sex on one girl and then have that girl get the other girl and then

also perform oral sex on the other girl. With the five-year-old girl, Riojas would tie her arms and

sexually assault her by penetrating her vagina. Riojas would also cover her mouth with duct tape

because she would scream for her mom and dad. With the three-year-old girl, Riojas put his finger

inside her vagina on multiple occasions and also put a foreign object inside her vagina as well as

a yellow substance that caused her to burn. Dr. Dunham stated he believed the girls’ outcries were

credible based on the details provided given their age, the changes in the five-year-old girl’s

behavior, the corroboration of details by the other victim, the family’s belief in the victims’

credibility, and Riojas’s confession. When Dr. Dunham questioned Riojas about the offenses, he

denied anything happened; however, Dr. Dunham stated he believed Riojas confessed to the

offenses in his police interview based on the manner in which he answered the detective’s

questions. Dr. Dunham testified he believed Riojas engaged in the offenses for the primary

purpose of victimization and the offenses were predatory because they involved an intentional act

toward a victim. Dr. Dunham also referred to a report in the records that Riojas offended against
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his little sister when she was younger; however, because he did not have more detail regarding that

offense, he did not give it as much weight.

       Dr. Dunham stated he also considered nonsexual criminal history in determining

behavioral abnormality because it impacts anti-social orientation or the willingness to violate the

law which increases the risk of reoffending. Dr. Dunham testified Riojas had several nonsexual

criminal offenses which reflected an attitude of “snubbing his nose to … the law.” For example,

Riojas had several convictions for criminal nonsupport of his children and a few convictions for

possession of marijuana.

       Dr. Dunham testified he found Riojas had several risk factors for reoffending including:

(1) multiple types of sexual offenses against multiple victims; (2) the duration of the offenses over

at least five months; (3) the callousness of the offenses, including the duct taping of the five-year-

old girl’s mouth and the threats he used; (4) the victims ages and their relationship to Riojas; (5)

his commission of the offenses while in a committed sexual relationship with his girlfriend; (6) his

sexual preoccupation demonstrated by engaging in sex with prostitutes and having affairs with

married women; (7) his anti-social orientation and the diverse number of crimes in his criminal

history; (8) his drug and alcohol issues; and (9) his lack of remorse and empathy. Although Riojas

also had a few positive factors that would reduce the risk of his reoffending, including his positive

behavior in prison, Dr. Dunham believed Riojas has pedophilic disorder that affects his emotional

and volitional capacity and testified Riojas’s risk level for reoffending is moderate to high.

       2.      Estevan Riojas

       Riojas testified he was originally charged with five different counts of aggravated sexual

assault of a child and pled no contest to two counts. As a result of his plea, the other three counts

were dropped. The victim of the two counts to which Riojas pled no contest was the three-year-

old granddaughter of his girlfriend. Riojas stated the three-year-old girl was living with her
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grandmother and Riojas, and Riojas considered himself to be a father figure to her. Riojas testified

he slept in the same bed with his girlfriend and the three-year-old girl. Riojas admitted he slept in

the nude, but stated he was covered with a sheet, and his girlfriend and the three-year-old girl were

covered with a quilt. Riojas further admitted he kissed the three-year-old girl on her lips and

nibbled on her ears. Riojas denied engaging in any of the sexual acts with which he was charged.

Although Riojas admitted he confessed to the acts when interviewed by a detective, he testified he

had nine years in prison to evaluate everything and “can honestly say I did not do it.” Riojas

testified he confessed because he was concerned the police would otherwise search his house, and

he had three pounds of marijuana and a scale at his house.

       Riojas testified regarding the various educational programs he completed while in prison.

Riojas denied being attracted to children or to being at risk to reoffend when released from prison.

       3.      Dr. David Self

       Dr. Self, a medical doctor trained in forensic psychiatry, also evaluated Riojas to determine

if he has a behavioral abnormality that makes him likely to engage in a predatory act of sexual

violence. Dr. Self defined the term “likely” to mean “more than a mere possibility.” Dr. Self had

performed about eighty or ninety evaluations for behavioral abnormality and found no behavioral

abnormality in twenty cases. Dr. Self’s methodology in undertaking an evaluation is to review a

“referral packet,” conduct a face-to-face evaluation of the individual, review the testing and

additional records, and write a report. Dr. Self stated his methodology is the same methodology

used by other experts conducting evaluations. Dr. Self testified he relied on the facts and data

contained in the records in forming the basis of his opinion that Riojas suffers from a behavioral

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

       Dr. Self testified he relied on the details of Riojas’s sexual convictions in forming his

opinion. Dr. Self’s testimony regarding the details of the convictions was similar to Dr. Dunham’s
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testimony. Dr. Self also testified the records contained a vague illusion to the sexual abuse of

another family member, but he did not consider it because it was too vague. Based on his

evaluation, Dr. Self identified the following risk factors that show an increased risk for Riojas to

offend in the future: (1) Riojas suffers from pedophilic disorder, as defined by the Diagnostic and

Statistical Manual compiled by the American Psychiatric Association and relied on by experts in

the field, which is a chronic disorder that does not go away; (2) Riojas’s denial that the sexual

assaults occurred; (3) Riojas has adult anti-social behavior as evidenced by his “instances of

breaking the law, lying, irresponsibility, stepping and trodding on the rights of other people;” and

(4) Riojas’s alcohol and marijuana abuse. Dr. Self also identified a few factors that reduce Riojas’s

risk for reoffending including: (1) his good work record; (2) his good behavior in prison; and (3)

his reporting that he has drawn closer to the Christian faith. After considering all of the various

factors, Dr. Self reaffirmed his opinion that Riojas suffers from a behavioral abnormality that

makes him likely to engage in a predatory act of sexual violence; however, Dr. Self also agreed

mistakes are made with respect to the clinical analysis of an individual.

       4.      Dr. John Tennison

       Dr. John Tennison, a medical doctor specializing in forensic psychiatry, was retained by

Riojas’s attorneys to evaluate him. Dr. Tennison had conducted approximately 50 evaluations and

found behavior abnormality in approximately 20% of his evaluations. Dr. Tennison explained the

term “likely” is not statutorily defined; however, he believed the most common definition was

“greater than a 50 percent probability.” Dr. Tennison also explained in order for a person to engage

in a “predatory act,” the person had to have knowledge that they were victimizing another person.

Dr. Tennison further explained a behavioral abnormality is a “congenital or acquired condition

that creates serious difficulty controlling behavior which in turn leads to sexually violent offenses

or the likelihood of committing such predatory acts in the present or future.” Dr. Tennison
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explained his methodology involved reviewing records, interviewing Riojas, and reviewing

additional information including depositions of other experts. Dr. Tennison stated he relied on the

information in the records in reaching his opinion that Riojas does not have a behavioral

abnormality, listing the following reasons for his opinion: (1) using Riojas’s age in a statistical

analysis showed his risk of reoffending was between zero and three percent; (2) the victims had a

relationship with Riojas and studies show the rate of recidivism against children related to the

offender drops to virtually zero by age 60, and Riojas was 63; (3) the evidence was insufficient to

diagnose Riojas with pedophilic disorder; however, he understood how some experts would reach

that diagnosis based on a “rather simplistic” reading of the criteria in the Diagnostic and Statistical

Manual; and (4) Riojas’s good behavior in prison which was consistent with him not having anti-

social personality disorder. Dr. Tennison also testified Riojas had several protective or negative

risk factors that decreased his change of reoffending including: (1) his age at the time of the

offenses and his current age; and (2) his relationship to the victims.

       C.      Analysis

       The bulk of Riojas’s argument focuses on the term “likely” as it relates to the jury’s finding

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

of sexual violence. Riojas asks this court to reject the Beaumont court’s opinions construing the

term to include “more than a mere possibility” and argues the term should be construed to mean

“more likely than not.” Riojas also argues that portions of the testimony invited the jury to

speculate and to consider unreliable gossip. Finally, Riojas argues only the “worst of the worst”

should be civilly committed because chapter 841 is focused “a small but extremely dangerous

group of sexually violent predators.”

       Having reviewed the case law, we agree with our sister court in Beaumont that the term

“likely to engage” as used in the statute does not require an expert to find a specific percentage of
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risk or that the statute should be interpreted to mean “more likely than not.” In re Commitment of

Terry, No. 09-15-00500-CV, 2016 WL 7323299, at *13 (Tex. App.—Beaumont Dec. 15, 2016, no

pet.) (mem. op.) (quoting In re Commitment of Muzzy, No. 09-13-00496-CV, 2014 WL 1778254,

at *2 (Tex. App.—Beaumont May 1, 2014, pet denied (mem. op.)). Instead, an expert’s definition

of the term “likely” as used in the statute goes to the weight the jury decides to give the expert’s

testimony. Id. In this case, the jury heard testimony from three experts who each provided their

own definition of the term “likely.” Although Dr. Tennison detailed reasons for challenging Dr.

Dunham’s and Dr. Self’s opinions, and Dr. Dunham and Dr. Self detailed reasons for challenging

Dr. Tennison’s opinion, it was within the province of the jury to assess the credibility of the

witnesses and determine the weight to give their testimony. See In re Commitment of Mares, 521

S.W.3d at 73 (noting “[i]t was the jury’s role as factfinder to evaluate the experts’ credibility and

weigh their conflicting opinions”); In re Commitment of Kalati, 370 S.W.3d 435, 439 (Tex. App.—

Beaumont 2012, pet. denied) (noting jury is sole judge of the credibility of the witnesses and the

weight to be given their testimony). In a sufficiency review, we do not reweigh the evidence or

substitute our judgment for that of the jury. See In re Commitment of Stuteville, 463 S.W.3d 543,

552 (Tex. App.—Houston [1st Dist.] 2015, pet. denied); In re Commitment of Day, 342 S.W.3d at

207. Having reviewed all of the evidence presented, we hold the evidence is legally and factually

sufficient to support the jury’s finding that Riojas suffers from a behavioral abnormality that makes

him likely to engage in a predatory act of sexual violence. See In re Commitment of Terry, 2016

WL 7323299, at *13 (“We have previously concluded in other SVP civil commitment appeals that

Dr. Self’s working definition of likely being defined as ‘more than a mere possibility’ does not

render the evidence in an SVP civil commitment case legally or factually insufficient.”). Riojas’s

second and third issues are overruled.



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                                   ADMISSIBILITY OF EVIDENCE

       In his first issue, Riojas contends the trial court erred in admitting as “basis” evidence

testimony that he “offended against his little sister when she was younger” because the probative

value of the evidence was outweighed by its prejudicial effect.

       We review a trial court’s admission of evidence in a civil commitment proceeding for an

abuse of discretion. In re Commitment of Mares, 521 S.W.3d at 69; In re Commitment of

Browning, 113 S.W.3d 851, 865 (Tex. App.—Austin 2003, pet. denied). A trial court abuses its

discretion if it acts without regard for any guiding rules or principles. In re Commitment of Mares,

521 S.W.3d at 69.

       Under Texas Rule of Evidence 705, an expert may disclose the underlying facts or data

upon which the expert bases his opinion if it is of a type relied upon by experts in the field in

forming opinions on the subject unless “the probative value in helping the jury evaluate the opinion

is outweighed by their prejudicial effect.” TEX. R. EVID. 705(d); In re Commitment of Talley, No.

01-16-00572-CV, 2017 WL 1536478, at *4 (Tex. App.—Houston [1st Dist.] Apr. 27, 2017, no

pet.) (mem. op.); In re Commitment of Anderson, 392 S.W.3d 878, 882 (Tex. App.—Beaumont

2013, pet. denied). Texas law presumes that relevant evidence is more probative than prejudicial.

In re M.G.N., 491 S.W.3d 386, 403 (Tex. App.—San Antonio 2016, pet. denied); In re

Commitment of Winkle, 434 S.W.3d 300, 309 (Tex. App.–Beaumont 2014, pet. denied). “Evidence

is unfairly prejudicial when it has an undue tendency to suggest that a decision be made on an

improper basis, commonly, but not necessarily, an emotional one.”              In re Commitment of

Anderson, 392 S.W.3d at 882. In balancing whether the probative value of evidence is outweighed

by its prejudicial effect, a trial court’s balancing test includes, but is not limited to, the following

considerations: (1) the probative value of the evidence, (2) the potential for the evidence to impress



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the jury in some irrational way, (3) the time needed to develop the evidence, and (4) the

proponent’s need for the evidence. Id.

         After Dr. Dunham testified regarding the five counts alleged against Riojas resulting in his

convictions, Dr. Dunham was asked whether he saw any allegations of sexual misconduct in

Riojas’s records other than those involving the five counts. After the trial court overruled an

objection made by Riojas’s attorney that the answer “would be highly prejudic[ial] compared to

the probative value,” Dr. Dunham testified a family member reported Riojas “offended against his

little sister when she was younger.” Dr. Dunham stated the report did not factor into his opinion

as heavily as the charged offenses because he did not have any additional detail, including when

the event occurred. Instead, Dr. Dunham just considered it as a possibility that “it’s extended even

further in his life than we know about.”

         Dr. Self also was asked whether Riojas’s records contained any other allegations that he

took into consideration other than the allegations in the charged offenses. Dr. Self testified “there

was a vague illusion to the sexual assault or abuse of another family member that were so vague

that I didn’t … consider it.” Dr. Self stated he believed “we need to have more confidence than

that.”

         Applying the balancing test factors to the testimony, the evidence was probative of one of

the bases for Dr. Dunham’s opinion and was needed for that purpose. In addition, the time needed

to develop the evidence was extremely limited.           Finally, given the absence of details, Dr.

Dunham’s testimony that he gave the evidence very little weight, and Dr. Self’s testimony that he

did not consider it because it was so vague, the evidence had little potential to impress the jury in

some irrational way. Therefore, the trial court did not abuse its discretion in determining the

probative value of the evidence in helping the jury evaluate the experts’ opinions outweighed its

prejudicial effect.
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       Even if we assume, however, that the trial court abused its discretion in admitting the

testimony, we would hold the admission of the testimony was not reversible error. As required by

rule 705, the trial court gave the jury a limiting instruction stating the evidence was admitted only

for the purpose of showing the basis of the experts’ opinions and could not be considered as

evidence to prove the truth of the matter asserted. See TEX. R. EVID. 705(d). “We must presume

the jury followed the instruction; therefore, any potential harm arising from [the testimony] was

cured by the limiting instruction.” In re Commitment of Mares, 521 S.W.3d at 71.

       Riojas’s first issue is overruled.

                                            CONCLUSION

       The trial court’s judgment is affirmed.

                                                    Irene Rios, Justice




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