in Re Commitment of John Lucero ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-14-00159-CV
____________________
IN RE COMMITMENT OF JOHN LUCERO
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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 13-08-09024 CV
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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.
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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
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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
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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
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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
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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
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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,
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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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