in Re Commitment of Gilbert S. Soto Jr. ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-11-00600-CV
____________________
IN RE COMMITMENT OF GILBERT S. SOTO JR.
_______________________________________________________ ______________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 11-05-04911 CV
________________________________________________________ _____________
MEMORANDUM TO CLERK
You are directed to make the following correction in the Opinion dated June
13, 2013:
On page 2, in the first sentence under the heading CONSTITUTIONAL
CHALLENGE, delete the word See. On the next line change (Tex. Crim. App. 2013)
to (Tex. 2012) and on the next line change 2113 to 2013. You will give notice of
the corrections to the original opinion by sending a copy of corrected page 2,
accompanied by this memorandum, to all interested parties who received a copy of
the original opinion.
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Entered this 17th day of June, 2013.
PER CURIAM
2
In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-11-00600-CV
____________________
IN RE COMMITMENT OF GILBERT S. SOTO JR.
_______________________________________________________ ______________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 11-05-04911 CV
________________________________________________________ _____________
MEMORANDUM OPINION
Gilbert S. Soto Jr. challenges his civil commitment as a sexually violent
predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 &
Supp. 2012). He raises a constitutional challenge and argues the evidence is
factually insufficient to support a finding that he is a sexually violent predator. We
find no reversible error and affirm the judgment.
THE STATUTE
The State was required to prove beyond a reasonable doubt that Soto is a
sexually violent predator. Tex. Health & Safety Code Ann. § 841.062(a) (West
2010). A person is a “sexually violent predator” if he is a repeat sexually violent
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offender and suffers from a behavioral abnormality that makes him likely to
engage in a predatory act of sexual violence. Id. § 841.003(a). 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. 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).
CONSTITUTIONAL CHALLENGE
Soto contends that the Texas Supreme Court’s opinion in In re Bohannan,
388 S.W.3d 296 (Tex. 2012), cert. denied, 2013 WL 1499264 (U.S. May 28,
2013), interpreted the SVP statute in such a way as to render sections
841.002(2) and 841.003(a)(2) of Chapter 841 facially unconstitutional. See Tex.
Health & Safety Code Ann. § 841.002(2) (West Supp. 2012), § 841.003(a)(2)
(West 2010). He argues that Bohannan has the effect of eliminating the
requirement of a mental illness or disorder and the requirement of serious
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difficulty controlling behavior. We have considered and rejected these arguments
before. See In re Commitment of Anderson, 392 S.W.3d 878, 885-86 (Tex. App.—
Beaumont 2013, pet. denied). We concluded Bohannan did not eliminate a
statutory requirement or alter the proof required to find that a person is a sexually
violent predator. See id.; see also Tex. Health & Safety Code Ann. §§ 841.002(2),
841.003(a)(2). We overrule issue one.
FACTUAL SUFFICIENCY
In issue two, Soto challenges the factual sufficiency of the evidence 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, 206 (Tex. App.—Beaumont 2011,
pet. denied) (factual sufficiency standard of review). Soto contends the State did
not prove he currently has a behavioral abnormality and is likely to recidivate, and
that the expert witnesses did not take into account multiple positive factors that
would indicate a reduced tendency to reoffend. He asserts that because the State
did not produce evidence that he committed any sex offenses or engaged in sexual
misconduct during his last incarceration (nine and one-half years), the State did not
establish that he is likely to commit sexually violent predatory acts. The lack of
prison sexual misconduct, argues Soto, demonstrates he is able to control his
behavior. Further, Soto argues that, in arriving at their conclusions, the expert
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witnesses used only their clinical judgment, which is “subjective and speculative at
best.”
The State presented testimony from Dr. Dunham, a forensic psychologist,
and Dr. Gaines, a forensic psychiatrist. Both testified that Soto has a behavioral
abnormality that makes him likely to engage in predatory acts of sexual violence.
Their methodology included reviewing records and conducting an in-person
interview with Soto. Dr. Dunham explained that his evaluation included review of
police reports, victim statements, prison records, medical records, parole reviews,
deposition transcripts, reports from other treating psychologists for Soto’s victims,
CPS reports, the victims’ medical records, and Soto’s prison disciplinary records.
Dr. Gaines reviewed similar records. Both experts testified that these records are
the type of records relied on by experts in their fields, and that this methodology is
accepted in the fields of psychiatry and psychology.
Both Dr. Dunham and Dr. Gaines diagnosed Soto with pedophilia and sexual
deviancy. Dr. Dunham also diagnosed Soto with adult antisocial behavior and
found him to have psychopathic traits.
In 1991, Soto was convicted of sexual assault of his stepdaughter. He
sexually assaulted the child from the time she was eight years old until she was
approximately fifteen. The sexual assaults occurred almost daily for the last “two
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or so” years. Soto threatened to kidnap and kill the child if she did not say she
enjoyed the acts. He slapped her when she screamed. When she was fifteen, he
wanted her to sign a contract stating that she could never leave him and that she
would start having his babies when she turned eighteen. He threatened to hit her
brothers and her mother. Upon conviction of sexual assault, he was sentenced to
eight years in prison. While in prison, he wrote her letters and asked her to send
him pictures of herself.
Released from prison in 1999, Soto lived in Houston and in 2001 he went to
live with his parents in Lubbock. He was forty-seven or forty-eight years old. His
brother and his brother’s family, including Soto’s three-year-old niece, also lived
in the home. When Soto’s mother went to work, Soto was left in the home with the
three-year-old child. The records reveal that in 2001 and 2002, he committed
multiple sex acts against the child over a period of nine and one-half months.
Under a plea agreement, he pleaded no contest to indecency with a child. The trial
court sentenced him to ten years in prison.
Soto denied he committed the offenses. He asserted the victims lied. He
maintained he was impotent and could not have committed the offenses. Soto
claimed his ex-wife (mother of the first victim) was physically abusing the child;
he blamed his ex-wife for his difficulties; he alleged his brother or an uncle must
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have committed the sexual offenses against the second child; and he blamed CPS
workers. As Dr. Dunham explained, Soto’s pattern was to blame everyone else.
When asked how he felt about his victims, he explained that he would forgive them
for putting him in jail.
At the time of trial, Soto was participating in the Sex Offender Education
Program. He had refused to participate in the Sex Offender Treatment Program, an
in-depth, individualized treatment program designed to help the person change the
dynamic risk factors and take responsibility for his conduct. As Dr. Dunham
related, Soto indicated he is not a sex offender and does not need the sex offender
treatment program.
Soto argues that the absence of any sexual misconduct disciplinaries while
he was in prison shows that he has the ability to control his behavior, and that the
risk of reoffending is not present. The State’s experts, however, testified that his
lack of disciplinaries in prison is not indicative of his future conduct, because
children (his target population) are not accessible to him in prison.
Dr. Dunham conducted actuarial tests, which are often used by psychologists
to aid in determining the likelihood the defendant will reoffend with a sexual
offense. Dunham scored Soto in the low to moderate range on both actuarials.
Dunham concluded that, under the circumstances in this case, the actuarial tests are
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irrelevant, because they do not take into consideration that the sexual offenses were
repeated over a long period of time---seven or eight years against one child and
nine and one-half months against the other. Dr. Dunham concluded that the Static-
99 “grossly underestimate[es] [Soto’s] true risk.” And the MnSOST-R, the other
actuarial, is not designed to be used for people who commit sex offenses against a
family member. Both of the offenses were against Soto’s family members.
Dunham explained that the recommended approach is a clinically adjusted
actuarial approach where the evaluator looks at the actuarial scores and then uses
his clinical judgment to decide whether the scores should be higher or lower. In his
opinion, Soto is at high risk for reoffending.
The jury determines the credibility of the witnesses and the weight to be
given their testimony, and whether to believe some testimony and disbelieve other
testimony. In re Commitment of Mullens, 92 S.W.3d 881, 887 (Tex. App.—
Beaumont 2002, pet. denied). The jury may draw reasonable inferences from the
evidence. See Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). Soto’s
difficulty controlling his behavior can be inferred from his past behavior, his own
testimony, and the experts’ testimony. In re Commitment of Burnett, No. 09-09-
00009-CV, 2009 WL 5205387, at *4 (Tex. App.—Beaumont Dec. 31, 2009, no
pet.) (mem. op.); In re Commitment of Wilson, No. 09-08-00043-CV, 2009 WL
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2616921, at *5 (Tex. App.—Beaumont Aug. 27, 2009, no pet.) (mem. op.). The
jury heard evidence of the offenses, the multiple acts of sexual deviancy, and his
reoffending against another child after being in prison for sexual assault of the first
child. A rational jury could find beyond a reasonable doubt that Soto has serious
difficulty in controlling his behavior and has a behavioral abnormality that makes
him likely to commit future acts of sexual violence. We conclude the evidence is
factually sufficient to support the verdict. Issue two is overruled.
The judgment is affirmed.
AFFIRMED.
________________________________
DAVID GAULTNEY
Justice
Submitted on April 10, 2013
Opinion Delivered June 13, 2013
Before McKeithen, C.J., Gaultney and Kreger, JJ.
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