in Re Commitment of Joel Lopez

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-14-00101-CV
_________________
IN RE COMMITMENT OF JOEL LOPEZ
________________________________________________________________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 13-10-10753 CV
________________________________________________________________________
OPINION
The State of Texas filed a petition to civilly commit Joel Lopez as a sexually
violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010
& Supp. 2014) (“the SVP statute”). A jury found that Lopez is a sexually violent
predator, and the trial court rendered a final judgment and an order of civil
commitment. In five appellate issues, Lopez contends the State’s original petition
was barred by the statute of limitations, the trial court erred in allowing improper
jury argument, the evidence is legally and factually insufficient to support the
jury’s finding that Lopez suffers from a behavioral abnormality, and this Court’s
decision in In re Commitment of Richard, No. 09-13-00539-CV, 2014 WL
1
2931852 (Tex. App.—Beaumont June 26, 2014, pet. denied), petition for cert.
filed, ___ U.S.L.W. ___ (U.S. Feb. 10, 2015) (mem. op.) renders Chapter 841 of
the Texas Health and Safety Code unconstitutional. We overrule Lopez’s issues
and affirm the trial court’s judgment.
Section 841.041(b)’s Ninety-Day Deadline
In his first issue, Lopez challenges the trial court’s denial of his motion for
summary judgment. According to Lopez, the State failed to file its petition against
him within the ninety-day deadline reflected in section 841.041(b)(1) of the Texas
Health and Safety Code. Lopez contends that the trial court should have granted
his motion for summary judgment because the ninety-day deadline either created a
mandatory condition precedent to filing suit or a statute of limitations. The State
concedes that it filed its petition outside the ninety-day deadline established in
section 841.041(b)(1) but contends that section 841.041(b)(1) creates a directory
filing deadline and not a mandatory statute of limitations.
The record reveals that on January 23, 2013, the Texas Department of
Criminal Justice (“the Department”) informed the State that the multidisciplinary
team had determined that Lopez is a repeat sexually violent predator and is likely
to reoffend. The State received the letter on January 31, 2013 and, it is undisputed
that the State timely filed a petition against Lopez in cause number 13-04-04177-
CV on April 19, 2013. However, the State nonsuited its original case against
2
Lopez. The State explained that the original case against Lopez was set for trial on
October 7, 2013, and on the morning of trial, the State was forced to seek a
continuance because its expert witness had been attacked over the weekend and
was unable to testify. During the hearing on the State’s motion for continuance, the
trial court inquired whether there would be a limitation problem with the refiling of
the petition against Lopez. Lopez’s attorney responded, “I don’t think there’s any
limitation on these actions once it’s been filed timely.” The trial court denied the
State’s motion for a continuance.1 Because the State was unable to meet its burden
of proof without its expert’s testimony, the State filed a nonsuit of its petition. The
trial court signed an order of dismissal.
On the same day it nonsuited the original case, the State refiled its petition
against Lopez on October 7, 2013. On October 23, 2013, Lopez filed his answer to
the State’s petition and raised limitations as an affirmative defense. On December
11, 2013, Lopez filed a motion for summary judgment alleging that the State’s
petition was barred by the statute of limitations since the State filed its petition
later than ninety days after the date Lopez had been referred to the State. The trial
court denied Lopez’s motion without stating its reasons for doing so.
1
We note that a visiting judge was sitting for the 435th District Court at the
hearing on the State’s motion for continuance.
3
We review a trial court’s summary judgment ruling de novo. Provident Life
& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In reviewing a
summary judgment, “we take as true all evidence favorable to the nonmovant, and
we indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor.” Id. The movant has the burden to show no genuine issue of material fact
exists and that he is entitled to judgment as a matter of law. Id. at 216. We review
statutory construction de novo. Loaisiga v. Cerda, 379 S.W.3d 248, 254-55 (Tex.
2012). Our objective is to give effect to the Legislature’s intent. Molinet v.
Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). “The plain meaning of the text is the
best expression of legislative intent unless a different meaning is apparent from the
context or the plain meaning leads to absurd or nonsensical results.” Id.
Lopez contends that the ninety-day deadline in section 841.041(b) creates a
statute of limitations within which the State must file petitions for civil
commitment. We disagree with Lopez’s characterization of the statute, and hold
that section 841.041(b) is properly characterized as a directory filing deadline.
There is no “absolute test” for a court to apply to determine whether a
statutory provision is directory or mandatory. Chisholm v. Bewley Mills, 287
S.W.2d 943, 945 (Tex. 1956). Generally, statutes that use words like “‘shall’” or
“‘must’” are construed as mandatory, and, therefore, as creating a duty or
obligation. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001); see also
4
Chisholm, 287 S.W.2d at 945. Section 311.016 of the Texas Government Code
explains that when construing statutes, courts should construe the word “must” as
creating or recognizing a condition precedent unless a different construction is
expressly provided or the context in which the word appears necessarily requires a
different construction. Tex. Gov’t Code Ann. § 311.016 (West 2013). However, in
certain circumstances, courts have construed “shall” and “must” as being directory
rather than mandatory. See, e.g., Lewis v. Jacksonville Bldg. & Loan Ass’n, 540
S.W.2d 307, 309-11 (Tex. 1976); In re Commitment of Letkiewicz, No. 01-13-
00919-CV, 2014 WL 2809819, at *8-11 (Tex. App.—Houston [1st Dist.] June 19,
2014, no pet.) (mem. op.); In re A.G.C., 279 S.W.3d 441, 447 (Tex. App.—
Houston [14th Dist.] 2009, no pet.); Tex. Mut. Ins. Co. v. Vista Cmty. Med. Ctr.,
LLP, 275 S.W.3d 538, 552-53 (Tex. App.—Austin 2008, pet. denied); see also
Chisholm, 287 S.W.2d at 945. Courts generally do not construe statutory
provisions as mandatory when they “are included for the purpose of promoting the
proper, orderly and prompt conduct of business[.]” Chisholm, 287 S.W.2d at 945.
“If a provision requires that an act be performed within a certain time without any
words restraining the act’s performance after that time, the timing provision is
usually directory.” Helena Chem., 47 S.W.3d at 495; see Chisholm, 287 S.W.2d at
945. However, the absence of a noncompliance penalty in a statute with a “must”
provision does not automatically mean that the statute is not mandatory. See
5
Edwards Aquifer Auth. v. Chem. Lime, Ltd., 291 S.W.3d 392, 404 (Tex. 2009).
When the statute does not provide a penalty for noncompliance, the courts look to
the statute’s purpose for guidance in its construction. Id.; Helena Chem., 47
S.W.3d at 494. In construing the statute, we should consider “the entire act, its
nature and object, and the consequences that would follow from each
construction.” Chisholm, 287 S.W.2d at 945.
Because we consider the entire act in construing section 841.041(b), we
must first give a general overview of the SVP statute to place the provision at issue
in context. The SVP statute requires the Department to notify the multidisciplinary
team (created by the SVP statute) of potential predators that are serving sentences
for certain sexually violent offenses and who may also be considered repeat
sexually violent offenders.2 Tex. Health & Safety Code Ann. §§ 841.021(a);
841.022. The Department is to notify the multidisciplinary team “not later than the
first day of the 16th month before the person’s anticipated release or discharge
date, but under exigent circumstances may give the notice at any time before the
anticipated release or discharge date.” Id. § 841.021(c). Within sixty days of
receiving notice from the Department, the multidisciplinary team must: (1)
2
The SVP statute also contains a provision requiring the Department of
State Health Services to notify the multidisciplinary team of the anticipated release
of a person who is committed to the department after having been adjudged not
guilty by reason of insanity of certain sexually violent offenses and may be a
repeat sexually violent offender. Id. § 841.021(b).
6
determine whether the person is a repeat sexually violent offender and whether the
person is likely to commit another sexually violent offense after release; (2) notify
the Department of its determination; and (3) if appropriate, recommend the person
to be assessed for a behavioral abnormality. Id. § 841.022(c). Within sixty days of
the multidisciplinary team’s recommendation, the Department must engage an
expert to assess whether the person suffers from a behavioral abnormality that
makes the person likely to engage in a predatory act of sexual violence. Id. §
841.023(a). If the expert’s assessment leads the Department to believe the person
suffers from a behavioral abnormality, the Department must notify the State’s
attorney within sixty days after the date of the multidisciplinary team’s
recommendation of the Department’s assessment and provide corresponding
documentation thereof. Id. § 841.023(b).
If a person is referred to the State’s attorney, the State may file a petition
alleging that the person is a sexually violent predator (“SVP”) and stating facts
sufficient to support the allegation. Id. § 841.041(a). Section 841.041(b) provides
that the State’s petition “must be: (1) filed not later than the 90th day after the date
the person is referred to the attorney representing the state; and (2) served on the
person as soon as practicable after the date the petition is filed.” Id. § 841.041(b).
The ninety-day filing deadline commences when the State’s attorney receives the
referral letter from the Department. In re Commitment of Williams, No. 09-14-
7
00029-CV, 2014 WL 4363623, at *1-2 (Tex. App.—Beaumont Sept. 4, 2014, pet.
denied) (mem. op.). The SVP statute requires the judge to conduct a trial to
determine whether the person is an SVP “[n]ot later than the 270th day after the
date [the] petition is served[.]” Tex. Health & Safety Code Ann. § 841.061(a).
However, the SVP statute allows the trial court to continue a trial or hearing if the
person is not substantially prejudiced by the continuance and on the request of
either party and a showing of good cause or on the judge’s own motion in the due
administration of justice. Id. § 841.063.
In construing section 841.041, we first note that the Legislature titled it,
“Petition Alleging Predator Status[.]” Id. § 841.041. A statute’s heading cannot
limit or expand the actual text’s meaning. Tex. Gov’t Code Ann. § 311.024 (West
2013). That said, we consider the heading as some indication of the Legislature’s
intent. In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 307 (Tex. 2010). We
further note that the text of section 841.041 does not contain the word “limitations”
or any variation thereof. Tex. Health & Safety Code Ann. § 841.041. The statute
does contain the word “must[,]” which makes the provision appear mandatory;
however, the SVP statute does not indicate any consequence for noncompliance
with section 841.041. While the statute’s lack of a consequence weighs in favor of
construing it as a directory provision, the absence of a penalty does not
8
automatically compel the conclusion that it is not a mandatory provision. Thus, we
consider the SVP statute’s purpose. We have previously explained:
[t]he SVP statute accomplishes dual interests that are possessed by the
State: (1) the parens patriae power to provide care to its citizens who
are unable because of emotional disorders to care for themselves; and
(2) the police power to protect the community from the dangerous
tendencies of some who lack volitional control over certain types of
dangerous behaviors.
In re Commitment of Rushing, No. 09-11-00268-CV, 2012 WL 4466421, at *2
(Tex. App.—Beaumont Sept. 27, 2012, no pet.) (mem. op.) (citing In re
Commitment of Fisher, 164 S.W.3d 637, 651 (Tex. 2005)). Section 841.001 of the
SVP statute provides the Legislature’s findings regarding the issues addressed
within the SVP statute and are useful in construing the SVP statute’s purpose:
The legislature finds that a small but extremely dangerous group of
sexually violent predators exists and that those predators have a
behavioral abnormality that is not amenable to traditional mental
illness treatment modalities and that makes the predators likely to
engage in repeated predatory acts of sexual violence. The legislature
finds that the existing involuntary commitment provisions of Subtitle
C, Title 7, are inadequate to address the risk of repeated predatory
behavior that sexually violent predators pose to society. The
legislature further finds that treatment modalities for sexually violent
predators are different from the traditional treatment modalities for
persons appropriate for involuntary commitment under Subtitle C,
Title 7. Thus, the legislature finds that a civil commitment procedure
for the long-term supervision and treatment of sexually violent
predators is necessary and in the interest of the state.
Tex. Health & Safety Code Ann. § 841.001 (footnotes omitted). “The intended
result of the statute is to prevent repeated predatory behavior by providing sex
9
offender treatment to persons afflicted with a difficulty controlling their behavior
that predisposes them to sexual violence to the extent they become a menace to the
health and safety of others.” Rushing, 2012 WL 4466421, at *2.
Based on the goals of the SVP statute as identified above, the deadline
created in section 841.041(b) is properly construed as a provision in which the
Legislature sought to promote “the proper, orderly and prompt conduct of
business” in commitment proceedings under the SVP statute. Chisholm, 287
S.W.2d at 945; see also Letkiewicz, 2014 WL 2809819, *10. The SVP statute’s
provisions show the importance the Legislature has placed on identifying these
dangerous individuals and providing them with the treatment and supervision
needed. See Tex. Health & Safety Code Ann. § 841.001; see also Rushing, 2012
WL 4466421, at *2.
The purpose behind the SVP statute does not support a construction in which
the Legislature intended to fix a time limitation upon the power of the State to seek
committal against the “extremely dangerous group of sexually violent predators”
known to exist. See Tex. Health & Safety Code Ann. § 841.001. If the Legislature
had intended section 841.041 to be mandatory, it could have easily provided a
consequence for noncompliance, and it did not. See id. § 841.041(b). We hold the
ninety-day provision of section 841.041(b) is a directory filing deadline.
10
The observance of a directory provision is not necessary to the validity of
the underlying proceeding. Tex. Dep’t of Public Safety v. Dear, 999 S.W.2d 148,
151 (Tex. App.—Austin 1999, no pet.). “If the legal consequence of failing to
comply with a directory provision were the same as that for failing to comply with
a mandatory provision, there would be no meaningful distinction between the
two.” Id. at 152. Thus, if a timing provision is directory and the act is performed,
but just not performed in the time or manner indicated in the statute, the act will be
deemed sufficient provided it accomplishes the substantial purpose of the statute.
See id. (quoting State v. Fox, 133 S.W.2d 987, 990 (Tex. Civ. App.—Austin 1939,
writ ref’d)).
Here, the purpose of the SVP statute is to prevent repeated predatory
behavior. The State’s actions in this case substantially fulfilled the purpose of the
statute. The question is whether the State substantially complied with the SVP
commitment process, one requirement of which was the filing deadline in section
841.041(b). See Edwards Aquifer Auth., 291 S.W.3d at 403. There is no dispute
that the State filed a petition against Lopez timely, but was forced to nonsuit that
petition because of unforeseen circumstances. The same day that the State filed its
nonsuit of the original case, it refiled its petition against Lopez. At the time the
court agreed to dismiss the original case, Lopez’s counsel informed the court on
the record that he did not believe there would be any limitations issues arising from
11
the nonsuit and dismissal. The parties entered into a Rule 11 agreement in which
they agreed that the responses to discovery in the original case would be honored
by both parties. The trial court ordered all pre-trial documents from the original
case transferred to the refiled case. The trial took place from January 27, 2014
through January 30, 2014, well before Lopez’s release date of April 14, 2014.
Because Lopez has challenged no other actions of the State regarding the pre-suit
civil commitment process, we assume for purposes of this opinion that the State
complied with those other provisions. We conclude, under the circumstances
presented in this case, the State’s actions were sufficient to accomplish the
substantial purpose of the SVP statute. We conclude the trial court did not err in
denying Lopez’s motion for summary judgment. We overrule Lopez’s first issue.
Improper Jury Argument
In his second issue, Lopez contends the trial court erred in allowing the State
to use evidence that was admitted for the limited purpose of explaining the basis of
an expert’s opinion as substantive evidence of its truth during the State’s closing
argument. Lopez specifically complains about the following portion of the State’s
final closing argument:
I want you to imagine the condition that an individual must be in at 29
years of age, to hold down a four-year-old child or a six-year-old child
and to force his erect penis into their anus repeatedly, ejaculate while
aroused to the entire experience --
12
[DEFENSE COUNSEL]: Objection, appeals to passion and
prejudice of the jury.
THE COURT: Overruled.
[STATE]: -- and then do it to another child.
A complaint about improper jury argument must ordinarily be preserved by a
timely objection that is overruled. Living Ctrs. of Tex., Inc. v. Peñalver, 256
S.W.3d 678, 680 (Tex. 2008); see Tex. R. App. P. 33.1. A complaint of incurable
argument, by contrast, does not require an objection, but a party is required to
present any complaint regarding incurable jury argument in a motion for new trial
to preserve the complaint for review. Phillips v. Bramlett, 288 S.W.3d 876, 883
(Tex. 2009); see Tex. R. Civ. P. 324(b)(5). Here, Lopez did not object to the
State’s alleged improper argument at trial or in his motion for new trial on the
grounds he now asserts on appeal. Further, Lopez did not argue in his motion for
new trial that the State’s jury argument was incurable. The objection Lopez raised
at trial—that the State’s argument appeals to the passions and prejudices of the
jury—does not comport with his complaint on appeal that the State’s argument
essentially encouraged the jurors to violate the trial court’s limiting instruction. An
issue on appeal must comport with the objection made at trial; otherwise, the issue
is not preserved for appellate review. See In re Commitment of Weissinger, No. 09-
12-00486-CV, 2013 WL 3355758, at *3 (Tex. App.—Beaumont June 27, 2013,
13
pet. denied) (mem. op.). Because Lopez has failed to properly preserve error as to
this issue and has therefore waived it, we overrule his second issue. See Tex. R.
App. P. 33.1(a).
Sufficiency Challenges
In his third and fourth issues, Lopez argues that the evidence is legally and
factually insufficient to support a finding that he has a behavioral abnormality.
Lopez argues that the jury’s finding that he has a behavioral abnormality rests
entirely on the opinion of the State’s expert that Lopez is a pedophile and has more
than a mere possibility of reoffending based on non-substantive evidence admitted
for a limited purpose that Lopez sexually assaulted his two nephews over a period
of one and a half years and other factors not “born out in empiric research.”
In a legal sufficiency challenge in an SVP case, 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 testimony, weigh the evidence, and draw reasonable inferences
from basic facts to ultimate facts. Id. at 887. In a factual sufficiency challenge, 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
14
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). The SVP statute provides that a “sexually violent predator” is a “repeat
sexually violent offender[]” who “suffers from a behavioral abnormality that
makes the person likely to engage in a predatory act of sexual violence.” Id. §
841.003(a). Section 841.002 defines “‘[b]ehavioral abnormality’” as “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).
During trial, the jury heard Lopez’s admissions that he has two convictions
for aggravated sexual assault of a child, that he sexually assaulted children because
of lack of intimacy in his adult life, and that he sexually offended although he
knew it was wrong. Lopez admitted to having been arrested for possession of
marijuana, arrested twice for public intoxication, and receiving three convictions
for driving while intoxicated.
Lopez testified that he was also convicted of robbery and had trouble
complying with the reporting terms of his probation. Lopez testified that although
15
he knew he would go to prison if he violated the terms of his probation, he quit
reporting to his probation officer anyway. When his probation was revoked, Lopez
received a five-year sentence. Lopez was released on parole from that sentence,
and while he was on parole, he received his two convictions for aggravated sexual
assault of a child. Lopez testified that he has been able to follow the rules in prison,
but admitted that he does not do well when he is placed on probation.
Lopez testified that the two children he offended against were his nephews,
ages four and six, respectively, at the time of the assaults. Lopez testified that he
lied during his deposition when he denied having sexually assaulted his youngest
nephew. Regarding his older nephew, Lopez also admitted to lying during his
deposition when he denied having penetrated the child anally. Lopez admitted that
he sexually assaulted each child once, but he denied that he sexually assaulted
either child numerous times over a period of a year and a half. Lopez admitted that
he became sexually aroused by contact with his nephews. However, Lopez denied
being sexually attracted to children generally and denied specifically that he had
been sexually attracted to his nephews when he sexually assaulted them.
Lopez testified that he completed a nine-month sex-offender-treatment
program, but agrees he needs additional treatment. He candidly admitted that he
does not know what his triggers are. He professed though that he is at his highest
risk when he is lacking intimacy in his life and that he needs to avoid “any place
16
where kids may hang out, arcades, beaches, [and] parks.” He admitted further that
he would need to avoid being alone with children. Lopez admitted that he is a sex
offender, that he can never be cured, and that he needs to know how to manage his
condition. He testified that he could not truthfully say he would never lose control
of his sexual urges again. However, Lopez denied that he continues to have deviant
sexual thoughts.
Lopez is remorseful for what he did to his two nephews. Lopez explained
that he was drinking at the time of his sexual offenses, but he denied being
“drunk[.]” While Lopez contends that he quit drinking when he went to prison, he
admitted that he has not received any substance abuse treatment while in prison.
Dr. David Self, a medical doctor specializing in general and forensic
psychiatry, testified that Lopez has a behavioral abnormality that makes him likely
to engage in a predatory act of sexual violence. Self opined that Lopez is sexually
deviant. Self diagnosed Lopez with “nonspecific personality disorder with
prominent antisocial traits[,]” substance abuse in institutional remission, and male-
attracted pedophilic disorder, nonexclusive type. Self explained to the jury that
pedophiles that abuse male children are at the highest risk—they are most likely to
reoffend, they are likely to offend the most number of victims in comparison to
other paraphilic sexual deviants, and they have a longer deviancy period into the
life cycle than most others. Self testified that pedophilia is a lifelong disease that
17
cannot be cured. Self explained that certain identified risk factors increase Lopez’s
risk for re-offending: he suffers from sexual deviance, maintains attitudes tolerant
of sexual assault, committed the offenses while under state supervision over an
extended time span of a year and a half, has an unstable lifestyle manifesting in
criminality, and suffers from substance abuse. Contrary to Lopez’s testimony, Self
maintains that he does not believe Lopez has truly demonstrated empathy for his
victims.
Dr. Self reported that Dr. Jason Dunham also concluded that Lopez has a
behavioral abnormality. Self testified that Dunham scored Lopez on the Static-99R
as being at low-moderate risk for re-offense, but Dunham clinically adjusted the
score to indicate that Lopez is at high risk. Self explained to the jury that the Static-
99R alone could not arrive at an accurate risk level for Lopez. He explained that
Dunham adjusted the score to reflect for the duration, the likely number of
offenses, and the nature of offenses that Lopez actually committed. Self testified
that there was credible evidence in the records he reviewed that indicated that
Lopez had engaged in extensive sexual abuse in the form of anal intercourse with
each child on several occasions and had been abusing at least one of the children
for a year and a half.
Self acknowledged on cross-examination that there does tend to be a
decrease in behaviors associated with antisocial personality disorder as people age,
18
but explained that there is no change in the absence of empathy, remorse, or
responsibility for one’s actions associated with aging. Self reported that this
decrease in behavior begins to become evident in the fourth decade of life and
acknowledged that Lopez was about fifty-three years old at the time of trial.
Self observed that Lopez’s testimony at trial indicates that he still has not
taken full responsibility for his complete offensive history as he is only willing to
admit to sexually assaulting each of his nephews once. Further, Lopez has not fully
accepted that he has a problem with pedophilia or sexual deviancy as he continues
to deny his sexual attraction to children.
The jury heard Self’s testimony that Lopez has a behavioral abnormality that
makes him likely to engage in predatory acts of sexual violence, as well as
evidence of Lopez’s risk factors, sexual offenses, and diagnoses. The jury heard
Lopez’s admissions and testimony, including that he does not do well while on
probation. The jury was entitled to infer Lopez’s current dangerousness from Self’s
testimony, Lopez’s past behavior, and Lopez’s own testimony. See 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, as the sole judge of
the weight and credibility of the evidence, could reasonably conclude that Lopez
suffers from a behavioral abnormality that makes him likely to engage in a
predatory act of sexual violence. See In re Commitment of Lowe, No. 09-14-00098-
19
CV, 2014 WL 4363624, at *2 (Tex. App.—Beaumont Sept. 4, 2014, no pet.)
(mem. op.).
Viewing the evidence in the light most favorable to the verdict, a rational
jury could have found, beyond a reasonable doubt, that Lopez suffers from a
behavioral abnormality that makes him likely to engage in a predatory act of sexual
violence. Therefore, we conclude, the evidence is legally sufficient. See Mullens,
92 S.W.3d at 885. Weighing all 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 Lopez’s third and fourth issues.
In re Commitment of Richard
In his fifth issue, Lopez argues that this Court’s decision in Richard renders
Chapter 841 of the Texas Health and Safety Code unconstitutional. We have
recently addressed and rejected this same argument. See In re Commitment of
Lucero, No. 09-14-00157-CV, 2015 WL 474604, at *9-10 (Tex. App.—Beaumont
Feb. 5, 2015, no pet. h.) (mem. op.). For the reasons discussed in Lucero, we
conclude that Lopez has not shown that the SVP statute is unconstitutional. We
overrule Lopez’s fifth issue.3
3
Lopez complains that the ruling in Richard allows the civil commitment of
a person who has not been diagnosed with any mental disorder or condition. Here,
the record demonstrates that Lopez was diagnosed by Dr. Self to have sexual
deviance (pedophilia), and a nonspecific personality disorder with prominent
20
Having overruled all of Lopez’s issues on appeal, we affirm the trial court’s
judgment.
AFFIRMED.
______________________________
CHARLES KREGER
Justice
Submitted on December 1, 2014
Opinion Delivered April 9, 2015
Before Kreger, Horton and Johnson, JJ.
antisocial traits. Dr. Self concluded that Lopez has a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence.
21