1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

________________ NO. 09-12-00523-CV



### ________________ IN RE COMMITMENT OF ROBERT LEOS

________________________ ______________________ ____________________ On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 12-02-01648 CV

________________________ ______________________ ____________________ MEMORANDUM OPINION The State of Texas file d a petition to commit appellant Robert Leos as a sexually violent predator. See Tex. Health & Safety C ode Ann. §§ 841.001-.151 (West 2010 & Supp. 2012). A jury found that Leos is a sexually violent predator, and the trial court signed a final judgment a nd order of civil commitment. In four appellate issues, Leos argues the Texas Supreme Court’s recent construction of Chapter 841 of the Health and Safety Code renders the statute unconstitutional, the trial court lacked subject matter jurisd iction over the State’s civil commitment petition, the evidence is legally insufficient to support a finding that Leos is likely to engage in a predatory act of sexual viol ence, and the trial court erred by making2 comments to the venire that minimized the ju ry’s role. We affirm the trial court’s judgment and order of civil commitment. ISSUE ONE In his first issue, Leos argues the Texas Supreme Court’s construction of some of the provisions of Chapter 841 of the Health and Safety Code “renders those statutory provisions facially unconstitutional and in violation of the Fourteenth Amendment’s due process clause .” Specifically, Leos complains of the Texas Supreme Court’s decision in In re Commitment of Bohannan , 388 S.W.3d 296 (Tex. 2012), cert. denied , 133 S. Ct. 2746 (2013). We have previously rejected a similar ar gument, noting that “ Bohannan did not eliminate any proof required by the statute for a sexually-viole nt-predator finding, nor did the Supreme Court change the statute or render it unconstitutional.” In re Commitment of Anderson , 392 S.W.3d 878, 885 (Tex. App.—Beaum ont 2013, pet. denied). For the same reasons set forth in Anderson , we reject Leos’s argument. We overrule issue

one. ISSUE TWO In his second issue, Leos contends the trial court lacked subject matter jurisdiction over the State’s civil commitme nt petition because he does not have an anticipated release date, whic h he asserts applies “only to a person who is about to3 complete his sentence[,]” a nd that since he will be paro led, he will remain under a form of restraint. See Tex. Health & Safety Code Ann. § 841.021. As Leos acknowledges in his brief, we have previously decided this issue adversely to him. The SVP statute “does not distinguish between those anticipated to be released on parole and those anticipat ed to be released uncondi tionally as a result of completion of their sentences.” In re Commitment of Evers , No. 09-11-00430-CV, 2012 Tex. App. LEXIS 10274, at *4 (Tex . App.—Beaumont Dec. 13, 2012, pet. denied). “Whether the person is convicted of another offense after the State files a petition seeking civil commitment . . . or wh ether a person is rele ased on parole or released unconditionally, there is nothing in [the SVP statute] that indicates the Legislature intended to divest the trial court of jurisdiction.” Id . at **12-13. For the same reasons articulated in Evers , we reject Leos’s juri sdictional arguments. We overrule issue two. ISSUE THREE In his third issue, Leos argues the evidence is legally insufficient to support a finding that he is likely to commit a pr edatory act of sexual violence. When reviewing the legal sufficiency of the evid ence, we review all of the evidence in the light most favorable to the verdict to determine whether a rational jury could have found, beyond a reasonable doubt, that Leos is a sexually violent offender.4 See In re Commitment of Mullens , 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet. denied). It is the fact finder’s re sponsibility to fairly resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id . at 887. Pursuant to the SVP statute, the Stat e must prove beyond a reasonable doubt that “the person is a sexually violent predat or.” Tex. Health & Safety Code Ann. § 841.062(a). The SVP statute defines “sexua lly violent predator” as a person who “(1) is a repeat sexually violent offe nder; and (2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.” Id . § 841.003. The statute defines “behavioral 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). The inability to contro l behavior “must be sufficient to distinguish the dangerous sexual offe nder whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.” Kansas v. Crane , 534 U.S. 407, 413 (2002).5 The record contains legally sufficien t evidence from which the jury could determine that Leos is a sexually violent pr edator and is likely to commit predatory acts of sexual violence against individuals for the primary purpose of victimization. Board-certified psychiatrist Dr. Sheri Gaines testified that based on interviews with Leos, Leos’s records a nd history, and his diagnosed conditions, Leos has a behavioral abnormality that makes him likely to commit predatory acts of sexual violence. The jury heard evidence concerning Leos’s risk factors, including his repeated sexual offenses, diagnosis of se xual deviancy in the form of pedophilia, blaming the victims of his offenses, lack of intimate a dult relationships, reoffending while on mandatory supervision and probation, substance abuse issues, and ongoing fantasies about pr epubescent children. The jury could reasonably conclude th at Leos is likely to engage in a predatory act of sexual violence. See Mullens , 92 S.W.3d at 887; see also In re Commitment of Burnett , No. 09-09-00009-CV, 2009 Tex. App. LEXIS 9930, at *13 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.); In re Commitment of Almaguer , 117 S.W.3d 500, 506 (Tex. App.—Beaum ont 2003, pet. denied). The jury could reasonably conclude that Le os has serious difficulty controlling his behavior and is likely to commit predatory acts of sexual violence. See Mullens , 926 S.W.3d at 887; see also Burnett , 2009 Tex. App. LEXIS 9930, at *13; Almaguer , 117 S.W.3d at 506. Such conclusions are imp licit in the jury’s finding that Leos is a sexually violent predator, which the char ge defined as a repeat sexually violent offender who suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See In re Commitment of Grinstead , No. 09-07-00412-CV, 2009 Tex. App. LE XIS 228, at *16 (Tex. App.—Beaumont Jan. 15, 2009, no pe t.) (mem. op.) (citing Almaguer , 117 S.W.3d at 505); see also In re Commitment of Bailey , No. 09-09-00353-CV, 2010 Tex. App. LEXIS 6685, at **12-13 (Tex. App.—Beaumont Aug. 19, 2010, no pet.) (mem. op.). Reviewing all of the evidence in the ligh t most favorable to the verdict, a rational jury could have found, beyond a r easonable doubt, that Leos is a sexually violent predator who is likely to comm it predatory acts of sexual violence; therefore, the evidence is legally sufficient. See Kansas , 534 U.S. at 413; Mullens , 92 S.W.3d at 885. We overrule issue three. ISSUE FOUR In his fourth issue, Leos contends the trial court erred by making comments to the venire that minimized the jury’s ro le. During voir dire, the trial judge told the venire as follows:7 You have to have at least two offe nses, and then you have to have a behavioral abnormality. So the first question is: Does he have the two offenses? Second question is: Does he have a behavioral abnormality? Does everybody understand that? You’re not asked . . . wh at happens next. . . .

. . . . The statute leaves it up to th e Judge what happens based upon the ‘yes’ or ‘no’ question. On appeal, Leos compla ins that the trial judge’s statem ent that the statute leaves it to the judge to decide what happens based upon the questions was inaccurate “because the trial court has no discretion but to civilly commit when the jury has made the necessary findings [.]” According to Leos, the trial judge’s comments “would have led the jury to minimize th e important role it had in this case.” Leos did not object on this ground at tria l. Leos also failed to raise this issue in his motion for new trial. We conclude that by failing to lodge a timely objection, Leos has not preserved this issue for our review. See Tex. R. App. P. 33.1(a). Accordingly, we overrule issue four and a ffirm the trial court’s judgment and order of civil commitment.8 AFFIRMED.

____________ ____________________ CHARLES KREGER Justice Submitted on July 1, 2013 Opinion Delivered October 17, 2013 Before Gaultney, Kreg er, and Horton, JJ.