Affirmed and Memorandum Opinion filed January 31, 2023
.

In The 

## Fourteenth Court of Appeals

NO. 14
- 22
- 00023
- CV

ERNESTO BARRIENTES , Appellant

V. THE S TATE OF TEXAS , Appellee
On Appeal from the 209th District Court

Harris County, Texas Trial Court Ca use N o . 1371945
- 010 1Z

MEMORANDUM OPINION After a jury found appellant Erne sto Barrientes to be a sexually violent predator under Health and Safety Code c hapter 841 , the tr ial court signed a final order civilly committing Barrientes for treatme nt and supe rvis i on by the Texas Civil Commitment Office

. T ex. Health & Safety Code Ann. § § 841. 003 (defining

“ sexually violent preda tor ” ), .081 (civil commitment) . In two iss ues, Barrient es challenges the legal and factual sufficiency of the evidence suppo rting the t rial2

cou rt ’ s determi nation that he is a sexually violent predator

. 1 T ex. Health & Safety Code Ann. § § 841. 0 62 , . 146 (b)

. We affirm

. I. B ACKGROUND The evi dence at t rial showed that Barrientes was convicted of three offenses qual ifying as “ sexu a lly violent offen s es ” u nde r Health and Safety Code c hapter 841

. 2 Specifically, records admitted at tr ial show : (1) a 2 005 conviction for i ndecency with a child , for which Barrientes was sentence d to two

- years imprisonment ; (2) a 2008 conviction fo r attempted indecency with a chi ld , for which Barrientes was sentenced to three

- years imprisonment ; and (3) a 2014 conviction f

or inde cency with a child , for which Barrientes was sentenced to nine

- years impri sonment

. See Tex. Health & Safety Code Ann. § 8 4 1.002 (8)(A) , (E) (defining sex u a lly violent offense to include indecency with child and attempted indecency w ith child ) ( citin g Tex. P enal Code Ann. § 21.11( a) (1) ) ; see also Tex. Penal Code Ann. § 15.01(a) (cri minal attem pt)

. Barrientes admitted at trial that he committed t he offen s es
. T he jury also heard the testimony of expert witne ss Dr . Chri stine R eed , wh o opin ed that Barrient e s suffers from a behavio ral abnormality that makes him likely to engage in a predatory act of sexua l violence , a required showing under c h apter

1 The district court sig ned a certification of defendant ’ s right o f appeal, which was unnecessary as the comm itment of a sexually viol ent predator is a c i v i l proceeding. See Tex. R. App. P. 25.2(a) (2) , (d) (requiring certification of defendant ’ s right o f appeal in criminal appeals). S imilar to a criminal judge and sentence, t he district court also signed a separa te judgment and an order of commitmen t, wh ich we will treat as the commitment order re quired by statute

. Tex. Health & Safety Code Ann. § 841

. 081(a )

.

2 As relev ant here, a per son i s a “repeat sexually violent offender” for purposes of c ha pter 841 if he “is convicted of more tha n one sexuall y vio le nt off en se and a sentence is imposed for at least one of the offenses.” T ex . H ealth & S af ety C ode Ann. § 841.0 03(b). “Sexuall y vi olent offense” i s defined in the statu te to include certain enumerated offenses under the Penal Code, as well as offen ses with sub s ta ntially sim ilar elements under prior state law or the law of other jurisdictions. T ex . H ealth & S a f e ty C ode Ann. § 841

. 002(8).3

841

. See T e x. He alt h & Safety C ode Ann. § 841.00 3(a)

. Reed testi fie d that s he received a Ph.D. in clini cal psychology and ha d be e n a licensed psychologi st in Texas and Cal ifor nia for appr oximately ten years

. S he testified that she had conducted at l e ast 100 sex
- offe n de r r is k assessments

. In for ming h er opinion, she reviewed a report f

rom Barrientes ’ s psycho logist as well as Bar rien t es ’ s medical

r e cords, ment al

- health record s, criminal records , and disciplinary records

. Reed also cond uc ted an intervie w w ith Barrientes that las ted approximately three hours

. She p erformed several assessm e nts on Barrientes , incl u ding : “ Static

- 99, ” w hich

a dd resses ri s k facto rs for re offending ; “ PCL

- R, ” also known as the “ H are Psy chopathy Checklist, ” which assess es whether t he s ubject is a p sycho pat h ; and the “ Ris k o f Sexual Violence Protocol , ” which p rovided Re e d with a list of ri sk f acto rs for her to con s ide r in asses sing Barrientes

. Reed testified to the details of Barrientes ’ s sexually violent offenses and t he ways in wh i ch the y affected her a nal ysis o f whether Barrientes suffered from a beha vio ral abnorma lity. Accordin g to Re e d , Barrient es ’ s 2005 conv i ct ion resulted from an in ciden t that o ccurred when Barrientes was 38 and the victim was 11 o r 12. Barrientes wen t into the victim ’ s room o n e nig ht and rubbed her vaginal area over her clothing. The victim was not related t o Barrientes , which according to R ee d increased the risk that Barrient es might reoffend in the fu t ure
. A little ov er a year after Barrientes was r e leased from prison, at wh i ch po int he was a registered sex offender , he committed ano ther offense . Reed opine d that it

was s ignificant that Bar r ientes reoffended even when under the supervision associated with being a regis tered sex offender. For the seco n d offense, Barrientes

was 42 an d h is victim was 11. Barrientes touched the vic tim ’ s thigh and moved toward he r vaginal area with his hand, at w h ich point she rolled over and he stopped.4

Less than two years after he was released from prison for his second o ffense , Barrientes offend e d a t hir d time , this time with his nine

- year
- old grandda ughter ; Barrientes was 47

- y ea rs old

. Barr ientes touched his g randdaughter ’ s vagin a underneath her clothing. Reed testified that Barrientes told her he was d runk and/or high d uring each of the inciden t s , wh ich Reed characterized as minimizing h is behavior. Reed diagnosed Barrientes a s having pedo philic dis order. R e e d also diagnosed Barrientes as having antiso cial personality disorder , i.e., a te ndency to en gage in illegal beh a v ior or behavior that viol a tes t he rights of others

. As to Barrientes ’ s anti social traits , Reed testified that Barrient es had engaged in crimi n al behavior , including convictions for drug possession and theft, and had not registered as a se x offender on at l east o ne occasion when re q uired to do so . Reed testified that Barrientes ’ s sexual offenses and antisocia l be h aviors in creased the risk that h e would commit fut ure sexually violent offenses. Barrientes ’ s score o n the Static

- 99 test was a 3, which Reed expl a ined show ed an average ri s k of com mitting future sexual ly violent offenses.
II. A NAL YSIS In issues 1 and 2, Barri e ntes ar g ues the evidence is le g ally and factually insufficient to support the jury ’ s finding that he has a behavioral abnormality that makes him l ikely to engag e in a pred a tory act of sexual violence

. Chap ter 841 requires the State to prove beyond a reaso n able do ubt that a person is a s exually violent predator. Tex. Health & Safety Code Ann. § 841.062(a); see also In re Fisher , 164 S.W.3d 637, 639

– 4 1 (Tex. 20 05). Chapter 84 1 defi ne s a “ sexually violent predator ” as a person who (1) is a repeat sexually vio l ent off ender , 3 and

3 Barrientes does not dispute th at the State pro ved bey on d a reasonable doubt th a t he is a repeat s exually violent of f e n der

. S ee sup ra § I & n. 1.5

(2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexua l violence. Tex. H e alth & S afety C ode Ann. § 841.0 0 3( a). “Behavioral abnormality” means a congenital or acquired condition that, b y affe cting a person ’ s emotio n al or volitional capacity, predisposes the person to

com mit a sexually violent offe nse, to th e extent that the per s on becom es a me nace to th e heal th and safety of another person. Tex. Health & Safety Code Ann. § 841.002 (2)

. Fo r lega l

- sufficiency challenge s under c hapter 841 , we employ the standard of review applicable in cri minal cases

. See In re Commitment of Stoddard , 619 S.W.3d 665, 675 (Te x. 2 020). We mu st vi ew the evidence in the light most favorable to the prosecution and det ermine whe ther a ny rational fact

- finder c ould have found the essential elements of the crime beyond a reasonable doubt. Id. (citing Jackson v. Vi r

ginia , 443 U.S. 30 7, 319 (1979)). T he Su pre me Court of Texas recently clarified the disti nction between legal and factual su fficie ncy standards of review in civil

- commitment cases when, as here, the burden of proof is beyond a reasonable doubt. See S toddard , 619 S.W.3d at 674

– 76

. In bot h legal and fac tual sufficiency review, we presume the fact

- finder resolved dispute d evidence in favor of the finding if a rea s onable fact

- finder could do so, but we may not ignore undisputed facts contrary to a finding. I d. at 676. A distinctio n aris es in t reatm ent o f d isputed evidence that a reasonable fact

- finder could not hav e credited in favor of a finding

— we disregard such di s puted evidence in a legal

- sufficiency review, but we consider this disputed evidence in a f a ctual

- sufficiency review

. Id. Evidenc e is legal ly insufficient to support a jury finding when (1) the record discloses a complete abs e nce of evidence of a vital f a ct , (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact , (3) t he ev ide nce offered to prove a vital fact is no more than a6

me re scintilla , or (4) the evid e nce establishes conclusively the opposite of a vital fact. Gunn v. McCoy , 554 S.W.3d 645, 658 (Tex. 2018). Evidenc e is factually insufficient to s upport a jury find ing u nde r c ha pter 841 when the evidence contrary to the finding is so significan t in light of t he entire record that the fact

- finder could not have determined beyond a reasonable doubt that its find i ng was true. Stoddard , 619 S.W.3d at 66 8, 678. A
. Legal s uffic ien cy In issue 1, Barrientes chal lenges the le gal sufficiency of the evidence supp orting t he jury ’ s finding that he suff ers from a behavioral abnormality as defined by c hapter 841

. Tex

. Health & Safety Code Ann. § 841.00 3(a). Barrien t es ba ses his lega l

- s uf

fic iency challeng e on h is conten tion t hat Reed ’ s expert opinio n
was “ misleading, conclusor y, and speculative , ” and t here for e was unreliable. Opinion testimon y that is wholly conclusory or speculative amounts to no evide nce “because i t does no t tend to m ake th e existence of a materia l fact ‘mor e probable or less probable.’ ” City of San Antonio v. Pollock , 284 S.W.3d 80 9 , 81 6 (Tex. 2009) (quoting Coastal Transp. Co. v. Crown Cent. Petrole u m Corp. , 136 S.W.3d 227, 232 (Tex. 2004)). Thus, “[b]are, baseless o pin ion s will not support a ju dgment even if there is no objection to their admission in evid ence.” Pollock , 284 S.W.3 d at 816

. “When a scientific opinion is adm itted in evidence without

o b jection, it may be considered prob ative evidence even if the basis f or the opinion is unreliable .” Id. at 818 (emphasis added) . “But if no basis for the opinion is offered, or the basis offe red provides no support, the opinion i s merely a conclusory state m ent and cannot be considered proba tive evidence, regardle ss of whe th er the re is no objection.” Id. ; see also In re Commitment of Coles , No. 02

- 21

- 0 0173

- CV, 2022 WL 1496544, at *4

– 5 (Tex

. App

. — Fort Worth May 12, 2022, no pet.) (mem. op.) (a pplying Pollock to sexua l ly

- violent

- predator case)

.7

Barrientes di d not object to Reed ’s ex pert test imo ny a t tr ial on the basis that it was unreliable

. Accordingly, Barrientes has waived any challenge to the

re liability of the methodol o gy, technique, or data used by Reed. See C o astal Transp. , 136 S.W.3d at 233 (concludin g that “when a reliability ch allen ge requ ires the co urt to evaluat e the underlying methodology, technique, or foundational data used by the expe rt, an objection must be t imel y made so that the trial court has the opportunity to conduct this analysis”) ; see also Tex. R. App. P. 3 3.1(a)

. Ins tea d , t o preva il o n his legal

- su fficiency challenge, Barrientes must show there is no basis to support Reed ’s opinions

. See Pollock , 28 4 S.W .3d at 817

– 18 ; In re Commitment of Barbe e , 192 S.W.3d 835, 843 (Tex. App.

— Beaumont 2006, no pet.) ; Coles , 2022 WL 14965 44, at *4

. Here, Reed testified as to her q ualifi cations as a psychologist and to the methods she used to eva luate whether Barrientes s uffe red from a behavioral abnormality , inc l u ding reviewing his medical, mental

- healt h, crim inal , and disc iplinary re cords , a nd conducting an interview wi th Barrientes during which she administered a number of protocols and t ests. R eed testified that, base d on her experience , her review of the rele v a nt records, and her intervie w with Barri entes, she diagnosed Barrientes with ped oph ilic disord er and antiso ci al personality disorder. R eed testified as to numerous factors th at demonstra ted a risk that Barriente s wou ld reoffend, including : Barrientes com m i tted further sexual offenses against chi ldren within short periods o f ti me af ter be ing release d from prison f or his first and seco nd sexual offenses against children ; Barrientes attribut ed his sexual offenses to into xication and drug abuse, indicating th a t he did not take responsibility for his actions; and Barrientes had a no n sexu al cr iminal history, inc luding convictions for theft and drug possess ion , as well as other indicators of ant i social b ehavior

. Bas ed o n her evaluation , Reed opined that Barriente s suffere d8

from a behavioral abnormality t hat made him likely to engage in a pr eda tory act of sexual violence

. Tex. Health & Safety Code Ann. § 841.00 3(a) (2)

. On this recor d, we cannot s ay that Ree d ’ s opi nion was whol ly conclusory or speculative , which is t he standard appli cable when, as here, no object ion is raised in the trial cour t a s t o the reliability of the exp ert opin ion

. See Pollock , 284 S.W.3d at 816

. Rather, Reed ’ s te stimony as to her methodo logy and her co n clus ions prov ide s some basis for her opinio n that Barrien tes suffers from a b ehavi oral abnormality

. See i d. at 817

– 18

. Acc o rd ing ly, we overrule issu e 1.
B . Factual sufficiency
In issue 2, Barrient es challenges th e factual suffi cienc y of the evidence suppor t ing the finding th at he su ffers from a behav i oral abnormality as contemplated by c hapter 84 1. Tex. Health & Safety C ode A nn. § § 841.002 (2) , .003(a )(2)

. Ba rrientes first argue s there is no pro of that he suffered from a “ lack of control ” sufficient to suppor t the finding of a behavioral abnormali ty. B a rrientes, however, acknowledges that a “ lack of control ” is not a separa te el eme nt that is required to be pro ven in supp ort of a finding of behavior al abnormality. See In re Com mitment of Browning , 113 S.W.3d 85 1 , 863 (Tex. App.

— Austin 2003, pet. denied)

. Moreover, there was evidence that Ba rrientes lacked control o ver his beh a vior , i ncl uding t h at Barrientes reof fended wi thin sh ort per i o ds of time after being released from pr iso n following his first and seco nd se x uall y viol ent offenses

. While Barrientes co n tends there is “ little evidence supp orting a conclusion that Mr. Barrien tes c urr ent ly cann ot control a sexual impulse to commit a violent offense , ” h is factual

- sufficiency a r gu ment does not id entify any disputed or conflicting evi dence on this point.
B arr i entes next argues that the evi dence is factua lly insufficient because hi s
sc o r e on the Stat ic

- 99 test placed him in the “ average ris k ” category

. As to the9

Stat ic

- 99 t est, Reed t estified that the Stat ic

- 99 test was “ just one piece of the pu zzle ” that does n ot capt ure all aspects of the likeli ho od to reoffend

. I t is the provi nce of t he jur y to weigh such evidence

. See Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 7 57, 761 (Tex. 2003)

. Moreover, even a “ low

- mo d erate ” score on the Static

- 99 has been held n o t to render evi dence factually in suf ficient if other evidence in the rec ord s upp ort s a finding of a behaviora l abnormality

. See In re Commi tment of Williams , 539 S. W.3d 429, 440 (Tex. App.

— Houston [1st Dist.] 2 017, no pet.)

. Barriente s also argues the evi d ence w as factually insufficient beca use he had

no “ violent conv ictions ” or “ s exu al disciplinaries, ” and Barri entes did not assault

“ strang ers. ” Again, however, i t i s the pro vi nce of the jury to weigh such evi d ence against conflicting evidence, s uch as the fact th at Barrientes twice re offende d shortly after his release from cus tody af t er his fi rst two sexual offenses, and Reed ’ s test imony that, whe n consider ed as a wh ole , Barrientes ’ s actions demonstra t ed a behavioral abnormali ty

. See Go l den Eagle Arche ry , 116 S.W.3d at 761

. We cannot say in t his case that the conflicting eviden ce id ent ifi ed by Barrientes is so significan t in light of the entire record that t he fact

- finder could not have determined beyon d a reasonable doubt that Barrien te s suffered from a behavioral abnormality under c hapter 84 1

. See Stoddard , 61 9 S.W.3d at 668, 678 ( out l in ing standard for factual

- sufficiency review )

. Finally, Ba rriente s argue s the evidence is factually insufficient beca u se a reasonable fact

- finder could not have c redited Reed ’s testimony t hat “ Mr. Barrientes ’ s perceived failure t o take responsibi lity dur i ng an inte rview designated as being for court consumption ” is a signif icant r isk factor. As above, however, Barrientes di d not preserve any com p laint re g arding the basis for Reed ’ s opinion becaus e he did not obj ect on reliability ground s in the tr i al c our t. See Coastal10

Transp. , 136 S.W.3d at 233

. Concluding the evi dence is fact ually s ufficient to support the jury ’ s finding,

we o v errule issue 2.
III. C ONCLU SION W e affirm the trial co urt ’ s commitment order as c hall enged o n appeal

.

/s/ Charles A. Spain Ju stice
Panel c ons i s ts of Justi c es Spain , Poissa n t , and Wilson

.