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In re Commitment of Rogers

Court of Appeals of Texas, Fifth District, Dallas

January 11, 2018

IN RE COMMITMENT OF DELBERT GLEN ROGERS

         On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. CV1670002

          Before Justices Lang-Miers, Fillmore, and Stoddart

          MEMORANDUM OPINION

          CRAIG STODDART JUSTICE

         This appeal involves a civil commitment pursuant to the Sexually Violent Predator Act ("SVP Act"). A jury found Delbert Glen Rogers is a sexually violent predator as defined in section 841.003 of the Texas Health and Safety Code and the trial court's judgment orders Rogers committed until his behavior abnormality changes to the extent he no longer is likely to engage in a predatory act of sexual violence. In three issues, Rogers argues the evidence is legally and factually insufficient to support a finding that he is a sexually violent predator and to show he suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. We affirm the trial court's judgment and order of civil commitment.

         Factual Background

         Before the State filed the petition for civil confinement, Rogers was convicted of and incarcerated for three offenses: (1) on December 30, 1980, he was sentenced to six years' confinement for aggravated rape with a deadly weapon; (2) on February 9, 1990, he was sentenced to eight years' confinement for sexual assault; and (3) on August 17, 1993, he was sentenced to 25 years' confinement for sexual assault. Rogers was incarcerated when the instant suit was filed. In its original petition, the State alleges Rogers is a repeat sexually violent offender who suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The State requests he be committed for treatment and supervision in accordance with chapter 841 of the Texas Health and Safety Code.

         The State called two witnesses at trial: Rogers and Christine Reed, the psychologist who evaluated Rogers.

         Rogers testified he was convicted of aggravated rape once and sexual assault twice. The trial transcript from the aggravated rape case shows the offense involved two sixteen-year-old girls. The complainant, who was referred to as D, stated Rogers pointed a gun at her during the offense. At trial in the instant case, Rogers testified that although he was convicted of aggravated rape of a woman, D, he actually had consensual sex with two twenty-two-year-old women who were prostitutes. He denied he had a gun, held a gun to D's head, or forced D to have sex. Rather, he stated, one of his "fall partners" had a gun. When asked whether he has "ever committed rape, " Rogers replied that he has not. Rogers was sentenced to six years' incarceration for this offense, but was released onto parole, which he successfully completed.

         Rogers testified he pleaded guilty to sexual assault against another woman, T. He explained he was in a car with T and another person and T was scratching his face. After T refused to stop scratching him, Rogers testified he got into the back seat and "[g]rabbed her by the hair behind her head. She had on some skimpy shorts on halfway showin' her vagina, and I stuck my finger in her vagina. . . . I let her see how it feel be [sic] scratched, so I give her somethin' - - give her somethin' to think about, maybe give her a east [sic] infection." He explained he did not want to scratch T's face because she was a nice looking woman. Rogers testified the police report from that incident showed he raped T using his penis while they were alone in a car at a park. Rogers acknowledged his actions against T have had a negative, long-term effect on her. He testified he regrets his actions and "wish[es] [he] could take everything back." Rogers was sentenced to eight years' incarceration for sexually assaulting T. He was released on parole after serving fewer than two years. However, his parole was revoked when he was accused of committing a new sexual offense.

         At trial, Rogers denied he sexually assaulted a woman referred to as R even though he pleaded guilty to the charge. He testified he lacked knowledge about the allegations in the police report because, at the time of the assault of R, he was at home with his mother, son, and his son's mother. Although he admitted to the sexual assault during treatment, he explained he lied to his treatment provider to avoid further citations for nonparticipation.

         While incarcerated from 1995 through 2009, Rogers received nine citations for sexual misconduct. Rogers admitted he exposed his penis to a correctional officer in 1995. In a separate incident, a female correctional officer may have seen his penis while he was using the bathroom. He explained the correctional officer was at fault because she failed to properly announce her presence in the cell block. Rogers conceded that in 1996 he exposed his penis to a correctional officer with the intent to arouse and gratify himself, but blamed the officer who "was tryin' to cross me out." In 1997, he was cited for sexual misconduct after exposing his penis to a correctional officer while masturbating with the intent to arouse and gratify himself, but explained his parents recently died and he was in a bad mood.

         He testified: "I have committed sexual misconduct but not sexual assault on nobody." Further, he stated he is not a rapist and he "never jacked nobody. I never beat nobody. I never taking nobody." He acknowledged he could benefit from sex offender treatment. He explained he has taken full responsibility for his past and he will "not to do it again 'cause I done got too old to be sittin' up there doin' the things that I used to do, and I can't do the things that I used to do anyway due to my injuries." He has problems with his back, legs, and kidneys and walks with a cane. He testified he can get an erection, but when asked whether he can masturbate, he testified "[i]f I tried, it would hurt. I can't." He believes he is not at risk for committing future sex offenses because he will not think about sex in the future. He did, however, state he wanted to "get with one of [his] old ladies and have a relationship."

         In addition to the sexual misconduct offenses, Rogers had three physical altercations while incarcerated. As to the first, Rogers testified he bit a person's finger off, explaining:

One of the guys that Ms. Ivy[1] classification paid a esse to come do a number job on me and have me killed. Because whoever been sendin' those papers there for me to sign with my name on it, my handwriting, for to set me up to sign my life away, yes, I have. I had to protect myself. I had to slow 'im down 'cause he was too bigger than me.

         The second incident occurred when Rogers attempted to bite off an inmate's nose because he "was part of the Mexican Mafia." In the third incident, he fought a sixty-seven-year-old white supremacist carrying a shank in order to defend himself. There was a formal investigation ...


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