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In re Commitment of Mendoza

Court of Appeals of Texas, Fifth District, Dallas

October 16, 2019


          On Appeal from the 363rd Judicial District Court Dallas County, Texas, Trial Court Cause No. CV-17-70003

          Before Justices Pedersen, III, Reichek, and Carlyle.



         A jury found appellant Steven Edward Mendoza is a sexually violent predator as defined in the Texas Civil Commitment of Sexually Violent Predators Act (the Act). See Tex. Health & Safety Code §§ 841.001-.151. The trial court rendered judgment on the jury's verdict and ordered him civilly committed for treatment and supervision under the Act. In five issues on appeal, Mendoza contends the evidence is legally and factually insufficient to support the jury's sexually violent predator finding and the trial court erred by admitting hearsay testimony into evidence and disallowing certain other trial testimony. We affirm the trial court's judgment in this memorandum opinion. See Tex. R. App. P. 47.4.

         I. Background

         In August 2017, the State of Texas filed a petition alleging Mendoza (1) meets the Act's definition of sexually violent predator, i.e., "a repeat sexually violent offender who suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence," and (2) therefore should be civilly committed under the Act. At that time, Mendoza was serving a ten-year prison sentence for two sexually violent offenses he committed on the same evening and to which he had pleaded guilty. He was scheduled for release from prison on or before May 4, 2019.

         At the April 2018 trial in this case, Mendoza testified that after graduating high school in 2005, he lived at his father's home in Dallas. He was employed for several short periods, but "just walked off" those jobs because he preferred to "stay at home and chill." He regularly "borrowed" money from his grandmother and used that money to buy marijuana, which he smoked daily, and cocaine, which he used on weekends.

         The two offenses for which Mendoza was convicted occurred on a Saturday in 2009. That morning, he drank alcohol and smoked marijuana. In the evening, he attended a barbeque at his cousin Leticia's home, where he used cocaine, drank more alcohol, and smoked more marijuana. Near the end of the barbeque, the only guests still awake were Mendoza, a male cousin, and a neighbor's wife. The three of them talked and drank in the dining room, which was adjacent to the living room. Two of Leticia's daughters, ages eleven and eight, were asleep on the living room sofa.

         Mendoza testified he was "feeling drunk" and "started feeling on the neighbor's wife," who then left. Mendoza and his male cousin went into the living room, where the cousin fell asleep on the floor. Mendoza stated he was "feeling aroused" and his plan "was to like take care of my arousal." He approached Leticia's sleeping eleven-year-old daughter, removed her panties, then took off his pants and underwear and began "to try to penetrate her." The eleven-year-old awoke when he started removing her panties and he "saw fear in her face" but "didn't stop." As Mendoza attempted to penetrate her, she pushed him away, screamed, and ran to her room. Mendoza testified:

Q. She ran to her room. Okay. What did you think about that when you saw her do that?
A. Well, I wasn't satisfied because I didn't get-I didn't accomplish what I was trying to get accomplished.
Q. And nothing in that moment said, "Oh, my God, what have I done? Let me go- If I'm horny just go masturbate"? Nothing said that to you?
A. No, ma'am.
Q. So what did you do?
A. I went to her sister.

         Mendoza stated he took off the eight-year-old's pants and "was gonna do the same thing," but she "got up and ran to her room." At that point, Mendoza "just decided to just forget about it" and fell asleep on the sofa.

         The next morning, Leticia confronted Mendoza about what happened and her brother-in-law threatened him. Mendoza "took off" and "went into hiding." About a month later, he turned himself in to police at his family's request. Initially, Mendoza told police Leticia's brother-in-law had committed the assaults, but "[the police] had all the facts so, you know, I just went ahead and confessed." He pleaded guilty to one count of aggravated sexual assault of a child under fourteen and one count of attempted aggravated sexual assault of a child under fourteen.

         Approximately two years into his ten-year prison sentence, Mendoza "caught a Code 20," which meant he was disciplined for exposing himself in a public setting. As a result, he was "locked down like 23 hours a day." About three years later, he was caught tampering with a lock and his restriction was increased to "closed custody," which meant he was "locked down 24 hours a day." While in closed custody, Mendoza committed at least seventy additional Code 20 violations by exposing himself to female prison guards. He stated (1) he used a contraband "peep mirror" obtained from another inmate to see when female guards "were coming down the run" so he could masturbate and expose himself to them, and (2) this was called "the jack game" and was something other inmates told him about after he began serving his sentence.

         Mendoza testified he knows he "needs treatment." He stated he (1) "just can't stop" exposing himself to women and (2) has "an anger or temper problem" that "causes me to explode." His plan upon release from prison was to stay with his sister, but he had no plans regarding treatment or employment.

         On cross-examination, Mendoza stated (1) the assaults on Leticia's daughters would not have happened if he had been sober; (2) he realizes his behavior "traumatized them" and "messed up" their lives; and (3) he prefers "to have sex with a person that's, you know, around my age or older" and does not want to have sex with children. On redirect examination, he stated that in a February 2018 deposition in this case, he testified the assaults on Leticia's daughters were "an impulse."

         Dr. Randall Price, a board-certified forensic psychologist, testified the State retained him to conduct a behavioral abnormality evaluation of Mendoza. Price has performed approximately 175 to 200 such evaluations. He interviews the subject face-to-face and reviews all available records, including previous behavioral abnormality evaluations. Then, he completes "actuarial instruments," arrives at a diagnosis, identifies "what the risk factors are and what the protective factors are," and determines whether the subject has a behavioral abnormality.

         Price stated the Act defines behavioral abnormality as "a congenital or acquired condition that, by affecting a person's emotional or volitional capacity predisposes that person to commit a sexually violent offense to the extent that the person becomes a problem for the public." Further, he testified:

Q. . . . How would you describe-define predatory offense?
A. If it's predatory, it means the person is seeking to exploit or injure another person for their pleasure, profit or gain in some way.
Q. So to victimize someone?
A. It involves creating a victim that they offend against.
Q. You mentioned the Health and Safety Code. Is that where you derive your definitions from of behavioral abnormality?
A. Yes.

         Price stated he has "never seen a file with this many Code 20s in it." He diagnosed Mendoza with (1) a substance abuse disorder that was "in partial remission secondary to a controlled environment"; (2) "exhibitionist disorder," which is "where the person repeatedly exposes themselves to a non-consenting person for their own psychological gratification and sexual gratification . . ., sometimes while they're engaging in the act of masturbation, sometimes not"; and (3) an unspecified "paraphiliac disorder," or "sexual deviance," based on his "history of offending against two children." According to Price, (1) Mendoza did not meet the criteria for a pedophilic disorder because there was no evidence he had repeatedly offended against children over a time period of at least six months, and (2) there was "not enough information about [Mendoza's] sexual conduct prior to that offense and prior to coming to prison to go any further on a sexual deviance diagnosis." Further, Price stated (1) "there's two major pathways to having a behavioral abnormality"; (2) "one is sexual deviance and the other is what we call anti-social behavior and attitudes"; (3) "[Mendoza's] is more of the sexual deviance"; and (4) although substance abuse contributes to "lack of volitional control," it "doesn't create any new sexual interest or sexual deviance."

         One of the actuarial measures Price used in evaluating Mendoza was the Psychopathy Checklist Revised (PCLR), which contains questions designed to assess whether the subject is "a psychopath who has that anti-social attitude and history of behaviors of a wide variety that increases the chance of reoffending." Mendoza's score showed ...

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