Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 363rd Judicial District Court Dallas County,
Texas, Trial Court Cause No. CV-17-70003
Justices Pedersen, III, Reichek, and Carlyle.
L. CARLYLE JUSTICE.
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.
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.
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.
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.
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.
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
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
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.
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.
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
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.
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?
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."
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 ...