NUMBER 13-25-00504-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE THE COMMITMENT OF JOSHUA J. WILDBERGER
ON APPEAL FROM THE 379TH DISTRICT COURT
OF BEXAR COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Tijerina and Justices Silva and Cron
Memorandum Opinion by Justice Silva
A jury found appellant Joshua J. Wildberger to be a sexually violent predator
(SVP). See TEX. HEALTH & SAFETY CODE ch. 841 (SVP Act). The trial court signed a final
judgment and an order of civil commitment. See id. § 841.081. By one issue, appellant
argues that the evidence is legally insufficient to support the “behavior abnormality”
element of the SVP Act. We affirm.
I. BACKGROUND 1
Before the State sought to have appellant committed as an SVP, appellant had
previously been convicted of three aggravated sexual assault of a child offenses, firstdegree felonies, involving three different victims. 2 See TEX. PENAL CODE § 22.021
(a)(1)(B), (e). In August 2007, appellant pleaded nolo contendere to two counts of
aggravated sexual assault of a child and was placed on deferred adjudication community
supervision. However, in July 2008, the trial court revoked appellant from community
supervision, adjudicated him guilty of both counts, and sentenced him to six years’
imprisonment for each count. In March 2017, appellant pleaded nolo contendere to
aggravated sexual assault of a child and the trial court sentenced to ten years’
imprisonment. A jury trial commenced in this case on July 29, 2025, the State presented
testimony from Dr. Jason Dunham, a licensed forensic psychologist, and appellant.
A. Dunham’s Testimony
Dr. Dunham, a licensed forensic psychologist, testified that he had evaluated
appellant and found that he suffered from a behavioral abnormality. Dunham stated he
followed the standard methodology of experts who perform forensic evaluations and
explained that he based his opinion upon review of 3,000 pages of documents, including
1 This appeal was transferred from the Fourth Court of Appeals in San Antonio pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer). We are required to follow the precedent of the transferor court to the extent it differs from our own. See TEX. R. APP. P. 41.3.
2 We have assigned the pseudonyms “Amelia,” “Bella,” and “Chloe” to the complainants to protect
their privacy. See TEX. CONST. art. 1, § (a)(1) (providing that a crime victim has “the right to be treated . . . respect for the victim’s dignity and privacy throughout the criminal justice process”).
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those which pertained to appellant’s juvenile and adult criminal history, such as police
reports, Child Protective Services (CPS) reports, victim statements, witness statements,
and appellant’s own statements. Dunham also relied on a report of a previous behavioral
abnormality evaluation of appellant by another psychologist, a two-hour interview
Dunham had with appellant in April 2025, recorded prison telephone conversations and
email exchanges between appellant and his fiancé, and appellant’s deposition testimony
in May 2025.
Dunham explained that when determining whether a person has a behavior
abnormality, he looks for “risk factors,” or “factors that are associated with the future,
whatever you’re trying to measure.” Dunham also looks for “protective factors” which “are
statistically known to decrease what somebody’s level of risk is once its established.”
Dunham also explained that he considers a person’s employment history, substance
abuse history, relationship history, and sexual and nonsexual criminal history. When
performing his evaluation, Dunham stated he wants to “establish what [a person’s] risk
was at the time of the last offense that occurred and then look to see has it decreased
enough over certain factors, could be anything from getting older to going through
treatment or other things that . . . decrease risk, or it could increase if they have continued
to get in trouble as well.” Dunham stated that some risk and protective factors are weighed
more heavily than others.
Dunham explained that sexual deviancy and antisocial orientation were the “two
broad domains of risk,” or “red flags[,] for somebody who is more at risk for sexual
reoffending.” Dunham defined sexual deviancy as “abnormal sexual behavior that’s not
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accepted in society that typically is going to cause some kind of a problem if it comes to
light.” He also explained that people with antisocial orientation are those “who violate the
law and they kind of lack the concern for other people and they don’t follow the rules of
our society.” Dunham stated that appellant had both sexual deviance and antisocial
orientation and explained that these factors were usually chronic and “don’t usually just
go away, especially not at a younger age.” Dunham also stated that another risk factor
associated with appellant was that he was a sexual offense recidivist: “[s]omebody who
commits a sexual offense after having some type of punishment for a previous sexual
offense.”
Dunham explained that nonsexual arrests and convictions were relevant to
whether appellant had a behavioral abnormality because they relate to his antisocial
orientation. Dunham revealed that appellant had numerous nonsexual charges and
convictions in his juvenile and adult criminal record. According to Dunham, juvenile
criminal history was important because it is a “big risk factor” “[e]specially if
somebody . . . starts off getting in trouble as a juvenile,” and that “[i]t also points to early
onset of . . . illegal behavior, which starts that pattern.” Dunham testified that appellant
was given nine months of juvenile probation at age sixteen for unlawfully carrying a
weapon, a hunting knife. As an adult, appellant had committed other crimes, including
aggravated assault of a public servant, evading arrest, possession of a controlled
substance, unauthorized use of a motor vehicle, forgery of a financial instrument, failure
to appear in court, and burglary of a coin-operated machine. Dunham acknowledged that
not all of these crimes resulted in a conviction and some were dismissed “either as part
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of a plea bargain for other cases or for another reason.” Nevertheless, Dunham stated
appellant’s adult criminal history was so significant because “he had about eight different
categories of criminal behavior by age 26 that kind of points to that antisocial orientation
that is . . . a huge risk factor for reoffending sexually.”
Dunham stated he interviewed appellant, and they discussed his sexual offenses.
Dunham testified that appellant committed his first sexual offense on August 27, 2006
against Amelia, who was thirteen years old and attended middle school, and appellant
was seventeen and attended high school. According to Dunham, Amelia stated she
walked to appellant’s house after 11:30 at night and had been “anally raped” “by some
unknown person” who took her phone. Amelia relayed this information to appellant and
asked him to have sex with her after that to make her feel better, and they did so.
Appellant encouraged Amelia to call the police and her brother. Amelia called her brother,
told him that “she was raped on the way over [to appellant’s],” and was picked up by her
parents after. Dunham indicated that Amelia stated she previously had sex with appellant
“about ten times,” that it was “not forced,” and described being in a relationship with
appellant. Dunham stated that though this incident did not involve force, it was “probably
inappropriate” as appellant was “too old to be in that kind of relationship with a [thirteen]-year-old.” When asked if his opinion would change “if possibly they continued in a
relationship for a short period of time after that date,” Dunham responded, “No, because
he was not arrested right away. He was not in trouble for that offense until after his next
offense.” According to Dunham, appellant’s age at the time of this first offense is a risk
factor because it showed his “sexual deviancy at a younger age.” In addition, Dunham
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stated the age difference between appellant and Amelia was a risk factor, as “[h]e seemed
to have a liking for younger girls at around that time, and [Amelia] fit as one of them at
age [thirteen],” and that appellant was “almost an adult . . . at that point.”
Dunham also testified that appellant had sexually assaulted Bella, another thirteenyear-old girl, six months after he committed his first sexual assault. According to Dunham,
Bella was a virgin and had left school during the middle of the day and walked to
appellant’s house. Appellant was not in school at the time. Dunham stated that appellant
had asked Bella to have sex “about five times.” According to Dunham, Bella “never said
yes, but she never said no,” and appellant “started having sex with her.” Bella stated, “it
hurt” and asked appellant to stop, and he did. Then appellant “tried again and she again
said it hurt and asked him to stop, and then he did stop, and then she walked back to
school.” Dunham indicated that, based on statements from appellant’s fifteen-year-old
sister and Bella’s mother, it “seemed that [appellant] was on the radar . . . with the school
as far as liking the younger girls.” Dunham further indicated that appellant told his sister
that he and Bella “had sex eight times that same day,” and that his sister had reported
him. In addition, Dunham stated that Bella had told her mother that she “didn’t necessarily
want to have sex.” Dunham also stated that he thought Bella was less willing to have sex
with appellant than Amelia.
Dunham testified that Bella had described meeting appellant through his sister
when she went over to their house, and that there had been a couple of twenty-year-olds
there, but appellant “was kind of gravitating toward [Bella], more so than anybody else.”
Dunham stated that this indicated to him that appellant was “focused on the younger one
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at the time over there,” and that this was consistent with statements from different people
in the investigative reports that “kind of described that . . . [appellant] likes the younger
girls, he’s gravitating to the younger girls at that time.” Dunham also stated that the
records he reviewed indicated that appellant’s father tried to keep appellant from sitting
next to Bella when they went out to eat together and seemed “like he did not like that
arrangement, that situation.” When Dunham asked appellant about this second sexual
assault, appellant stated that he had consensual sex with Bella one time, and that “there
was no force or anything like that.” According to Dunham, appellant stated in his
deposition that he had asked Bella several times to have sex and she said yes several
times. Dunham explained that “grooming” was “anything that is involved in setting up a
sexual offense, so anything that you do to make a sex offense more likely to occur.”
Dunham observed that it appeared appellant was grooming Bella “to either be his
girlfriend or to have sex with her based on telling her that he loves her, and . . . talking
hours at night and developing that relationship.” Dunham further added that this “wouldn’t
necessarily be grooming except for the age discrepancy and her vulnerability to that.”
Appellant was arrested, charged, and convicted for these two aggravated sexual
assault of a child offenses against Amelia and Bella. Appellant was placed on deferred
community supervision for both offenses. However, Dunham stated that appellant
committed several violations of his probation, including committing burglary of a coinoperated machine, as well as “technical violations such as not showing up, not paying his
fees, not submitting to drug testing,” and being noncompliant with sex offender treatment.
Appellant’s probation was revoked, and he was sentenced to six years’ imprisonment.
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Dunham explained that appellant had “four different criminal acts for which he’s arrested
for or charged with by the time he’s not even fully [eighteen] years old,” which Dunham
found significant, and demonstrated appellant’s “antisocial elements.”
Dunham also discussed appellant’s third aggravated sexual assault of a child
offense. On December 22, 2015, appellant sexually assaulted three-year-old Chloe when
he was twenty-six years old, two years after he had finished serving his prison terms for
his first two sexual assault offenses. Dunham explained that appellant’s third offense
demonstrated another risk factor called “persistence after punishment, sex offenders who
reoffend after being punished for a previous sex offense.” Dunham stated that this risk
factor carried the greatest weight in his assessment. With respect to appellant’s third
sexual assault, Dunham found it significant that appellant committed that offense within
two years of leaving prison instead of a longer amount of time. According to Dunham,
records demonstrated that appellant was in a relationship with Chloe’s mother, and that
he had lived with her, Chloe, and Chloe’s grandmother. Chloe had informed her
grandmother, CPS, hospital examiners and nurses that appellant licked her vagina “all
the time.” Appellant pleaded guilty to this third offense and was sentenced to ten years’
imprisonment.
When discussing this third offense with Dunham, appellant denied that anything
sexual ever happened with Chloe and instead described how Chloe’s grandmother “didn’t
like him” and had previously reported him for other things such as drugs, and was “out to
get him removed from the house.” Dunham identified several other risk factors related to
this third offense:
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[Chloe’s] age, being age three, that’s clearly more deviant than [thirteen]
years old, so it’s also an escalation in offending. I think it’s more devious
and worse, to be frank. He’s offended while he was in a relationship with
the mom, so he has access to sex inside the house, but he’s offended
against the daughter. Offending after treatment. So he went to—after his
first offenses, he’s on probation. He’s ordered to do sex offender treatment.
And he did go to some of it. So he’s offended after prison, after treatment,
while in a relationship. So those timing factors, definite prepubescence for
a victim, and the pattern of behavior.
Dunham also stated he listened to some recorded telephone conversations
between appellant and his fiancé, the nature of which were “sexually explicit, border[line]
pornographic,” “and it’s almost every call.” Dunham further explained that appellant was
having these types of conversations “even knowing that this case is going on.” Dunham
identified another risk factor from these conversations, sexual preoccupation, which
Dunham believed appellant has had “since he was . . . a teenager.” Dunham also stated
that appellant’s email conversations were also “very sexual,” and “probably about [eighty]
percent of [them] were long, like, erotic stories.” However, Dunham stated that the
sexually explicit tone had “slowed down” over the last several months. Dunham also
indicated that appellant received provocative photos from his fiancé and “another female
that he had a relationship with.”
When asked whether it was important for offenders to admit fully what they have
done wrong, Dunham responded,
It’s not the denial of the offense that’s important. It’s more denial of being
sexually deviant or denial of having a problem or denial that you need any
help. That’s more the risk factor that I’m looking at, because denial is
common and it’s not identified as a risk factor, but it—it might be important
for treatment purposes, because you can’t deny an offense and progress in
treatment, but as far as the risk factor that you’re looking at as somebody
who doesn’t understand their risk, if they have a poor appraisal of their own
risk, then that’s the risk factor. And if you’re denying it, then it’s hard to have
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a good understanding of what your risk level is. Therefore, you’re not
inclined to put the safeguards and tools in place to keep you from getting
into temptation later.
Dunham stated that appellant did not have any sexual misconduct infractions in
prison, which Dunham found surprising given his sexual preoccupation. However,
Dunham did not consider the lack of sexual misconduct infractions a protective factor
because “that’s not something different than the first time he was in prison where he got
out and he reoffended.” Dunham admitted that it was “good [appellant] doesn’t have
them,” but the lack of infractions did not change his opinion. Dunham also stated that he
found appellant’s institutional adjustment to be a neutral factor.
Dunham conducted a Psychopathy Checklist-Revised (PCL-R) test on appellant,
which measures “how psychopathic somebody is.” According to Dunham, people who are
psychopathic “truly don’t have a conscience,” and “will do things according to what they
want to do and really don’t care about much other than perhaps [the] legal consequence.”
Dunham explained that “psychopathy plus sexual deviance is highly correlated with future
risk for sexual reoffending.” He also stated he had undergone extensive training to
administer the PCL-R test. Dunham observed that appellant had the following
psychopathic traits upon testing: “[a] need for stimulation/proneness to boredom, conning,
manipulative behavior, lack of remorse or guilt, promiscuous sexual behavior,
irresponsibility, revocation of a conditional release, and criminal versatility.” Appellant’s
overall score on the PCL-R test was 24.2, which Dunham explained meant that appellant
scored within a moderate range of psychopathy. Dunham did not opine that appellant was
a psychopath, but stated appellant’s score was still significant, and helped Dunham
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understand appellant’s “antisocial makeup.”
Dunham also conducted a Static-99R actuarial test for measuring appellant’s risk
level for being rearrested or reconvicted of a future sex offense. According to Dunham,
appellant scored a five, meaning “compared to other sex offenders, he’s above average
risk for being rearrested or reconvicted in the future.” Dunham explained that the Static99R “doesn’t encompass protective factors very well,” or encompass every risk factor,
such as sexual preoccupation or offending after some sex offender treatment, both of
which were risk factors for appellant.
Dunham also testified that appellant had “poor dynamic factors,” and explained
that “[d]ynamic means changing, so this is what somebody’s current, like, attitudes are,
their beliefs, how they feel about their offending, . . . what’s going on currently with them
now.” In this regard, Dunham mentioned that appellant denies he is sexually deviant and
“doesn’t think he’s any risk.”
Dunham also stated that appellant’s substance abuse was also a significant risk
factor as appellant was using methamphetamine daily when he was not in prison, and
had no substance abuse treatment at that time.
Dunham clinically “ruled out . . . pedophilic disorder—sexually aroused to females,
nonexclusive type” because appellant’s prior sexual assaults involving the thirteen-yearolds “wouldn’t count based on the age discrepancy,” and Dunham did not know “how long
a duration or anything went on with [Chloe] or if he’s had arousal to other little girls as
well.” Dunham explained that nonexclusive meant appellant “also has arousal to adults,
so it’s not exclusive to children” and that he could not say “specifically that [appellant] has
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pedophilia because that is going to need to be more than a one-time incident. It’s going
to need more of an ingrained, usually, I think, six months at least in duration that you have
these arousal or urges towards children.” However, Dunham explained that it was
possible appellant had pedophilic disorder, that it was “important to communicate that,”
and “ruling out the pedophilia clearly means there’s probably something that has
happened or something that has been a problem that has to do with prepubescent
child[ren].” The following exchange occurred:
[The State]: Are [appellant’s] sexual offenses evidence that
his emotional or volitional capacity has been
affected?
[Dunham]: Yes.
[The State]: And is it still affected today?
[Dunham]: Should be, yes, ma’am.
[The State]: And can you explain that?
[Dunham]: Because what somebody is aroused to, what
their sexual—you know, if somebody is aroused
to a child when they are 25, it shouldn’t change
when they are 35. People don’t become—
people don’t change their sexual orientation just
because they have, you know, been in an
institution or been in a prison or been
somewhere else or just the 10 years passage of
time. People don’t become heterosexual if
they’re homosexual, and vice versa. So if
somebody is aroused to children, they don’t just
suddenly stop becoming aroused to children just
because of the passage of time. And so there is
no reason that why he should not still have that
arousal if it was there when he was 25.
[The State]: And is that what a chronic condition is
describing essentially?
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[Dunham]: Yes, ma’am.
[The State]: Are his sexual offenses evidence that he is a
menace to the health and safety of another
person?
[Dunham]: Yes, ma’am.
[The State]: How so?
[Dunham]: He’s already shown the ability to harm
somebody, you know, put other people at risk.
Dunham stated he diagnosed appellant with antisocial personality disorder, which
he explained as a “personality where the person struggles with following the rules in
society. They do things that are frowned upon either by arrests or just—just not typical
norms of society. And it’s ingrained, its lifelong, starts usually early in adulthood and lasts
throughout somebody’s life.” In this regard, Dunham stated he relied on the Diagnostic
and Statistical Manual of Disorders (DSM), Fifth Edition to diagnose appellant, and that
this diagnosis was “provisional” because said diagnosis requires evidence of conduct
disorder by the age of fifteen. Dunham stated that appellant had conduct disorder, “the
juvenile equivalent to antisocial personality disorder.” However, Dunham stated he did
not know what was going on with appellant before he was fifteen. When asked if he saw
any current evidence of antisocial personality disorder in appellant, Dunham stated that
there was “a lot less,” but that appellant had a lot of disciplinary cases while in prison for
tattooing. Dunham explained that having tattoos itself was not antisocial, but it was
antisocial in the sense that it was against the rules. The following exchange occurred:
[The State]: And . . . has this antisocial personality disorder
affected his emotional and volitional capacity?
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[Dunham]: Yes.
[The State]: And does it still affect his emotional and volitional
capacity today to the extent that he is a menace to the
health and safety of others?
[Dunham]: Yes, . . . same reason. There is no reason for it to
change. What somebody’s personality is doesn't
usually—it can lessen, it can change a little bit over
time, but at his age you don’t usually see a decrease in
the outward elements of it.
[The State]: It can decrease over time, though?
[Dunham]: Yes.
Dunham found one protective factor regarding appellant, in that he had “a period
of time while living free that he did not offend after he offended against [Chloe].” However,
Dunham stated that this one protective factor was not enough to change his opinion that
appellant suffers from a behavior abnormality. Another protective factor was that
appellant had “better institutional adjustment,” meaning he had less disciplinary cases in
prison compared to the last time he was imprisoned for his first two convictions. Dunham
stated that appellant had “good support from his fianc[é],” but he did not view this as a
significant risk reduction. Dunham also stated that appellant had a realistic release plan.
Dunham noted that appellant had not had any sex offender treatment since his last
offense, and the treatment he had before “was probably obsolete now to him, and I don’t
think it was long enough to make much of a difference.” Dunham discussed sex offender
treatment with appellant and asked him if he needed it and if he was willing to take it.
According to Dunham, appellant responded that he did not believe he needed sex
offender treatment but would be willing to take it “if that would make y’all feel better.”
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Dunham also noted that appellant did not really say in his deposition whether he needs
sex offender treatment or not but did say that “he doesn’t consider himself to be a risk.”
Dunham explained this was concerning because of appellant’s history and “just not
knowing that he’s at a level of risk and not willing to—or not wanting to address that.”
Dunham indicated that sex offender treatment was not necessarily required for someone
to not reoffend again but described it as the “number one protective factor” along with
advanced age that are “weighted the heaviest.”
When asked if appellant understood his level of risk to reoffend sexually, Dunham
responded, “it doesn’t appear so based on his statements. Then again, . . . denying the
third offense . . . I don’t know where he’s at as far as whether he needs help. Like, if that’s
what he’s truly denying, truly believes that, then [he] probably doesn’t have the insight
that he needs.” The following exchange occurred:
[The State]: And in summary, when someone has a mixture
of sexual deviance and antisociality, no history
of meaningful sex offender treatment, a lack of
understanding of why they sexually offended,
and all of the other risk factors you discussed,
what does that do to someone’s risk of
reoffending sexually?
[Dunham]: Just knowing that information, I’d say that’s a
high risk right there.
[The State]: And how does [appellant’s] history of sex
offenses indicate to you that his emotional or
volitional capacity has been affected?
[Dunham]: Because he’s given in to his temptations and
succumbed to those.
[The State]: Do you believe his emotional or volitional
capacity is still affected today?
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[Dunham]: Yes.
[The State]: Today do you believe [appellant] is a menace to
the health and safety of another person?
[Dunham]: Yes.
[The State]: And why do you believe that [appellant] has a
behavioral abnormality as he sits here today
when the last time he sexually offended was
almost 10 years ago?
[Dunham]: Because I don’t see what significant change
could have occurred other than him aging, going
from 25 to 35. I don’t see . . . what else would
break that pattern that would be significant to
me.
[The State]: And . . . what would you consider [appellant’s]
risk of sexually reoffending to be as he sits here
today?
[Dunham]: It should be high.
On cross-examination, Dunham revealed that he did not review a video recording
of Chloe’s forensic interview by the Child Advocacy Center but had read the police report
concerning that offense. When asked if he thought it might be important to review the
recorded interview, Dunham replied, “No. He was convicted of it. He pled guilty to it. There
is no reason to go and reinvestigate it.” When asked if he thought it would be important
to review the recording to see what Chloe said or did not say in the interview, Dunham
responded, “I didn’t feel it was important because I already had the summarization of what
was reported. I also had [a] summarization from CPS and the [sexual assault nurse
examiner], and they were all very consistent in what was reported.” The following
exchange occurred concerning Dunham’s rule-out diagnosis of pedophilic disorder:
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[Defense counsel]: And you testified that you came up with a ruleout diagnosis of pedophilic disorder?
[Dunham]: Yes.
[Defense counsel]: And to be clear, you are not saying that
[appellant] has pedophilic disorder, are you?
[Dunham]: Not exactly, no.
[Defense counsel]: A rule-out condition is not an actual diagnosis,
is it?
[Dunham]: It’s a qualifier to a diagnosis.
[Defense counsel]: Are there certain criteria that must be met in
order for somebody to be diagnosed with this
disorder?
[Dunham]: Yes.
[Defense counsel]: And [appellant] does not meet those criteria,
correct?
[Dunham]: Not based on what I know objectively, no.
Dunham further stated that a rule-out pedophilic disorder was “not equivalent to any kind
of risk.” Dunham also stated that appellant’s last disciplinary violation occurred in 2021,
and it was “minor.” Dunham also testified that appellant had told him that he had used
methamphetamine “right up until his last arrest, last time he was free. So ten years ago,
I guess.” When asked if a person can have a methamphetamine use disorder and not
have a behavioral abnormality, Dunham replied, “Yes.”
When asked if it was possible for someone to have sexual deviance and not have
a behavioral abnormality, Dunham stated, “Yes, it is.” Dunham also indicated that one
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risk factor was “somebody who offends after going through sex offender treatment” and
that appellant had described attending such treatment. The following exchange occurred:
[Defense counsel]: And what has [appellant] done in the past year
to show he continues to have issues regarding
volitional or emotional capacity?
[Dunham]: He has not done anything to not show it, so the
assumption is that . . . this condition is there, it’s
affecting him, and because he’s set aside for a
while doesn’t mean that condition is gone. But
there’s nothing to show that it’s not there or that
it’s not controlled through, like, sex offender
treatment or, you know, gaining some positive
dynamic factors or reversing the negative
factors. So it’s more of the what has he not done
to show that it’s not there, if that sounded right.
[Defense counsel]: Do you believe [appellant] currently has serious
difficulty in controlling his behavior?
[Dunham]: I believe so, in certain situations, yes.
[Defense counsel]: And what are those certain situations?
[Dunham]: Whenever he’s tempted to act out sexually.
Dunham then clarified that denial of an offense is no longer identified as a risk factor by
the most recent research and studies.
On redirect, Dunham indicated that most offenders he has interviewed did not
admit to having an interest or attraction to children. Dunham further indicated that
because it was rare for someone to self-disclose their arousal to children, patterns and
convictions were important to look at and consider. Dunham also stated that appellant’s
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drop in disciplinary cases occurred about the time he was isolated and segregated in
prison. When asked why substance abuse is a risk factor, Dunham explained that “people
under the influence can make worse judgments. They can—their inhibitions can be
lowered, disinhibited, and do things that they may not think that they are capable of doing
or intend to do because they are under the influence.”
B. Appellant’s testimony
Appellant testified that he initially thought Amelia was sixteen years old because
she told him so but that he continued his relationship with her after finding out she was
thirteen years old and they continued to have sex. Regarding this offense, appellant
admitted, among other things, that he had sex with Amelia after she stated she had been
raped because he “wanted her to feel better,” that he was “very irresponsible” and “should
have known better.”
Appellant also admitted to sexually offending against Bella after Amelia’s parents
forbade appellant and Amelia from seeing each other. Appellant stated that he attended
sex offender treatment when he was placed on deferred adjudication probation but did
not complete it. Appellant stated he was released from prison the first time on December
17, 2013, and that he quickly met his girlfriend and that she moved in with him. His
girlfriend had three young children, including Chloe. Appellant admitted he moved himself
out after the allegation was made concerning Chloe. Appellant denied that he had
sexually offended against Chloe or that he was sexually attracted to her. However,
appellant admitted he “signed no contest to a plea agreement.”
Appellant admitted he was currently serving sentences for other convictions,
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including some stemming from an incident on December 8, 2015, where he fled from
officers attempting to initiate a traffic stop, crashed, and thereafter attempted to throw
away methamphetamine he had possessed. Appellant admitted he was convicted for
possession of a controlled substance. Appellant also admitted to subsequently being
involved in a high-speed chase with police, where he again attempted to flee from police
trying to initiate a traffic stop because he had drugs in the car. From this incident, appellant
was convicted for evading arrest and aggravated assault on a peace officer, and
sentenced to eight years’ imprisonment.
Appellant stated he had been housed in administrative segregation since
September 1, 2021. Appellant indicated he was not sexually attracted to children or
teenagers. He also stated he was not preoccupied or obsessed with sex. Appellant
testified that he was open to taking sex offender treatment because he was “willing to do
anything to help better [him]self as a person” and that this was what he told Dunham.
When asked if he thought he needed help understanding why he sexually offended,
appellant replied, “No.” When asked if he ever had meaningful sex offender treatment,
appellant responded, “Never had the opportunity, no.” When asked if he fully understood
how to avoid sexually reoffending in the future, appellant replied, “Yes.” When asked how
he would avoid sexually reoffending in the future, appellant responded,
By being aware of anything that could be a trigger to you, . . . not putting
yourself in situations or circumstances that could cause . . . somebody to
even make a statement about you or anything like that. Like, I wouldn’t be
alone with somebody by themselves. I would always make sure that if I went
somewhere to—like, if I went to go meet my friend Crystelle, I would make
sure that my fianc[é] was with me so that I was—I wasn’t always the same
person there with them.
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Appellant then explained that a trigger was a “temptation,” and he did not have any
triggers or temptations to sexually reoffend.
On cross-examination, appellant explained that, while in prison, he had taken
many courses on Edovo, an online application that is “all about educational things.” In
particular, appellant stated he took one Edovo course related to sex offending, entitled
“How Do I Overcome Child Sexual Abuse.” He explained that this course helped him “see
things from [child victims’] point of view.” Appellant also stated he earned numerous
certificates outside of Edovo. Appellant maintained that if he were released he would not
commit any future sexual offenses or be a menace to the health and safety of others.
During appellant’s testimony, certified copies of the trial court’s orders of deferred
adjudication and judgments adjudicating guilt regarding his first two aggravated assault
of a child offenses against Amelia and Bella were admitted into evidence. In addition,
certified copies of the trial court’s judgments pertaining to appellant’s other offenses were
admitted, including:
• aggravated sexual assault of a child against Chloe;
• possession of a controlled substance, a third-degree felony enhanced to a seconddegree felony, see TEX. HEALTH & SAFETY CODE § 481.115(c); TEX. PENAL CODE
§ 12.42(a);
• evading arrest, a third-degree felony, see TEX. PENAL CODE § 38.04(b)(2);
• aggravated assault on a peace officer, a first-degree felony, see id. § 22.02(b).
The trial court’s order of deferred adjudication for appellant’s unauthorized use of a motor
vehicle offense, a state jail felony, was also admitted, as well as the trial court’s order
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terminating deferred adjudication community supervision regarding that offense due to
unsatisfactory discharge. See id. § 31.07. Furthermore, the juvenile court’s order of
adjudication pertaining to appellant’s delinquent conduct offense, where he engaged in
unlawful carrying of a weapon, was admitted. See TEX. FAM. CODE § 51.03(a); TEX. PENAL
CODE § 46.02(a).
After appellant testified, the parties presented closing arguments, and the jury
found appellant to be an SVP. 3 This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
Appellant challenges the legal and factual sufficiency of the evidence supporting
the jury’s finding that he is an SVP.
A. Applicable Law and Standard of Review
The SVP Act provides a procedure for the involuntary civil commitment of an SVP.
See TEX. HEALTH & SAFETY CODE §§ 841.001–.153. The SVP Act was enacted based on
legislative findings that “a small but extremely dangerous group of [SVPs] exists” and that
“those predators have a behavioral abnormality that is not amenable to traditional mental
illness treatment modalities and that makes the predators likely to engage in repeated
predatory acts of sexual violence.” Id. § 841.001.
Under the SVP Act, a person may be civilly committed if the factfinder determines
by a unanimous verdict and beyond a reasonable doubt that the person is an SVP. See
id. §§ 841.062, 841.081. An SVP is defined as a person that (1) is a “repeat sexually
3 Appellant timely filed a motion for new trial. Given that the appellate record does not contain any
signed order pertaining to appellant’s motion for new trial, we assume that said motion was overruled by operation of law.
22
violent offender,” and (2) “suffers from a behavioral abnormality that makes [him] likely to
engage in a predatory act of sexual violence.” Id. § 841.003(a). A person is a “repeat
sexually violent offender” if the person is convicted of more than one “sexually violent
offense” and a sentence is imposed on at least one of those convictions. Id. § 841.003(b).
The SVP Act defines “sexually violent offense” to include certain sexual offenses
enumerated in the Texas Penal Code, including aggravated sexual assault, as well as
offenses with substantially similar elements under prior state law or the law of other
jurisdictions. See id. § 841.002(8), (A) (listing aggravated sexual assault as a sexually
violent offense); TEX. PENAL CODE § 22.021. A behavioral abnormality is “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.” TEX. HEALTH & SAFETY
CODE § 841.002(2). Whether a person suffers from a behavioral abnormality that makes
the person likely to engage in a predatory act of sexual violence is a single, unified issue.
In re Commitment of Bohannan, 388 S.W.3d 296, 303 (Tex. 2012).
“A commitment proceeding under the SVP Act is the unusual civil case
incorporating the ‘beyond a reasonable doubt’ burden of proof [standard] typically
reserved for criminal cases.” In re Commitment of Stoddard, 619 S.W.3d 665, 674 (Tex.
2020) (citing In re Commitment of Fisher, 164 S.W.3d 637, 641 (Tex. 2005)). The
Supreme Court of Texas observed in Stoddard that “[t]he legal-sufficiency standard in
criminal cases is consistent with the civil standard.” Id. at 675 (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)). Thus, when conducting a legal sufficiency review in a case
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governed by the SVP Act, we review the evidence in the light most favorable to the verdict
to determine whether any rational factfinder could find the elements required for
commitment under the SVP Act beyond a reasonable doubt. Id. “Under this standard, it
is the fact[]finder’s responsibility to fairly resolve conflicts in the testimony, weigh the
evidence, and draw reasonable inferences from basic facts to ultimate facts.” In re
Commitment of Cordova, 618 S.W.3d 904, 915 (Tex. App.—El Paso 2021, no pet.) (citing
In re Commitment of Williams, 539 S.W.3d 429, 437 (Tex. App.—Houston [1st Dist.] 2017,
no pet.)). This means that the factfinder is free to believe some, all or none of a witness’s
testimony, and may assign as much or as little weight to a witness’s testimony as it sees
fit. See Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020).
B. Discussion
In his sole issue, appellant raises a legal sufficiency claim. It is undisputed that
appellant is a repeat sexually violent offender as the SVP Act defines that term. See TEX.
HEALTH & SAFETY CODE § 841.003(b). Appellant complains only that the evidence was
legally insufficient to support the beyond-a-reasonable-doubt finding that he suffers from
a behavior abnormality.
Here, Dunham defined behavior abnormality as provided in the SVP Act and
explained how the statutory definition applied to appellant. In making his determination
that appellant suffered from a behavioral abnormality, Dunham testified he reviewed over
3,000 pages of documents, including records pertaining to appellant’s entire criminal
history, police reports, CPS reports, victim statements, witness statements, appellant’s
own statements and deposition testimony, a psychologist’s report of a previous evaluation
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of appellant, Dunham’s two-hour interview with appellant, and recorded telephone
conversations and email exchanges between appellant and his fiancé. Dunham relied on
the DSM to provisionally diagnose appellant with antisocial behavioral disorder. Dunham
also testified that appellant possessed various risk factors, and explained the factual basis
for each one and how those risk factors affected the likelihood that appellant would
commit a future sexually violent offense. Those specific risk factors included appellant’s
sexual deviancy, antisocial orientation, sexual preoccupation, substance abuse, and
“persistence after punishment,” which Dunham described as having the greatest weight.
See In re Commitment of Metcalf, 602 S.W.3d 609, 622 (Tex. App.—Texarkana 2020,
pet. denied) (holding evidence was legally sufficient to support the jury’s finding that a sex
offender suffered from a behavior abnormality when, among other things, evidence
indicated the sex offender had “antisocial orientation” and “deviant sexual interest,” which
was “two top risk factors for predicting future risk of reoffending”); In re Commitment of
Harris, 541 S.W.3d 322, 329 (Tex. App.—Houston [14th Dist.] no pet.) (holding evidence
was legally and factually sufficient to support the jury’s finding that a sex offender suffered
from a behavior abnormality when evidence showed that the sex offender had the “two
biggest risk factors for re-offending—sexual deviance and antisocial personality
disorder”); see also In re Commitment of Acevedo, No. 07-24-00076-CV, 2024 WL
4709985, *1–2 (Tex. App.—Amarillo 2024, pet. denied) (rejecting sex offender’s legal
sufficiency argument that because he did not have “a personality disorder (i.e.,
antisociliaty),” he “[did] not have a behavorial abnormality”)
Though Dunham did not opine that appellant was a psychopath, he explained that
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appellant scored a 24.2 in the PCL-R test, which Dunham found significant and explained
was within the moderate range of psychopathy. See In re Commitment of Hebert, 578
S.W.3d 154, 159 (Tex. App.—Tyler 2019, no pet.) (holding psychopathy is not a requisite
finding in a SVP civil commitment case). According to Dunham, the PCL-R testing
revealed appellant the following psychopathic traits: “[a] need for stimulation/proneness
to boredom, conning, manipulative behavior, lack of remorse or guilt, promiscuous sexual
behavior, irresponsibility, revocation of a conditional release, and criminal versatility.”
Appellant also scored a 5 in the Static-99R test, which Dunham explained meant
appellant was above average risk for being rearrested or reconvicted of a future sex
offense.
Dunham stated that appellant had only two protective factors—that he had “a
period of time while living free that he did not offend after he offended against [Chloe]”
and “better institutional adjustment” compared to his first incarceration. Dunham also
acknowledged that appellant had “good support from his fianc[é]” and a lack of sexual
misconduct infractions. However, Dunham testified that appellant had “poor dynamic
factors,” in that he denies he is sexually deviant and “doesn’t think he’s any risk.”
Dunham’s testimony indicated that appellant’s risk to sexually reoffend was high.
Furthermore, Dunham stated that appellant does not appear to understand his risk level
to reoffend. When asked why he believed appellant presently had a behavioral
abnormality when he had last sexually offended nearly ten years ago, Dunham
responded, “Because I don’t see what significant change could have occurred other than
him aging, going from 25 to 35.” See In re Commitment of Tryon, 654 S.W.3d 29, 41 (Tex.
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App.—Eastland 2022, pet denied.) (holding advanced age, standing alone, is “not enough
to require a reversal of the jury’ verdict” that a sex offender suffered from a behavioral
abnormality).
Appellant’s arguments on appeal essentially strike at the credibility of Dunham’s
testimony that appellant suffers from a behavioral abnormality. For instance, appellant
points out that Dunham did not review a video-recording of Chloe’s statements
concerning this third aggravated sexual assault of a child conviction, and argues that he
“refused to look at the underlying facts and details that made up the basis of his opinion.”
Appellant also lodges various complaints concerning the credibility and weight of
Dunham’s testimony that appellant had sexual deviancy and sexual preoccupation, that
appellant groomed Bella, and that appellant “gravitated toward the younger girls.”
However, as the factfinder, the jury was not required to reject Dunham’s testimony. See
Metcalf, 597 S.W.3d at 855; Cordova, 618 S.W.3d at 915. Similarly, appellant argues,
“Dunham testified that what a person is aroused to does not change and gave the
example that a person does not stop being heterosexual and become homosexual or vice
versa. And yet today’s societal norms say that it can and does happen, as people shed
their heterosexual lives for same-sex marriages or become bisexual.” However, there was
no evidence presented at trial disputing the complained-of testimony, and the jury was
free to believe or disbelieve it. See Metcalf, 597 S.W.3d at 855; Cordova, 618 S.W.3d at
915.
Appellant also argues that Dunham “reviewed and relied on hearsay evidence and
presented it to the jury as the truth of the matter asserted.” Appellant has not raised an
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appellate issue challenging any evidentiary ruling concerning the admissibility of alleged
hearsay testimony. To the extent that appellant’s arguments can be construed as raising
such a challenge, we conclude appellant has inadequately briefed that issue because he
has failed to provide record references and citations to caselaw. See TEX. R. APP. P.
38.1(i) (appellate briefs “must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record”); Amir-Sharif v. Hawkins,
246 S.W.3d 267, 270 (Tex. App.—Dallas 2007, pet. denied) (“An issue on appeal
unsupported by argument or citation to any legal authority presents nothing for this Court
to review.”); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.)
(“Failure to cite legal authority or provide substantive analysis of the legal issue presented
results in waiver of the complaint.”). Even if appellant properly briefed his evidentiary
challenge, said issue is still without merit because the Fourth Court of Appeals, the
transferor court, has held that “when an expert relies upon hearsay in forming his opinion,
and that hearsay evidence is of a type reasonably relied upon by such experts, the jury
is generally permitted to hear it.” In re Commitment of Barnes, No. 04-17-00188-CV, 2018
WL 3861401, at *4 (Tex. App.—San Antonio Aug. 15, 2018, no pet.) (mem. op.)
(discussing Rules of Evidence 703 and 705(a)).
Finally, we note that appellant testified, among other things, that he was in control
of his behavior and sexual urges. However, the jury was free to reject his testimony. See
Metcalf, 597 S.W.3d at 855; Cordova, 618 S.W.3d at 915. Assessing the evidence in the
light most favorable to the verdict, we conclude that a rational factfinder could find that
appellant “suffers from a behavioral abnormality that makes [him] likely to engage in a
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predatory act of sexual violence,” beyond a reasonable doubt. TEX. HEALTH & SAFETY
CODE § 841.003(a); see Stoddard, 619 S.W.3d at 675. Accordingly, we hold the evidence
is legally sufficient to support the jury’s finding that appellant was an SVP and the trial
court’s judgment ordering commitment. See id. at 678. Appellant’s sole issue is overruled.
III. CONCLUSION
The trial court’s judgment is affirmed.
CLARISSA SILVA
Justice
Delivered and filed on the
31st day of August, 2026.
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