Opinion
NO. 09-10-00504-CV
03-08-2012
IN RE COMMITMENT OF MARK ALAN BELCHER
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 10-04-04215 CV
MEMORANDUM OPINION
The State of Texas filed a petition to commit Mark Alan Belcher as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2011). A jury found that Belcher suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The trial court rendered a final judgment and an order of civil commitment. On appeal, Belcher contends the evidence is legally insufficient to support the jury's determination that he has a behavioral abnormality under Chapter 841 of the Texas Health and Safety Code. We affirm the trial court's judgment.
Under the SVP statute, the State must prove beyond a reasonable doubt that "the person is a sexually violent predator." Tex. Health & Safety Code Ann. § 841.062(a). A "sexually violent predator" is a person who "(1) is a repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." Id. § 841.003(a). 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." Id. § 841.002(2). A "'predatory act' [is] an act directed toward individuals, including family members, for the primary purpose of victimization." Id. § 841.002(5). In order to civilly commit Belcher, "proof of serious difficulty in controlling behavior" is required. Kansas v. Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 870, 151 L. Ed. 2d 856 (2002). The proof of a respondent's "serious difficulty in controlling behavior. . . must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." Id.
The record contains legally sufficient evidence from which the jury could determine that Belcher is a sexually violent predator and has serious difficulty controlling his behavior. Belcher testified that he had two convictions for aggravated sexual assault of a child younger than 14 years of age. Belcher admitted to drug use, including marijuana, cocaine, PCP, amphetamines, methamphetamines, mushrooms, glue, and LSD. He also admitted to selling drugs. Belcher testified that he was molested as a child. Belcher denied that he sexually assaulted his stepson, even though he admitted that he had previously signed a statement wherein he admitted to molesting his stepson, as well as other children. Belcher testified that parts of his written statement are true, and parts are not true. Belcher also admitted that he told the parole board that he had molested his stepson, but at trial, he testified he lied to the board. He admitted to sexually assaulting his stepdaughter over a period of years. He testified that he knew his behavior was wrong, but he was "having a lot of difficulty" controlling himself. He further testified that when he molested his stepdaughter he was under the influence of drugs and alcohol.
Belcher testified that he possessed pictures and images of children while he was in prison, some of which he drew and others he cut out of magazines. He testified he is "a fairly accomplished artist," and admitted that while he was incarcerated he drew pictures of children having sex. He also wrote stories about children having sexual relations with adult males. Belcher admitted that one of his stories was confiscated from his prison cell right before his release. Belcher admitted that when he drew the pictures of the children and wrote the stories, he was not under the influence of drugs or alcohol.
Belcher testified that he does not want to be alone with a young girl because he could be a danger to her. Though Belcher denied that he was still attracted to children, he admitted that he testified at his deposition that he was still attracted to children. Belcher explained to the jury, "as long as I remember the 20 years that my offenses took out of my life, then I'll stay on the straight and narrow and stay away from doing the things that I know dang good and well I don't need to be doing[.]" He admitted that he quit his sex offender treatment program while incarcerated, but he testified that he has already looked into receiving sex offender treatment when he has the money to pay for the treatment.
Dr. Timothy Proctor and Dr. Michael Arambula, both licensed in their respective fields, testified on behalf of the State. They both reviewed Belcher's records and conducted a face-to-face interview with Belcher. Both experts testified that they relied on the types of records generally relied on by experts in their respective fields and performed their evaluations in accordance with their education and training. Both experts testified that they based their opinions on the facts and data they gathered from the records, their interview with Belcher, and the risk assessments they conducted. Both Drs. Proctor and Arambula concluded that Belcher suffers from a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence.
The jury further heard evidence concerning Belcher's risk factors, actuarial test scores, criminal history, repeated sexual offenses, lack of progress while in sex offender treatment during incarceration, and disciplinary cases during his incarceration. The jury also heard evidence of Belcher's diagnoses of pedophilia, nonexclusive type, personality disorder not otherwise specified with antisocial traits, and polysubstance dependence in full remission in a controlled environment.
Belcher argues the "state submitted no evidence that [Belcher] has serious difficulty controlling his behavior." Serious difficulty controlling behavior can be inferred from past behavior, Belcher's own testimony, and the expert testimony. In reCommitment of Mosqueda, No. 09-10-00540-CV, 2011 WL 5988361, at *1 (Tex. App.— Beaumont Dec. 1, 2011, no pet.) (see also cases cited therein for this principle). Having considered Belcher's arguments, and having reviewed the record in the light most favorable to the verdict, we conclude a rational jury could have found beyond a reasonable doubt that Belcher has a behavioral abnormality that makes him likely to commit a predatory act of sexual violence. See In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet. denied). The evidence is legally sufficient to support the trial court's judgment. See id. Accordingly, we overrule Belcher's issue and affirm the trial court's judgment.
AFFIRMED.
________________________
CHARLES KREGER
Justice
Before McKeithen, C.J., Kreger, and Horton, JJ.