In re Pero

1

IN RE THE COMMITMENT OF DANIEL J. PERO

No. 05-21-01141-CV

Court of Appeals of Texas, Fifth District, Dallas

June 8, 2023

On Appeal from the 204th Judicial District Court Dallas County Texas Trial Court Cause No. CV20-70005-Q

Before Justices Carlyle, Garcia, and Miskel

MEMORANDUM OPINION

CORY L. CARLYLE JUSTICE

A jury found appellant Daniel J. Pero to be a sexually violent predator. In four issues, Mr. Pero challenges that determination. We affirm in this memorandum opinion. See Tex. R. App. P. 47.4.

In his first and second issues, Mr. Pero challenges the legal and factual sufficiency of what he characterizes as the behavioral abnormality "element" of the State's case. In reviewing legal sufficiency in sexually violent predator cases, we use the familiar criminal law standard "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." In re Commitment of Stoddard, 619 S.W.3d 665, 675 (Tex. 2020) (quoting Jackson v Virginia, 443 U.S. 307, 319 (1979)). In reviewing factual sufficiency, our standard of review is "whether, in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of the verdict, along with undisputed facts contrary to the verdict, is so significant that the factfinder could not have found beyond a reasonable doubt that the statutory elements were met." Id. at 678. In applying that standard, we "must detail why we conclude a reasonable factfinder could not have credited disputed evidence in favor of the finding." Id.

Mr. Pero contends the evidence supporting him having a "behavioral abnormality" is legally insufficient, and that we must construe the legal definition of that phrase in order to reach our holding in this case. See Tex. Health & Safety Code § 841.002(2) (defining "behavioral abnormality"). The bulk of his argument relies on the premise that the statute's "behavioral abnormality" definition is ambiguous, leading Mr. Pero to an interesting line of legislative history that may deserve attention, albeit by the legislature. We find no ambiguity in the statutory definition of "behavioral abnormality," and thus we decline Mr. Pero's invitation to consider the extrinsic evidence in his brief. See In re Commitment of Ausbie, No. 14-18-00167-CV, 2021 WL 1972407, at *11 (Tex. App.-Houston [14th Dist.] May 18, 2021, pet. denied) (mem. op.). We find legally and factually sufficient evidence of a behavioral abnormality, as we discuss below.

As the State points out, there was no evidence to counter the evaluation and diagnosis as a pedophile, which its expert witness, Dr. Jason Dunham, described as a behavioral abnormality that makes Mr. Pero likely to engage in a predatory act of sexual violence. Dr. Dunham described pedophilia as a lifelong sexual attraction to children. Mr. Pero argues his age, 69, combined with his sentence length, 25 years, his good behavior while serving his sentence, the lack of an "antisocial personality disorder" diagnosis, a less-than-30 score on the PCL-R test, the lack of a psychopathy diagnosis, and the relative risk of reoffending, described as "moderate to high" or "pretty good chance" of reoffending, combine to render the evidence insufficient.^[1]

The doctor described Mr. Pero's criminal history, including five guilty pleas in relevant cases. The first two are indecent exposure convictions with seven- and nine-year-old victims, respectively. Though they are not "sexually violent" predicate offenses for purposes of Texas Health and Safety Code Chapter 841, these offenses formed part of the foundation for Dr. Dunham's opinion. In both cases the victims described seeing Mr. Pero handling his penis as they walked past his house and in both cases the victims described Mr. Pero signaling them to approach him. Despite his guilty pleas, in the course of this litigation Mr. Pero denied the victims' factual descriptions and suggested he had just walked out to get the newspaper in his underwear.

Some five years after the exposure offenses, and after he completed sex offender treatment for those offenses, Mr. Pero sexually assaulted two neighborhood girls, aged seven and eight, on multiple occasions. The first girl described digital vaginal penetration at least one time, that he assaulted her some two to ten times, and that he told her not to tell. At trial, Dr. Dunham testified that Mr. Pero admitted to lifting her skirt "to look at her vagina" but told Dr. Dunham that he "never touched her sexually." Mr. Pero did admit that he tickled the girls and bounced them on a waterbed in his house, which led him to wanting "to look at their vagina."

For the second girl, the evidence was that Mr. Pero enticed her to his bedroom with the promise of a key chain and fondled her vagina under her clothes, though he did not penetrate her. Mr. Pero in this case admitted only to rubbing "his penis on her leg while she was playing one of those stand up arcade games at his house" while both were clothed.

Mr. Pero also sexually assaulted a six-year-old boy more than once and showed him pornography. The boy reported that Mr. Pero performed oral and anal sex on him after having groomed him by taking him to a store to buy a figurine and then having him bathe with the toy. In this case, Mr. Pero has blamed the six-year-old boy, claiming the boy asked to look at pornography and requested sex from him.

These latter three children were his daughter's friends and were allowed in his house for that reason and because Mr. Pero's wife was a Girl Scout leader for the girls. As with the two exposure offenses, Mr. Pero entered guilty pleas in the three cases. Dr. Dunham described Mr. Pero's current beliefs about those situations, denial and minimization, as "concerning" regarding a behavioral abnormality evaluation.

Dr. Dunham described two tests: the Static-99R and the PCL-R. On the former, Mr. Pero scored a four, which indicated an "above-average risk" to be reconvicted of a new sex offense as compared to other sexual offenders. The Static-99R test does not evaluate behavioral abnormality, so even if the score were more favorable to Mr. Pero, it would carry minimal weight in this discussion. The PCL-R measures the degree of one's psychopathy. Mr. Pero's score of 19 indicates he is not a true psychopath, though, according to Dr. Dunham, "[v]ery few child molesters are psychopathic."

Based on the foregoing, Dr. Dunham concluded that Mr. Pero has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. See Tex. Health & Safety Code §§ 841.002(2), .003. This conclusion, combined with the significant evidence supporting it, constitutes legally sufficient evidence in this case. In his factual sufficiency argument, Mr. Pero claims that the jurors should have given more credit to certain "undisputed" evidence. Because the evidence as a whole factually supports the jury's findings, we reject the factual sufficiency challenge as well.

In his third issue, Mr. Pero contends the trial court abused its discretion by refusing to include a jury instruction requiring the jury to find Mr. Pero has "serious difficulty controlling behavior," based on Kansas v. Crane, 534 U.S. 407, 413 (2002).

In In re Commitment of Browning, our sister court concluded that a broad-form submission under Chapter 841 was sufficient to satisfy Crane. 113 S.W.3d 851, 863 (Tex. App.-Austin 2003, pet. denied). Though we have not considered this issue directly, in considering the similar argument that evidence was insufficient for failure to support "serious difficulty controlling behavior," we have concluded "that a specific, independent finding on lack of control is not required, and that a broad-form jury charge submission based on the statutory definition of a 'behavioral abnormality' encompasses the lack-of-control determination required by Crane." In re Commitment of Rodriguez, No. 05-17-00514-CV, 2018 WL 3387363, at *1 (Tex. App.-Dallas July 12, 2018, pet. denied) (mem. op.) (citing In re Commitment of Mares, 521 S.W.3d 64, 67 (Tex. App.-San Antonio 2017, pet. denied); Browning, 113 S.W.3d at 863); see also In re Commitment of Almaguer, 117 S.W.3d 500, 502- 06 (Tex. App.-Beaumont 2003, pet. denied). Today, in overruling Mr. Pero's third issue, we take the small, additional step of joining our sister courts in concluding that the statutory definition of "behavioral abnormality" encompasses the due-process requirements of the United States Constitution, and thus that a jury charge including that definition satisfies federal constitutional substantive due process requirements.^[2] In his final issue, Mr. Pero complains the trial court erroneously admitted evidence from the State's testifying expert describing the statutory screening process for determining whether a person is eligible to be civilly confined as a sexually violent predator. He concedes that evidence may be admissible if respondents open the door by claiming that State experts find behavioral abnormalities "almost all the time" when they are the "second eyes on the case," but that, absent that door-opening, which he contends did not occur here, the evidence is inadmissible. We review evidentiary issues for an abuse of discretion and will reverse only if the trial court's decision was outside the zone of reasonable disagreement. In re Commitment of Grice, 558 S.W.3d 323, 327 (Tex. App.-Houston [14th Dist.] 2018, no pet.).

The sexually violent predator statute contains a screening process aimed at identifying certain convicted persons who potentially have behavioral abnormalities. A multidisciplinary team assesses whether the person is a repeat SVP...