in Re Commitment of Jason Wirfs ( 2020 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-19-00007-CV
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IN RE COMMITMENT OF JASON WIRFS
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On Appeal from the 356th District Court
Hardin County, Texas
Trial Cause No. 58936
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MEMORANDUM OPINION
The State of Texas filed a petition to commit Jason Wirfs (Wirfs or Appellant)
as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151
(SVP statute). A jury found that Wirfs is a sexually violent predator. The trial court
rendered a final judgment and an order of civil commitment, and Wirfs timely filed
a notice of appeal. In two issues, Wirfs challenges the legal and factual sufficiency
of the evidence supporting the jury’s finding. We affirm.
1
Evidence at Trial
Testimony of Jason Wirfs
Wirfs testified that he pleaded guilty to three counts of indecency with a child
by contact, and at the time of trial he had been incarcerated for nine years.1 Wirfs
testified that he had no problem dealing with sex and had never been sexually
attracted to children. According to Wirfs, although his sexual offenses were against
three children, 2 he told the jury he was not attracted to children or to teenagers under
the age of eighteen. Wirfs testified that he did not know why he committed the
offenses but was hoping to get “therapy at the unit I’m at in the program.”
Wirfs admitted that he “sexually offended” K.P., the daughter of his best
friend’s first wife. According to Wirfs, he was around K.P. in 2000 and 2001 when
he was in a sexual relationship with K.P.’s mother. Wirfs testified that he “touched
[K.P.] on her vagina with [his] hand.” At trial he denied ever bathing K.P., but he
agreed that in a 2009 written statement he provided to the police he admitted giving
1 In one of the cases, Wirfs was indicted for continuous sexual assault of a
child.
2
According to the record, Wirfs was convicted of three counts of indecency
with a child by contact for sexual contact with three children under the age of
seventeen. We identify the victims by using initials. See Tex. Const. art. I, § 30(a)(1)
(granting crime victims the “right to be treated with fairness and with respect for the
victim’s dignity and privacy throughout the criminal justice process”).
2
K.P. a bath when she was younger and he told the police in his handwritten statement
that he touched K.P.’s vagina with his hand twice. He testified that he had no idea
why he “sexually offended” K.P., and he stated that what he did to K.P. could cause
her physical and emotional harm. Wirfs agreed he previously testified that he
touched K.P. “on impulse” and “to see how she would react[.]” Wirfs also testified
he had known K.P. since her birth and that he was “like an uncle[]” to K.P. Wirfs
agreed that he bought K.P. presents and took her skating and to the mall. Wirfs
testified that he also had an affair with his best friend’s second wife and that he
sexually assaulted her two daughters, R.C. and A.S. Wirfs agreed that he continued
a sexual relationship with his best friend’s second wife after she and his best friend
“split[,]” and that R.C. and A.S. had stayed at Wirfs’ home while his best friend’s
second wife was incarcerated. He testified that he met A.S., R.C., and their mother
in 1998 or 1999, when A.S. was around three or four years old and R.C. was around
two or three years old. He testified that he was a family friend and father figure to
both A.S. and R.C. Although Wirfs testified that he only touched A.S. on her vagina
once with his hand, he agreed that he had stated in a prior written statement to the
police that he touched her vagina with his hand twice. According to Wirfs, the
offense happened “[t]en years back” at his house and he “remember[ed] the incident
happening, but not the details.” Wirfs acknowledged that he had testified that when
3
he touched A.S. he “acted on irrational thought[]” and he “thought it would be
funny[.]” Wirfs admitted he was originally charged with continuous sexual abuse of
a child for what he did to R.C. but he “pled down to indecency with a child[.]” Wirfs
agreed that in 2008 or 2009 he touched R.C.’s vagina when she was twelve or
thirteen years old, and he said he had no idea why he did it and that he had no sexual
motive. Wirfs agreed that in a prior handwritten statement he gave to the police he
admitted sexually touching R.C. twice. Wirfs also admitted that in his written
statement he stated he had also touched both R.C. and A.S. outside their clothes on
their vaginas, but at trial he then denied committing those offenses. Wirfs also
admitted at trial that he touched all three girls “sexually,” but he agreed that in his
deposition he had testified that the victims and others had conspired against him to
bring the additional allegations.
Wirfs testified that while incarcerated he received ten disciplinaries. Wirfs
received a major disciplinary for unauthorized contact with a victim, R.C., but Wirfs
denied that he attempted to contact her. The victim reported that another inmate
contacted her. According to Wirfs, his parole was revoked because of this
disciplinary but Wirfs claimed there was no formal investigation. He also received
a disciplinary the month before trial for an altercation with another offender and a
disciplinary in 2016 for threatening to harm a female officer. Wirfs testified that he
4
wanted to participate in the sex offender treatment program but that he did not have
a choice and was not allowed to participate until he was taken out of medium custody
and placed back in the program. Wirfs testified that he had never had a problem with
sex and was not preoccupied with sex, and he agreed that he had testified that he had
over one hundred sexual partners.
Wirfs agreed that it was important for him to understand why he offended in
order to prevent himself from reoffending in the future but testified that he hoped to
complete the nine-month sex offender treatment program to find out why he
offended. Wirfs testified that he believed that all the tools necessary to prevent him
from reoffending sexually had not been offered to him, but he later admitted that
they had been offered to him at one point. Wirfs testified that while incarcerated he
took “Cognitive, . . . Voyager, several religious based classes” and worked in the
kitchen, laundry, and garment factory. Wirfs testified he lived in a faith-based dorm
but admitted that he was thrown out of the program because he was accused of being
a member of the Aryan Brotherhood. According to Wirfs, he has never been a
member of the Aryan Brotherhood and the chaplain who threw him out of the
program was mistaken and offered to place Wirfs back in the program. Wirfs
testified he was “100 percent[]” to blame for being in prison. According to Wirfs, he
was born into a loving family and he feels he has not been a good father to his two
5
sons. Before being incarcerated, Wirfs worked as a crane operator, pipefitter,
boilermaker, truck driver, and offshore worker.
Testimony of Dr. Self
David Self, M.D., a physician and board-certified psychiatrist, testified as an
expert for the State. Self explained that he had been practicing forensic psychiatry
since 1995, that he has been evaluating individuals for a behavioral abnormality
since 2009, that he relied on the principles of forensic psychiatry when evaluating
Wirfs, and that his testimony was within the scope of forensic psychiatry. Dr. Self
testified that in this case he was asked to determine whether Wirfs has a behavioral
abnormality as defined by Chapter 841 of the Texas Health and Safety Code. Dr.
Self testified that a behavioral abnormality “is a condition that by virtue of affecting
a person’s cognitive or affective capacities render them - - predisposes them to
commit acts of sexual violence to the extent they become a hazard to other people.”
Dr. Self explained the methodology he uses in conducting a behavioral
abnormality assessment, which includes a review of all available records and
conducting a face-to-face psychiatric screening. He agreed that the methodology he
uses is the methodology used by experts performing this type of evaluation. After
reviewing records and interviewing Wirfs, Dr. Self formed an opinion that Wirfs has
6
a behavioral abnormality that predisposes him to engage in predatory acts of sexual
violence.
Dr. Self met with Wirfs for about two and a half hours. Self also reviewed the
education records, penitentiary packet, disciplinary records, medical records,
depositions, Texas Emergency Action control records, a parole file, TDCJ files, and
records from the Texas Juvenile Justice, the Dallas County District Clerk, the sex
offender treatment program, the Hardin County Sheriff, Hardin County District
Clerk, and Hardin County District Attorney.
Dr. Self did not administer any tests to Wirfs, but he reviewed the Static-99
actuarial testing of Wirfs administered by Dr. Charles Woodrick, the psychologist
hired by the penitentiary to evaluate Wirfs in anticipation of his release from prison.
According to Dr. Self, Wirfs scored a “zero” on that test, which “indicate[s] a very
low risk for future offenses [and] that this individual had less risk than the average
person with sex crimes being discharged from prison.” Dr. Self explained that the
creator of the Static-99 stated that it is not wise to consider the instrument alone in
determining whether someone is likely to engage in predatory acts of violence.
According to Dr. Self, the Static-99 does not account for all the important risk
factors, such as the escalation of sexual violence, grooming behaviors, the age of the
victims, sexual deviance, sexual desires, antisocial behavior beyond convictions,
7
intimacy deficits about interpersonal relationships, and lack of treatment. Self also
agreed that it is misleading to attribute a percentage of risk to an individual just by
looking at the Static-99 score.
Dr. Self explained that it is important to look at the offender’s past sexual
criminal history when answering whether the person is likely to sexually reoffend.
According to Dr. Self, the facts and details of Wirfs’ sexual offenses were significant
in determining that Wirfs has a behavioral abnormality.
Dr. Self explained that the records show that Wirfs engaged in “grooming”
with all three victims, which is a technique commonly seen with pedophiles as ways
to lure a child in to make the child more at ease with being sexually abused and to
gain the trust of adults so that they are less suspicious of them. Wirfs groomed his
victims by buying them gifts, taking them places, making “quid pro quo” deals to
take the victims where they wanted to go if they would let him touch them, and he
also threatened to harm them or their family if they told people about what Wirfs
was doing to them. According to Dr. Self, that Wirfs’ grooming behavior was
“confirmatory of a diagnosis of pedophilia.”
According to the records Dr. Self reviewed, Wirfs’ sexual offenses against
K.P. started when she was only five or six years old when Wirfs would give her
baths and “fondle her pubis during these baths and tell her that he did it because he
8
loved her.” According to Self, the last episode that K.P. described was when Wirfs
told her that he would let her take something home if she had sex with him. Self
testified that Wirfs took K.P.’s clothes off, laid her on the bed, performed oral sex
on her, tried to insert his penis, and when she started crying, he got angry and took
her home. Self also testified that K.P. reported that, on one occasion, Wirfs directed
K.P. to go in the bathroom, wipe herself with her panties, and leave her panties on
the back of the toilet. According to Self, “that’s very explicit and kind of extraneous
detail, which is one of the hallmarks of a true statement, when people include
superfluous detail.” Self testified that Wirfs’ offenses against K.P. came to light
when K.P. was fifteen years old and had a baby. K.P.’s grandmother overheard K.P.
tell Wirfs over the phone “something to the effect . . . no, you can’t see my baby.
You’ll not do to my baby what you did to me.” The grandmother then asked K.P.
what Wirfs had done to her and K.P. told her grandmother what Wirfs had done to
K.P. After that, the other two victims were questioned, and they also told the police
about what Wirfs had done to them.
A.S. and R.C. were daughters of Wirfs’ paramour and Wirfs and their mother
had an affair while she was married to his best friend. Self testified that after their
mother divorced Wirfs’ best friend, she went to the penitentiary for aggravated
sexual assault of a fourteen-year-old boy. According to Self, while the mother was
9
incarcerated, A.S. and R.C. were in the care of the mother’s sister, who then asked
Wirfs if the girls could live with him. Self testified that the records revealed A.S.
and R.C. moved into a trailer with Wirfs until their mother got out of the penitentiary
and then they all moved to Orangefield. During that time, the girls received lots of
gifts from Wirfs and privileges that became rewards for compliance with Wirfs
sexual demands.
Dr. Self explained that, according to the records, A.S. was ten years old in
2004 when Wirfs, who was a long-haul truck driver, took her with him to California
in his truck. A.S. told the police that Wirfs began fondling A.S.’s pubis outside her
clothes for several days on the trip and started putting his hand down inside her pants
and touching her skin and penetrating her vagina with his finger. The abuse
continued and escalated to intercourse several times when they returned home, and
the abuse “went on for quite some time.” Self testified that A.S. also received similar
threats from Wirfs as K.P. received. Self testified that the records suggest that once,
Wirfs gave A.S. vodka and then a pill, told her that if she took the pill, she would
not get drunk, and then she blacked out until the next day. According to Dr. Self, the
escalation of Wirfs’ offenses is “a classic pattern of a pedophile[]” as they get away
with offenses “they’ll step up a notch to make it more sexually exciting to them.”
10
Dr. Self testified that, according to his review of records, R.C. was the
youngest of Wirfs’ three victims. When R.C. moved into the trailer with Wirfs, Wirfs
started touching her on the outside of her clothes, it escalated to touching her inside
her clothes, and then Wirfs had intercourse with her. Dr. Self testified that the records
revealed that R.C. reported that Wirfs used a condom during two of the incidents of
intercourse and on one other he did not, and Self felt that this type of detail by R.C.
lent “a lot of credibility to the whole thing.”
Dr. Self explained that sexual deviance is the “biggest driver of risk” and that
“the facts of this matter support a diagnosis of a sexually deviant interest.”
According to Dr. Self, Wirfs is sexually deviant, and both Dr. Self and Dr. Woodrick
diagnosed Wirfs with “pedophilic disorder,” a sexual attraction to children that the
person fantasizes about or has strong urges and that attraction makes the person act
on it. To have a pedophilic disorder, the perpetrator must be over sixteen years old,
there is at least five years age difference between the actor and the victim, and the
offenses occur over at least a six-month time frame. Dr. Self explained that his
diagnosis that Wirfs’ has a pedophilic disorder is strengthened by the fact that Wirfs
had age-appropriate sexual partners at the same time he was sexually offending his
victims, and he chose to offend against young girls because of his “strong urge and
drive in that direction.” Dr. Self testified that Wirfs admitted during the interview
11
that he is sexually attracted to children and that his sexual interest was “70/80 percent
adults . . . and 20/30 children.” When asked about Wirfs’ testimony that he is not
attracted to children but to teenagers, Self responded as follows:
Well, he has demonstrated an affinity for children. . . . You know, ten
years old, going to California and fondling them. So if he still endorses
that, I’m worried about it. He’s in the midst of his sexual potency. He’s
at high risk.
Self testified that the records show that Wirfs had three female victims and
that it was significant that he gained access to each child through relationships with
their single mothers, a frequent behavior of pedophiles. Dr. Self found it was
significant that Wirfs’ victims were young and the “rule of thumb” is “the younger
the child that gets abused, the more worrisome the higher the risk is.” Dr. Self also
found it was significant that the offenses against K.P. spanned a ten-year time frame.
When Wirfs described the offenses against the children, Wirfs described his offenses
as if “he touched them and that’s it,” which is typical of sex offenders as they
minimize and are in denial about their sexual offenses and that is proven to be a risk
factor for reoffending. Dr. Self testified that Wirfs has not gained enough insight to
prevent himself from reoffending in the future and Wirfs has an “attitude tolerant of
sexual assault” as demonstrated by the answers Wirfs gave stating he did not know
why he did it, he only acknowledged having touched them, and he said he was “just
having fun.” Self explained that the records revealed that Wirfs blamed his victims,
12
called one of them a whore, and once when Wirfs was asked if he could change
anything about what had happened he answered that he would talk to the victims’
parents about how the children dressed and behaved. Wirfs has not taken full
ownership and responsibility for his sexual offense as he has testified that he only
touched them one time, and that this shows his inability and unwillingness to address
and change the problem. And Wirfs’ statements from the past year have provided
“several examples of wild inconsistency.” Self testified that although Wirfs appears
to have a good support system available to him, if Wirfs’ support system is unaware
of all the facts and of what Wirfs is capable of, it would not be an appropriate support
system. Dr. Self is also concerned that Wirfs received a disciplinary for his continued
interest in R.C. that “stayed with him over the years in prison[,]” and that Wirfs
shared his “packet” with information about his offenses with thirty other offenders
while incarcerated. Self testified that Wirfs’ non-sexual criminal history, “two legal
entries” involving stealing televisions and a chainsaw, played a minor role in his
evaluation because theft is an antisocial behavior and antisocial or unstable lifestyle
is a risk factor for reoffending. Dr. Self concluded that Wirfs has several antisocial
traits: lying, manipulating, stealing, and assaultive behavior. Wirfs also told Dr. Self
that during the two years before incarceration he took large amounts of the narcotic
Hydrocodone. Dr. Self diagnosed Wirfs with a history of cocaine abuse as Wirfs
13
reported to him that “for two years he snorted 100--dollars[’] worth of cocaine every
day.” Self testified that chemical dependency of any sort would be another risk factor
and that “[c]hemical dependency of stimulant drugs like Cocaine or speed . . . puts
people at high risk . . . of [a]ssaultive behaviors of all sorts, sexual and non-sexual.”
Dr. Self also noted that Wirfs has not had sex offender treatment because of his status
being changed after Wirfs tried to contact a victim, and that, to Self’s knowledge,
Wirfs has not been consistent in stating that he wants to engage in treatment. Dr. Self
explained that it is important for Wirfs to understand why he offended his victims in
order to get him the tools to prevent himself from reoffending sexually, and Wirfs
does not have these tools. Self testified that Wirfs’ age, forty-four, is not “high risk”
per the Static but that “he’s still in the midst of his sexual potency . . . [c]ertainly in
an age group where he can go and find another single mother with daughters.”
According to Dr. Self, Wirfs’ risk factors indicate that Wirfs is “at a moderately high
risk” of reoffending sexually.
On cross-examination, Self agreed that, compared to the other cases he has
reviewed, Wirfs offenses are not the worst. Self also acknowledged that the records
show that Wirfs’ alleged contact with R.C. while he was incarcerated was made a
year before it was reported and that it was reported around the time Wirfs’ parole
was published. When asked whether Self perceives himself to have a bias in regards
14
to sex offending against children, Dr. Self responded, “I have a particular place in
my heart for children[,] I feel protective of them, and I factor that [in] when I make
decisions in these matters.” Self acknowledged that according to what Boccaccini
and Murrie published, the overall average rate for Texas sex offenders to sexually
reoffend is 3.3 percent, but for all crimes it is 11 percent. Self agreed that the lowest
score you can get on the Static-99 is a negative 3, that Wirfs’ score of “zero” is
specifically labeled below average risk, and that “2.8 [percent] with the conference
interval at 2.2 to 3.5[]” of people with the score of “zero” have been shown to
reoffend. According to Self, he reviewed Dr. Woodrick’s scoring of Wirfs on the
PCL-R actuarial test, Wirfs’ score of “twelve” suggested he is not a psychopath, and
that he would probably raise his assessment of risk if Wirfs was a prototypic
psychopath. Self agreed that, as to Wirfs’ theft charges, the chainsaw was stolen
from his father and the charges ultimately dismissed, and Wirfs successfully
completed probation (after an 18-month extension for a technical violation) for the
other theft charge. Dr. Self agreed that the SVP statute is for the small but extremely
dangerous group of sex offenders, and that, despite Wirfs below-average score on
the Static-99, the HARE PCL-R, not being a sexual recidivist, not being a
psychopath, in Dr. Self’s opinion Wirfs belongs in the category of sex offenders
defined in the SVP statute.
15
Wirfs did not call any witnesses.
The SVP Statute
In an SVP civil commitment proceeding, the State bears the burden to prove
beyond a reasonable doubt that the respondent is a sexually violent predator. See
Tex. Health & Safety Code Ann. § 841.062; In re Commitment of Morales, 98
S.W.3d 288, 291 (Tex. App.—Beaumont 2003, pet. denied). A person is a sexually
violent predator if the person “is a repeat sexually violent offender[] and suffers from
a behavioral abnormality that makes the person likely to engage in a predatory act
of sexual violence.” Tex. Health & Safety Code Ann. § 841.003(a). 3 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).
Legal and Factual Sufficiency
In his first issue, in arguing the evidence is legally insufficient to support the
jury’s finding, Wirfs contends the “evidence in this case conclusively establishes
that Mr. Wirfs does not suffer from a behavioral abnormality and therefore, is not a
3On appeal, Wirfs does not argue that he is not a repeat sexually violent
offender.
16
[] part of the ‘small but extremely dangerous group of sexually violent predators[.]’”
According to Wirfs, Dr. Self’s “bias against sex crimes involving children played a
significant role in his decision to conclude that Mr. Wirfs has a behavioral
abnormality.”
Under a legal sufficiency review, we assess all the evidence in the light most
favorable to the verdict to determine whether a rational trier of fact could find,
beyond a reasonable doubt, the elements required for commitment under the SVP
statute. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont
2002, pet. denied). It is the factfinder’s responsibility to fairly resolve conflicts in
the testimony, weigh the evidence, and draw reasonable inferences from basic facts
to ultimate facts. Id. at 887. Under a factual sufficiency review, we weigh the
evidence to determine “whether a verdict that is supported by legally sufficient
evidence nevertheless reflects a risk of injustice that would compel ordering a new
trial.” In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont 2011,
pet. denied).
In this case, Dr. Self testified that Wirfs suffers from a behavioral abnormality
that predisposes him to engage in a predatory act of sexual violence. The jury heard
Dr. Self testify that, although Wirfs’ score of “zero” on the Static-99 suggested a
low risk of recidivism, the Static-99 does not account for all the important risk
17
factors, such as the escalation of sexual violence, grooming behaviors, the age of the
victims, sexual deviance, sexual desires, antisocial behavior beyond convictions,
intimacy deficits regarding interpersonal relationships, and lack of treatment. Dr.
Self diagnosed Wirfs with pedophilic disorder and described him as sexually
deviant. The jury heard Self testify that sexual deviance is the “biggest driver of
risk[.]” The jury heard Self’s testimony that there was evidence of Wirfs “grooming”
all three victims, which is a technique commonly seen with pedophiles. Self testified
that the escalation of Wirfs’ offenses is “a classic pattern of a pedophile[]” as they
get away with offenses “they’ll step up a notch to make it more sexually exciting to
them.” Dr. Self testified Wirfs’ pedophilic orientation is strengthened by the fact that
he had age-appropriate sexual partners at the time of his offenses, and he chose to
commit his sexual offenses against young girls because of his “strong urge and drive
in that direction.” Dr. Self also characterized Wirfs as having an attitude tolerant of
sexual assault, as not taking responsibility for his sexual offenses, and as
minimalizing and rationalizing his offenses and blaming his victims. Self explained
that the fact that Wirfs had no sex offender treatment also increases Wirfs’ risk for
reoffending. According to Dr. Self, Wirfs also has several antisocial traits: lying,
manipulating, stealing, and assaultive behavior. And the jury heard testimony from
Dr. Self that there was evidence of Wirfs’ chemical dependency, and that chemical
18
dependency of any sort would also be a risk factor and puts people at a high risk of
assaultive behavior, that Wirfs lacked the tools necessary to prevent himself from
reoffending sexually, and that Wirfs’ risk factors suggest that Wirfs is “at a
moderately high risk” of reoffending sexually.
The jury was entitled to infer Wirfs’ current dangerousness from the evidence
presented, including the experts’ testimony, Wirfs’ past behavior, and Wirfs’ own
testimony. See In re Commitment of Wilson, No. 09-08-00043-CV, 2009 Tex. App.
LEXIS 6714, at *14 (Tex. App.—Beaumont Aug. 27, 2009, no pet.) (mem. op.). As
the sole judge of the weight and credibility of the evidence, the jury could reasonably
conclude that Wirfs suffers from a behavioral abnormality that makes him likely to
engage in a predatory act of sexual violence. See In re Commitment of Lowe, No.
09-14-00098-CV, 2014 Tex. App. LEXIS 10034, at *6 (Tex. App.—Beaumont Sept.
4, 2014, no pet.) (mem. op.); see also Wilson, 2009 Tex. App. LEXIS 6714, at *14;
Mullens, 92 S.W.3d at 887. We conclude that the jury’s verdict is supported by
legally sufficient evidence. See Mullens, 92 S.W.3d at 885. We overrule issue one.
In his second issue, in arguing the evidence is factually insufficient to support
the jury’s finding, Wirfs relies primarily on In re Commitment of Stoddard, No. 02-
19
17-00364-CV, 2019 Tex. App. LEXIS 4464 (Tex. App.—Fort Worth May 30, 2019,
pet. filed) (mem. op.). 4
In a split decision, the Fort Worth Court of Appeals majority reversed the
jury’s verdict finding Stoddard to be a sexually violent predator. Id. at *27. The
majority reasoned that “Chapter 841 applies only to a member of a small group of
extremely dangerous sex offenders” and, without limitation to ‘“narrow
circumstances[,]”’ could not pass constitutional muster. Id. at *33 (citing Kansas v.
Hendricks, 521 U.S. 346, 357 (1997)). Although the Court described Stoddard’s
crimes as “indisputably reprehensible,” it found that they “pale[d] in comparison to
those of sexually violent predators whose commitments ha[d] been upheld.” Id. at
*35. The Stoddard majority found, “[i]n most cases . . . surveyed, the civilly
committed sexual violent predator had a history of multiple sexual offenses over an
extended period of time.” Id. It then determined that Stoddard’s three convictions,
history of nonsexual prior offenses, standardized evaluation scoring, substance
4 On appeal, Wirfs cites In re Commitment of Stoddard, No. 02-17-00364-CV,
2018 Tex. App. LEXIS 7916 (Tex. App.—Fort Worth Sept. 27, 2018) (mem. op.).
After Wirfs filed his appellate brief in this case, the Fort Worth Court of Appeals
withdrew its prior opinion and judgment and issued a new memorandum opinion
and judgment on rehearing. See In re Commitment of Stoddard, No. 02-17-00364-
CV, 2019 Tex. App. LEXIS 4464, at *1 (Tex. App.—Fort Worth May 30, 2019, pet.
filed) (mem. op.).
20
abuse diagnosis, and evidence of risk factors was factually insufficient to support a
finding that Stoddard was a sexually violent predator. Id. at **29-47.
Wirfs argues that, like Stoddard, he is not in that “small class” of the
“extremely dangerous” sex offenders for whom civil commitment is intended. Wirfs
asserts he only had three convictions of indecency with a child by contact and “two
illegal entries for stealing a television and a chainsaw[,]” his scores on actuarial
testing did not indicate a high risk for reoffending, and the State presented no
evidence that Wirfs was under the influence of cocaine at the time of the sexual
offenses or that he continues to suffer from a substance abuse problem. Wirfs ignores
all the other evidence and the expert testimony.
The shorter duration or length of an offender’s sentences and alleged “lack of
heinousness” of the underlying offenses does not preclude a jury from finding that
the individual offender meets the statutory definition of a sexually violent predator.
See In re Commitment of Mendoza, No. 05-18-01202-CV, 2019 Tex. App. LEXIS
9141, at *23 (Tex. App.—Dallas Oct. 16, 2019, pet. denied) (mem. op.) (quoting In
re Commitment of Joiner, No. 05-18-01001-CV, 2019 Tex. App. LEXIS 8032, at
*28 (Tex. App.—Dallas Aug. 30, 2019, no pet.) (mem. op.)) (finding such inquiries
are “not relevant”). Furthermore, “a person’s psychopathy is not a requisite finding
that must be made in support of his commitment as a sexually violent predator.” In
21
re Commitment of Hebert, 578 S.W.3d 154, 159 (Tex. App.—Tyler 2019, no pet.).
We have previously set forth the statutory criteria and definitions under Chapter 841
necessary to support a civil commitment of an SVP, and the criteria and definitions
submitted to this jury correctly, “describe[] the severity of the behavioral
abnormality[,] . . . the severity of the danger which must be present[,] . . . [and the]
behavior caused by an abnormality that makes the person a menace to the health and
safety of another person.” In re Commitment of Almaguer, 117 S.W.3d 500, 505
(Tex. App.—Beaumont 2003, pet. denied). Our focus under the sufficiency analysis
is whether the evidence was sufficient to support the jury’s determination that the
State established the requisite elements to support its finding that Wirfs is an SVP.
We reject Wirfs argument that this court should compare the underlying facts and
circumstances of Wirfs’ case to facts of other SVP cases in the factual sufficiency
review because the other cases were not submitted to this jury. See In re Commitment
of Metcalf, ___ S.W.3d _____, No. 06-19-00043-CV, 2020 Tex. App. LEXIS 2227,
at *27 (Tex. App.—Texarkana March 18, 2020, no pet. h.). Our task in a factual
sufficiency review is to consider all the evidence presented in this case and then
weigh the evidence to determine whether a verdict that is supported by legally
sufficient evidence “nevertheless reflects a risk of injustice that would compel
ordering a new trial.” See Day, 342 S.W.3d at 213. Comparing isolated facts from
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other SVP cases, or the heinousness of the offenses of this case to other cases, or
even the test results of this offender to results of other offenders on standardized
tests, lends little to this review because it deviates from our task in a factual
sufficiency review. 5 Applying the proper standard of review, we have weighed all
of the evidence in the record and conclude that the jury could have found beyond a
reasonable doubt that Wirfs was a repeat sexually violent offender who suffers from
a “behavioral abnormality that makes him likely to engage in a predatory act of
sexual violence” as defined by the statute, and we see no injustice in the jury’s
verdict that would require a new trial. See id. The evidence is factually sufficient.
We overrule issue two.
5 We note that our Court has previously upheld a jury’s determination in civil
commitments where the defendant had also scored a zero on the Static-99. See, e.g.,
In re Commitment of Ramshur, No. 09-17-00286-CV, 2018 Tex. App. LEXIS
10021, at **5, 18 (Tex. App.—Beaumont Dec. 6, 2018, no pet.) (mem. op.); In re
Commitment of Roberts, No. 09-14-00475-CV, 2016 Tex. App. LEXIS 1659, at *9
(Tex. App.—Beaumont Feb. 18, 2016, no pet.) (mem. op.). We reject Wirfs’
argument that the State has the burden to prove something other than the elements
defined in the statute and we disagree with Wirfs arguments to the contrary. See In
re Commitment of Mendoza, No. 05-18-01202-CV, 2019 Tex. App. LEXIS 9141, at
*23 (Tex. App.—Dallas Oct. 16, 2019, pet. denied) (mem. op.) (citing In re
Commitment of Joiner, No. 05-18-01001-CV, 2019 Tex. App. LEXIS 8032, at *28
(Tex. App.—Dallas Aug. 30, 2019, no pet. (mem. op.)); see also In re Commitment
of Renshaw, No. 06-19-00069-CV, 2020 Tex. App LEXIS 966, at **16-23 (Tex.
App.—Texarkana Feb. 5, 2020, no pet. h.).
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We affirm the trial court’s judgment and order of civil commitment.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on January 2, 2020
Opinion Delivered April 16, 2020
Before McKeithen, C.J., Horton and Johnson, JJ.
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