In Re Commitment of Antonio Rios v. the State of Texas

Opinion filed August 21, 2025

In The

Eleventh Court of Appeals
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No. 11-24-00098-CV
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IN RE COMMITMENT OF ANTONIO RIOS

On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CV59426

MEMORANDUM OPINION
A jury found beyond a reasonable doubt that Appellant, Antonio Rios, was a
sexually violent predator, and he now appeals the trial court’s final judgment and its
order of Appellant’s indefinite civil commitment as a sexually violent predator under
the Texas Civil Commitment of Sexually Violent Predators Act (SVP Act). See TEX.
HEALTH & SAFETY CODE ANN. §§ 841.001–.209 (West 2017 & Supp. 2024). In one
issue, Appellant argues that the evidence is factually insufficient to support the jury’s
finding that he has a behavioral abnormality that makes him likely to engage in a
predatory act of sexual violence. See id. § 841.003(a)(2). We affirm.
Factual and Procedural History
In February 2000, Appellant pled guilty to aggravated sexual assault of a
child. In March 2000, Appellant pled guilty to three counts of sexual assault of a
child. The offenses that led to these convictions involved Appellant having sexual
intercourse with a thirteen-year-old girl and a fourteen-year-old girl. The trial court
sentenced him to concurrent five-year prison terms for these offenses. After his
release, in August 2015, Appellant pled guilty to four counts of indecency with a
child. The offenses involved Appellant committing acts of indecency by contact and
exposure against his niece from the age of seven to ten. The trial court sentenced
Appellant to concurrent ten-year prison terms for these offenses.
In 2023, prior to his release from prison, the State filed a petition alleging
Appellant is an SVP and requested that he be committed for treatment and
supervision pursuant to the SVP Act. See id. § 841.041. At the commitment trial,
the jury heard testimony from Appellant and forensic psychologist Jason Dunham,
Ph.D., who testified as an expert witness for the State on whether Appellant has a
behavioral abnormality as defined in the SVP Act. Dr. Dunham conducted a video
interview with Appellant and reviewed numerous records regarding his sexual
offenses, criminal history, prison records, depositions, and a previous evaluation
conducted by another psychologist. Dr. Dunham identified and discussed risk
factors that he considered in evaluating whether Appellant has a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
Dr. Dunham diagnosed Appellant with nonexclusive pedophilic disorder,
meaning he is sexually attracted to female children and adults. Dr. Dunham testified
that the condition is chronic, meaning that it does not “go away.” Dr. Dunham

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described Appellant as a “sexual recidivist,” 1 stating that this is the “number one
identified risk factor” for reoffending. He also diagnosed Appellant with antisocial
behavior, which he explained is less severe than a personality disorder. He explained
that, as an adult, Appellant has engaged in serious antisocial behavior resulting in
multiple criminal offenses, including public intoxication, driving under the
influence, theft, possession of drug paraphernalia, failure to pay child support, and
probation violations, among others. Dr. Dunham stated that this condition affects
Appellant’s emotional and volitional capacity and correlates with sexual
reoffending.
Dr. Dunham also diagnosed Appellant “with alcohol use disorder[,] but in
remission in a controlled environment.” He explained that this disorder makes
sexually deviant people more likely to act on their urges. Dr. Dunham noted that,
despite having received substance abuse treatment, Appellant has continued to
commit sexual offenses.
Dr. Dunham stated that Appellant’s first series of sexual offenses started when
his daughter’s fourteen-year-old female acquaintance called the house. She talked
to Appellant and later came to his house where they had sexual intercourse over the
span of four days. Appellant committed sex acts against her for the next six months,
including anal, oral, and vaginal intercourse. These acts occurred while Appellant’s
son and daughter were in the house. Dr. Dunham identified the following risk factors
for reoffending based on the nature of this offense: offending when easily detected,

1
A recidivist is defined as “[s]omeone who has been convicted of multiple criminal offenses, usu.
similar in nature; a repeat offender.” Recidivist, BLACK’S LAW DICTIONARY (12th ed. 2024). In his
testimony, Dr. Dunham defined a sexual recidivist as “somebody who has offended after they’ve been
caught. So if somebody has, for example, 10 instances of a sexual offense against the same person, or even
against two people, but they weren’t caught during that time,” the demarcation point is when they were
caught; when they are detected. He testified, “And so a recidivist is somebody who will offend after they’ve
been caught.” (Emphasis added).

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the numerous instances of offending, and the victim not being a family relation.
Dr. Dunham noted that Appellant was untruthful in his interview and deposition
regarding how he met the victim and whether he knew her age.
Dr. Dunham stated that Appellant’s second series of sexual offenses started
six months later when a thirteen-year-old female friend of his daughter visited
Appellant’s house. Appellant’s adult friend took his daughter to the store, leaving
Appellant alone with the thirteen-year-old. Appellant provided her alcohol and
kissed her. Later that night he had sexual intercourse with her multiple times. He
also took “the phone off the hook because her mom was trying to call,” such that she
could not contact her mother until 11:00 a.m. the next day. Dr. Dunham stated that
“[g]rooming was heavily involved” in this offense “with using his daughter and also
getting [the victim] drunk to have sex with her.” In his interview with Dr. Dunham,
Appellant denied sexually assaulting the second victim, yet in his deposition he
admitted doing so, claiming that she initiated the encounter. Dr. Dunham noted that
Appellant continues to deflect responsibility.
Dr. Dunham explained that Appellant offended against his third victim after
serving a five-year prison sentence. In this offense, Appellant offended against his
niece from the age of seven to ten. Appellant put his hands down her pants and
rubbed her vagina, got on top of her on a couch and “humped” her while she was
clothed, and exposed his penis to her. Appellant threatened that if she told anyone
that he would kill her family. Dr. Dunham stated that Appellant exhibited an
escalation in deviancy with this victim.
Regarding this series of offenses, Dr. Dunham explained that Appellant
exhibited the following additional risk factors for reoffending: greater force and
coercion, offending after prison and treatment, denial of wrongdoing in the
interview, placing blame on his sister for making false allegations because Appellant

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threatened to call CPS, lack of empathy for the victim, lack of remorse for his
actions, grooming behavior through wrestling and tickling, and that the age of the
victim increases his “victim pool,” in that “people who are at risk from him” are both
prepubescent and pubescent girls.
Dr. Dunham performed the Static-99R and Psychopathy Checklist-Revised
(PCL-R) assessments. He explained that the PCL-R measure is highly correlated
with sexual violence recidivism. Appellant scored an eighteen on this assessment,
which is within the moderate range of scores. Based on this measure, Dr. Dunham
did not believe that Appellant was a psychopath. The Static-99R is an actuarial
instrument that compares groups of people based on risk factors and protective
factors. Dr. Dunham assessed a score of five on the Static-99R, which indicates that
Appellant is at an above average risk for being re-arrested or reconvicted of a sex
offense in the future. Dr. Dunham believed that this score underestimates
Appellant’s risk for reoffending because the assessment did not consider dynamic
risk factors such as lack of remorse and empathy. Considering these factors,
Dr. Dunham opined that Appellant exhibits a well-above average risk of
reoffending.
Dr. Dunham identified “protective factors” that indicated a decreased risk of
reoffending: Appellant’s age (57 at the time of trial), participation in the sex-
offender treatment program, and “good institutional adjustment.” However,
Dr. Dunham noted that Appellant’s offending escalated after his initial eighteen-
month treatment program, so he believed that Appellant has shown an inability to
learn from the program. Dr. Dunham ultimately concluded, based on his education,
experience, and evaluation of Appellant, that Appellant suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.

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Appellant testified that the fourteen-year-old victim was his girlfriend. He
admitted to providing her alcohol and having a sexual relationship with her that
lasted six months. Appellant recalled his daughter confronting him about the
relationship. Appellant claimed he did not know that his victim was fourteen, but
after he found out he continued sexually assaulting her. Appellant believed that he
hurt her because he broke off their relationship.
Appellant stated that he knew his next victim’s age from the beginning.
Appellant stated, “[W]ell, because of her age, it was a sexual assault, but I didn’t
force myself on her.” He admitted to giving her alcohol, but he said that she came
onto him and that he was drunk at the time.
Appellant admitted to being sexually attracted to his first two victims, but he
denied any such attraction to his niece. Appellant explained that he was “constantly
intoxicated” during the time he was around his niece and that he does not remember
sexually assaulting her. Appellant stated that he acted out sexually because of
alcohol but that he no longer has a problem abusing alcohol. Appellant testified he
has renewed his faith in God, which will help him maintain sobriety. Appellant also
stated that he planned on attending Alcoholics Anonymous meetings when released
from prison.
The jury found beyond a reasonable doubt that Appellant is an SVP, and the
trial court signed a final judgment and commitment order thereby committing
Appellant for involuntary treatment and supervision. This appeal followed.
The SVP Act
The SVP Act provides for the civil commitment of sexually violent predators
based on legislative findings that “a small but extremely dangerous group of sexually
violent predators exists and that those predators have a behavioral abnormality that
is not amendable to traditional mental illness treatment modalities and that makes

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the predators likely to engage in repeated predatory acts of sexual violence.” Id.
§ 841.001. A civil commitment proceeding under the SVP Act incorporates the
“beyond a reasonable doubt” burden of proof that is applicable to criminal cases. In
re Commitment of Fisher, 164 S.W.3d 637, 641 (Tex. 2005). As such, to civilly
commit a person under the SVP Act, the State must prove beyond a reasonable doubt
that the person is a sexually violent predator. HEALTH & SAFETY § 841.062(a). A
person is a “sexually violent predator” if the person (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 “[b]ehavioral
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). “[T]he [SVP] Act requires evidence of both
repeat past sexually violent behavior and a present condition that creates a likelihood
of such conduct in the future.” In re Commitment of Stoddard, 619 S.W.3d 665, 678
(Tex. 2020); see In re Commitment of Cordova, 618 S.W.3d 904, 916 (Tex. App.—
El Paso 2021, no pet.) (“Only these two elements need to be proven by the State,
and courts have uniformly rejected attempts by appellants to incorporate additional
sub-requirements into these elements.”).
In explaining the applicable factual sufficiency review, the Texas Supreme
Court held that we are to consider whether, in light of the entire record, a reasonable
factfinder could find beyond a reasonable doubt that the defendant is a sexually
violent predator. Stoddard, 619 S.W.3d at 668. “In so doing, [we] may not usurp
the jury’s role of determining the credibility of witnesses and the weight to be given
their testimony, and [we] must presume that the factfinder resolved disputed
evidence in favor of the finding if a reasonable factfinder could do so.” Id. The

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evidence is factually insufficient to support the verdict if “the disputed evidence that
a reasonable factfinder could not have credited in favor of” the sexually violent
predator finding, “along with the undisputed facts that do not support [that] finding,
is so significant that the factfinder could not have found beyond a reasonable doubt
that the statutory elements were met.” Id. at 675; In re Commitment of Tryon, 654
S.W.3d 29, 41 (Tex. App.—Eastland 2022, pet. denied).
Analysis
Appellant argues that the evidence is factually insufficient to support a finding
that Appellant has a behavioral abnormality that makes him likely to engage in a
predatory act of sexual violence. See HEALTH & SAFETY § 841.003(a)(2). He does
not challenge the sufficiency of the evidence establishing that he is a repeat sexually
violent offender. Rather, Appellant contends that the evidence “proves that [he] was
sexually deviant in the past but is not factually sufficient to support a finding that
[Appellant] is a sexually violent predator today.” We disagree.
The jury heard evidence that Appellant was convicted of aggravated sexual
assault of a child and three counts of sexual assault of a child against two separate
victims in two separate counties, following which he was not deterred, but rather, he
then committed and was convicted of four counts of indecency with a child against
a third victim. Dr. Dunham testified that, based on his evaluation of Appellant, it
was his opinion that Appellant suffered from a congenital or acquired condition that
affected his emotional or volitional capacity, predisposing him to commit sexually
violent offenses, to the extent that he was a menace to the health and safety of
another. His testimony was consistent with the legal definition of behavioral
abnormality. See id. § 841.002(2). Dr. Dunham diagnosed Appellant with
pedophilic disorder, antisocial behavior, and alcohol use disorder. Dr. Dunham
discussed Appellant’s past sexual deviancy, while also detailing how this past

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behavior affected his determination that Appellant was a sexually violent predator
presently. See Kansas v. Hendricks, 521 U.S. 346, 358 (1997) (“As we have
recognized, previous instances of violent behavior are an important indicator of
future violent tendencies.”) (internal quotation marks and alteration omitted).
Dr. Dunham described his careful consideration of various research-based factors in
arriving at his opinion, set out the factual basis of his assessment, and discussed
Appellant’s risk and protective factors. He also explained his upward clinical
adjustment of the Static-99 score resulting in Appellant’s well-above average risk of
reoffending.
Whether disputed evidence that a reasonable factfinder could not have
credited in favor of the verdict, or as undisputed facts contrary to the verdict, we
weigh Appellant’s testimony that his alcohol problem, which is in remission, is a
primary cause for his offenses and Dr. Dunham’s testimony that Appellant had a
moderate PCL-R score. However, after reviewing the entire record, we cannot
conclude that this contrary evidence is so significant that the factfinder could not
have determined beyond a reasonable doubt that Appellant presently has a
behavioral abnormality that makes him likely to again engage in predatory acts of
sexual violence. See HEALTH & SAFETY §§ 841.002(2), 841.003; Stoddard, 619
S.W.3d at 668; Tryon, 654 S.W.3d at 41; see also In re Commitment of Williams,
539 S.W.3d 429, 440–41 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (holding
that an offender’s Static-99R score that reflected a “low-moderate” risk of
reoffending did not render the evidence factually insufficient on the SVP issue
because the State presented evidence that despite the low score, the offender’s risk
of reoffending was higher than the “low-moderate” range); In re Commitment of
James, No. 01-19-00734-CV, 2021 WL 4597105, at *10–11 (Tex. App.—Houston
[1st Dist.] Oct. 7, 2021, pet. denied) (mem. op.) (holding that factually sufficient

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evidence supported the jury’s SVP finding where the record contained: (1) evidence
that the offender had been convicted of multiple sexually violent offenses, including
details of the offenses; (2) experts’ testimony about the offender’s risk and protective
factors; (3) the offender’s denial of the sexual offenses or that he has a sexual drive;
and (4) the offender’s “average” scores on the Static-99R and PCL-R, as well as the
experts’ opinions on the limitations of those tests). Therefore, we conclude that the
evidence is factually sufficient to support the jury’s verdict. See Stoddard, 619
S.W.3d at 678. We overrule Appellant’s sole issue.
This Court’s Ruling
We affirm the judgment of the trial court.

W. BRUCE WILLIAMS
JUSTICE

August 21, 2025
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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