In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00205-CV __________________
IN RE COMMITMENT OF STEPHEN PAUL BORDAGES __________________________________________________________________
On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. 1003-Y __________________________________________________________________
MEMORANDUM OPINION
The State of Texas filed a petition to commit Stephen Paul Bordages as a
sexually violent predator. See Tex. Health & Safety Code Ann. § 841.001-.153 (SVP
statute). A jury found that Bordages is a sexually violent predator. The trial court
rendered a final judgment and order of civil commitment, and Bordages appealed.
In issues one and two, Bordages challenges the legal and factual sufficiency of the
evidence supporting the jury’s finding. In issue three, Bordages argues that he is
entitled to a new trial because the State’s expert witnesses’ opinions that he has a
behavioral abnormality were based on an improper legal definition. We affirm the
trial court’s judgment and order of civil commitment.
1 The Evidence
Dr. Antoinette McGarrahan, a psychologist specializing in forensic
psychology and neuropsychology, testified that after reviewing all the records and
interviewing Bordages, she determined that Bordages suffers from a behavioral
abnormality that makes him likely to engage in a predatory act of sexual violence.
McGarrahan testified that Bordages is sexually deviant and has repeatedly engaged
in sexually deviant, abhorrent behavior for many years, and she explained that
despite treatment and punishment efforts, Bordages’s sexual deviancy has persisted.
McGarrahan also testified that in 1987, Bordages sustained a traumatic brain injury
in a motor vehicle accident, which led him to be sexually impulsive. According to
McGarrahan, based on actuarial instruments, Bordages was at a high risk to reoffend.
McGarrahan explained that in forming her opinion she relied upon Bordages’s
convictions and allegations of other sexual offenses, as well as her finding that
Bordages is sexually deviant. McGarrahan testified that Bordages had been
convicted of animal cruelty, burglary of a habitation with intent to commit assault
and indecency with a child by exposure, attempted sexual assault of a child,
indecency with a child by contact, indecent exposure, and attempted aggravated
kidnapping with intent to commit a sexual assault. McGarrahan explained that
Bordages also received deferred adjudication for failing to comply with sex offender
registration, and Bordages failed to complete sex offender treatment because he
2 denied responsibility for his offenses. McGarrahan testified that while on probation,
Bordages committed the offense of attempted aggravated kidnapping, for which he
is currently incarcerated.
McGarrahan testified that she diagnosed Bordages with exhibitionistic
disorder, paraphilia, frotteuristic paraphilia, and unspecified paraphilia. McGarrahan
explained that paraphilias are congenital or acquired chronic conditions that affect a
person’s emotional or volitional capacity and that can predispose a person to commit
a predatory act of sexual violence. McGarrahan testified that Bordages is still
sexually deviant, and although Bordages may meet the criteria for a mild
neurocognitive disorder, McGarrahan testified that Bordages’s brain injury is more
of an excuse for this behavior. According to McGarrahan, if Bordages does have a
neurocognitive disorder that causes his sexual acting out, he would still have an
acquired condition that affects his emotional or volitional capacity and predisposes
him to commit a predatory act of sexual violence. McGarrahan explained that
Bordages has a behavioral abnormality whether he is sexually offending because of
a paraphilia, a brain injury, or a combination of both, and based on Bordages’s
medical history, traditional treatment modalities for his brain injury have failed.
McGarrahan further testified that, although Bordages does not have an anti-social
personality disorder, he does have antisocial attitudes, beliefs, and behaviors.
3 McGarrahan identified risk factors that make Bordages more likely to engage
in sexually violent behavior, including sexual preoccupation, lack of an emotionally
intimate adult relationship, lack of anger management skills, denial and victim
stance, persistence after punishment, exhibitionism, antisocial attitude, and
psychopathic personality traits, as well as a victim pool ranging from toddler to older
adults and including males, females, and strangers. McGarrahan testified that
Bordages offended against non-consenting underage individuals despite being
married and having access to an age appropriate consenting partner, and it was
significant that Bordages committed offenses spanning from young adulthood until
his late forties, when risk typically declines. According to McGarrahan, Bordages’s
offenses are evidence that his emotional and volitional capacity have been affected
and that he is unable to control his emotions, urges, and desires.
McGarrahan also considered Bordages’s disciplinary history during his
periods of incarceration, which indicates that Bordages engaged in sexual
misconduct by masturbating in public and was accused of assaulting an officer.
McGarrahan testified that during his current incarceration, Bordages was disciplined
for attempting to establish an inappropriate relationship with a prison guard, and
McGarrahan explained that Bordages’s misconduct during prison is evidence that
his emotional and volitional capacities have been affected. According to
McGarrahan, being incarcerated has not stopped Bordages’s offending behavior and
4 medication has not helped Bordages control his sexual impulses. McGarrahan
testified that Bordages is a menace to the health and safety of another person because
his conditions are chronic and untreated, and Bordages has shown no ability to
control his behaviors.
McGarrahan also testified that Bordages’s score on the PCL-R or the Hare
Psychopathy Checklist-Revised showed that he had a moderate degree of
psychopathic characteristics, and McGarrahan explained that a person need not be a
psychopath to have a behavioral abnormality. Additionally, McGarrahan testified
that Bordages’s actuarial scores placed him at a high risk to reoffend in a sexual
manner, and Bordages has not had sex offender treatment because he claims he does
not need it. McGarrahan testified that Bordages is seven times more likely to
reoffend than a typical sex offender, placing Bordages in the 99th percentile.
According to McGarrahan, Bordages suffers from a behavioral abnormality and falls
into a small but extremely dangerous group of sex offenders who are not amenable
to traditional treatment modalities.
Psychiatrist Dr. Sheri Gaines testified that she evaluated Bordages and relied
upon principles of psychiatry in doing so. Gaines explained that the standard
methodology involves a face-to-face interview, as well as reviewing police and
prison records, victim statements, depositions, reports of other experts, and other
ancillary information. Gaines testified that she interviewed Bordages for
5 approximately three hours and reviewed the records from McGarrahan, as well as
Bordages’s deposition. Gaines opined that, based on her education, training,
experience, and methodology, Bordages suffers from a behavioral abnormality that
makes him likely to engage in a predatory act of sexual violence.
According to Gaines, the main reasons for her findings were Bordages’s risk
factors of sexual deviance, the ages of the nonconsenting victims, the length of time
he has offended, and his current inability to control his sexual behavior in prison.
Gaines explained that the facts and data surrounding Bordages’s sexual convictions
and unadjudicated offenses also constitute risk factors and helped her to formulate
her opinion about whether Bordages is likely to reoffend. Gaines testified that other
risk factors included the fact that Bordages reoffended after receiving sex offender
treatment and being punished, as well as stranger victims, number of victims, victim
stance, denial, lack of insight, and lack of empathy. In addition, Gaines testified that
Bordages had psychopathic traits, including grandiosity, parasitic lifestyle,
superficial charm, and lying. Gaines also testified that Bordages had received
disciplinary cases in prison for public masturbation and propositioning.
Gaines explained that she diagnosed Bordages with exhibitionist disorder and
adult sexual abuse by a non-spouse or non-partner. Gaines testified that based on her
review of the records, Bordages uses his brain injury as an excuse, bringing it up
whenever he faces a consequence for his bad behavior. According to Gaines, the
6 clinical presentation concerning Bordages’s brain injury was inconsistent, and while
brain injuries can affect a person’s sexual urges, the offenses for which Bordages
was convicted were not described as impulsive. Gaines explained that while
Bordages could have a neurocognitive disorder due to his brain injury, the records
show that Bordages received traditional treatment modalities for his brain injury,
and those traditional treatments were obviously unsuccessful because Bordages
continued to offend.
Gaines identified positive or protective factors that might decrease Bordages’s
risk of reoffending, including family support, education level, and participation in
prison programs, but Gaines explained that those factors do not change her opinion
that Bordages suffers from a behavioral abnormality that makes him likely to engage
in a predatory act of sexual violence. According to Gaines, the evidence shows that
Bordages has a congenital or acquired condition that has affected his emotional or
volitional capacity and that he is a menace to the health and safety of others.
Bordages testified that he is currently incarcerated for attempted aggravated
kidnaping and that he was on probation for failing to comply with sex offender
registration when he committed the offense. Bordages testified that he committed
his first sexual offense in April 2004, but he denied the allegations and claimed it
was consensual. Bordages testified that in June 2004, he was charged with
committing his second sexual offenses, indecency with a child by contact and
7 attempted sexual assault of a child, but he denied committing the offenses,
explaining that he pleaded guilty on the advice of counsel. Bordages also denied the
allegations regarding his 2014 conviction for indecent exposure as well as other
allegations of inappropriate sexual behavior.
Bordages admitted that while in prison, he had received disciplinary cases that
involved sexual misconduct. Bordages testified that during his incarceration, he
received disciplinary cases for masturbating in public and attempting to establish an
inappropriate relationship with a correctional officer, but he claimed the allegations
were false. Bordages also testified that he suffered a brain injury in 1987 that affected
his short-term memory and caused depression, but he denied that the injury caused
him to have any impulse or behavioral control issues. Bordages explained that he
takes medication for his mood swings and that he was taking the medication when
he allegedly committed the offense for which he is currently incarcerated. According
to Bordages, he is not a sex offender, and he was falsely accused of committing the
sexual offenses of which he was convicted. Bordages explained that he did not
complete sex offender treatment, and he was charged with committing another
sexually violent offense after having attended three or four months of sex offender
treatment. According to Bordages, he requested sex offender treatment during his
current incarceration, but he did not receive a response.
8 Psychologist Dr. Marisa Mauro testified that she met Bordages for
approximately five hours. Mauro testified that after reviewing all the records and
interviewing Bordages, she determined that Bordages does not suffer from a
behavioral abnormality that makes him likely to engage in a predatory act of sexual
violence. Mauro explained that she determined that Bordages has an exhibitionist
disorder and a neurocognitive disorder due to his traumatic brain injury that causes
his sexual behavior, and because there are appropriate treatment modalities to treat
his particular condition, Bordages does not fall in the small but extremely dangerous
group of sexually violent predators that the SVP statute seeks to identify. According
to Mauro, Bordages’s sexual preoccupation and inappropriate sexual behaviors are
consistent with a traumatic brain injury, and sex offender treatment is not a typical
treatment for a traumatic brain injury. Mauro testified that Bordages does not have
a behavioral abnormality as defined in the SVP statute, because Bordages’s
neurocognitive disorder can be controlled through treatment with a neurologist,
psychiatrist, and a psychologist, combined with medication and possible
rehabilitation.
Mauro also testified that Bordages’s score on the PCL-R or the Hare
Psychopathy Checklist-Revised showed that he falls within the range designated as
mixed psychopathic features, but Mauro opined that Bordages is not a psychopath.
Additionally, Mauro testified that although she used actuarial instruments in
9 conducting Bordages’s evaluation, which showed that Bordages is at a moderate to
high risk of reoffending sexually, Mauro did not place much emphasis on the results
because she did not find Bordages to be a person meant to be identified by the SVP
statute. According to Mauro, Bordages has family support to help him obtain
treatment and provide him with stability. However, Mauro also testified that
Bordages had reoffended after receiving neuro-rehabilitation and medication
therapy and that there was no guarantee that Bordages would receive the treatments
she had suggested.
Analysis
In issues one and two, Bordages argues that the evidence is legally and
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.
According to Bordages, the State’s experts’ opinions cannot support the verdict,
because the evidence upon which the opinions are based proves that Bordages is not
an “extremely dangerous” sex offender who has a “serious difficulty controlling
[his] behavior.”
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
10 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). 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).
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 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).
As discussed above, Bordages testified regarding his convictions for burglary
of a habitation with intent to commit sexual assault, indecency with a child by
11 exposure, attempted sexual assault of a child, indecency with a child by contact,
attempted aggravated kidnapping with intent to commit a sexual assault, and
indecent exposure, and that he received disciplinary cases involving sexual
misconduct during his incarceration. McGarrahan opined that Bordages suffers from
a behavioral abnormality that makes him likely to engage in a predatory act of sexual
violence. McGarrahan testified that Bordages is sexually deviant and that his
deviancy has persisted despite treatment and punishment efforts, and he has a high
risk of reoffending. McGarrahan testified that Bordages has a behavioral
abnormality whether he is sexually offending because of a paraphilia, a brain injury,
or a combination of both, and that his medical history shows that traditional
treatment modalities for his brain injury have failed.
The jury also heard Gaines testify that Bordages suffers from a behavioral
abnormality that predisposes him to engage in a predatory act of sexual violence,
and the main reasons for her findings were Bordages’s risk factors of sexual
deviance, the ages of the victims, the length of time he has offended, and his current
inability to control his sexual behavior in prison. Gaines testified that the clinical
presentation concerning Bordages’s brain injury was inconsistent, and that Bordages
uses his brain injury as an excuse. The jury heard Gaines’s testimony that Bordages
could have a neurocognitive disorder due to his brain injury, but the records show
12 that Bordages received traditional treatment modalities and that they were
unsuccessful.
The jury also considered Mauro’s testimony that she determined that
Bordages does not suffer from a behavioral abnormality that makes him likely to
engage in a predatory act of sexual violence, and that Bordages has a neurocognitive
disorder due to his traumatic brain injury that causes his sexual behavior, which can
be treated with appropriate treatment modalities. Mauro testified that Bordages is at
a moderate to high risk of reoffending sexually but does not fall in the small but
extremely dangerous group of sexually violent predators that the SVP statute seeks
to identify.
The jury had sufficient evidence from which to infer Bordages’s current
dangerousness. See In re Commitment of Wilson, No. 09-08-00043-CV, 2009 WL
2616921, at *5 (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 Bordages 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 WL 4363624, at *2 (Tex. App.—Beaumont Sept. 4, 2014,
no pet.) (mem. op.); see also Wilson, 2009 WL 2616921, at *5; Mullens, 92 S.W.3d
at 887. Viewing the evidence in the light most favorable to the verdict, a rational
jury could have found, beyond a reasonable doubt, that Bordages is a sexually
13 violent predator. See Tex. Health & Safety Code Ann. § 841.062(a); Mullens, 92
S.W.3d at 885. We conclude that the jury’s verdict is supported by legally sufficient
evidence. We overrule issue one.
In issue two, Bordages argues that the evidence is factually insufficient to
support the jury’s finding. According to Bordages, the evidence is too meager to
support a finding that he is an “extremely dangerous” or “worst of the worst” sex
offender. Bordages relies primarily on In re Commitment of Stoddard, 601 S.W.3d
879 (Tex. App.—Fort Worth 2019, pet. granted), in which the Fort Worth Court of
Appeals reversed the jury’s verdict finding Stoddard to be a sexually violent
predator. See Stoddard, 601 S.W.3d at 891. The Fort Worth Court concluded that
the evidence was factually insufficient to prove that Stoddard is a member of a small
group of extremely dangerous sex offenders for which civil commitment is
warranted. Id. at 891-92, 897-98.
The record shows that the criteria and definitions necessary to support a civil
commitment under the SVP statute were submitted to the jury and correctly
described the severity of the behavioral abnormality and the severity of the danger
that must be present to subject the person to civil commitment. See In re Commitment
of Almaguer, 117 S.W.3d 500, 505 (Tex. App.—Beaumont 2003, pet. denied); In re
Commitment of Wirfs, No. 09-19-00007-CV, 2020 WL 1879473, at *6 (Tex. App.—
Beaumont April 16, 2020, no pet.) (mem. op.). As previously discussed, in
14 conducting a factual sufficiency review, our task is to consider all the evidence
presented and then weigh the evidence to determine whether a verdict that is
supported by legally sufficient evidence nevertheless reflects a risk of injustice that
compels ordering a new trial. See Day, 342 S.W.3d at 213. Thus, comparing facts
from this case to other SVP cases deviates from our task in a factual sufficiency
review. See Wirfs, 2020 WL 1879473, at *6. Having weighed all the evidence in the
record, we conclude that the jury could have found, beyond a reasonable doubt, that
Bordages 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,
and that there is no injustice in the jury’s verdict that would require a new trial. See
Day, 342 S.W.3d at 213. Because the evidence is factually sufficient, we overrule
issue two.
In issue three, Bordages complains that McGarrahan’s and Gaines’s opinions
that he has a behavioral abnormality are based on an incorrect definition of
“behavioral abnormality.” Bordages complains that the record reflects that
McGarrahan and Gaines incorrectly believed that the legislative findings in section
841.001 only apply to “extremely dangerous” sex offenders and not to a “behavioral
abnormality” determination. See Tex. Health & Safety Code Ann. § 841.001 (stating
that sexually violent predators have a behavioral abnormality that is not amenable to
traditional mental illness treatment modalities). The record shows that after hearing
15 the parties’ arguments, the trial court allowed the experts to reference section
841.001 on the legislative findings, and the trial court stated that the jury could
consider whether Bordages was amenable to traditional treatment modalities in
determining whether Bordages suffers from a behavioral abnormality. See In re
Commitment of Nicholson, No. 09-13-00498-CV, 2014 WL 4460417, at *4 (Tex.
App.—Beaumont Sept. 11, 2014, no pet.) (mem. op).
McGarrahan testified that Bordages suffers from a behavioral abnormality and
falls into a small but extremely dangerous group of sex offenders who are not
amenable to traditional treatment modalities. Gaines testified that Bordages suffers
from a behavioral abnormality, and that the traditional treatment modalities that
Bordages received for his brain injury were unsuccessful. We conclude that
Bordages offers no support from the record for his argument that McGarrahan or
Gaines used an incorrect definition of “behavioral abnormality.” Additionally,
because the SVP statute does not include any reference to treatment modalities or
the inappropriateness of traditional mental health treatment modalities in its
definition of “behavioral abnormality,” Bordages fails to offer sufficient argument
and authority to explain how McGarrahan’s and Gaines’s definitions of “behavioral
abnormality” materially differ from the definition in section 841.002(2). See In re
Commitment of Williams, 539 S.W.3d 429, 439 (Tex. App.—Houston [1st Dist.]
2017, no pet.); see also Tex. Health & Safety Code Ann. § 841.002(2). Because
16 Bordages’s brief fails to provide appropriate citations to authorities and the record
in support of his argument, we overrule Bordages’s third issue as inadequately
briefed. See Tex. R. App. P. 38.1(i); In re Commitment of Woods, No. 02-19-00155-
CV, 2020 WL 3969958, at *13 (Tex. App.—Fort Worth June 11, 2020, pet. denied)
(mem. op.). Having overruled each of Bordages’s issues, we affirm the trial court’s
judgment and order of civil commitment.
AFFIRMED.
_________________________ STEVE McKEITHEN Chief Justice
Submitted on May 18, 2020 Opinion Delivered December 17, 2020
Before McKeithen, C.J., Kreger and Johnson, JJ.