in Re Commitment of Cebero Garcia Ochoa

• Court: Court of Appeals of Texas
• Decided: September 29, 2016
• Docket: 09-15-00486-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-15-00486-CV ____________________

IN RE COMMITMENT OF CEBERO GARCIA OCHOA

_______________________________________________________ ______________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 15-05-04646-CV ________________________________________________________ _____________

MEMORANDUM OPINION

The State of Texas filed a petition to commit Cebero Garcia Ochoa (Ochoa)

as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-

.151 (West 2010 & Supp. 2016) (SVP statute).1 A jury found that Ochoa is a

sexually violent predator, and the trial court rendered a final judgment and an order

of civil commitment. Ochoa filed a motion for new trial. The court denied the

motion for new trial. Ochoa filed a notice of appeal. In three issues, Ochoa asserts

1 Throughout this opinion, we cite to the current version of the statute unless a previous version of the statute applies and the subsequent amendments would materially affect our analysis. 1 that (1) the trial court erred in denying his motion to dismiss, (2) the trial court

erred in failing to limit the scope of testimony provided by the State’s expert, Dr.

Gaines, and, (3) the SVP statute, as amended, is unconstitutional.

BACKGROUND FACTS

In 2010, Ochoa pleaded no contest to an assault charge in municipal court

and was convicted, and the complaint alleged he touched S.M.’s “butt cheek[.]”2 In

2012, Ochoa was convicted of sexual assault of J.D. and of an attempted sexual

assault of M.M. Ochoa pleaded guilty to both offenses and received a five-year

sentence for each offense. Dr. Gaines diagnosed Ochoa with “other specified

paraphilic disorder[,]” antisocial personality disorder, benzodiazepine use disorder

in remission in a controlled environment, cannabis use disorder, and Dr. Gaines

found that Ochoa suffers from a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence.

MOTION TO DISMISS

In his first issue, Ochoa argues that the trial court erred in denying

“Respondent’s Motion to Dismiss Baseless Cause of Action[.]” Ochoa asserted in

the motion that the State’s petition has “no basis in law because Dr. Dunham did

2 We identify the vicitms by using initials. See Tex. Const. art. I, § 30(a)(1) (granting crime victims the “right to be treated with fairnesss and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 2 not test [Ochoa] for psychopathy[,]” as required by section 841.023(a) of the SVP

statute.3 When reviewing a motion to dismiss that alleges there is no basis in law

for a claim, we exercise de novo review and construe the pleadings liberally in

favor of the plaintiff. See Wooley v. Schaffer, 447 S.W.3d 71, 75-76 (Tex. App.—

Houston [14th Dist.] 2014, pet. denied).

Section 841.022 of the Texas Health and Safety Code provides that the

executive director of the TDCJ and the commissioner of the Department of State

Health Services shall establish a multidisciplinary team (MDT) to review available

records of a person referred to the MDT. See Tex. Health & Safety Code Ann. §

841.022 (West Supp. 2015). The MDT “may request the assistance of other

persons in making an assessment under this section.” Id. § 841.022(b).

Under section 841.023, after the MDT has made a recommendation under

section 841.022(c), the TDCJ shall make an assessment. See id. § 841.023 (West

Supp. 2015).

(a) Not later than the 60th day after the date of a recommendation under Section 841.022(c), the Texas Department of Criminal Justice or the Department of State Health Services, as appropriate, shall assess whether the person suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual 3 Dr. Dunham was hired by TDCJ to evaluate Ochoa for a behavioral abnormality. See Tex. Health & Safety Code Ann. § 841.023(a) (West Supp. 2015). 3 violence. To aid in the assessment, the department required to make the assessment shall use an expert to examine the person. That department may contract for the expert services required by this subsection. The expert shall make a clinical assessment based on testing for psychopathy, a clinical interview, and other appropriate assessments and techniques to aid the department in its assessment.

(b) If as a result of the assessment the Texas Department of Criminal Justice or the Department of State Health Services believes that the person suffers from a behavioral abnormality, the department making the assessment shall give notice of that assessment and provide corresponding documentation to the attorney representing the state not later than the 60th day after the date of a recommendation under Section 841.022(c).

Id. § 841.023. If a person is referred under section 841.023 to the State’s attorney,

“the attorney may file . . . a petition alleging that the person is a sexually violent

predator and stating facts sufficient to support the allegation.” Id. § 841.041(a)

(West Supp. 2016).

Dr. Dunham’s report included the following:

Prior to the attempted interview, Mr. Ochoa was informed of the nature and purpose of the evaluation, of the non-confidential nature of the evaluation, of the parties who would receive a copy of the forensic report, and of the voluntary nature of the interview. He was informed that if he chose to decline the interview, the evaluation would still be conducted, and a report would still be generated. After being informed of his rights, Mr. Ochoa asked several questions, and I had to repeat the notification process several times. He never consented to be interviewed. He seemed to have difficulty understanding the notification because of his lower level of intellectual functioning. Although a certified Spanish-speaking 4 interpreter was utilized to assist with translation, Mr. Ochoa’s inability to comprehend the situation was more concerning than any language barrier. In the end, he expressed concerns about agreeing to something that he did not completely understand. He ultimately stated that he would rather speak with an attorney first before agreeing to an interview. As such, Mr. Ochoa essentially declined the interview for legal purposes.

Under the section of the report entitled “Assessment for Psychopathy[,]” Dr.

Dunham noted the following:

Because an interview with Mr. Ochoa was not conducted, an assessment for psychopathy would have been limited to the records available. Although this is sometimes feasible, it is not so in this particular case due to the extreme lack of information contained within Mr. Ochoa’s file. As such, I elected not to administer testing for psychopathy.

Dr. Dunham’s report noted that he utilized the Static-99R actuarial, which placed

Ochoa in the category for a high risk for sexual re-offense. Dr. Dunham also states

in the report that despite the fact Ochoa declined the clinical interview Dr. Dunham

was able to make behavioral observations and diagnostic impressions regarding

Ochoa. Dr. Dunham concluded in his report that “based upon the records reviewed

and testing conducted . . . Mr. Ochoa represents a High risk for sexual re-offense

and does suffer from a behavioral abnormality that makes him likely to engage in

future acts of predatory sexual violence.” TDCJ subsequently determined that

Ochoa suffers from a behavioral abnormality and referred the case to the Special

Prosecution Unit. The Special Prosecution Unit then filed a petition against Ochoa. 5 The appellate record includes a transcript of the reporter’s record from the

hearing on the motion to dismiss. The State requested that Dr. Dunham be allowed

another opportunity to test for psychopathy but Ochoa opposed any additional

evaluation or testing by Dr. Dunham. The trial court denied the motion to dismiss

the cause of action and ordered Dr. Dunham to conduct a clinic interview of Ochoa

for the limited purpose of making an assessment for psychopathy.

The expert’s “clinical assessment” assists the MDT in making its assessment

and recommendation. In re Commitment of Alvarado, No. 09-13-00217-CV, 2014

Tex. App. LEXIS 3343, at **11-12 (Tex. App.—Beaumont Mar. 27, 2014, pet.

denied) (mem. op.). As we stated in Alvarado, “[t]here is no language in the statute

that indicates the legislature intended for the expert’s ‘clinical assessment’ to be a

jurisdictional requirement before suit can be filed. Id. at *11. In the instant case,

although Ochoa’s counsel stated at the hearing that Ochoa declined the clinical

interview because of a language barrier, Dr. Dunham’s report indicates that a

Spanish-speaking interpreter assisted in the interview. Section 841.061(f) of the

SVP statute evidences the legislature’s intent in preventing a person from avoiding

civil commitment by refusing to cooperate in an expert examination by providing

consequences for failing to submit to expert examinations. See Tex. Health &

Safety Code Ann. § 841.061(f) (West Supp. 2015). The trial court did not err in

6 denying Ochoa’s motion to dismiss. See Alvarado, 2014 Tex. App. LEXIS 3343, at

**11-12. We overrule Ochoa’s first issue.

SCOPE OF DR. GAINES’S TESTIMONY

In his second issue, Ochoa argues that the trial court erred in failing to limit

the scope of the testimony of Dr. Gaines, the State’s expert, because, according to

Ochoa, Dr. Gaines could not provide the bases for the opinions of the consulting

experts upon which she relied in forming her opinion. We review a trial court’s

evidentiary rulings under an abuse of discretion standard of review. Horizon/CMS

Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see In re Commitment

of Salazar, No. 09-07-345 CV, 2008 Tex. App. LEXIS 8856, at *19 (Tex. App.—

Beaumont Nov. 26, 2008, pet. denied) (mem. op.). A trial court abuses its

discretion when it acts without reference to any guiding rules and principles, or if it

acts arbitrarily and unreasonably. E.I. du Pont de Nemours & Co. v. Robinson, 923

S.W.2d 549, 558 (Tex. 1995) (citing Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241-42 (Tex. 1985)). A judgment will not be reversed based on the

admission of evidence unless the appellant establishes that the trial court’s ruling

was in error and that the error was reasonably calculated to cause and probably did

cause the rendition of an improper judgment. Salazar, 2008 Tex. App. LEXIS

8856, at *5; see also Tex. R. App. P. 44.1(a).

7 Following voir dire, Ochoa requested a gatekeeper hearing regarding the

admissibility of the testimony of the State’s expert witness, Dr. Sheri Gaines. At

the hearing, Dr. Gaines testified that she is a medical doctor and a psychiatrist and

has conducted approximately 109 behavioral abnormality evaluations. She testified

that as part of her methodology she typically conducts her own clinical evaluation

of the respondent and conducts her own review of the records, and that she

followed this methodology in Ochoa’s case. She explained she reviewed and relied

on the opinions of two consulting experts, Dr. Dunham and Dr. Turner, who found

that Ochoa suffers from a behavior abnormality. She explained that she came to

her own opinion in the case regarding whether Ochoa had a behavioral abnormality

and was not simply parroting psychologists Dr. Dunham’s or Dr. Turner’s

opinions. She testified she is not trained to score actuarials, she considered Dr.

Dunham’s and Dr. Turner’s scores from the actuarials they administered to Ochoa,

and she had no reason to question the reliability of the scores or Dr. Dunham’s or

Dr. Turner’s methodologies. Dr. Gaines testified that although she was not aware

of all the details Dr. Dunham and Dr. Turner considered and how they arrived at

their opinions, it is ethical for her to consider all opinions. Ochoa argued that

because Dr. Gaines could not testify as to how the actuarials were scored or the

reliability of the actuarials scored, the “scope of her testimony [should] be limited

8 to only her opinion and not the opinions nor the scoring instruments of Dr. Turner

or Dr. Dunham.” The trial court ruled that the scope of Dr. Gaines’s testimony

would not be limited in any manner.

Rule 705 of the Texas Rules of Evidence permits a trial court to admit the

underlying facts or data on which an expert has based an opinion. See Tex. R.

Evid. 705(a); In re Commitment of Camarillo, No. 09-12-00304-CV, 2013 Tex.

App. LEXIS 7212, at *9 (Tex. App.—Beaumont June 13, 2013, no pet.) (mem.

op.). A trial court does not abuse its discretion by allowing experts to testify about

non-testifying experts’ opinions when “these were matters the evidence shows

were reviewed by these experts to form opinions.” In re Commitment of Garcia,

No. 09-12-00194-CV, 2013 Tex. App. LEXIS 14986, at **15-17 (Tex. App.—

Beaumont Dec. 12, 2013, pet. denied) (mem. op.); see also In re Commitment of

Winkle, 434 S.W.3d 300, 314-16 (Tex. App.—Beaumont 2014, pet. denied). In an

SVP case, generally an expert may take another expert’s findings into

consideration when forming an opinion of whether the respondent suffers from a

behavioral abnormality. See Garcia, 2013 Tex. App. LEXIS 14986, at **15-17;

see also In re Commitment of Waite, No. 09-15-00364-CV, 2016 Tex. App. LEXIS

4772, at **8-9 (Tex. App.—Beaumont May 5, 2016, no pet.) (mem. op.) (Dr. Self

testified that as part of his methodology he reviewed actuarials scored on Waite by

9 Dr. Turner and Dr. Mauro and testified what the scores indicated); In re

Commitment of Perez, No. 09-15-00126-CV, 2015 Tex. App. LEXIS 12536, at *11

(Tex. App.—Beaumont Dec. 10, 2015, no pet.) (mem. op.) (Dr. Arambula testified

that as part of his methodology he reviewed actuarial administered to Perez by Dr.

Turner and testified what the score indicated); In re Commitment of Smith, No. 09-

15-00091-CV, 2015 Tex. App. LEXIS 12092, at *13 (Tex. App.—Beaumont Nov.

25, 2015, no. pet.) (mem. op.) (Dr. Tennison testified that as part of his

methodology he reviewed actuarial results completed by a psychologist and he

testified as to what the score indicated); In re Commitment of Ramsey, 09-14-

00304-CV, 2015 Tex. App. LEXIS 2844, at *8 (Tex. App.—Beaumont Mar. 26,

2015, pet. denied) (mem. op.) (Dr. Clayton testified that as part of her

methodology she reviewed the actuarial test administered to Ramsey by Dr.

Dunham and another SOTP evaluator and testified as to what that score indicated).

The trial court did not abuse its discretion in denying Ochoa’s request to limit the

scope of Dr. Gaines’s testimony.

Furthermore, Ochoa has not alleged that the trial court’s ruling prevented

him from presenting his points on appeal. See Tex. R. App. P. 44.1(a).

Additionally, the trial court gave the jury an oral limiting instruction and a written

limiting instruction relating to the particular testimony at issue. Ochoa did not

10 object to either instruction at trial, nor does he argue on appeal that the instructions

were in any way deficient. We presume that the jury followed the court’s

instructions. See In re Commitment of Day, 342 S.W.3d 193, 199 (Tex. App.—

Beaumont 2011, pet. denied). Issue two is overruled.

CONSTITUTIONAL CHALLENGE

In his third issue, Ochoa argues that the SVP statute “as amended by Senate

Bill 746 is facially unconstitutional because it requires all persons adjudicated as

sexually violent predators to live in oppressive confinement with no evidence they

cannot be treated in an outpatient model first,” and Ochoa argues that, “as

amended, the statute fails the ‘intent-effects test’ utilized by the Texas Supreme

Court in In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005).” Ochoa

contends that the findings of the trial court judge in another civil commitment

regarding Alonzo May equally apply to Ochoa, and Ochoa argues that “[w]ith the

passage of SB 746, several of the factors the Fisher court analyzed under the

‘intents-effects test’ have been rendered moot by SB 746.”

Effective June 17, 2015, Senate Bill 746 amended Chapter 841 of the Texas

Health and Safety Code in several respects. See Act of May 21, 2015, 84th Leg.

R.S., ch. 845, 2015 Tex. Sess. Law Serv. 2700, 2700-12. The Legislature created a

new state agency, the Texas Civil Commitment Office (TCCO), with the

11 responsibility for treatment and supervision of sexually violent predators. 4 Id. § 3

(current version at Tex. Health & Safety Code Ann. § 841.007 (West Supp. 2016)).

The Legislature required the TCCO to develop a tiered program of supervision and

treatment that provides a seamless transition from a total confinement facility to

less restrictive housing and supervision and eventual release from civil

commitment, based on the person’s behavior and progress in treatment. Id. at § 16

(current version at Tex. Health & Safety Code Ann. § 841.0831 (West Supp.

2016). Under the statute as amended, the TCCO transfers a committed person to

less restrictive housing and supervision if the transfer is in the best interests of the

person and conditions can be imposed that adequately protect the community, and

a committed person may petition the court for a transfer to less restrictive housing

and supervision. Id. (current version at Tex. Health & Safety Code Ann.

§ 841.0834 (West Supp. 2016)). The enacting language of SB 746 provides:

If a civil commitment requirement imposed under Chapter 841, Health and Safety Code, before the effective date of this Act differs from any of the civil commitment requirements listed in Section 841.082, Health and Safety Code, as amended by this Act, the applicable court with jurisdiction over the committed person shall, after notice and hearing, modify the requirement imposed as applicable to conform to that section.

Id. § 40(b). 4 See Tex. Gov’t Code Ann. § 420A.002 (West Supp. 2016). Throughout this opinion we refer to the Texas Civil Commitment Office by its acronym, “TCCO.” 12 The statutory amendments about which Ochoa complains became effective

on June 17, 2015, and Ochoa’s trial began on September 8, 2015. The appellate

record indicates that Ochoa did not raise the issue of the constitutionality of the

amended SVP statute before or during trial, and he failed to raise the issue in his

motion for new trial. Generally, to preserve a complaint for appellate review, the

complaining party must present the complaint to the trial court by timely request,

objection, or motion. Tex. R. App. P. 33.1(a)(1).

We apply the preservation rule to constitutional challenges. See In re L.M.I.,

119 S.W.3d 707, 710-11 (Tex. 2003) (parent failed to preserve his due process

challenge); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002) (party

failed to raise constitutional argument that trial court’s ruling violated open-courts

provision in response to summary judgment motion and thus did not preserve it for

appeal); Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (party waived due

process and equal protection challenges by failing to raise them in trial court);

Lowe v. Jefferson Dental Clinics, No. 05-11-00902-CV, 2012 Tex. App. LEXIS

3796, at **4-5 (Tex. App.—Dallas May 14, 2012, no pet.) (mem. op.) (appellant

failed to preserve her challenge to the constitutionality of Chapter 74 by failing to

raise the complaint in the trial court); In re J.R.N., No. 09-08-00029-CV, 2010

Tex. App. LEXIS 2280, at **8-9 (Tex. App.—Beaumont Apr. 1, 2010, no pet.)

13 (mem. op.) (“The law is well settled that even constitutional errors may be waived

by failure to raise the issues at trial.”). Ochoa did not raise his constitutional

challenges in the trial court. Therefore, he failed to preserve the issue for appellate

review. See Tex. R. App. P. 33.1. Additionally, we have previously examined and

rejected the same arguments in previous opinions. See In re Commitment of

Arnold, No. 09-15-00499-CV, 2016 Tex. App. LEXIS 9351, at **13-16 (Tex.

App.—Beaumont Aug. 25, 2016, no pet. h.) (mem. op.); In re Commitment of

Welsh, No. 09-15-00498-CV, 2016 Tex. App. LEXIS 9325, at **1-4 (Tex. App.—

Beaumont Aug. 25, 2016, no pet. h.) (mem. op.); In re Commitment of May, No.

09-15-00513-CV, 2016 Tex. App. LEXIS 8058, at **8-25 (Tex. App.—Beaumont

July 28, 2016, no pet. h.). For the same reasons we articulated in Arnold, Welsh,

and May, we find Ochoa’s constitutional challenges unpersuasive. We overrule

Ochoa’s third issue. Having overruled Ochoa’s issues, we affirm the trial court’s

judgment and order of civil commitment.

AFFIRMED.

_________________________ LEANNE JOHNSON Justice

Submitted on July 14, 2016 Opinion Delivered September 29, 2016

Before Kreger, Horton, and Johnson, JJ. 14