in Re Commitment of Edward Lamond Cox

• Court: Court of Appeals of Texas
• Decided: April 10, 2014
• Docket: 09-13-00316-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-13-00316-CV ________________

IN RE COMMITMENT OF EDWARD LAMOND COX __________________________________________________________________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 12-10-10525-CV __________________________________________________________________

MEMORANDUM OPINION

The State of Texas filed a petition to commit appellant Edward Lamond Cox

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

.151 (West 2010 & Supp. 2013). A jury found that Cox is a sexually violent

predator, and the trial court signed a final judgment and an order of civil

commitment. In four appellate issues, Cox challenges the trial court’s failure to

strike expert testimony, the trial court’s refusal to permit Cox’s counsel to ask “a

proper commitment question” during voir dire, and the constitutionality of the SVP

statute, both under Article 1, section 16 of the Texas Constitution, and on

1 vagueness grounds. We affirm the trial court’s judgment and order of civil

commitment.

ISSUE ONE

In his first issue, Cox argues the trial court reversibly erred “by failing to

strike the unsupported testimony of Dr. Michael Arambula[.]” Specifically, Cox

complains that Arambula’s testimony does not meet the standards for scientific

reliability, Arambula’s “methodology is flawed and unsupported,” Arambula’s

testimony was biased and misleading, Arambula “claims ignorance of the seminal

case law controlling civil commitment[,]” and Arambula provided insufficient

information to distinguish Cox from “the dangerous but typical recidivist convicted

in an ordinary criminal case.”

Arambula testified that he holds board certifications in both general

psychiatry and forensic psychiatry, and he explained that he participated in a

sexual behaviors clinic, in which he learned about treating and evaluating sex

offenders, as well as how to manage the risk sex offenders pose to the community.

Arambula explained that his testimony was within the scope of forensic psychiatry,

and that he relied upon principles of forensic psychiatry while evaluating Cox.

Arambula estimated that he had performed approximately eighty behavioral

abnormality evaluations during the last seven years. According to Arambula, a

2 behavioral abnormality is an acquired or congenital condition that affects a

person’s emotional or volitional capacity, causing them to become likely to engage

in predatory acts of sexual violence and become a menace to the health and safety

of others.

Arambula explained that in conducting evaluations to determine whether a

person is a sexually violent predator, he reviews medical, mental health, and

administrative records, as well as “a section that has to do with the sexual

offenses,” and then he interviews the person. Arambula testified, “I’m comfortable

saying all forensic fellowship-trained physicians would do the same thing.”

Arambula stated that he followed the same methodology when evaluating Cox, and

he also reviewed actuarials. Arambula explained that he cannot calculate a rate of

error in such cases, but he opined that based upon physicians’ training regarding

what to look for, there is probably a ninety to ninety-five percent degree of

certainty. According to Arambula, two of the greatest risk factors are sexual

deviance and antisocial personality, and there are other factors such as age at the

time of the first sexual offense, lack of treatment, and the presence of denial.

Arambula testified that he interviewed Cox for approximately two-and-a-

half hours, and he explained that based upon his education, experience, and the

methodology he followed, he determined that Cox has a behavioral abnormality

3 that makes him likely to engage in a predatory act of sexual violence. According to

Arambula, Cox has “a hefty dose of antisocial personality” and elements of sexual

deviance. Arambula explained that antisocial personality disorder entails “breaking

the rules of society, aggression towards others, stealing, lack of responsibility,

callousness, those kinds of things.” Arambula explained that Cox’s criminal

versatility, consistent disregard for others, failure to accept responsibility, blaming

his victims, and aggressive behavior evidenced antisocial personality disorder.

Arambula testified that Cox was “an agent for women who engaged in

prostitution[,]” and that some of the prostitutes were underage. Arambula testified

that Cox was convicted of trafficking, i.e., “forcing a young girl into the trade of

prostitution.”

Arambula explained that Cox engaged in sexual acts with minors, and that

Cox did not accept responsibility for his offenses. According to Arambula, Cox

was on probation for the trafficking offense when he was charged with aggravated

sexual assault and indecency with a child, and Cox pleaded guilty to aggravated

sexual assault and indecency with a child. Arambula testified that Cox’s inability

to successfully complete probation is a risk factor, as is the fact that Cox’s victims

were strangers and Cox’s belief that he does not need sex offender treatment.

Arambula explained that although he does not score actuarials, he considered

4 Cox’s actuarial scores in performing his evaluation. According to Arambula, Cox’s

actuarial scores indicate that he is at high risk for sexual recidivism. Arambula also

testified that Cox scored high on the Hare Psychopathy Checklist, which measures

the degree of antisocial personality an individual possesses.

Arambula explained that the fact that Cox’s victims were minors and were

strangers, as well as the fact that Cox “include[ed] them in his profession[,]”

evidenced Cox’s sexual deviancy. Arambula also identified as risk factors Cox’s

denial and minimization of his offenses, as well as his demeaning attitude toward

women and his lack of job skills. Arambula opined that Cox’s emotional or

volitional capacity has been affected to the extent that it predisposes him to commit

a sexually violent offense. Arambula characterized Cox as “a particularly

dangerous type of sex offender.” According to Arambula, denial is characteristic of

both Cox’s antisocial personality disorder and Cox’s sexual deviancy.

During cross-examination, Arambula testified that he does not consider the

DSM to be an authoritative source, and he described it instead as “an important

resource[.]” When asked whether he had cited any documentation in support of his

opinion concerning Cox, Arambula testified, “I mentioned the DSM, as it relates to

paraphilia diagnoses.” Arambula explained that he viewed the DSM as

5 insufficiently comprehensive because it does not describe “the full breadth of the

mental conditions, only the criteria.”

Counsel then inquired about “documentation or publications that bridge that

analytical gap[,]” and Arambula explained that it is difficult “for one publication to

cover all mental conditions with that type of breadth and comprehensiveness.”

Arambula explained that the information and methodology he uses to evaluate

individuals comes from his fellowship, which was twenty years ago. According to

Arambula, during the twenty years since his fellowship, some things “remain the

same thing and some changes . . . have emerged in the literature[.]” Arambula

testified that

[a]s it relates to this case, there weren’t any particular textbooks or articles that were different from before . . . . And instead, I just relied upon . . . the foundation of how I had been trained and the textbooks that were published subsequent to my training and the articles that I read having to do with sexual offenses, sexual offense recidivism. And so I keep up with the literature as it emerges . . . .

Arambula testified that the analytical gap is covered “as a result of my training and

the information that I have in my brain all the time.” Arambula explained,

[t]he information that I use in evaluating sexual dangerousness is based, first and foremost, on the methodology that I was taught during my fellowship. . . . Since then, there have been subtle changes in the degree that a certain risk factor carries, but by and large, in the last 20 years, what’s really changed more than anything else in the sex offender literature is how sex offenders are treated. ... 6 The static risk factors . . . really don’t change over time . . . . So there’s not been significant change in evaluating risk for recidivism. There have been some changes, but not as much as in the treatment literature.

Arambula testified that he has not conducted studies on sex offender recidivism

or published any articles or textbooks on the subject. According to Arambula,

“Daubert would apply to the statistical findings in capturing and paying attention

to what the important risk factors are[,]” as well as “to the methodology and the

validity of running scientific experiments upon which statistical analyses are

attached.”

Cox argues that Arambula’s testimony is unreliable and failed to bridge the

analytical gap between his opinions and the data on which he relied, and that the

trial court therefore erred by denying Cox’s pretrial motion to strike Arambula’s

testimony. Conclusory or speculative testimony is not relevant evidence, and bare,

baseless opinions cannot support a judgment. City of San Antonio v. Pollock, 284

S.W.3d 809, 816 (Tex. 2009). We review a trial court’s denial of a motion to strike

for abuse of discretion. Harris Cnty. Appraisal Dist. v. Hartman Reit Operating

P’ship, L.P., 186 S.W.3d 155, 157 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Arambula is licensed in his field, and he explained the methodologies he

employed when determining whether Cox suffers from a behavioral abnormality.

7 Arambula explained that he conducted his evaluation in accordance with his

training and the accepted standards for his field. Arambula testified that he

interviewed Cox in accordance with his training and reviewed and relied on the

types of records used by experts in his field, including actuarials and records

regarding Cox’s background, offenses, and incarceration. Arambula explained in

detail the facts and evidence relevant in forming his opinion and how those facts

played a role in his evaluation. Arambula concluded that Cox suffers from a

behavioral abnormality as defined by the SVP statute. Arambula’s testimony is not

so conclusory as to be completely lacking in probative value, nor is it unreliable or

unsupported. See In re Commitment of Burnett, No. 09-09-00009-CV, 2009 Tex.

App. LEXIS 9930, at *14 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem.

op.). We overrule issue one.

ISSUE TWO

In his second issue, Cox contends the trial court erred by preventing him

from asking a proper commitment question regarding sex with underage females,

thereby preventing him from properly exercising his peremptory strikes. We apply

an abuse of discretion standard to the trial court’s decisions regarding voir dire. In

re Commitment of Hill, 334 S.W.3d 226, 229 (Tex. 2011); In re Commitment of

Larkin, 161 S.W.3d 778, 781 (Tex. App.—Beaumont 2005, no pet.).

8 During voir dire, Cox’s counsel asked, “If you hear the word pedophilia

brought up in this particular case[,] how many of you will not be able to . . . listen

to the law, listen to the facts, all the facts, and follow the law as the Judge gives it

to you before rendering a verdict?” The State objected that “[a]sking them to

commit to certain questions about the facts of the case, it’s a commitment

question.” The trial court asked Cox’s counsel whether he desired to rephrase his

question, and after commenting that his first question “was probably a proper

commitment question[,]” Cox’s counsel then asked, “If you were to hear that

someone had sex with an individual who was underage, . . . how many of you

would not be able to listen to all of the facts . . . and the law as the Judge gives it to

you before rendering a proper verdict?” The State again objected, and the trial

court sustained the State’s objection. Cox’s counsel objected, “[f]or the record, we

object to your rulings, Your Honor.”

Because a prospective juror is disqualified from serving on the jury when

biased or prejudiced for or against a party, one purpose of voir dire is to find biased

jurors and eliminate them from the jury panel. In re Commitment of Barbee, 192

S.W.3d 835, 845 (Tex. App.—Beaumont 2006, no pet.); see Tex. Gov’t Code Ann.

§ 62.105(4) (West 2013). The trial court should allow a party broad latitude to

discover bias or prejudice by potential jurors. Larkin, 161 S.W.3d at 780. The trial

9 court abuses its discretion when it denies the right to ask a proper question,

preventing determination of whether grounds exist to challenge for cause or

denying intelligent use of peremptory challenges. Id. at 783. “Counsel’s latitude in

voir dire, while broad, is constrained by reasonable trial court control.” Hyundai

Motor Co. v. Vasquez, 189 S.W.3d 743, 750 (Tex. 2006).

In this case, the State’s expert did not diagnose Cox with pedophilia. Instead,

the issue Cox identifies as significant to his voir dire of the venire panel is his

sexual contact with teenage females and placing them into prostitution. Cox’s

counsel’s question isolated one condition, i.e. pedophilia, and sought to gauge its

potential impact on the venire panel. See id. at 756-57. The trial court could

reasonably have concluded that Cox was suggesting that to be fair, the jury must

not decide the case based on an irrelevant fact, and that the substance of the

proposed question did not present a proper basis for juror disqualification. See id.;

In re Commitment of Smith, No. 09-13-00100-CV, ___ S.W.3d ___, 2014 WL

333374, at *4 (Tex. App.—Beaumont Jan. 23, 2014, pet. filed) (not yet released

for publication); but see In re Commitment of Kalati, 370 S.W.3d 435, 441 (Tex.

App.—Beaumont 2012, pet. denied) (in which Kalati was diagnosed with

pedophilia and this Court held that the trial court erred by failing to permit a

question on pedophilia). We therefore overrule issue two.

10 ISSUE THREE

In issue three, Cox argues that chapter 841 of the Health and Safety Code

violates Article 1, section 16 of the Texas Constitution. Specifically, Cox contends

that when he entered into plea agreements with the State concerning his underlying

convictions, one of the terms of the plea agreement was that, upon his date of

release, he would be free to return home, and the State’s imposition of civil

commitment impairs his existing contracts with the State.

A plea bargain agreement is a contract between the prosecutor and the

defendant, in which the prosecutor makes concessions regarding specific

punishment or reduced charges in exchange for the defendant’s plea of guilty.

Hoang v. State, 872 S.W.2d 694, 698 (Tex. Crim. App. 1993); Ex parte Williams,

637 S.W.2d 943, 947 (Tex. Crim. App. 1982). SVP commitment cases are civil

matters, and the SVP statute is not punitive. In re Commitment of Fisher, 164

S.W.3d 637, 653 (Tex. 2005); Beasley v. Molett, 95 S.W.3d 590, 608 (Tex. App.—

Beaumont 2002, pet. denied). Therefore, it is axiomatic that the terms of Cox’s

civil commitment are not part of his plea-bargained punishments for the underlying

offenses. See Fisher, 164 S.W.3d at 653; Beasley, 95 S.W.3d at 608; Hoang, 872

S.W.2d at 698; Williams, 637 S.W.2d at 947. Accordingly, chapter 841 does not

11 interfere with existing contracts concerning punishment for Cox’s underlying

offenses. We overrule issue three.

ISSUE FOUR

In his fourth issue, Cox asserts that chapter 841 of the Health and Safety

Code “is unconstitutional in that it is vague[.]” We have previously addressed this

issue in other cases. Beasley, 95 S.W.3d at 607-10; In re Commitment of Morales,

98 S.W.3d 288, 291 (Tex. App.—Beaumont 2003, pet. denied); In re Commitment

of Mullens, 92 S.W.3d 881, 883-84 (Tex. App.—Beaumont 2002, pet. denied). For

the same reasons set forth in those cases, we overrule Cox’s fourth issue. Having

overruled each of Cox’s issues, we affirm the trial court’s judgment.

AFFIRMED.

________________________________ STEVE McKEITHEN Chief Justice

Submitted on February 27, 2014 Opinion Delivered April 10, 2014

Before McKeithen, C.J., Kreger and Horton, JJ.