Opinion issued September 25, 2014.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00918-CV ——————————— IN RE COMMITMENT OF THOMAS LEE ROBERTS
On Appeal from the 435th District Court Montgomery County, Texas Trial Court Case No. 12-11-12508-CV
MEMORANDUM OPINION1
In June 2013, the trial court issued a civil commitment order based on a jury
finding that Thomas Lee Roberts is a sexually violent predator. See TEX. HEALTH
1 On October 17, 2013, the Texas Supreme Court ordered this appeal transferred from the Court of Appeals for the Ninth District of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2013) (authorizing transfer of cases). We are unaware of any conflict between the precedent of the Court of Appeals for the Ninth District and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3. & SAFETY CODE ANN. §§ 841.001–.150 (West 2010 & Supp. 2014) (Sexually
Violent Predator “SVP” statute). Roberts challenges the order, contending that the
trial court erred in (1) excluding testimony proffered by his forensic psychologist
and (2) denying voir dire examination about the meaning of “likely,” as used in the
SVP statute in the context of “likely to reoffend,” and about the general credibility
of expert testimony. We affirm.
Background
Roberts was confined to the Texas Department of Corrections, serving a
sentence for one conviction for sexual assault and two convictions for aggravated
sexual assault of a child. Before his release was scheduled, the State instituted
civil commitment proceedings. The State proved Roberts’s prior convictions and
presented expert testimony from Michael Arambula, a forensic psychiatrist. Dr.
Arambula diagnosed Roberts with pedophilia, personality disorder with antisocial
features, and borderline intellectual functioning. Based on these diagnoses, the
criminal court records, and other factors, Dr. Arambula opined that Roberts suffers
from a behavioral abnormality that makes him likely to engage in a predatory act
of sexual violence. In rebuttal, Roberts presented testimony from his own forensic
psychologist, Marisa Mauro. She disagreed with Dr. Arambula’s opinion.
2 Discussion
I. Exclusion of Mauro’s testimony
Roberts contends that the trial court erred in excluding Dr. Mauro’s expert
testimony concerning the basis of her opinion, in which she described
inconsistencies in the statements of the complaining witness in Roberts’s
underlying convictions for child sexual assault.
We review a trial court’s evidentiary rulings for an abuse of discretion.
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); In re
Commitment of Tesson, 413 S.W.3d 514, 519 (Tex. App.—Beaumont 2013, pet.
denied). A trial court abuses its discretion when it acts without reference to any
guiding rules or principles or if it acts arbitrarily and unreasonably. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
Dr. Mauro testified that, while Roberts admitted to pleading guilty to and
having been convicted of three sexual offenses, including two for aggravated
sexual assault of a child, he denied having committed the conduct underlying the
two convictions for aggravated sexual assault of a child. Dr. Mauro explained she
thought the evidence of the child complainant’s outcry statements in those cases
showed a number of inconsistencies. At that point, the trial court excused the jury
and asked Dr. Mauro whether her opinion of the complainant’s veracity affected
her opinion about whether Roberts had a behavioral abnormality. Dr. Mauro
3 responded, “No, my opinion stays the same.” The trial court replied, “We don’t
need to talk about that then.” Dr. Mauro testified to her belief that the child
complainant’s statements contained too many inconsistencies to support a
diagnosis of pedophilia.
The trial court refused defense counsel’s request to cross-examine Dr.
Arambula on the issue. The court reasoned that an expert’s belief or disbelief of
the complainant’s outcry statements was admissible as a basis for rendering the
expert’s opinion, but that it would not permit Dr. Mauro to critique the reliability
of Dr. Arambula’s opinion based on her own finding, counter to two of Roberts’s
prior convictions, that Roberts had not sexually assaulted the child complainant.
The trial court acted within its discretion in concluding that Dr. Mauro’s
proffered testimony was an improper attempt to refute the factual basis for
Roberts’s prior convictions. See In re Commitment of Ramirez, 2013 WL
5658597, *5 (Tex. App.—Beaumont Aug. 29, 2013, no pet.) (mem. op.) (“Ramirez
could not challenge the facts of his final criminal convictions in a civil
commitment proceeding.”); In re Commitment of Briggs, 350 S.W.3d 362, 368–69
(Tex. App.—Beaumont, pet. denied) (holding that respondent cannot collaterally
attack criminal conviction in commitment proceeding). A trial court must exclude
the underlying facts or data used to explain or support an expert’s opinion if the
danger that they will be used for an impermissible purpose outweighs their value as
4 explanation or support for the expert’s opinion or if the excluded material is
unfairly prejudicial. TEX. R. EVID. 705(d); In re Commitment of Allen, No. 09-11-
00449-CV, 2012 WL 3860466, *2 (Tex. App.—Beaumont Sept. 6, 2012, no pet.)
(mem. op.).
Dr. Arambula acknowledged some of the flaws in the child complainant’s
statements that Dr. Mauro had noted. Through Dr. Mauro, Roberts sought to
criticize Dr. Arambula’s decision to credit the veracity of these outcry
statements—the basis for the allegations to which Roberts pleaded guilty—and to
suggest that Dr. Arambula’s decision to credit them given the internal
inconsistencies rendered Dr. Arambula’s opinion unreliable. We hold that the trial
court did not abuse its discretion in excluding the proffered testimony.
II. Limits on Voir Dire
A. Standard of review
Subject to reasonable trial court control, “[l]itigants have the right to
question potential jurors to discover biases and to properly use peremptory
challenges.” In re Commitment of Hill, 334 S.W.3d 226, 228–29 (Tex. 2011)
(citing Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 749–50 (Tex. 2006)). We
review a trial court’s rulings on voir dire for an abuse of discretion. Hill, 334
S.W.3d at 229; Commitment of Ramirez, 2013 WL 5658597, at *3; In re
Commitment of Larkin, 161 S.W.3d 778, 780 (Tex. App.—Beaumont 2005, no
5 pet.). “[A] court abuses its discretion when its denial of the right to ask a proper
question prevents determination of whether grounds exist to challenge for cause or
denies intelligent use of peremptory challenges.” Babcock v. Nw. Mem’l Hosp.,
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Opinion issued September 25, 2014.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00918-CV ——————————— IN RE COMMITMENT OF THOMAS LEE ROBERTS
On Appeal from the 435th District Court Montgomery County, Texas Trial Court Case No. 12-11-12508-CV
MEMORANDUM OPINION1
In June 2013, the trial court issued a civil commitment order based on a jury
finding that Thomas Lee Roberts is a sexually violent predator. See TEX. HEALTH
1 On October 17, 2013, the Texas Supreme Court ordered this appeal transferred from the Court of Appeals for the Ninth District of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2013) (authorizing transfer of cases). We are unaware of any conflict between the precedent of the Court of Appeals for the Ninth District and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3. & SAFETY CODE ANN. §§ 841.001–.150 (West 2010 & Supp. 2014) (Sexually
Violent Predator “SVP” statute). Roberts challenges the order, contending that the
trial court erred in (1) excluding testimony proffered by his forensic psychologist
and (2) denying voir dire examination about the meaning of “likely,” as used in the
SVP statute in the context of “likely to reoffend,” and about the general credibility
of expert testimony. We affirm.
Background
Roberts was confined to the Texas Department of Corrections, serving a
sentence for one conviction for sexual assault and two convictions for aggravated
sexual assault of a child. Before his release was scheduled, the State instituted
civil commitment proceedings. The State proved Roberts’s prior convictions and
presented expert testimony from Michael Arambula, a forensic psychiatrist. Dr.
Arambula diagnosed Roberts with pedophilia, personality disorder with antisocial
features, and borderline intellectual functioning. Based on these diagnoses, the
criminal court records, and other factors, Dr. Arambula opined that Roberts suffers
from a behavioral abnormality that makes him likely to engage in a predatory act
of sexual violence. In rebuttal, Roberts presented testimony from his own forensic
psychologist, Marisa Mauro. She disagreed with Dr. Arambula’s opinion.
2 Discussion
I. Exclusion of Mauro’s testimony
Roberts contends that the trial court erred in excluding Dr. Mauro’s expert
testimony concerning the basis of her opinion, in which she described
inconsistencies in the statements of the complaining witness in Roberts’s
underlying convictions for child sexual assault.
We review a trial court’s evidentiary rulings for an abuse of discretion.
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); In re
Commitment of Tesson, 413 S.W.3d 514, 519 (Tex. App.—Beaumont 2013, pet.
denied). A trial court abuses its discretion when it acts without reference to any
guiding rules or principles or if it acts arbitrarily and unreasonably. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
Dr. Mauro testified that, while Roberts admitted to pleading guilty to and
having been convicted of three sexual offenses, including two for aggravated
sexual assault of a child, he denied having committed the conduct underlying the
two convictions for aggravated sexual assault of a child. Dr. Mauro explained she
thought the evidence of the child complainant’s outcry statements in those cases
showed a number of inconsistencies. At that point, the trial court excused the jury
and asked Dr. Mauro whether her opinion of the complainant’s veracity affected
her opinion about whether Roberts had a behavioral abnormality. Dr. Mauro
3 responded, “No, my opinion stays the same.” The trial court replied, “We don’t
need to talk about that then.” Dr. Mauro testified to her belief that the child
complainant’s statements contained too many inconsistencies to support a
diagnosis of pedophilia.
The trial court refused defense counsel’s request to cross-examine Dr.
Arambula on the issue. The court reasoned that an expert’s belief or disbelief of
the complainant’s outcry statements was admissible as a basis for rendering the
expert’s opinion, but that it would not permit Dr. Mauro to critique the reliability
of Dr. Arambula’s opinion based on her own finding, counter to two of Roberts’s
prior convictions, that Roberts had not sexually assaulted the child complainant.
The trial court acted within its discretion in concluding that Dr. Mauro’s
proffered testimony was an improper attempt to refute the factual basis for
Roberts’s prior convictions. See In re Commitment of Ramirez, 2013 WL
5658597, *5 (Tex. App.—Beaumont Aug. 29, 2013, no pet.) (mem. op.) (“Ramirez
could not challenge the facts of his final criminal convictions in a civil
commitment proceeding.”); In re Commitment of Briggs, 350 S.W.3d 362, 368–69
(Tex. App.—Beaumont, pet. denied) (holding that respondent cannot collaterally
attack criminal conviction in commitment proceeding). A trial court must exclude
the underlying facts or data used to explain or support an expert’s opinion if the
danger that they will be used for an impermissible purpose outweighs their value as
4 explanation or support for the expert’s opinion or if the excluded material is
unfairly prejudicial. TEX. R. EVID. 705(d); In re Commitment of Allen, No. 09-11-
00449-CV, 2012 WL 3860466, *2 (Tex. App.—Beaumont Sept. 6, 2012, no pet.)
(mem. op.).
Dr. Arambula acknowledged some of the flaws in the child complainant’s
statements that Dr. Mauro had noted. Through Dr. Mauro, Roberts sought to
criticize Dr. Arambula’s decision to credit the veracity of these outcry
statements—the basis for the allegations to which Roberts pleaded guilty—and to
suggest that Dr. Arambula’s decision to credit them given the internal
inconsistencies rendered Dr. Arambula’s opinion unreliable. We hold that the trial
court did not abuse its discretion in excluding the proffered testimony.
II. Limits on Voir Dire
A. Standard of review
Subject to reasonable trial court control, “[l]itigants have the right to
question potential jurors to discover biases and to properly use peremptory
challenges.” In re Commitment of Hill, 334 S.W.3d 226, 228–29 (Tex. 2011)
(citing Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 749–50 (Tex. 2006)). We
review a trial court’s rulings on voir dire for an abuse of discretion. Hill, 334
S.W.3d at 229; Commitment of Ramirez, 2013 WL 5658597, at *3; In re
Commitment of Larkin, 161 S.W.3d 778, 780 (Tex. App.—Beaumont 2005, no
5 pet.). “[A] court abuses its discretion when its denial of the right to ask a proper
question prevents determination of whether grounds exist to challenge for cause or
denies intelligent use of peremptory challenges.” Babcock v. Nw. Mem’l Hosp.,
767 S.W.2d 705, 709 (Tex. 1989).
B. Excluded question on application of “likely”
During voir dire, Roberts’s counsel sought to ask the venire panel to respond
with their level of agreement or disagreement with the following statement:
1% possibility he will reoffend means he’s likely to reoffend. 1 ------------- 2 ------------- 3 ------------- 4 disagree agree
The trial court sua sponte barred defense counsel’s inquiry as an improper
commitment question. Roberts claims that the ruling is incorrect.
“A commitment question is one that commits a prospective juror to resolve,
or refrain from resolving, an issue a certain way after learning a particular fact.”
Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim. App. 2012) (citing Standefer
v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001)). Inclusion of case-specific
facts can render a question improper if the question seeks to elicit opinions about
those facts before the evidence is presented rather than to reveal a panel member’s
preexisting bias or prejudice. Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim.
App. 2005).
6 Chapter 841 defines a sexually violent predator, in part, as a person who
“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). The statute does not define “likely.” See id. § 841.002. “When
words are not specifically defined by the Legislature, they are to be understood as
ordinary usage allows, and jurors may freely read the statutory language to have
any meaning which is acceptable in common speech.” Teer v. State, 923 S.W.2d
11, 19 (Tex. Crim. App. 1996) (emphasis in original); see TEX. GOV’T CODE ANN.
§ 311.011(a) (West 2013 & Supp. 2014) (Absent a statutory definition, “[w]ords
and phrases shall be read in context and construed according to the rules of
grammar and common usage.”).
Roberts’s question did not simply seek to explore the venire members’
understanding of the term “likely”; it sought to gauge their understanding based on
a statistical percentage measure that anticipated the defense expert’s testimony on
Roberts’s likelihood of reoffending. At trial, Dr. Mauro testified that she applied a
risk-assessment methodology under one actuarial test to conclude that Roberts’s
score placed him in the portion of the tested subject population with a 1.2 percent
chance of reoffending within a five-year period following release. Dr. Mauro
ultimately opined that Roberts was not likely to reoffend.
7 “When the voir dire includes a preview of the evidence, a trial court does not
abuse its discretion when ‘refusing to allow questions that seek to determine the
weight to be given (or not to be given) a particular fact or set of relevant facts.’” In
re Commitment of Barbee, 192 S.W.3d 835, 846 (Tex. App.—Beaumont 2006, no
pet.) (quoting Hyundai Motor Co., 189 S.W.3d at 753). We hold that the trial court
did not abuse its discretion in excluding the specific question posed by Roberts.
C. Excluded questions on expert rate of error
Roberts further complains that the trial court erred in refusing to let defense
counsel ask the jury panel members whether, before crediting expert testimony,
they would want to know whether the expert’s opinions have been proven to be
correct, or whether they “would believe an expert who has never bothered to find
out if [his] opinions were correct or not?”
We hold that the trial court acted within its discretion in preventing this line
of inquiry. In enacting the statute, the Legislature deemed the cost of empirical
experimentation into whether a predator would reoffend to be too high. Accord In
re Commitment of Weissinger, No. 09-12-00486-CV, 2013 WL 3355758, *6–8
(Tex. App.—Beaumont June 27, 2013, pet. denied) (mem. op.). The trial court
could reasonably have concluded that the proffered question could confuse or
mislead the jurors in evaluating the credibility and weight of the expert testimony.
8 Conclusion
We affirm the judgment of the trial court.
Jane Bland Justice
Panel consists of Justices Jennings, Bland, and Massengale.