Summary
holding that both experts presented evidenced based support for their opinions
Summary of this case from In re Commitment of HullOpinion
NO. 09-11-00100-CV
03-08-2012
IN RE COMMITMENT OF BILLY BOB COX
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 10-09-10508 CV
MEMORANDUM OPINION
The State of Texas filed a petition to civilly commit Billy Bob Cox as a sexually violent predator under the Sexually Violent Predator Act. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2011). A jury found Cox suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Id. § 841.003. The trial court entered a final judgment and an order of civil commitment under the Act. We affirm the judgment of the trial court.
REQUESTS FOR ADMISSIONS
In issue one, Cox argues that the State committed fundamental reversible error in submitting requests for admissions and reading Cox's admissions at trial. Cox argues that the State used his admissions to prove essential elements of its case and undermined the Act's requirement that the State prove its case beyond a reasonable doubt. Cox further argues that the use of his admissions at trial denied him the right to a unanimous jury verdict. Cox concedes that his trial counsel did not object to the State's submission of the requests for admissions during pretrial discovery or when the admissions were read to the jury. However, Cox argues that SVP cases are "quasi-criminal" and therefore, the doctrine of fundamental error applies, which obviates the need for an objection to preserve error. We have previously held that SVP cases are not quasi-criminal. See In re Commitment of Martinez, 98 S.W.3d 373, 375 (Tex. App.—Beaumont 2003, pet. denied) ("Chapter 841 is a civil, not a criminal or quasi-criminal, statute.").
A civil commitment proceeding is subject to the rules of civil procedure unless otherwise provided by the Act. Tex. Health & Safety Code Ann. § 841.146(b). The Texas Rules of Civil Procedure provide that a matter admitted in response to Rule 198 requests for admissions "is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission." Tex. R. Civ. P. 198.3. There is no conflict between the SVP statute and Rule 198. See In re Commitment of Malone, 336 S.W.3d 860, 862 (Tex. App.—Beaumont 2011, pet. denied). Therefore, the use of requests for admissions is generally appropriate in SVP cases. See id.; see also Tex. Health & Safety Code Ann. § 841.146(b).
To preserve error concerning the admission of evidence, a party must timely object, stating the specific ground of objection, if the specific ground is not apparent from the context. Tex. R. Evid. 103(a)(1); see also Tex. R. App. P. 33.1(a). In similar cases, we have declined to address the type of unpreserved error assigned by Cox. See In re Commitment of Kilpatrick, No. 09-10-00451-CV, 2011 WL 3925665, at *2 (Tex. App.— Beaumont Aug. 25, 2011, no pet.) (mem. op); In re Commitment of Frazier, No. 09-10-00033-CV, 2011 WL 2566317, at *2 (Tex. App.—Beaumont June 30, 2011, no pet.) (mem. op.). Likewise, Cox failed to preserve these complaints for review. See Tex. R. Evid. 103(a)(1); see also Tex. R. App. P. 33.1(a); Kilpatrick, 2011 WL 3925665, at *2. We overrule issue one.
FIFTH AMENDMENT RIGHTS
In issue two, Cox argues his Fifth Amendment rights were violated when he was forced to answer the State's requests for admissions and called to testify against himself. The Fifth Amendment permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, and allows him not to answer official questions put to him in any other proceeding, civil or criminal, where the answers may incriminate him in future criminal proceedings. Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141, 79 L. Ed. 2d 409 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322, 38 L. Ed. 2d 274 (1973)). Cox argues that his discovery responses and testimony could incriminate him in a future proceeding because he could be charged with a third degree felony if he is committed under the SVP statute and subsequently violates the commitment order.
The Fifth Amendment "'does not preclude a witness from testifying voluntarily in matters which may incriminate him.'" Id. at 427 (quoting United States v. Monia, 317 U.S. 424, 427, 63 S. Ct. 409, 410, 87 L. Ed. 376 (1943)). Moreover, a witness who wants the protection of the Fifth Amendment privilege must claim it. Id. Cox did not invoke the Fifth Amendment privilege in response to the State's pretrial discovery or during his commitment trial. Cox cannot raise his Fifth Amendment privilege for the first time on appeal. See In re Commitment of Shaw, 117 S.W.3d 520, 525 (Tex. App.—Beaumont 2003, pet. denied); see also In re Commitment of Hitt, No. 09-10-00295-CV, 2011 WL 5988024, at *2 (Tex. App.—Beaumont Dec. 1, 2011, pet. filed) (mem. op.); In re Commitment of Serna, No. 09-10-00029-CV, 2011 WL 1203987, at *4 (Tex. App.— Beaumont Mar. 31, 2011, no pet.) (mem. op.). We overrule issue two.
THE BURDEN OF PROOF
In issue three, Cox contends that the State misled the jury during voir dire regarding the burden of proof and impermissibly lowered the State's burden of proof by calling Cox to testify as a witness in the State's case. Cox did not object at trial to being called as a witness for the State. Tex. R. App. P. 33.1. Additionally, even if Cox had objected, we conclude that allowing the State to call Cox as a witness did not lower the State's burden of proof. The State explained the applicable burden of proof during voir dire and the jury charge included the proper burden of proof under the SVP statute. Tex. Health & Safety Code Ann. § 841.062(a); Serna, 2011 WL 1203987, at *3. We overrule issue three.
PARTIALITY OF THE TRIAL JUDGE
In issue four, Cox argues that the trial judge abused his discretion and committed reversible error when the judge sua sponte limited Cox's direct examination of his expert witness at trial. Cox contends that this "is not an issue of a disputed judicial ruling on a party's objection[,]" rather "[l]imiting the testimony of one party's experts without objection is an act of advocacy by the judge." Cox argues that this act of advocacy by the trial judge prejudiced Cox.
At trial, Cox presented expert testimony from Anna Shursen, a licensed professional counselor and sex offender treatment provider. The following exchange took place during counsel's direct examination of Shursen:
[Counsel:] When you interview your clients and you take your forms with you there are certain areas that you look for to determine whether or not someone has a behavioral abnormality. And in comparison with other individuals that you have evaluated for behavioral abnormality the sort of things that you might take into account would be age. Is Mr. Cox different from other individuals as to his age?
[Shursen:] Yes. Most of the individuals that I have evaluated have been younger than Mr. Cox, and I think his age is very significant.
[Counsel:] And what about a cluster index?
THE COURT: Why don't we come up here for a second?
(Bench conference out of the hearing of the jury)
THE COURT: I don't want to compare this to other people. This case stands on its own. So we're not going to relitigate all those other cases? Okay?
[Counsel]: Okay.
THE COURT: I'm just telling you we're not going to relitigate all the other cases. It's just this case here today. So you're not going to compare him to other people that are in this program. You may continue.
[Counsel]: Thank you, Your Honor.
(End of bench conference).
"A judge should be fair and impartial and not act as an advocate for any party" or as "any party's adversary." Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.—Houston [1st Dist.] 1994, writ denied). However, "a trial court may properly intervene to maintain control in the courtroom, to expedite the trial, and to prevent what it considers to be a waste of time." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). "'[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion,' and opinions the judge forms during a trial do not necessitate recusal 'unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.'" Id. at 240 (quoting Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994)). Cox asserts that the limitation placed on Shursen's testimony by the trial judge "exhibited . . . a deep-seated favoritism or antagonism that made fair judgment impossible[.]"
Cox did not object to the trial judge's conduct at trial. An "objection to a trial court's alleged improper conduct or comment must be made when it occurs if a party is to preserve error for appellate review, unless the conduct or comment cannot be rendered harmless by proper instruction." Id. at 241; In re Commitment of Vanzandt, 156 S.W.3d 671, 674 (Tex. App.—Beaumont 2005, no pet.). Cox does not explain how this action by the trial court was incurable. After reviewing the allegedly improper conduct in the context of the entire record, we are not persuaded that Cox was denied a fair trial. See Liteky, 510 U.S. at 555-56; see also Francis, 46 S.W.3d at 241; In re Commitment of Conley, No. 09-10-00383-CV, 2011 WL 4537938, at *6 (Tex. App.—Beaumont Sept. 29, 2011, no pet.) (mem. op.); In re Commitment of Simmons, No. 09-09-00478-CV, 2011 WL 2420832, at *8 (Tex. App.—Beaumont June 16, 2011, no pet.) (mem. op.). We overrule issue four.
LEGAL SUFFICIENCY OF THE EVIDENCE
In issue five, Cox challenges the legal sufficiency of the State's evidence. The State offered evidence through the testimony of Dr. Timothy Proctor, a forensic psychologist, and Dr. Michael Arambula, a psychiatrist, testified for the State. The State also called Cox as a witness at trial. Cox asserts the testimony of Drs. Proctor and Arambula offered nothing more than speculative, unsupported opinions and thus, amount to no evidence.
Expert Testimony
Proctor testified that on the surface, Cox's life appeared fairly typical prior to his convictions for the sexual offenses. Cox served in the military, had been married for many years, and worked for the same company for many years. The evidence established that in the late 1980s, Cox began having sexual relationships with some of the young boys in his neighborhood. In 1991, Cox pled guilty to three charges of aggravated sexual assault of a child and one charge of indecency with a child. Cox received a twenty-year sentence in each of the three cases of aggravated sexual assault and a ten year sentence in the case of indecency with a child. Cox's first victim ("victim 1") was ten years old when Cox began sexually assaulting him. The evidence established that Cox sexually assaulted victim 1 four to five times a week for roughly two years. Cox then began assaulting victim 1's little brother, a seven-year-old boy ("victim 2").
Proctor testified that in making his determination in this case he reviewed relevant records, including but not limited to offense reports, victim statements, Cox's statement to police, prison records, medical records, records related to Cox's sex offender education program, and depositions taken in conjunction with these proceedings. Proctor stated that he met with Cox for roughly two hours. Proctor testified regarding the facts of the offenses and the relevance of such facts to his determination regarding whether Cox has a behavioral abnormality. Proctor explained "grooming" to the jury and stated that there was significant evidence of grooming with regard to Cox's sexual offenses. Proctor acknowledged that there were inconsistencies in Cox's version of the offenses and explained the relevance of these inconsistencies.
Proctor stated that after serving almost twenty years in prison for the offenses, Cox still says that "he thinks [the boys] enjoyed it, that it was pleasurable to them, that they enjoyed the offending." According to Proctor, Cox "still doesn't have the insight . . . that he was the 45-year-old adult and these were children that hadn't even gone through puberty, the damage that this type of thing can do to a child . . . that children aren't instigators to this type of thing." Significantly, Cox testified that victim 1 "chose to" participate in sexual activities with Cox and initiated the sexual contact. Cox further testified that victim 2 initiated the sexual contact. When asked if Cox demonstrated remorse for the sexual assaults, Proctor stated, "[n]ot in a very significant way, no."
Proctor testified that he diagnosed Cox according to the DSM-IV-TR, Diagnostic and Statistical Manual. Proctor diagnosed Cox with pedophilia, nonexclusive type-sexually attracted to male, and exhibitionism. Proctor explained the bases of these diagnoses to the jury. Proctor stated that Cox had not received sex offender treatment in prison but was participating in a four-month long sex offender education program at the time of the civil commitment trial. Proctor explained risk factors to the jury and testified that he observed the following risk factors in Cox: sexual deviance, multiple sex offense convictions, history of non-contact sex offenses, unrelated victims, a stranger victim, history of male victims, history of committing sex offenses in a public place, and use of force, grooming, multiple sex acts in a single instance, minimization and denial.
Proctor also performed actuarial tests. Proctor graded Cox a 4 on the Static-99, a 1 on the Static-99R, and a plus 6 on the Mn-SOST. Proctor testified that Cox's score on the Static-99 put him at "moderate/high" risk for reoffending, his score on the Static-99R put him at "low risk," and his score on the Mn-SOST put him at "moderate" risk. Proctor stated that he does not believe Cox's score on the Static-99R adequately reflects Cox's risk of reoffending. Proctor explained that these instruments are not "a full picture of an individual's issues, [or] psychological functioning risks." Proctor explained that the actuarial tests are one piece of information and are not designed to be comprehensive. Proctor stated, "[Y]ou have to look at it more in depth[,]" and "when you look at Mr. Cox's history, the density of his offending, . . . the frequency it was occurring, the different victims, and then you also look at where he is now in terms of his thinking about the offenses, about the temptation of boys," a low risk level does not "accurately capture[] him." Proctor found that while age is an important factor, he found it significant that Cox did not start offending until he was over the age of 40. Proctor testified that using the definition of behavioral abnormality as set forth in the Health and Safety Code, he believes Cox suffers from a behavioral abnormality.
Like Dr. Proctor, Dr. Arambula described his process of performing a behavioral abnormality evaluation. Arambula explained that he reviewed relevant records and met with Cox. Arambula also diagnosed Cox using the DSM-IV-TR. Arambula diagnosed Cox with pedophilia and exhibitionism. Arambula explained the bases of his diagnoses to the jury. Like Proctor, Arambula testified that he saw signs that Cox had groomed his victims. Arambula explained that although Cox was in his mid-40s at the time of the offenses and his own children were in high school, Cox had video games and puzzles to attract younger children. Arambula told the jury that Cox admitted having thoughts about children but contended that his thoughts were not "sexual." Arambula found this explanation "odd." Arambula told the jury that Cox stated that he and his wife did not have sexual relations for several years prior to the offenses; however, during the time period the offenses were occurring, Cox's wife attempted to renew their intimate relationship, but Cox was unable to respond. Arambula explained that this is further evidence of Cox's pedophilia.
Arambula testified that Cox's offending was a repetitive behavior and stated that he believes Cox still needs sex offender treatment as opposed to sex offender education. Arambula explained that Cox has not accepted full responsibility for his offenses, and Cox exhibited a lack of insight and came across as callous when discussing the offenses. Arambula acknowledged that Cox has distorted thinking and that Cox believes he was in a sexual relationship with victim 1. Arambula testified that he considered both positive and negative risk factors in evaluating Cox. Arambula acknowledged the following positive factors: Cox had been in a stable marriage, had a stable job, had a good home life, no misbehavior, served in the military, had a good education, and had some retirement money set aside. However, Arambula found significant that all these positives were in place at the time that Cox committed the offenses, making the weight of these factors questionable in terms of assessing Cox's risk. Arambula testified that he observed the following negative factors in evaluating Cox: significant denial and minimization, cognitive distortions regarding the offenses, lack of remorse, lack of insight, the number of offenses, lack of a support system, his plan to live alone, lack of treatment, and lack of any plan to receive treatment upon release. Arambula testified that he believes Cox is at significant risk for reoffending.
Arambula explained that though he only received four convictions, Cox's "offenses were too numerous to count." Arambula found significant that after sexually assaulting victim 1 for roughly 2 years, Cox then began offending against victim 1's little brother. Further, when victims 1 and 2 went on vacation with their family, Cox offended against their friend, another male child in the neighborhood. Arambula testified that from this he could infer that Cox's "pedophilia was pretty bad and that his sexual preference had clearly changed from that of being attracted to women to now being attracted to boys." Arambula further stated that Cox's offense against a friend of victims 1 and 2 when the two boys were out of town "shows how his decision-making was distorted, one, because [the offense] was morally wrong to begin with; and then . . . speaking clinically - he needed that sexual activity so bad that he took a big risk[.]" Arambula testified that Cox has been in prison almost 20 years and is still attracted to children. Like Proctor, Arambula testified that using the definition of behavioral abnormality set forth in the Health and Safety Code, Cox has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.
Cox complains that there was no written report filed by the State's experts and in their testimony, they failed to reference any particular methodology or technique which they employed in making their determinations. Cox contends that he is not attacking the underlying methodology, rather "the record fails to disclose any methodology, research, or principles on its face." Cox asserts the testimony of Drs. Proctor and Arambula is legally insufficient on its face and thus, amounts to no evidence.
Analysis
The Sexually Violent Predator Act does not require the experts who evaluate the respondent to prepare a written report. See generally Tex. Health & Safety Code Ann. §§ 841.001-.151; see also In re Commitment of Hatchell, 343 S.W.3d 560, 563 (Tex. App.— Beaumont 2011, no pet.). Both Drs. Proctor and Arambula testified that in performing their evaluations they relied on the training they received, as well as accepted standards and principles employed in their respective fields. Both experts explained the process they go through in performing evaluations in SVP cases. Both experts stated that they reviewed relevant records and interviewed Cox. Proctor testified that he performed actuarials in evaluating Cox and explained his use of these instruments and constructs to the jury. He also explained that in addition to reviewing records, meeting with Cox, and performing actuarial tests, he considered risk factors in making his determination. Both Proctor and Arambula diagnosed Cox using the DSM-IV-TR. Both experts explained their diagnoses, and the bases of their diagnoses, to the jury. Both experts explained in detail the facts and evidence they relied upon in forming their opinions and how those facts influenced their opinions. Both Proctor and Arambula opined that Cox suffers from a behavioral abnormality under the SVP statute.
Cox argues that the expert opinions in this case amount to nothing more than unsupported speculation. We disagree. Both experts presented evidence based support for their opinions. See generally In re Commitment of Day, 342 S.W.3d 193, 206 (Tex. App.—Beaumont 2011, pet. denied). The testimony of both experts presents "a reasoned judgment based upon established research and techniques for his profession and not the mere ipse dixit of a credentialed witness." Id. at 206. Cox has failed to demonstrate the expert testimony presented by the State is not probative on its face. Compare Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) (stating that opinion testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make the existence of a material fact more or less probable).
In a commitment case under the SVP statute, the evidence is legally sufficient if a rational jury could have found beyond a reasonable doubt that the appellant suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet. denied). "The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony." Id. at 887. "The jury may resolve conflicts and contradictions in the evidence by believing all, part, or none of the witnesses' testimony." Id. Further, the jury may draw reasonable inferences from basic facts to ultimate facts. Id. It was within the province of the jury to believe or disbelieve the State's experts who testified that Cox suffers from a behavioral abnormality. We hold the evidence is legally sufficient to support the jury's verdict and that the State proved its case beyond a reasonable doubt. We overrule issue five.
Having overruled all Cox's appellate issues, we affirm the judgment of the trial court.
AFFIRMED.
________________________
CHARLES KREGER
Justice
Before Gaultney, Kreger, and Horton, JJ.