in Re Commitment of Dwight DeLeon

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-14-00260-CV
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IN RE COMMITMENT OF DWIGHT DELEON
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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 13-11-12474 CV
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MEMORANDUM OPINION
On motion for rehearing, we withdraw our opinion of February 12, 2015,
and issue this substitute opinion.
The State of Texas filed a petition to commit Dwight DeLeon (DeLeon) as a
sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151
(West 2010 & Supp. 2014). A jury found that DeLeon is a sexually violent
predator (SVP), and the trial court rendered a final judgment and an order of civil
commitment. In four appellate issues, DeLeon challenges certain comments by the
trial court to the jury, challenges the legal and factual sufficiency of the evidence
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supporting the jury’s finding that he suffers from a behavioral abnormality, and
argues that this Court’s decision in In re Commitment of Richard, No. 09-13-
00539-CV, 2014 Tex. App. LEXIS 6974 (Tex. App.—Beaumont 2014, pet.
denied) (mem. op.) renders Chapter 841 unconstitutional. We affirm the trial
court’s judgment.
TRIAL COURT’S COMMENTS DURING VOIR DIRE
In issue one, DeLeon argues that the trial court improperly commented on
the weight of the evidence during voir dire. A party complaining of an alleged
improper comment by the trial court must show not only that the trial court’s
comments were improper but also that the improper comment also caused harm.
See World Car Nissan v. Abe’s Paint & Body, Inc., No. 04-12-00457-CV, 2013
Tex. App. LEXIS 9442, at *8 (Tex. App.—San Antonio July 31, 2013, pet. denied)
(mem. op.). “We examine the record as a whole to determine whether the comment
unfairly prejudiced the complaining party.” Id. We will reverse the judgment only
when the trial court’s comments are improper and probably caused the rendition of
an improper judgment. Id. at **7-8; see also Tex. R. App. P. 44.1.
During voir dire, the trial court stated:
Now, oftentimes in this court we talk about several different
issues. One of those is pedophilia. Okay? One of those is
homosexuality. Those are topics that come up in this court. Now - -
trying to put a little sugar on it for you - - most people, what they
know about those topics are what you read in the newspapers or on
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the Internet. And we all know the Internet is never wrong. Right? So
when you are sitting here as a juror you can expect to hear from a
doctor, everybody understand that, who is going to explain what these
issues mean to you potentially. That’s what we’re talking about here
in this court today. And - - but you don’t get any education - - you
know, college credit or anything for it. But, you know, you do get to
learn something that you can go and impress people with. And I let
you take notes because you’re going to need to take notes because
they use a lot of big words and put them together really quickly.
Later, during DeLeon’s voir dire, DeLeon’s counsel asked the venire members,
“Can you set aside any bias if you find there’s an offense against a child, can you
listen to all the evidence and follow the law . . . ?” As DeLeon’s counsel began
asking questions of the individual members of the venire, the following exchange
occurred:
THE COURT: I’ve asked this question already. Okay? So just
ask it as a group. It will be a lot faster. Anybody who can’t be fair to a
pedophile? Don’t answer the question if I’ve already got you down.
[DELEON’S COUNSEL]: This is slightly different. Instead of
pedophile, it’s if there have been crimes against children.
THE COURT: That’s what pedophile means. Don’t confuse
these jurors. Ask your question again.
DeLeon asserts on appeal that these comments by the trial court during voir
dire (1) “informed the venire that it would have an educational opportunity to hear
from an expert (whom the court knew to be the State’s expert) on the subjects of
pedophilia and homosexuality” and thereby emphasized the State’s expert
testimony and vouched for its credibility; (2) improperly commented on the weight
of the evidence by commenting on what it believed a pedophile was; and (3)
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improperly left the venire with the impression that a pedophile is someone who
commits crimes against children and that appellant’s counsel was attempting to
confuse the venire.
To preserve error regarding a judge’s comments during a trial, a party must
both object to the comment when made and request an instruction, unless an
instruction concerning the comment would not have rendered the comment
harmless. In re Commitment of Naden, No. 09-13-00345-CV, 2014 Tex. App.
LEXIS 10991, at **2-3 (Tex. App.—Beaumont Oct. 2, 2014, pet. filed) (mem.
op.). The record shows that DeLeon failed to object to these comments during the
trial, and that he failed to ask for any instructions to mitigate the impression he
claims the trial court gave the jury through them. DeLeon argues that a limiting
instruction could not cure any alleged harm.
Assuming, without deciding, that the trial court’s comments were improper,
we conclude that DeLeon’s complaints about these matters could have been
resolved by proper instructions. On request, the trial court could have instructed
the jury to disregard its remarks and could have explained that its comments were
not a reflection of the trial court’s views regarding the merits of DeLeon’s case or
of the testimony, if any, which may or may not be offered by any particular
witness. Such an instruction, in our opinion, would have been a sufficient remedy
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that would have cured any alleged prejudice that might relate to the trial court’s
comments at issue.
Because appropriate instructions were capable of remedying any alleged
harm, and because DeLeon failed to object or request that the jury be instructed
regarding the comments, DeLeon’s complaints about these comments were not
properly preserved for our review. See id. at **1-2; see also Tex. R. App. P.
33.1(a)(1)(A). We overrule DeLeon’s first issue.
LEGAL AND FACTUAL SUFFICIENCY
In his second and third issues, DeLeon contends the evidence is legally and
factually insufficient to support the jury’s verdict because the State failed to
present evidence demonstrating that DeLeon suffers from a behavioral
abnormality. DeLeon specifically argues that the evidence is legally insufficient to
support a finding that he suffers from a behavioral abnormality because Dr.
Arambula’s opinion that DeLeon is a sexually violent predator “has no stated basis
in his field and is too conclusory to support the jury’s verdict.” DeLeon contends
that the State presented no other evidence besides Arambula’s testimony to show
that DeLeon is a sexually violent predator, Arambula’s “sexual deviance”
diagnosis lacks support because he relies on diagnostic criteria for pedophilia to
support his diagnosis but he states the DSM chapter on paraphilic disorder (which
includes paraphilia) is not reliable, and Arambula’s testimony failed to demonstrate
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that DeLeon is likely to reoffend sexually. DeLeon argues that the evidence is
factually insufficient to support a finding that he suffers from a behavioral
abnormality because the State “presented only conclusory and baseless expert
testimony to support its case” and “the evidence viewed in a neutral light is simply
too weak to support a finding that Appellant is an SVP[.]”
Under a legal sufficiency review, we assess all the evidence in the light most
favorable to the verdict to determine whether any 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 fairly resolve conflicts in
the testimony, weigh the evidence, and draw reasonable inferences from basic facts
to ultimate facts. Id. at 887. Under factual sufficiency review in an SVP
commitment proceeding, 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).
In an SVP civil commitment case, the State must prove, beyond a reasonable
doubt, that a person is a sexually violent predator. Tex. Health & Safety Code Ann.
§ 841.062(a) (West 2010). A person is a “sexually violent predator” if he is a
repeat sexually violent offender and suffers from a behavioral abnormality that
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makes him likely to engage in a predatory act of sexual violence. Id. § 841.003(a)
(West Supp. 2014). 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)
(West Supp. 2014). “A condition which affects either emotional capacity or
volitional capacity to the extent a person is predisposed to threaten the health and
safety of others with acts of sexual violence is an abnormality which causes serious
difficulty in behavior control.” In re Commitment of Almaguer, 117 S.W.3d 500,
506 (Tex. App.—Beaumont 2003, pet. denied).
During trial, the jury heard DeLeon’s testimony that he was convicted in
2003 on two counts of aggravated sexual assault of a child. Furthermore, DeLeon
testified that, at the time of trial, he was serving twelve-year sentences for each of
those convictions, which he was to serve concurrently. The evidence established
that the victims were his girlfriend’s eleven-year-old daughter and nine-year-old
son. DeLeon testified that he considered his girlfriend to be his common law wife
and the children to be his stepchildren, and that he later had two biological children
with their mother. DeLeon also admitted to two other juvenile offenses for sexual
assault of a child, offenses he committed against two seven-year-old relatives when
DeLeon was thirteen or fourteen years old and while he was on juvenile probation.
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According to DeLeon, he did not know at the time he committed the offenses
against his relatives that his actions were wrong because he had previously been
sexually assaulted by cousins. DeLeon testified that at the time he offended against
his girlfriend’s children, he knew that his actions were wrong. At the time of trial,
DeLeon did not believe he would ever commit another sexual offense. When he
was asked whether he thought he was a sex offender, DeLeon answered, “I believe
I’m a person that made a lot of mistakes.”
DeLeon told the jury he had completed the classroom component of sex
offender treatment but he had not completed the exit interview. DeLeon also
testified that he had smoked marijuana “since he was about seven or eight” and
was high on all the occasions he molested his victims. DeLeon stated, however,
that he “can’t blame [his offenses] on marijuana or drugs” but that the offenses
were a result of his “irrational thinking and stuff.” Although he answered in his
deposition that he thought he would continue to use marijuana when he was
released, at trial he said he did not think he would use marijuana because he has
been sober for ten years and does not get the urge to use marijuana anymore.
DeLeon admitted at trial that he found young girls “pretty and stuff like that.”
DeLeon explained that part of his treatment was formulating a plan for avoiding
reoffending and that his plan was to not put himself in “high-risk situations where
[he] could have the chances to relapse[.]”
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Dr. Michael Arambula, a medical doctor, board certified in general and
forensic psychiatry, testified that DeLeon has a behavioral abnormality that makes
him likely to engage in a predatory act of sexual violence. Arambula testified that
DeLeon is sexually deviant and suffers from pedophilia, personality disorder with
antisocial features, and cannabis dependence. Arambula testified that pedophilia is
a chronic condition. Arambula explained that although he qualified DeLeon’s
sexual deviance as pedophilia, he does not believe research supports the Diagnostic
and Statistical Manual of Mental Disorders (DSM) criterion for pedophilia which
requires at least six months of recurrent, intense arousing fantasies, sexual urges,
and behaviors regarding children age thirteen years and younger, because the “at
least six months” requirement “doesn’t exist anywhere in the literature.”
Dr. Arambula testified that DeLeon had not completed sex offender
treatment as of the date of trial and that the treatment he had received up until trial
was not sufficient as evidenced by the fact that, according to Arambula, DeLeon’s
testimony showed he has “some big blinders on with regards to the boys that he
exploited, and that makes him dangerous.” In Arambula’s expert opinion, he does
not believe that DeLeon has fully acknowledged his sexual deviance or fully
internalized what he has learned in treatment. Arambula explained that the
following factors increase DeLeon’s risk of re-offense: his early onset of sexual
deviance, his antisocial features, the fact that when he was young he offended
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while on probation, the number of victims and the fact that there were multiple acts
with at least two of the victims, the offenses took place over a relatively long time
span, the age of the victims, he had both male and female victims, the aggressive
nature of his acts, the fact that he knew his actions were wrong and wanted to stop
offending but could not, his significant areas of denial, his history of unstable
relationships, his need for further treatment, and his drug dependence and lack of
treatment for it. Arambula explained that he did not score actuarials for DeLeon,
but that he reviewed the actuarial testing conducted and referenced in the
multidisciplinary team report prepared for the case. Arambula recalled that Dr.
Reed had scored DeLeon with a “2” on the Static-99R, which indicated a
“[p]robably low risk” of reoffending. Arambula acknowledged that the Static-99R
is the most commonly used screen for predicting a sex offender’s risk for
recidivism, but he stated that the test’s reliability depends on the data and the facts
of the individual case, and that the authors of the test did not include factors that
are hard to measure – such as denial. Arambula testified that, “based on the
information and history, [DeLeon] carries a significant risk to reoffend.”
On appeal, DeLeon argues Dr. Arambula’s testimony has no stated basis in
his field and it is too conclusory to support the jury’s verdict. We disagree. Dr.
Arambula is board certified in general and forensic psychiatry. In reaching his
conclusions, Arambula discussed his training and experience related to evaluating
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whether a person has a behavioral abnormality, as well as the information he
reviewed in DeLeon’s case, and he related the information he reviewed to his
opinions. The testimony shows that Arambula interviewed DeLeon, reviewed
records that are relevant to DeLeon’s criminal history, and he reviewed the details
of DeLeon’s offenses involving sexually violent crimes. The records Arambula
reviewed are the type of records that experts in Arambula’s field rely on in forming
opinions. Arambula also explained that he performed his assessment in DeLeon’s
case in a manner that is consistent with the training Arambula had received as a
professional.
After Dr. Arambula explained his methodology and how he applied that
methodology to DeLeon, the jury heard Arambula testify that in his professional
opinion DeLeon has a behavioral abnormality that makes him likely to engage in
predatory acts of sexual violence. The jury heard evidence of DeLeon’s risk
factors, sexual offenses, and diagnoses. The jury heard DeLeon’s testimony and
admissions and Arambula’s testimony that there is a significant risk that DeLeon
will reoffend. We conclude that Arambula’s testimony was not baseless nor was it
too conclusory to support a finding that DeLeon suffers from a behavioral
abnormality.
DeLeon also argues that Dr. Arambula failed to demonstrate that DeLeon is
likely to reoffend sexually. According to DeLeon, Arambula failed to explain the
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weight of each factor that he believed was related to sexual recidivism or how the
factors combined to make DeLeon likely to engage in a predatory act of sexual
violence. DeLeon also asserts that Arambula failed to cite any specific research
supporting the risk factors he considered.
The record indicates that Dr. Arambula explained to the jury that pedophilia
is a chronic condition, he discussed DeLeon’s risk factors for reoffending, and he
stated that, based on his experience and training, he believes DeLeon “carries a
significant risk to reoffend.” We conclude that Arambula’s testimony and
conclusions represent “a reasoned judgment based upon established research and
techniques for his profession and not the mere ipse dixit of a credentialed witness.”
Day, 342 S.W.3d at 206. In its exclusive role as the sole judge of the credibility of
the witnesses and the weight to be given their testimony, the jury could have
resolved any conflicts and contradictions in the evidence by believing all, part, or
none of the witness’s testimony, and by drawing reasonable inferences from basic
facts to ultimate facts. Mullens, 92 S.W.3d at 887. The jury heard evidence of
DeLeon’s offenses, DeLeon’s own testimony, and the expert’s testimony regarding
his risk for reoffending. Serious difficulty controlling behavior can be inferred
from DeLeon’s past behavior, his own testimony, and Arambula’s evaluation of
DeLeon. See In re Commitment of Washington, No. 09-11-00658-CV, 2013 Tex.
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App. LEXIS 7211, at *16 (Tex. App.—Beaumont June 13, 2013, pet. denied)
(mem. op.).
Viewing the evidence in the light most favorable to the verdict, a rational
jury could have found, beyond a reasonable doubt, that DeLeon is a sexually
violent predator; therefore, the evidence is legally sufficient. See Tex. Health &
Safety Code Ann. § 841.062(a); see also Kansas v. Crane, 534 U.S. 407, 413
(2002); Mullens, 92 S.W.3d at 885. Furthermore, weighing all of the evidence, the
verdict does not reflect a risk of injustice that would compel ordering a new trial.
See Day, 342 S.W.3d at 213. Issues two and three are overruled.
IN RE COMMITMENT OF RICHARD
In his fourth issue, DeLeon contends that this Court’s decision in In re
Commitment of Richard renders Chapter 841 unconstitutional. We recently
addressed and rejected this argument. See In re Commitment of Lucero, No. 09-14-
00157-CV (Tex. App.—Beaumont February 5, 2015, no pet. h.) (mem. op.). For
the same reasoning outlined in Lucero, we reject DeLeon’s constitutional
arguments and overrule issue four. Having overruled all of DeLeon’s issues, we
affirm the trial court’s judgment.
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AFFIRMED.
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LEANNE JOHNSON
Justice
Submitted on November 21, 2014
Opinion Delivered February 26, 2015
Before McKeithen, C.J., Horton and Johnson, JJ.
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