 
 

                                        In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00577-CV
                           ____________________


                IN RE COMMITMENT OF PAUL AYALA JR.

_______________________________________________________           ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 13-05-04992 CV
________________________________________________________           _____________

                          MEMORANDUM OPINION

      Paul Ayala Jr. challenges his civil commitment as a sexually violent

predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 &

Supp. 2014) (the SVP statute). In two issues, Ayala contends the trial court erred:

(1) in failing to grant a motion for a mistrial and, (2) in failing to strike the

testimony of the State’s expert. We conclude Ayala’s issues are without merit, and

we affirm the trial court’s judgment.

                                Motion for Mistrial

      In issue one, Ayala contends the trial court erred in denying Ayala’s motion

for mistrial. A psychiatrist, Dr. Michael Arambula, testified as an expert for the

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State during Ayala’s trial. He testified that he charges $250 per hour. Without

objection, Dr. Arambula testified that in the past he had been asked to perform an

evaluation for the State Counsel for Offenders. Dr. Arambula stated that he did not

perform an evaluation for that office because he was retained by the Special

Prosecution Unit in two cases at that time, and he had no objection to working for

the State Counsel for Offenders or for a private defense attorney in a civil

commitment case. Ayala’s counsel cross-examined Dr. Arambula, asking him if it

would be a conflict of interest “testifying for both sides at the same time?” Dr.

Arambula agreed that it would be a conflict of interest. Further cross-examination

established that Dr. Arambula estimated he would testify for the Special

Prosecution Unit in approximately fifteen cases in the current year and would

receive approximately $5,000 for his services in each case. During re-direct

examination, counsel for the State asked Dr. Arambula, “Do you know how much

the expert for State Counsel for Offenders was paid in this case?” Dr. Arambula

said, “No.” Counsel for the State then commented, “There isn’t one.” Ayala

objected to the State’s mentioning of any potential expert for Ayala because

whether Ayala had an expert was irrelevant and the comment improperly shifted

the burden of proof to Ayala. Ayala requested an instruction for the jury not to

consider whether he had an expert, and moved for a mistrial. The trial court




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instructed the jury to disregard the statement made by the State’s counsel but

denied Ayala’s request for a mistrial.

      We review the trial court’s decision to deny a motion for a mistrial for abuse

of discretion. In re Commitment of Hill, No. 09-11-00593-CV, 2013 WL 772834,

at *12 (Tex. App.—Beaumont 2013, pet. denied) (mem. op.). We consider whether

the trial court’s instruction to disregard could remove the harmful effect from the

improper comment. See In re M.M.L., 241 S.W.3d 546, 555 (Tex. App.—Amarillo

2006, pet. denied). Ayala argues that the State “planted the seed within the jury

that Respondent should provide an expert witness to speak on his behalf in order to

counter the testimony of the State’s expert witness.” But, the jury had already been

informed that a psychiatrist could testify on behalf of the respondent in a civil

commitment proceeding before the State’s counsel remarked that Ayala did not

have an expert; therefore, the comment did not inject a matter about which no facts

were in evidence.

      Ayala suggests that the comment “was probably intentional” because it was

the only question asked on re-direct, but the trial court in its discretion could have

decided the comment was inadvertent rather than deliberate. The State’s comment

is not so clearly calculated to inflame the minds of the jurors as to suggest the

impossibility of withdrawing the impression produced by the comment. See id. The

jury was reminded of the burden of proof when it received the charge. Ayala’s

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counsel reminded the jury that the burden of proof remained with the State and that

Ayala did not need to “present any witnesses[]” or “disprove anything” the State’s

witness said. The trial court reminded the jury that the State had the burden of

proof in its oral instructions to the jury and in the written charge. After reviewing

the record as a whole, we conclude the trial court did not abuse its discretion in

denying Ayala’s motion for mistrial. We overrule Ayala’s first issue.

                        Motion to Strike Expert Testimony

      In issue two, Ayala contends the trial court erred by denying Ayala’s motion

to strike Dr. Arambula’s testimony. Ayala did not file a motion to exclude Dr.

Arambula’s testimony by the date set in the docket control order, nor did he object

when Dr. Arambula testified. After Dr. Arambula completed his testimony, Ayala

moved to strike the testimony as “irrelevant and unreliable[]” because Dr.

Arambula employed flawed methodology and “provided . . . no information . . . to

close the analytical gap.” The trial court overruled the motion.

      A motion to strike the expert’s testimony, made after the testimony

concludes, is not a timely challenge to the reliability of the expert’s underlying

methodology. In re Commitment of Dodson, 434 S.W.3d 742, 749-50 (Tex. App.—

Beaumont 2014, pet. filed). To the extent that Ayala is arguing that Dr. Arambula

failed to bridge the analytical gap between the data and his proffered opinion,

however, the challenge may be made for the first time on appeal. See id. at 750.

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      In his brief for the appeal, Ayala argues that Dr. Arambula failed to establish

that he uses a peer-reviewed methodology. Contrary to this assertion, Dr.

Arambula testified that the methodology he employs in performing forensic

evaluations, including his evaluation of Ayala, is the methodology followed by

experts in his field. Dr. Arambula described his methodology, as follows:

      The format is basically a clinical exam, as if somebody were coming
      to see a psychiatrist. So I -- we don’t -- we don’t only cover mental
      things. We cover developmental, social, we look at relationships,
      work histories, performance in school, on the gridiron, things like that,
      really to kind of get an idea of what an individual’s upbringing was
      like. Then we look at their -- what their lives, you know, their
      relationships have been like, we cover medical issues, because we’re
      physicians first, surgical issues, struggles with mental illness,
      substance abuse, drugs, things like that.

             And then once we collect all of that information, then we move
      on to the forensic questions, which, in these cases, have to do with sex
      offenses. So we cover as much information as the person will report to
      me regarding their sex offense, because I’m looking for risk factors,
      both static risk factors and dynamic risk factors, in the details that
      they’re giving me.

            Because they -- these individuals have been in prison, I look to
      see how they’ve adjusted to the structure of prison, what kind of
      things they’ve done to better themselves, and really important, what
      kind of treatment they’ve been in and what are the benefits that they
      can tell me about that they received being in treatment, since I
      previously provided treatment.

            And, lastly, as I’m doing all of this, I’m assessing an
      individual’s thinking, how they reason, sometimes the questions are
      pointed so I see how they handle anxiety or being under stress with
      the subject matter. I look for coping mechanisms, like denial,
      projection, rationalization, things like that. And I’m not doing that

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      with anybody here today, by the way, but that’s what I do during an
      exam, is I’m taught to do that.

      Dr. Arambula also explained the difference between providing psychiatric

treatment, where his ethical duty is to the person, as opposed to a forensic

evaluation, where he is trying to objectively answer the question, as follows:

             Well, as a patient, I’m always on the patient’s side. I’m an -- a
      patient advocate. And that’s what guides me through the process. So if
      somebody tells me something that sounds like a rationalization, which
      is a big word for an excuse, then I don’t confront patients until over
      time we subtly arrive at the reality of what happened together. So I
      don’t do that because I’m the patient’s advocate.

           As a forensic expert, I’m just asked to answer some questions,
      medical/legally, and so I cut right to the chase and I don’t have that
      advocacy role as a forensic examiner, like I did being a treater.

      Ayala isolates one quote by Dr. Arambula to support his argument that Dr.

Arambula failed to demonstrate that Ayala suffers from a behavioral abnormality

that is sufficiently severe as to distinguish him from a typical recidivist convicted

in an ordinary criminal case. When asked if it was significant that Ayala

committed a sexual assault while on parole, Dr. Arambula answered,

             Yes, in and of itself. But I think you’re overlooking that the --
      the other detail, which is that it’s not normal for a man to be sexually
      aroused by beating up a woman before they’re going to have sex and
      then forcing her. And while some people can sometimes practice anal
      sodomy, with regards to sex offenders, it’s a particularly humiliating
      type of sexual assault, even though vaginal rape is just as humiliating.




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      Ayala argues this statement fails to bridge the analytical gap between a

typical recidivist and a sexually violent predator. That was not, however, the sole

basis for Dr. Arambula’s opinion. For instance, Dr. Arambula stated it was

clinically significant that after he was charged with that offense, Ayala committed

a sexual offense against his jail cellmate. That offense indicated a lack of control,

in part because Ayala was in a controlled environment and under observation.

After serving time in prison for those offenses, Ayala committed a sexual offense

against his eight-year-old stepdaughter. Dr. Arambula also found it to be clinically

significant that during their interview Ayala denied having committed the offenses

and explained his guilty pleas as attempts to protect his victims. In forming his

opinion, Dr. Arambula also relied upon psychological testing that included a

Static-99 score of seven, an actuarial test score that is associated with high risk of

re-offending. Using the Diagnostic and Statistical Manual (DSM), Dr. Arambula

diagnosed Ayala with sexual deviance, paraphilia not otherwise specified with

sadistic features, and antisocial personality disorder.

      Ayala acknowledges that Dr. Arambula relied on the diagnostic manuals that

psychiatrists use to diagnose mental illness, but argues that Dr. Arambula fails to

bridge the analytical gap because he failed to cite to a peer-reviewed opinion to

support Dr. Arambula’s statement that “one of the major shortcomings of the DSM

with regards to the sexually deviant chapter is that they require that the action and

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urges be there for six months, which doesn’t exist anywhere in the literature.” Dr.

Arambula testified that but for the six-month requirement, he would have

diagnosed Ayala with sadism and pedophilia. Thus, Ayala is arguing that Dr.

Arambula failed to cite additional supporting literature for a diagnosis he did not

make.

        After reviewing the entire record, we conclude that Dr. Arambula provided a

sufficient basis for his opinion for the trial court to rule that the opinion would

assist the jury. See Tex. R. Evid. 702-705. The trial court did not abuse its

discretion when it denied Ayala’s motion to strike Dr. Arambula’s testimony. We

overrule issue two and affirm the trial court’s judgment.

        AFFIRMED.


                                             ________________________________
                                                    CHARLES KREGER
                                                          Justice


Submitted on October 15, 2014
Opinion Delivered February 5, 2015

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




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