Opinion issued July 22, 2014




                                    In The

                               Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                   NOS. 01-13-00094-CR, 01-13-00095-CR,
                     01-13-00097-CR, 01-13-00098-CR
                          ———————————
                        JOHN R. DOLARD, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 268th District Court
                          Fort Bend County, Texas
            Trial Court Case Nos. 11-DCR-57796, 11-DCR-57797,
                       12-DCR-59899, 12-DCR-59900


                         MEMORANDUM OPINION

      Appellant John R. Dolard pleaded guilty to two counts of aggravated sexual

assault of a child and two counts of indecency with a child. See TEX. PENAL CODE

ANN. §§ 21.11, 22.021(a)(2) (West 2011). After a hearing at which both parties
presented evidence, the trial court assessed punishment at twenty years in prison,

to run concurrently on all counts. Dolard filed a motion for new trial, seeking a

second punishment hearing. In that motion, he argued for the first time that the trial

court had impermissibly used the fact that he did not testify as an aggravating

factor in assessing punishment, and also that unreliable scientific testimony had

been improperly admitted. The motion was denied, and Dolard timely filed notice

of appeal. Finding no reversible error, we affirm.

                                    Background

      John Dolard was indicted by a grand jury on two counts of aggravated

sexual assault of a child and two counts of indecency with a child. He pleaded

guilty, and a punishment hearing was held without a jury.

      At the hearing, the State called Doctor Michael Arambula, a forensic

psychiatrist. Dolard did not object to the offer of expert testimony. Dr. Arambula

testified that he had interviewed Dolard and found that he had been sane at the time

of his offenses. He diagnosed Dolard with features of social anxiety disorder and

obsessive compulsive disorder. He also described Dolard as having a history of

sexual deviance with pedophilic features. Dr. Arambula was asked on direct

examination why he did not diagnose Dolard with pedophilia. The response was

that pedophilia as described by the Diagnostic and Statistical Manual of Mental

Disorders IV (DSM IV) requires that the subject’s sexual interest in children


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persist for six months, and Dr. Arambula had been unable to determine if Dolard’s

pedophilia had persisted for that amount of time. Dr. Arambula noted his

disagreement with the six-month criterion and described it as unsupported in the

scientific literature. During cross-examination, Dolard’s counsel asked whether he

considered the DSM IV to be a “learned treatise,” and he answered that he did not

regard it as such. Dr. Arambula was not presented with the legal definition of a

“learned treatise.”

      Also, during the cross-examination of Dr. Arambula, defense counsel sought

to introduce photographs of Dolard’s apartment to show that Dolard was a hoarder.

The State objected that the pictures had not been authenticated. The court sustained

the objection, and in the colloquy that followed suggested, “You want to have

Dr. Arambula step down and call your client up and put . . . .” Counsel made no

objection to these remarks, but replied, “His brother is going to prove up the

pictures.”

      Before pronouncing sentence, the court gave a short explanation of its

reasoning. With regard to probation, it stated:

      I do not believe based upon the events surrounding this matter,
      including the history of the matter, that he would be a candidate for
      probation. There’s too many question marks left unanswered,
      including the greatest question mark about whether Mr. Dolard even
      understands what probation involves and would be willing to adhere
      to the terms and conditions of probation.



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Defense counsel did not object to these remarks. The court sentenced Dolard to

twenty years in prison.

      Dolard moved for a new trial, arguing that the trial court impermissibly

considered his failure to testify in assessing punishment, and also that the

admission of Dr. Arambula’s psychiatric testimony violated his due process rights.

At the hearing on the motion, the trial judge expressly denied having considered

Dolard’s silence in assessing punishment, and he denied the motion for new trial.

                                     Analysis

I.    Right against self-incrimination

      In his first issue, Dolard argues that in determining his sentence, the trial

court improperly weighed his failure to testify at his punishment hearing. This

objection was not made during the punishment hearing. Generally, a specific and

timely objection made to the trial court is a prerequisite to appellate review. See

TEX. R. APP. P. 33.1(a). “Where no objection is made, remarks and conduct of the

court may not be subsequently challenged unless they are fundamentally

erroneous.” Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. [Panel Op.]

1978); accord Avilez v. State, 333 S.W.3d 661, 671 & n.13 (Tex. App.—Houston

[1st Dist.] 2010, pet. ref’d). An error is fundamental if it is “so egregious” and

created such harm that it denied the defendant “a fair and impartial trial.” Sakil v.

State, 287 S.W.3d 23, 26 (Tex. Crim. App. 2009).


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      “The decision of what particular punishment to assess within the statutorily

prescribed range for a given offense is a normative, discretionary function.”

Barrow v. State, 207 S.W.3d 377, 379–80 (Tex. Crim. App. 2006). The discretion

of judge or jury to sentence a defendant within the statutory range is very broad:

the Court of Criminal Appeals has described it as “essentially ‘unfettered.’” Ex

parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006); see also Miller-El v.

State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990).

      The trial court likewise has discretion in deciding whether to suspend

imposition of sentence and place a defendant on community supervision. See, e.g.,

Hurley v. State, 130 S.W.3d 501, 506 (Tex. App.—Dallas 2004, no pet.). “The

question of whether an accused is entitled to probation, where the court assesses

punishment, rests absolutely within the trial court’s discretion under the guideposts

of the statute and no authority exists for the accused to require such clemency.”

Rodriguez v. State, 502 S.W.2d 13, 14 (Tex. Crim. App. 1973). The statutory

guideposts are “the best interest of justice, the public, and the defendant.” TEX.

CODE CRIM. PROC. ANN. art. 42.12, § 3(a) (West 2006). When the defendant has

pleaded guilty to an eligible offense, the judge may defer adjudication when, in his

or her opinion, the best interest of society and the defendant will be served. Id. art.

42.12, § 5(a).




                                          5
      The Code of Criminal Procedure establishes a liberal rule for the admission

of evidence at a punishment hearing:

      Regardless of the plea and whether the punishment be assessed by the
      judge or the jury, evidence may be offered by the state and the
      defendant as to any matter the court deems relevant to sentencing,
      including but not limited to the prior criminal record of the defendant,
      his general reputation, his character, an opinion regarding his
      character, the circumstances of the offense for which he is being tried,
      and, notwithstanding Rules 404 and 405, Texas Rules of Evidence,
      any other evidence of an extraneous crime or bad act that is shown
      beyond a reasonable doubt by evidence to have been committed by
      the defendant or for which he could be held criminally responsible,
      regardless of whether he has previously been charged with or finally
      convicted of the crime or act.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West 2006).

      Dolard argues that in assessing punishment the trial court improperly

considered his failure to testify at the punishment hearing. In Texas, a criminal

defendant has both a statutory and constitutional right to refuse to testify. The

Texas Constitution provides that a criminal accused “shall not be compelled to

give evidence against himself.” TEX. CONST. art. I, § 10. Moreover, the failure of

any defendant to testify on his own behalf “shall not be taken as a circumstance

against him, nor shall the same be alluded to or commented on by counsel in the

cause.” TEX. CODE CRIM. PROC. ANN. art. 38.08 (West 2005). The federal

constitution similarly guarantees: “No person . . . shall be compelled in any

criminal case to be a witness against himself, nor be deprived of life, liberty, or

property, without due process of law . . . .” U.S. CONST. amend. V; see also

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Mitchell v. United States, 526 U.S. 314, 325, 328, 119 S. Ct. 1307, 1313, 1315

(1999) (the Fifth Amendment right not to testify survives a guilty plea, it must be

honored at a punishment hearing, and no negative inference from the defendant’s

failure to testify is permitted at a punishment hearing “with regard to factual

determinations respecting the circumstances and details of the crime”).

      Dolard identifies two statements by the trial court that he contends were

comments on his failure to testify. First, he points to the colloquy regarding

authentication of the purported photographs of his apartment, when the court

suggested: “You want to have Dr. Arambula step down and call your client up and

put—make . . . .” Second, he relies on the trial court’s statement upon pronouncing

the sentence, that “[t]here’s too many question marks left unanswered, including

the greatest question mark about whether Mr. Dolard even understands what

probation involves and would be willing to adhere to the terms and conditions of

probation.”

      In reviewing an appellant’s claim that the trial court’s statements show the

court improperly considered his failure to testify, we must consider the context in

which the statements were made. Cf. Bustamante v. State, 48 S.W.3d 761, 765

(Tex. Crim. App. 2001) (holding that context must be considered when assessing

effect of comment on jury). “It is not sufficient that the language might be

construed as an implied or indirect allusion.” Id. However, remarks concerning the


                                         7
absence of evidence that only a defendant’s testimony could supply have been held

to be impermissible comments on failure to testify. Crocker v. State, 248 S.W.3d

299, 304 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).

      Considered in context, we conclude that the challenged remarks do not

demonstrate that the trial court weighed Dolard’s failure to testify at the hearing in

deciding punishment. Of the trial court’s first statement, “You want to have

Dr. Arambula step down and call your client up and put—make—”, Dolard argues,

“The Court’s comment was a direct demand that Appellant testify.” The court’s

words, however, were not words of command or demand. Rather, in context the

court’s comment inquired whether counsel sought to introduce the defendant as a

witness out of order so the photographs could be authenticated. In proposing this

mode of authentication, the trial court revealed no disposition to consider Dolard’s

silence as a circumstance against him. Cf. Carroll v. State, 42 S.W.3d 129, 130–31

(Tex. Crim. App. 2001) (reversing when trial court “advised defense counsel that if

appellant invoked her privilege against self-incrimination, the court would consider

that invocation as a circumstance against her when determining her punishment”).

      Dolard also characterizes the trial court’s later reference to “the greatest

question mark . . . whether Mr. Dolard even understands what probation involves”

as a “direct comment that the trial court considered Appellant’s silence as a

sentencing factor” or at least an “indirect allusion.” But in its previous sentence—


                                          8
“I do not believe based upon the events surrounding this matter, including the

history of the matter, that he would be a candidate for probation”—the court

referred to the testimony that it did hear, and the court did not mention that Dolard

did not testify. This case therefore stands in contrast to the statement at issue in

Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307 (1999), in which the trial

court directly and impermissibly stated: “I held it against you that you didn’t come

forward today.” 526 U.S. at 319, 119 S. Ct. at 1311.

      The doubts expressed by the trial court as to Dolard’s willingness to abide

by conditions of probation do not indicate that the judge refused to consider

probation unless Dolard testified or otherwise weighed his failure to testify against

him. Testimony as to a defendant’s ability or willingness to accept conditions of

probation need not come from the defendant himself. As both Dolard and the State

point out, several of Dolard’s relatives and his expert psychiatric witness gave

testimony in this regard.

      As a whole, the record presented a mixed view of Dolard’s readiness to

comply with the terms of a proposed probationary sentence. His brother planned to

establish a workable living arrangement, but recognized that Dolard had resisted

aid from his family in the past and clung to unhealthy behaviors. On a similar note,

the State called the court’s attention to an outburst by Dolard during his brother’s

testimony in which he threw a pen on the floor. Moreover, the State emphasized


                                         9
that an apology letter Dolard had written failed to acknowledge his pedophilia and

need for treatment.

      Without considering the defendant’s silence as a circumstance against him,

the trial court was entitled to consider a wide range of evidence in exercising its

considerable discretion in imposing punishment, suspending sentence, or deferring

adjudication. See TEX. CODE CRIM. PROC. ANN. arts. 37.07, § 3(a)(1), 42.12, § 5(a);

Chavez, 213 S.W.3d at 323; Rodriguez, 502 S.W.2d at 14. The circumstances

revealed in the record do not compel the inference that the trial court’s words

showed that it required Dolard to testify to consider him for probation, or that the

court otherwise weighed his choice not to take the stand as a factor against him. As

such, we conclude that Dolard has not shown any fundamental error so egregious

that it deprived him of a fair and impartial sentencing hearing. Dolard’s first issue

is overruled.

II.   Expert testimony and due process

      In his second issue, Dolard argues that his right to due process was violated

by Dr. Arambula’s testimony as an expert witness. He contends that

Dr. Arambula’s failure to acknowledge the DSM IV or any of the scholarly

journals suggested by counsel as a learned treatise indicated that his testimony was

not grounded on accepted principles in the field of psychiatry.




                                         10
      Dolard’s argument is cast as a constitutional argument. Relying on the due

process clause of the federal Constitution, he contends that Dr. Arambula’s

testimony was so unreliable that its admission at his punishment hearing denied

him a fair sentencing proceeding. However, the case on which he relies, Coble v.

State, 330 S.W.3d 253 (Tex. Crim. App. 2010), did not hold that scientifically

unsound testimony violates the due process clause, but rather that such testimony

contravenes the Rules of Evidence. See 330 S.W.3d at 270 (citing TEX. R. EVID.

702). The same is true of Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), a

key precedent relied upon in Coble. See 824 S.W.2d at 573.

      Whether Dolard is challenging his conviction on the basis of the due process

clause or the Rules of Evidence, his failure to make a timely objection at trial to the

admission of Dr. Arambula’s testimony waives any complaint for appeal. The

Court of Criminal Appeals has “consistently held that the failure to object in a

timely and specific manner during trial forfeits complaints about the admissibility

of evidence.” Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002). “This

is true even though the error may concern a constitutional right of the defendant.”

Id.; see also Perry v. State, 703 S.W.2d 668, 673 (Tex. Crim. App. 1986) (holding

that although due process requires that identification of defendant through a

“lineup” be “as fair and reasonable as possible,” failure to object prior to elicitation

of testimony waives any complaint for further review). It is also true when a party


                                          11
challenges the reliability of expert testimony pursuant to the Rules of Evidence.

Stephens v. State, 276 S.W.3d 148, 153 (Tex. App.—Amarillo 2008, pet. ref’d)

(appellant did not preserve error when he neither objected to expert’s testimony at

trial nor requested a Daubert hearing).

      Dolard did not request a Daubert/Kelly hearing and he made no objection to

Dr. Arambula testifying as an expert witness in psychiatry. While Dolard

challenged the reliability of Dr. Arambula’s testimony during his closing statement

by arguing that it did not satisfy the standards of Coble, and he attacked the

testimony in his motion for new trial, these challenges were not timely,

contemporaneous objections and do not suffice to preserve error in the admission

of evidence. See, e.g., Ranson v. State, 707 S.W.2d 96, 105 (Tex. Crim. App.

1986); Bell v. State, 501 S.W.2d 137, 139 (Tex. Crim. App. 1973). Accordingly,

Dolard’s second issue is overruled.

                                      Conclusion

      We affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).


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