                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-13-00270-CV
                             _________________

         IN RE COMMITMENT OF ALBERT JOSEPH MAILHOT
________________________________________________________________________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 12-09-09717 CV
________________________________________________________________________

                          MEMORANDUM OPINION

      The State of Texas filed a petition to commit appellant Albert Joseph

Mailhot as a sexually violent predator. See Tex. Health & Safety Code Ann. §§

841.001-.151 (West 2010 & Supp. 2014) (“SVP” statute). A jury found that

Mailhot is a sexually violent predator, and the trial court signed a final judgment

and order of civil commitment. In four appellate issues, Mailhot challenges the

trial court’s judgment and order of civil commitment. We affirm.

                  Judicial Statements Made During Voir Dire

      In his first issue, Mailhot contends the trial court committed reversible error

during voir dire by making judicial statements that were either an expression of

bias in favor of the State or an indication of the court’s opinions of the merits of
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the case. Mailhot complains that the trial court made statements that amounted to a

plea to the venire by asking that the venire enforce the law in favor of the State.

During voir dire, the trial court stated to the venire:

      [S]exual offenses morally offend us, and that’s why we make them
      against the law. And if we can’t separate our moral outrage about the
      offense and listen to the evidence and the law as the Judge gives it to
      you, then . . . making it against the law is pointless because we won’t
      have any enforcement of our laws. Juries enforce laws. That’s your
      job. Judges will tell you what the law is, but it’s the job of the jury to
      enforce the laws in the State of Texas. . . . And I know it’s going to
      take some effort on your part to separate that moral outrage about the
      type of crime we’re talking about and be willing to listen to the
      evidence and make a determination based upon the evidence you hear
      and the law as the Judge gives it to you. That’s the law I’m going to
      give to you. And I want to make sure that for both Mr. Mailhot’s sake
      and for the State’s sake that you’re willing and able to do this.

Mailhot complains that these statements “at the very least impl[y] that the court

expected a certain verdict: one in favor of the State.” Mailhot also complains that

the trial court made another inappropriate remark during voir dire:

      [W]hen I say the word pedophilia people generally have an idea what
      that means and very strong opinions about it. And it’s good to have
      very strong opinions about that. I’m a father of two children myself,
      and as the parents of children we need to know what that is to keep
      our children safe. In this trial, if you’re lucky enough to make it on the
      jury -- I say lucky -- you'll expect to hear from expert witnesses about
      the word pedophilia and what that exactly means. Okay? And it’s a
      very educational opportunity to hear from a psychiatrist about that
      topic, because, again, mostly what we know is what somebody has
      told us and what we’ve heard. And we really haven’t heard it out of
      the mouth of a psychologist or psychiatrist that specializes in this area.




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Mailhot contends that at the time the court made these statements, it was aware that

only the State would be presenting expert testimony. Mailhot argues that the “only

possible result of such a speech was to leave the venire with the indelible

impression that the trial court believed the State’s expert, the only expert who

testified at trial, to be both reliable and credible.”

       The State argues that Mailhot failed to preserve this issue for review. To

preserve error regarding a judge’s comments during a trial, the complaining party

must object when the comment occurs, unless the comment cannot be rendered

harmless by a proper instruction. In re Commitment of Vanzandt, 156 S.W.3d 671,

674 (Tex. App.—Beaumont 2005, no pet.) (quoting Dow Chem. Co. v. Francis, 46

S.W.3d 237, 241 (Tex. 2001)); see also In re Commitment of Lemmons, No. 09-13-

00346-CV, 2014 WL 1400671, at *3 (Tex. App.—Beaumont Apr. 10, 2014, pet.

denied) (mem. op.). The record demonstrates that Mailhot neither objected to the

trial judge’s comments or actions when they occurred, nor did he ask the trial court

for instructions directing the jury to disregard them. Mailhot responds that he was

not required to object to the trial court’s comments because the resulting harm was

rendered incurable by instruction.

       Assuming, without deciding, that the trial court’s comments were improper,

we conclude that Mailhot’s complaints about these matters could have been

resolved by proper instructions. On request, the trial court could have instructed

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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 Mailhot’s case.

Such an instruction, in our opinion, would have been a sufficient remedy 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 Mailhot failed to object or request that the jury be

instructed regarding the comments, Mailhot’s complaints about these comments

were not properly preserved for our review. See In re Commitment of Naden, No.

09-13-00345-CV, 2014 WL 4952273, at **1-2 (Tex. App.—Beaumont Oct. 2,

2014, no pet.) (mem. op.); see also Tex. R. App. P. 33.1(a)(1)(A). We overrule

Mailhot’s first issue.

                                   SVP Statute

      In his second issue, Mailhot contends that the SVP statute violates the Texas

Constitution’s prohibition against retroactive laws because Mailhot was convicted

of both qualifying offenses prior to the statute’s enactment. Mailhot explains that

the statute applies retroactively to him because when he pleaded guilty, he did so in

exchange for a guarantee of being released in fifteen years and that future

involuntary civil commitment was not a term of his plea agreement. He contends

that he entered his plea agreement before the Legislature enacted Chapter 841.




                                         4
      We have previously rejected Mailhot’s argument. See In re Commitment of

Dodson, 434 S.W.3d 742, 747-48 (Tex. App.—Beaumont 2014, pet. filed); see

also In re Commitment of Bradshaw, No. 09-12-00570-CV, 2013 WL 5874613, at

**5-6 (Tex. App.—Beaumont Oct. 31, 2013, pet. denied) (mem. op.). In Dodson,

we explained that the constitutional prohibition against retroactive laws does not

apply to the SVP statute because it is a civil statute intended to be remedial and not

punitive. 434 S.W.3d at 747-48. The SVP statute does not fix liability for prior

criminal conduct, and thus has no effect on prior plea agreements. See id. at 748. A

respondent’s “prior criminal conduct is used for evidentiary purposes, either to

demonstrate that a ‘behavioral abnormality’ exists or to support a finding of future

dangerousness.” Id. We reject Mailhot’s argument that the SVP statute’s

application in this case resulted in a violation of the prohibition against the

enactment of retroactive laws. See id. We overrule Mailhot’s second issue.

              Right to Counsel During Post-Petition Examination

      In his third issue, Mailhot contends the trial court committed reversible error

by denying Mailhot the right to have his counsel present during the State’s post-

petition expert examination. We have held that neither the SVP statute nor the

Fourteenth Amendment requires that counsel be present during a psychiatrist’s

post-petition examination. See In re Commitment of Smith, 422 S.W.3d 802, 807

(Tex. App.—Beaumont 2014, pet. denied); see also In re Commitment of Slama,

                                          5
No. 09-13-00497-CV, 2014 WL 6488943, at *1 (Tex. App.—Beaumont Nov. 20,

2014, no pet. h.) (mem. op.); In re Commitment of Wirtz, No. 14-13-00945-CV,

2014 WL 5490522, at **4-6 (Tex. App.—Houston [14th Dist.] Oct. 30, 2014, no

pet.); In re Commitment of Bryant, No. 09-13-00310-CV, 2014 WL 4460405, at *1

(Tex. App.—Beaumont, Sept. 11, 2014, no pet.) (mem. op.); In re Commitment of

Edward, 443 S.W.3d 520, 529 (Tex. App.—Beaumont 2014, pet. filed). We

decline to revisit our previous rulings. For the reasons discussed in Smith, we

conclude Mailhot has not shown he was denied the right to assistance of counsel.

See Smith, 422 S.W.3d at 804-07. We overrule Mailhot’s third issue.

                            Admissibility of Evidence

      In his fourth issue, Mailhot contends the trial court committed fundamental

error when it deprived Mailhot of a fair trial by admitting testimony that the State

conducts an extensive screening process prior to filing an SVP civil-commitment

suit. Mailhot explains that the complained-of testimony informed the jury that

many people had agreed before trial that Mailhot was an SVP, which left the

impression that Mailhot’s status as an SVP was already established. “We review a

trial court’s evidentiary rulings for abuse of discretion.” Horizon/CMS Healthcare

Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). We will not reverse the trial

court’s ruling unless the error probably caused the rendition of an improper

judgment. Tex. R. App. P. 44.1(a)(1).

                                         6
      During Dr. Arambula’s testimony, he explained that Mailhot went through a

screening process in accordance with the SVP statute before Dr. Arambula was

asked to evaluate Mailhot. Dr. Arambula testified that certain individuals are

flagged based on the number of sexual offense convictions they have received. Dr.

Arambula testified that once those individuals are selected, “they go through an

evaluation process by a Multidisciplinary Team.” The team collects information

and makes a preliminary decision about whether the team believes the person has a

behavioral abnormality. The team typically has a psychologist evaluate the case

and offer an opinion. If the team determines that the individual suffers from a

behavioral abnormality, then the case is transferred to the Special Prosecution Unit

and Dr. Arambula or some other qualified individual is asked to evaluate the case.

Dr. Arambula testified that he has never rubber-stamped a case to adopt the

conclusion of the multidisciplinary team. Dr. Arambula described the screening

process as including “a series of checks and balances[.]” He testified that he has

disagreed with the team’s conclusion in at least eight cases. Dr. Arambula agreed

that the screening process explains, in part, why he finds a behavioral abnormality

in such a high proportion of the cases he evaluates.

      Mailhot did not object to Dr. Arambula’s testimony. Mailhot contends that

admission of Dr. Arambula’s testimony constitutes fundamental error that may be

raised for the first time on appeal. However, this type of alleged error “does not fall

                                          7
within the narrow scope of the ‘fundamental error’ doctrine recognized by the

Texas Supreme Court.” In re Commitment of King, No. 09-13-00255-CV, 2014

WL 346109, at *5 (Tex. App.—Beaumont Jan. 23, 2014, no pet.) (mem. op.); see

also Lemmons, 2014 WL 1400671, at *2. Mailhot has failed to preserve this issue

for our review. See Tex. R. App. P. 33.1. We overrule Mailhot’s fourth issue.

      Having overruled all of Mailhot’s issues on appeal, we affirm the trial

court’s judgment.

      AFFIRMED.

                                             ______________________________
                                                    CHARLES KREGER
                                                          Justice

Submitted on April 30, 2014
Opinion Delivered January 15, 2015


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




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