                                      In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-14-00260-CV
                            ____________________


                IN RE COMMITMENT OF DWIGHT DELEON

_______________________________________________________            ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 13-11-12474 CV
________________________________________________________             _____________

                           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


                                         1
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

                                           2
      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)

                                          3
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



                                         4
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

                                         5
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

                                           6
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.

                                          7
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[.]”

                                         8
      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

                                          9
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

                                          10
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

                                        11
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.



                                         12
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.




                                        13
      AFFIRMED.



                                                  _________________________
                                                     LEANNE JOHNSON
                                                           Justice


Submitted on November 21, 2014
Opinion Delivered February 26, 2015

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




                                      14
