                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-13-00491-CV
                          ____________________

           IN RE COMMITMENT OF JOHN EDWARD TORRES

_______________________________________________________         ______________

                   On Appeal from the 435th District Court
                        Montgomery County, Texas
                      Trial Cause No. 13-02-01684 CV
________________________________________________________         _____________

                         MEMORANDUM OPINION

      John Edward Torres appeals from a jury verdict that resulted in his civil

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

§§ 841.001-.151 (West 2010 & Supp. 2014). In issues one and two, Torres

contends the evidence is legally and factually insufficient to support the jury’s

verdict. In issue three, Torres argues that the trial court erred by denying his

request to allow counsel to be present to assist him during his post-petition

psychiatric examination, an examination conducted by the State’s expert. We




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conclude that Torres’s issues are without merit, and we affirm the judgment and

order of civil commitment.

      In issues one and two, Torres challenges the legal and factual sufficiency of

the evidence supporting the jury’s finding that Torres is a sexually violent predator.

Torres’s sufficiency arguments concern the testimony of the State’s expert

witnesses, Dr. Michael Arambula, a psychiatrist, and Dr. Christine Reed, a

psychologist. Torres argues that there is no evidence to support Dr. Arambula’s

diagnosis of sexual deviance or Dr. Reed’s diagnosis of pedophilia, and that the

State’s experts’ diagnoses cannot be used to support the jury’s verdict. According

to Torres, the diagnoses of the State’s experts are essential to their conclusions that

he suffers from a behavioral abnormality. He concludes that because their opinions

are not supported by the evidence, there is insufficient evidence to support the

jury’s verdict.1

      When reviewing legal sufficiency complaints in SVP cases, we assess all of

the evidence admitted during the trial in the light most favorable to the verdict; in

that light, we then determine whether any rational trier-of-fact could find, beyond a


      1
      The State contends that Torres failed to preserve his legal sufficiency
argument for our review. However, the record shows that he did preserve his claim
by moving for a directed verdict on his claim and by making a legal sufficiency
argument in his motion for new trial.

                                          2
reasonable doubt, each of the elements needed to prove that the defendant is a

sexually violent predator. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex.

App.—Beaumont 2002, pet. denied). In SVP cases, the State must prove the

elements of its case beyond a reasonable doubt. See Tex. Health & Safety Code

Ann. § 841.062(a) (West 2010). To prevail on his legal sufficiency issue, Torres

must demonstrate that no evidence supports the jury’s finding. See Croucher v.

Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Christus St. Mary Hosp. v.

O’Banion, 227 S.W.3d 868, 873 (Tex. App.—Beaumont 2007, pet. denied).

      In reviewing factual sufficiency challenges in SVP cases, we weigh the

evidence to determine whether a verdict that is supported by legally sufficient

evidence nevertheless reflects a risk of injustice that compels our ordering a new

trial. In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont

2011, pet. denied). However, the risk of an injustice arising from the weight of the

evidence is necessarily slight when the jury is instructed to use a beyond

reasonable doubt standard in deciding the case and when the evidence is legally

sufficient to support the jury’s verdict. Id. Nonetheless, “if in the view of the

appellate court after weighing the evidence, the risk of an injustice remains too

great to allow the verdict to stand, the appellate court may grant the defendant a

new trial.” Id.

                                         3
      In forming their opinions about Torres, the State’s experts used the standards

found in Chapter 841 of the Texas Health and Safety Code. Under the provisions

of that chapter, a person can be found to be a “sexually violent predator” if the

person: “(1) is a repeat sexually violent offender; and (2) suffers from a behavioral

abnormality that makes the person likely to engage in a predatory act of sexual

violence.” Id. § 841.003(a) (West Supp. 2014). A “‘[b]ehavioral 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). “‘Predatory act’ means an act

directed toward individuals, including family members, for the primary purpose of

victimization.” Id. § 841.002(5) (West Supp. 2014).

      During the trial, each of the State’s experts explained the supporting basis

and foundation of the opinions at issue in Torres’s appeal. When forming their

opinions that Torres would likely reoffend, both of the State’s experts interviewed

Torres and reviewed records that contained information relevant to his sexual

history. The record establishes that Dr. Arambula and Dr. Reed are licensed in

their respective fields. The records the State’s experts reviewed are the type of

records that health experts typically rely upon in forming opinions concerning

                                         4
whether a person has a behavioral abnormality, and the State’s experts performed

assessments that are consistent with their respective training. During the trial, Dr.

Arambula and Dr. Reed each explained how they had used Torres’s records to

form opinions. For example, both doctors explained that they had relied on

Torres’s prior convictions for sexually violent crimes in reaching the conclusion

that Torres suffers from a “behavioral abnormality.” The record also contains

Torres’s scores on actuarial tests, and the State’s experts explained how his scores

contributed to the conclusion that Torres would likely reoffend. Both of the

doctors, after explaining their respective methodologies and how they were

applied, expressed the opinion that Torres has a behavioral abnormality that makes

him likely to engage in a future predatory act of sexual violence.

      To form his opinions in Torres’s case, Dr. Arambula reviewed various

records regarding Torres’s criminal and mental health histories, and he interviewed

Torres. According to Dr. Arambula, the methodology he followed is the same type

of methodology that is used by other experts who perform evaluations

in SVP cases. During the trial, Dr. Arambula explained the relationship between

the information that he found in Torres’s records and his opinion that Torres has a

behavioral abnormality. He further explained how he had relied on actuarial test

results that are contained in Torres’s records in forming his opinion that Torres had

                                          5
a behavioral abnormality that made him likely to commit additional sexually

violent acts. Dr. Arambula testified that he diagnosed Torres with sexual deviance,

he noted Torres’s history of polysubstance abuse, and he expressed his opinion that

Torres has a personality disorder not otherwise specified with features of antisocial

and borderline personality. The record demonstrates that Dr. Arambula reached his

conclusion that Torres suffers from a behavioral abnormality that makes him likely

to engage in a predatory act of sexual violence by following the methodology used

by psychiatrists in forming opinions on the types of issues presented in SVP cases.

      In forming her opinions about whether Torres has a behavioral abnormality,

Dr. Reed explained that she interviewed Torres and reviewed records containing

information about Torres’s criminal history. Additionally, the record shows that

Dr. Reed is licensed as a psychologist, she reviewed records of the type typically

relied upon by health experts in making SVP assessments, she assessed Torres in a

manner that was consistent with her training, and she explained how she used

Torres’s records in forming her opinions. For example, Dr. Reed explained that she

relied on Torres’s prior convictions, in part, to form her opinion that Torres suffers

from a behavioral abnormality. She also explained that she diagnosed Torres as

having pedophilia, an antisocial personality disorder, and a substance abuse

disorder. Dr. Reed testified about Torres’s risk factors for committing future

                                          6
offenses, and she mentioned how these factors contributed to her opinion that

Torres would likely reoffend. Dr. Reed also discussed the actuarial tests that she

administered to Torres, which indicate that he has a moderate to high risk for

future offense. After explaining how she formed her opinions, Dr. Reed testified

that Torres, in her opinion, has a behavioral abnormality that makes him likely to

engage in a predatory act of sexual violence.

      In his brief, Torres argues that the testimony of his expert, Dr. Marisa

Mauro, supports his conclusion that the evidence does not support the jury’s

finding that he has a behavioral abnormality. Nevertheless, the jury was not

required to agree with Dr. Mauro. In this case, the jury heard conflicting opinions

from the mental health experts who testified during his trial. While the opinions of

the experts differ, the jury is allowed to evaluate and weigh the evidence, to make

reasonable inferences from the facts before them in resolving the case, and to

resolve conflicts and contradictions in the evidence by believing all, part, or none

of the testimony. See In re Commitment of Barbee, 192 S.W.3d 835, 842 (Tex.

App.—Beaumont 2006, no pet.) As the sole judge of the weight and credibility of

the evidence, the jury apparently chose to accept the opinions of Dr. Arambula and

Dr. Reed, and to reject the opinions expressed by Dr. Mauro. See Mullens, 92

S.W.3d at 887. We conclude that the evidence admitted at trial was sufficient, as it

                                         7
allowed the jury to reasonably conclude that Torres suffers from a behavioral

abnormality that makes him likely to engage in a predatory act of sexual violence.

See id. We further conclude that the risk of an injustice arising from the jury’s

verdict is slight, given that the evidence supporting the verdict is legally sufficient

to establish that Torres is a sexually violent predator. See Day, 342 S.W.3d at

213. We overrule issues one and two.

      In issue three, Torres contends he was denied the assistance of counsel

during a psychiatric examination conducted by the State’s expert. The record

shows that in February 2013, the State filed a petition seeking Torres’s civil

commitment as a sexually violent predator. Subsequently, the State filed a motion

asking the trial court to order Torres’s examination by an expert, as authorized

by section 841.061(c) of the Texas Health and Safety Code. See Tex. Health &

Safety Code Ann. § 841.061(c) (West 2010). By order, the trial court authorized

the State’s expert to examine Torres in a manner “[c]onsistent with the Texas

Health and Safety Code § 841 specifications[.]” See id. § 841.061(c), (f) (West

2010).

      When the State filed its request to have Torres examined by an expert,

Torres asked the trial court to appoint counsel to represent him. After the trial court

appointed counsel to represent Torres, and before Torres was examined by the

                                          8
State’s expert, Torres’s attorney filed a motion asserting that Torres had the right

to have counsel present while being examined by the expert the trial court

appointed. The trial court denied Torres’s request. The day after the trial court

denied Torres’s request, Dr. Arambula examined Torres without counsel present.

During Torres’s trial, Dr. Arambula testified about his examination of Torres and

the role it played in his risk assessment and evaluation.

      Torres argues that section 841.144(a) of the Health and Safety Code gave

him the right to have counsel present while being examined by the State’s

expert. See id. § 841.144(a) (West 2010) (allowing a person that is subject to civil

commitment proceedings under Chapter 841 to have the assistance of counsel “at

all stages of the proceeding”). However, we have held that neither the SVP statute

nor the Fourteenth Amendment create a right to have counsel present during

the post-petition psychiatric examination, an examination that occurs in cases after

the State files its petition to have persons committed for treatment on the basis of

the claim that such persons are sexually violent predators. In re Commitment of

Smith, 422 S.W.3d 802, 807 (Tex. App.—Beaumont 2014, pet. denied). In Torres’s

case, Torres had counsel before he was examined by the State’s expert, even

though counsel was not allowed to be present during the examination by the doctor

who later served as the State’s expert at trial. Torres does not explain how his right

                                          9
to have the advice of counsel was impaired when he had counsel to provide him

with advice both before and after Dr. Arambula examined him. See id. at 805.

      Additionally, Torres has not shown how he was harmed because his counsel

was not physically present during the examination conducted by the State’s expert.

In Torres’s case, the record shows that during the trial, Torres did not object to Dr.

Arambula’s testimony concerning what Torres told him during the examination,

nor has Torres explained how any of the information the State obtained from the

examination would not have been available had the trial court granted Torres’s

request to have counsel present. See id. at 806-07. Because Torres has not shown

that he was denied the right to assistance of counsel, we overrule issue three.

      Having carefully reviewed the issues that Torres presents in his appeal, the

trial court’s judgment and order of civil commitment are affirmed.

      AFFIRMED.


                                              ________________________________
                                                        HOLLIS HORTON
                                                            Justice


Submitted on October 15, 2014
Opinion Delivered December 11, 2014

Before Kreger, Horton and Johnson, JJ.


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