Opinion issued September 25, 2014.




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-13-00918-CV
                            ———————————
           IN RE COMMITMENT OF THOMAS LEE ROBERTS



                    On Appeal from the 435th District Court
                          Montgomery County, Texas
                     Trial Court Case No. 12-11-12508-CV



                          MEMORANDUM OPINION1

      In June 2013, the trial court issued a civil commitment order based on a jury

finding that Thomas Lee Roberts is a sexually violent predator. See TEX. HEALTH


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      On October 17, 2013, the Texas Supreme Court ordered this appeal transferred
      from the Court of Appeals for the Ninth District of Texas. See TEX. GOV’T CODE
      ANN. § 73.001 (West 2013) (authorizing transfer of cases). We are unaware of
      any conflict between the precedent of the Court of Appeals for the Ninth District
      and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
& SAFETY CODE ANN. §§ 841.001–.150 (West 2010 & Supp. 2014) (Sexually

Violent Predator “SVP” statute). Roberts challenges the order, contending that the

trial court erred in (1) excluding testimony proffered by his forensic psychologist

and (2) denying voir dire examination about the meaning of “likely,” as used in the

SVP statute in the context of “likely to reoffend,” and about the general credibility

of expert testimony. We affirm.

                                   Background

      Roberts was confined to the Texas Department of Corrections, serving a

sentence for one conviction for sexual assault and two convictions for aggravated

sexual assault of a child. Before his release was scheduled, the State instituted

civil commitment proceedings. The State proved Roberts’s prior convictions and

presented expert testimony from Michael Arambula, a forensic psychiatrist. Dr.

Arambula diagnosed Roberts with pedophilia, personality disorder with antisocial

features, and borderline intellectual functioning. Based on these diagnoses, the

criminal court records, and other factors, Dr. Arambula opined that Roberts suffers

from a behavioral abnormality that makes him likely to engage in a predatory act

of sexual violence. In rebuttal, Roberts presented testimony from his own forensic

psychologist, Marisa Mauro. She disagreed with Dr. Arambula’s opinion.




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                                    Discussion

I.    Exclusion of Mauro’s testimony

      Roberts contends that the trial court erred in excluding Dr. Mauro’s expert

testimony concerning the basis of her opinion, in which she described

inconsistencies in the statements of the complaining witness in Roberts’s

underlying convictions for child sexual assault.

      We review a trial court’s evidentiary rulings for an abuse of discretion.

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); In re

Commitment of Tesson, 413 S.W.3d 514, 519 (Tex. App.—Beaumont 2013, pet.

denied). A trial court abuses its discretion when it acts without reference to any

guiding rules or principles or if it acts arbitrarily and unreasonably. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

      Dr. Mauro testified that, while Roberts admitted to pleading guilty to and

having been convicted of three sexual offenses, including two for aggravated

sexual assault of a child, he denied having committed the conduct underlying the

two convictions for aggravated sexual assault of a child. Dr. Mauro explained she

thought the evidence of the child complainant’s outcry statements in those cases

showed a number of inconsistencies. At that point, the trial court excused the jury

and asked Dr. Mauro whether her opinion of the complainant’s veracity affected

her opinion about whether Roberts had a behavioral abnormality. Dr. Mauro


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responded, “No, my opinion stays the same.” The trial court replied, “We don’t

need to talk about that then.” Dr. Mauro testified to her belief that the child

complainant’s statements contained too many inconsistencies to support a

diagnosis of pedophilia.

      The trial court refused defense counsel’s request to cross-examine Dr.

Arambula on the issue. The court reasoned that an expert’s belief or disbelief of

the complainant’s outcry statements was admissible as a basis for rendering the

expert’s opinion, but that it would not permit Dr. Mauro to critique the reliability

of Dr. Arambula’s opinion based on her own finding, counter to two of Roberts’s

prior convictions, that Roberts had not sexually assaulted the child complainant.

      The trial court acted within its discretion in concluding that Dr. Mauro’s

proffered testimony was an improper attempt to refute the factual basis for

Roberts’s prior convictions.     See In re Commitment of Ramirez, 2013 WL

5658597, *5 (Tex. App.—Beaumont Aug. 29, 2013, no pet.) (mem. op.) (“Ramirez

could not challenge the facts of his final criminal convictions in a civil

commitment proceeding.”); In re Commitment of Briggs, 350 S.W.3d 362, 368–69

(Tex. App.—Beaumont, pet. denied) (holding that respondent cannot collaterally

attack criminal conviction in commitment proceeding). A trial court must exclude

the underlying facts or data used to explain or support an expert’s opinion if the

danger that they will be used for an impermissible purpose outweighs their value as



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explanation or support for the expert’s opinion or if the excluded material is

unfairly prejudicial. TEX. R. EVID. 705(d); In re Commitment of Allen, No. 09-11-

00449-CV, 2012 WL 3860466, *2 (Tex. App.—Beaumont Sept. 6, 2012, no pet.)

(mem. op.).

      Dr. Arambula acknowledged some of the flaws in the child complainant’s

statements that Dr. Mauro had noted. Through Dr. Mauro, Roberts sought to

criticize Dr. Arambula’s decision to credit the veracity of these outcry

statements—the basis for the allegations to which Roberts pleaded guilty—and to

suggest that Dr. Arambula’s decision to credit them given the internal

inconsistencies rendered Dr. Arambula’s opinion unreliable. We hold that the trial

court did not abuse its discretion in excluding the proffered testimony.

II.   Limits on Voir Dire

      A. Standard of review

      Subject to reasonable trial court control, “[l]itigants have the right to

question potential jurors to discover biases and to properly use peremptory

challenges.” In re Commitment of Hill, 334 S.W.3d 226, 228–29 (Tex. 2011)

(citing Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 749–50 (Tex. 2006)). We

review a trial court’s rulings on voir dire for an abuse of discretion. Hill, 334

S.W.3d at 229; Commitment of Ramirez, 2013 WL 5658597, at *3; In re

Commitment of Larkin, 161 S.W.3d 778, 780 (Tex. App.—Beaumont 2005, no


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pet.). “[A] court abuses its discretion when its denial of the right to ask a proper

question prevents determination of whether grounds exist to challenge for cause or

denies intelligent use of peremptory challenges.” Babcock v. Nw. Mem’l Hosp.,

767 S.W.2d 705, 709 (Tex. 1989).

      B. Excluded question on application of “likely”

      During voir dire, Roberts’s counsel sought to ask the venire panel to respond

with their level of agreement or disagreement with the following statement:

                    1% possibility he will reoffend means he’s
                                likely to reoffend.
                   1 ------------- 2 ------------- 3 ------------- 4
                  disagree                                      agree

The trial court sua sponte barred defense counsel’s inquiry as an improper

commitment question. Roberts claims that the ruling is incorrect.

      “A commitment question is one that commits a prospective juror to resolve,

or refrain from resolving, an issue a certain way after learning a particular fact.”

Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim. App. 2012) (citing Standefer

v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001)). Inclusion of case-specific

facts can render a question improper if the question seeks to elicit opinions about

those facts before the evidence is presented rather than to reveal a panel member’s

preexisting bias or prejudice. Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim.

App. 2005).



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      Chapter 841 defines a sexually violent predator, in part, as a person who

“suffers from a behavioral abnormality that makes the person likely to engage in a

predatory act of sexual violence.”        TEX. HEALTH & SAFETY CODE ANN.

§ 841.003(a). The statute does not define “likely.” See id. § 841.002. “When

words are not specifically defined by the Legislature, they are to be understood as

ordinary usage allows, and jurors may freely read the statutory language to have

any meaning which is acceptable in common speech.” Teer v. State, 923 S.W.2d

11, 19 (Tex. Crim. App. 1996) (emphasis in original); see TEX. GOV’T CODE ANN.

§ 311.011(a) (West 2013 & Supp. 2014) (Absent a statutory definition, “[w]ords

and phrases shall be read in context and construed according to the rules of

grammar and common usage.”).

      Roberts’s question did not simply seek to explore the venire members’

understanding of the term “likely”; it sought to gauge their understanding based on

a statistical percentage measure that anticipated the defense expert’s testimony on

Roberts’s likelihood of reoffending. At trial, Dr. Mauro testified that she applied a

risk-assessment methodology under one actuarial test to conclude that Roberts’s

score placed him in the portion of the tested subject population with a 1.2 percent

chance of reoffending within a five-year period following release. Dr. Mauro

ultimately opined that Roberts was not likely to reoffend.




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      “When the voir dire includes a preview of the evidence, a trial court does not

abuse its discretion when ‘refusing to allow questions that seek to determine the

weight to be given (or not to be given) a particular fact or set of relevant facts.’” In

re Commitment of Barbee, 192 S.W.3d 835, 846 (Tex. App.—Beaumont 2006, no

pet.) (quoting Hyundai Motor Co., 189 S.W.3d at 753). We hold that the trial court

did not abuse its discretion in excluding the specific question posed by Roberts.

      C. Excluded questions on expert rate of error

      Roberts further complains that the trial court erred in refusing to let defense

counsel ask the jury panel members whether, before crediting expert testimony,

they would want to know whether the expert’s opinions have been proven to be

correct, or whether they “would believe an expert who has never bothered to find

out if [his] opinions were correct or not?”

      We hold that the trial court acted within its discretion in preventing this line

of inquiry. In enacting the statute, the Legislature deemed the cost of empirical

experimentation into whether a predator would reoffend to be too high. Accord In

re Commitment of Weissinger, No. 09-12-00486-CV, 2013 WL 3355758, *6–8

(Tex. App.—Beaumont June 27, 2013, pet. denied) (mem. op.). The trial court

could reasonably have concluded that the proffered question could confuse or

mislead the jurors in evaluating the credibility and weight of the expert testimony.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Jane Bland
                                             Justice

Panel consists of Justices Jennings, Bland, and Massengale.




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