                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-12-00244-CV
                             _________________

           IN RE COMMITMENT OF WILLIAM CYRUS SCOTT
________________________________________________________________________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 11-10-10849 CV
________________________________________________________________________

                          MEMORANDUM OPINION

      William Cyrus Scott challenges his civil commitment as a sexually violent

predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 &

Supp. 2013) (the SVP statute). A jury found Scott suffers from a behavioral

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

The trial court signed an order of commitment, and Scott filed this appeal from the

final judgment. Scott raises five issues in his appeal, challenging an alleged error

during jury selection, the trial court’s exclusion of certain evidence during trial,

and the legal and factual sufficiency of the evidence supporting the jury’s verdict.


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We conclude that Scott’s issues are without merit, and we affirm the trial court’s

judgment.

                              Limitation of Voir Dire

      In his first issue, Scott complains the trial court erred in refusing to allow his

trial counsel to ask a proper commitment question during voir dire. We apply an

abuse of discretion standard to the trial court’s decisions regarding voir dire. In re

Commitment of Hill, 334 S.W.3d 226, 229 (Tex. 2011).

      During voir dire, Scott’s attorney questioned the venire panel concerning

their thoughts of repeat offenders. Scott’s attorney then asked,

      [W]ould everyone here agree that you need to consider all the facts
      and all the circumstances surrounding[,] that one thing is not more
      important than the other, that it’s . . . a concerted effort, like all the
      facts and whatnot needs to be considered to make a decision. Anyone
      disagree with that?
Juror number eight responded, “There’s something about a repeat occurrence and a

repeat accusation . . . that makes me less willing to look at all the other stuff and

say that’s going to matter.” Scott’s counsel followed up on the panel member’s

statement and asked,

      Anyone agree . . ., that if it’s a repeat situation or circumstance, that it
      makes it harder for you to look at all the facts surrounding it and
      consider all of it? You may have done that the first time it happened,
      but the second time because it’s a repeat offense or situation--



                                           2
The trial court interrupted Scott’s counsel and indicated that he would not allow

that question because counsel was “getting very close to voir diring the

evidence[.]” Scott’s counsel asked again if anyone agreed with the statement made

by the panel member. The trial court responded, “Again, I just told you to stay

away from asking that question to the entire panel like you just did. Please do not

ignore my ruling. Okay?” Scott’s counsel then moved on to another area.

      Voir dire is one of the hardest skills for an attorney to master. Unfortunately,

many lawyers approach voir dire with only a basic understanding of what

questions are proper. However, the Texas Constitution guarantees a party’s right

to a pure and efficient jury trial. See Tex. Const. art. I, § 15. For this reason,

Texas courts must permit a broad range of questions on voir dire to give parties

latitude to discover any bias or prejudice by the potential jurors so that parties may

wisely exercise peremptory challenges and determine whether grounds exist to

challenge for cause. See Hill, 334 S.W.3d at 228; Babcock v. Nw. Mem’l Hosp.,

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

      A trial court has the discretion to prohibit improper voir dire questions, but

“[a] trial court may not foreclose a proper line of questioning[.]” Hyundai Motor

Co. v. Vasquez, 189 S.W.3d 743, 758 (Tex. 2006). If the area of inquiry is proper,

but the particular question asked is not, a trial court, in its discretion, may reject the

                                            3
form of the question. Id. If to uncover potential biases a party must discuss the

facts of a case, the party must be careful to form the question in a manner that

avoids jury confusion and does not attempt to preview the verdict. Id. If a trial

court determines a party’s question fails to meet these requirements, then to

preserve error, a party must propose to the trial court a different question or alert

the court of the specific area of inquiry it intends to pursue. Id. at 758-59. A party

must make a timely request that makes clear—by words or context—the grounds

for the request, and must obtain a ruling—express or implicit—on that request.

Hill, 334 S.W.3d at 229; Tex. R. App. P. 33.1.

      Here, it is evident that Scott sought to determine whether any juror held a

disqualifying bias against repeat offenders, a relevant issue in a civil commitment

case. See In re Commitment of Barbee, 192 S.W.3d 835, 845 (Tex. App.—

Beaumont 2006, no pet.) (concluding that a potential juror is disqualified from

serving on the jury when biased or prejudiced for or against a party). However,

asking jurors whether they would give specific evidence great or little weight is

improper. See Vasquez, 189 S.W.3d at 751-52. To preserve error, once the trial

court interrupted Scott and prohibited the single question as posed to the entire

panel, Scott should have re-phrased the question and, if prohibited from asking a

specific and proper follow-up question, Scott should have stated the basis on which

                                          4
he sought to ask the question and obtained an adverse ruling. Here, Scott made no

further attempt to pursue the line of questioning. Thus, no error was preserved for

our review. See Tex. R. App. P. 33.1.


                        Limitation of Cross-Examination

      In his second issue, Scott argues the trial court erred in denying Scott the

right to cross-examine Dr. Michael Arambula, the State’s forensic psychiatrist as to

a matter that was discussed during the State’s direct examination. Within this issue,

Scott argues that the trial court erred in refusing to allow counsel to make an offer

of proof as to the testimony of Dr. Arambula excluded at trial. Pursuant to Rule

44.4(a) of the Texas Rules of Appellate Procedure, we determined that the trial

court’s failure to permit Scott’s counsel to make an offer of proof prevented the

proper presentation of this case to this Court. Accordingly, on January 9, 2014, we

abated this appeal and remanded it to the trial court for Scott to make an offer of

proof. The trial court held a hearing on January 21, 2014 and allowed Scott to

make an offer of proof of the excluded testimony of Dr. Arambula. A supplemental

record of the offer of proof was submitted to this Court.

      We now consider whether the trial court committed error by restricting

Scott’s cross-examination of Dr. Arambula. We review a trial court’s decision

concerning the admissibility of evidence for an abuse of discretion. Owens-
                                          5
Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court

abuses its discretion when it acts without reference to guiding rules and principles,

or if it acts arbitrarily and unreasonably. E.I. du Pont de Nemours & Co., v.

Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). If we find the trial court erred, we will

reverse a judgment only if the trial court’s error probably caused the rendition of

an improper judgment or probably prevented the appellant from properly

presenting the case on appeal. See Tex. R. App. P. 44.1(a).

      Counsel may cross-examine a witness on any matter relevant to any issue in

the case, including credibility. Tex. R. Evid. 611(b). The issue the jury was

required to decide here was whether Scott is a repeat sexually violent offender who

presently suffers from a behavioral abnormality that makes him likely to engage in

predatory acts of sexual violence. See Tex. Health & Safety Code Ann. §§

841.002(2), 841.003(a), 841.062(a).

      Dr. Arambula explained to the jury the methodology he used in forming his

opinion. He also explained how the records he reviewed affected his opinion

concerning whether Scott has a behavioral abnormality. During the State’s direct-

examination, Dr. Arambula testified, without objection, that he saw an allegation in

the records that one of Scott’s stepsons had told Scott’s stepdaughter “some similar

                                         6
things had happened” to him. According to Dr. Arambula, the State did not pursue

this allegation. Dr. Arambula recalled that Scott denied any sexually inappropriate

behavior with his stepson.

      On cross-examination, Scott’s counsel asked Dr. Arambula about the

stepdaughter’s statement to CPS regarding what her youngest brother told her.

Scott’s counsel asked Dr. Arambula if there were also two older brothers in the

family. The State objected to the relevance of this question, and the trial court

sustained the State’s objection. In Scott’s offer of proof, Dr. Arambula testified

that Scott had two older stepsons who were also interviewed. Dr. Arambula

recalled both stepsons denied having been sexually molested by Scott. Dr.

Arambula recalled that the youngest stepson made an outcry to his oldest sister. Dr.

Arambula agreed that the youngest stepson’s outcry is the only indication in the

records that Scott had male victims.

      We conclude it was reasonable for the trial court to find the questions

regarding Scott’s two older stepsons, who made no allegations of abuse by Scott,

do not address a fact or consequence that would have made Dr. Arambula’s

prognosis more or less probable. See Tex. R. Evid. 401. We overrule Scott’s

second issue.



                                         7
                            Sufficiency of the Evidence

      In his third and fourth issues, Scott challenges the factual and legal

sufficiency of the evidence that he has a propensity for future sexual violence and

claims that the State’s experts “impermissibly merged the propensity requirement

into their behavioral abnormality determinations.” In his fifth issue, Scott

challenges the factual sufficiency of the evidence to support a finding that he has

serious difficulty controlling his behavior.

      Central to his sufficiency challenge is Scott’s contention that the State must

not only prove that Scott suffers from a behavioral abnormality, but also that the

State must separately prove Scott is likely to commit a predatory act of sexual

violence, and that he has a serious difficulty controlling his behavior. The Supreme

Court has previously addressed Scott’s argument and held that the question of

whether someone “‘suffers from a behavioral abnormality that makes the person

likely to engage in a predatory act of sexual violence’ is a single, unified issue.” In

re Commitment of Bohannan, 388 S.W.3d 296, 303 (Tex. 2012), cert. denied, 133

S. Ct. 2746 (2013) (quoting Tex. Health & Safety Code Ann. § 841.003(a)(2)). We

have considered and rejected Scott’s argument as well. See In re Commitment of

Anderson, 392 S.W.3d 878, 885 (Tex. App.—Beaumont 2013, pet. denied).



                                          8
      In reviewing the evidence for legal sufficiency, we view 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 civil

commitment. In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—

Beaumont 2002, pet. denied). In reviewing evidence for factual sufficiency, we

weigh the evidence to determine whether a verdict supported by legally sufficient

evidence nevertheless reflects a risk of injustice so great that we are compelled to

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

Beaumont 2011, pet. denied).

      Dr. Tim Proctor, a licensed psychologist and a licensed sex offender

treatment provider, testified for the State. Dr. Proctor is board-certified in forensic

psychology. Based on his training, his experience, the records he reviewed, and his

interview with Scott, Dr. Proctor testified he believes Scott suffers from a

behavioral abnormality that makes him likely to commit predatory acts of sexual

violence.

      Dr. Proctor explained his methodology for assessing behavioral abnormality,

which he testified is consistent with the accepted standards in his field. He testified

that the records he reviewed and relied upon in making his assessment are the type

of records typically used by forensic psychologist in their evaluations.

                                          9
      Dr. Proctor explained, “risk factors are specific factors that suggest an

increased risk for someone engaging in some type of behavior in the future.” He

then listed for the jury the risk factors he identified in Scott that increased Scott’s

risk of sexually offending. He testified that Scott has a significant history of sexual

deviance as demonstrated by his pedophilia, non-exclusive type), and his sexual

sadism. He also diagnosed Scott with “personality disorder not otherwise specified

with antisocial traits[.]” Dr. Proctor was careful to explain that substance abuse is

not the cause of Scott’s offending, but identified his history with substance abuse

as another factor that increased his risk to offend.

      Dr. Proctor testified that Scott sexually offended against his two minor

stepdaughters while he was in a sexual relationship with their mother. His offenses

against the children were not one-time occurrences, but were sustained over a

period of time. After Scott was convicted for offending against one of his

stepdaughters, he was placed on probation, but Scott was unable to complete his

probation because he engaged in a spree of sexual offenses or attempted sexual

offenses of six women, one of which led to a conviction for aggravated sexual

assault. Dr. Proctor also recalled that Scott attempted to establish an inappropriate

relationship with someone who was a non-inmate while in prison.



                                          10
      Dr. Proctor testified Scott continues to minimize or completely deny certain

parts of his sexual offending history. Dr. Proctor explained that Scott tried to blame

his assaults on his alcohol abuse or justify his assaults as resulting from his bad

relationship with his wife, the mother of the children he sexually assaulted. Dr.

Proctor testified Scott does not fully appreciate what high risk situations exist for

him in the future but focuses primarily on abstaining from the use of alcohol as a

way to stop future sexual offending.

      Dr. Proctor testified that the scores on the Hare Psychopathy Checklist-

Revised test are related to risks for sexual reoffending. From Scott’s score on the

Hare test, Dr. Proctor determined that Scott was not psychopathic, but he did test

positive for some psychopathic traits, including being prone to boredom, conning

and manipulative, callous, and lacking empathy. He further determined that Scott

engaged in promiscuous sexual behavior, offended while on probation, and

demonstrated criminal versatility, which are further risk factors for reoffending.

      Dr. Proctor also conducted the Static 99-R test, which is an actuarial

measure used to help assess risk for sexual offending. Scott received a score of

six, which places him in the high risk for sexual offending category. Dr. Proctor

identified a number of risk factors that increase Scott’s risk for sexual offending,

including sexual deviance, pedophiliac interest, sexual sadism, multiple sex

                                         11
offense convictions, multiple additional attempted victims, history of committing

sex offenses while under supervision for another sex offense, unrelated victims,

stranger victims, history of an allegation from a male, use of physical coercion in

sexual violence, history of multiple victim age groups, history of multiple acts on a

single victim within a single sex offense event, received a major disciplinary case

while in prison, history of a nonsexual violent conviction, history of employment

instability, antisocial personality pathology, multiple prior sentencing dates,

substance dependence history, ongoing issues with denial, and minimization and

failure to take responsibility for his actions.

      Dr. Proctor did note some protective factors that reduce Scott’s risk of

offending, which included Scott’s age, his enrollment in sex offender treatment,

and that he will be on supervision for an extended period of time upon his release.

He indicated that this last protective factor is mitigated somewhat by the fact that

Scott has been unsuccessful on supervision in the past.

      Dr. Arambula, a board-certified forensic psychiatrist, described the

methodology he uses to assess an individual for a behavioral abnormality. He

testified that other experts in his field follow the methodology he uses and it is the

standard accepted methodology. He testified he conducted a clinical exam of Scott

and reviewed Scott’s records. Specifically, Dr. Arambula reviewed Scott’s mental

                                           12
health evaluations, his prison medical records, records of his prior offenses and

convictions, victim statements, his administrative prison records, and the

deposition transcripts of Scott and some other mental health professionals deposed

in this case. He testified experts in his field rely on these kinds of records. Based

on the records he reviewed, his education, training, and experiences, Dr. Arambula

concluded Scott suffers from a behavioral abnormality that would make him likely

to commit predatory acts of sexual violence.

      Dr. Arambula noted that during his two to three hour exam of Scott, Scott

either denied or minimized a significant portion of his sexual behavior or

misbehavior. He testified Scott’s current denial and minimization is evidence of his

current mental condition. He also testified he found a number of discrepancies in

Scott’s self-reporting of his offenses.

      Dr. Arambula diagnosed Scott with sexual deviance, which he broke down

into pedophilia and paraphilia, not otherwise specified with sadistic features. Dr.

Arambula also diagnosed Scott with substance dependence, which he

acknowledged is in remission. He further diagnosed Scott with antisocial

personality disorder. Dr. Arambula described for the jury the evidence supporting

his diagnoses of Scott.



                                          13
      He explained Scott’s sexual deviance is a chronic illness that will not just go

away. The goal of Scott’s treatment is not to rid Scott of the illness but to control

the illness so that the risk of re-offense is controlled. He explained the illness

becomes more manageable with treatment. Dr. Arambula recalled Scott’s sex

offender treatment provider from prison noted Scott needed additional treatment.

Dr. Arambula testified he also believes Scott needs additional treatment, noting

Scott demonstrated symptoms of his illness during his trial. Dr. Arambula testified

Scott was not able to manage or control his behavioral abnormality that makes him

more likely to engage in a predatory act of sexual violence. Dr. Arambula testified

Scott has not received enough treatment to lower his risk of reoffending.

      Dr. Arambula identified Scott’s two greatest risk factors for reoffending as

his sexual deviance and antisocial personality. He explained those risk factors

carry the most weight with regard to sexual offense recidivism. Dr. Arambula

detailed for the jury other risk factors he considered underlie these two major

factors.

      Dr. Arambula recalled Scott has good family support, has shown the ability

to maintain somewhat steady employment, had a good adjustment in prison where

he obtained some job skills and took courses towards obtaining a degree. However,

Dr. Arambula noted these positive factors are mitigated by the fact that Scott

                                         14
offended in the past despite having good family support and, that his stable work

history is compromised by apparent problems he has with controlling his temper.

      The jury was entitled to draw reasonable inferences from basic facts to

determine ultimate fact issues, and to resolve conflicts and contradictions in the

evidence by believing all, part, or none of the witnesses’ testimony. Barbee, 192

S.W.3d at 842. Scott’s current difficulty in controlling his behavior can be inferred

from his past behavior, his own testimony, and the experts’ testimony. See In re

Commitment of Burnett, No. 09-09-00009-CV, 2009 WL 5205387, at *4 (Tex.

App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.).

      The State’s experts, Drs. Proctor and Arambula, testified Scott suffers from

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

sexual violence. Both doctors diagnosed Scott with sexual deviance and antisocial

personality disorder, which, they testified, were risk factors for recidivism. Both

experts also noted Scott’s history of substance abuse increased his risk of

recidivism. Both experts also indicated the fact that Scott committed other sexual

offenses while on probation for a sex offense was a major risk factor. Drs. Proctor

and Arambula carefully explained to the jury the evidence they identified to show

Scott’s behavioral abnormality remains active, including his current denial and

minimization of his offenses.

                                         15
      Considering all the evidence in the light most favorable to the verdict, we

conclude the jury could reasonably find beyond a reasonable doubt that Scott has a

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

violence. See Mullens, 92 S.W.3d at 887. The record does not reflect a risk of

injustice that compels granting a new trial. See Day, 342 S.W.3d at 213. We

overrule issues three, four, and five.

      AFFIRMED.

                                              ______________________________
                                                     CHARLES KREGER
                                                           Justice

Submitted on December 2, 2013
Opinion Delivered May 8, 2014

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




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