                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00574-CV
                           ____________________


         IN RE COMMITMENT OF MICHAEL PHILLIP DANIEL

_______________________________________________________            ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 13-05-05760 CV
________________________________________________________            _____________

                          MEMORANDUM OPINION

      The State of Texas filed a petition to commit Michael Phillip Daniel as a

sexually violent predator (“SVP”). See Tex. Health & Safety Code Ann. §

841.001-.151 (West 2010 & Supp. 2014). A jury found that Daniel is a sexually

violent predator and the trial court rendered a final judgment and an order of civil

commitment. In three appellate issues, Daniel challenges the legal and factual

sufficiency of the evidence to support the jury’s verdict and the denial of his

request to have an attorney present during the State’s post-petition expert

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

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                         LEGAL AND FACTUAL SUFFICIENCY

      In issues one and two, Daniel contends the evidence is legally and factually

insufficient to support the jury’s verdict because the State failed to produce

evidence demonstrating Daniel is “volitionally impaired and likely to reoffend

sexually.” 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 resolve

conflicts in the testimony, weigh the evidence, and draw reasonable inferences

from basic facts to ultimate facts. Id. at 887. Under a factual sufficiency review, 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 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

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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 Daniel’s admissions that he molested three

young boys in 1989 and that he pleaded guilty to two charges of aggravated sexual

assault and one charge of indecency with a child. In four other complaints, he was

also charged with other acts of indecency with a child, but those charges were

dismissed as a result of his plea bargain. He received a twenty-five-year prison

sentence for the two aggravated sexual assault convictions and a twenty-year

prison sentence for the indecency with a child conviction, and the trial court

ordered the sentences to run concurrently. At the time of the trial, Daniel was




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serving his sentences for his aggravated sexual assault convictions and he had

completed his sentence for the conviction for indecency with a child.

      Daniel testified that, with respect to his convictions, two of the children he

assaulted lived next door, and the other child he assaulted was the son of one of

Daniel’s friends. Daniel testified that he had known all of the victims for years. He

admitted he did a “considerable amount of grooming” with his first victim as a way

of manipulating the child into being more comfortable while being abused. Daniel

admitted to “grooming” one of the other victims, whom Daniel offended against

over a two-month period.

      At trial, Daniel stated that although he had completed a nine-month sex

offender treatment program, he believed he needed more treatment because there is

“a behavioral maintenance that is required.” He testified that at the time of the

offenses, he was struggling with his sexual orientation, which produced feelings of

inadequacy, irrational beliefs, and fear of rejection. Such negative feelings, he

explained, functioned as triggers for him to commit offenses. According to Daniel,

he no longer has these triggers. He stated that he has accepted his homosexuality

and his current triggers for offending sexually are “being in stressful situations,

being in a zero state, not challenging irrational beliefs[,]” and possibly




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pornography. Daniel testified that while incarcerated he has had sex with four

individuals and looked at pornography.

      Daniel told the jury that he blames himself for his offenses and is

remorseful. He testified he no longer has sexual fantasies involving children.

Although Daniel had not had a relationship in the two years prior to trial, he stated

that he believed that being in a relationship will help him not offend. He does not

believe he will reoffend sexually because of his “determination[,]” the fact that he

has “grown and learned new things” about himself and about accepting his

sexuality, and that he is “satisfied with adult relationships.”

      Dr. Michael Arambula, a medical doctor specializing in general and forensic

psychiatry, testified that Daniel has a behavioral abnormality that makes him likely

to engage in a predatory act of sexual violence. Arambula stated that he diagnosed

Daniel as having sexual deviance, pedophilia, and personality disorder not

otherwise specified with avoidant features. Arambula explained that pedophilia is a

chronic condition. He testified that “[w]hat really drives this case is [Daniel’s]

sexual deviance and the severity and the seriousness of the things that he did.”

According to Arambula, Daniel did not “progress that far” with his sex offender

treatment. Arambula spoke with Daniel’s treatment provider who explained that

although the therapist allowed Daniel to get credit for completing the treatment

                                           5
program, the provider was not able to see Daniel apply knowledge from the

treatment, and the provider had concerns about the quality of Daniel’s work

towards the end of the treatment program.

      Arambula stated several factors increase Daniel’s risk of sexual re-offense,

including Daniel’s sexual deviance and pedophilia, the fact that he has all male

victims, the number of victims and their young age, the numerosity of incidents,

the intrusive nature of the offenses, the long time period over which the offenses

occurred, Daniel’s continued denial and minimization regarding his offenses, and

Daniel’s personality pathology, lack of treatment, and lack of good adult

relationships. Arambula also described some factors that might lower Daniel’s risk

of reoffending, including the fact that Daniel does not have significant antisocial

personality, he has had a good work history, he did not cause trouble while in

prison, he took college courses and received two degrees while incarcerated, he has

no significant history with drugs or alcohol, he did not hit or tie up his victims, and

he has participated in some treatment.

      On cross-examination, Arambula disagreed with an earlier actuarial

administered to Daniel that scored Daniel in the low range for sexually

reoffending. Arambula explained that the actuarial, the Static-99, does not

accurately represent Daniel’s level of risk for sexually reoffending. Arambula

                                          6
noted that, in his expert opinion, Daniel’s level of risk for sexually reoffending is

“rather high because he’s a pedophile, and his victims have all been boys. . . .

[T]he research says those people have particularly chronic illness and they’re prone

to higher rates of recidivism.” When asked how he considers control as part of his

evaluation, Arambula explained that he examines the clinical course of the illness

and how the symptoms emerge and the illness is managed.

      Dr. Marisa Mauro, a licensed psychologist and licensed sex offender

treatment provider, testified for the defense. It was her opinion that Daniel does not

have a behavioral abnormality. Mauro diagnosed Daniel with pedophilic disorder

nonexclusive, limited to males. She conducted the PCL-R, on which Daniel scored

a six, which means that he is not psychopathic. Mauro performed the Static-99R

actuarial test on which Daniel scored a two, which “is associated with a 5 percent

expected recidivism rate in five years.” She testified that on the Static-2002R

Daniel scored a three, and Mauro explained that “individuals with a score of 3 have

been found in the normative sample to recidivate 2.8 percent of the time in five

years.”

      Mauro identified the following risk factors: Daniel’s number of convictions,

that he has had more than two victims under the age of twelve, that he has had

male victims, that he has had victims that are not related to him, and that he has a

                                          7
pedophilia disorder. Mauro also identified some protective factors, which may

lower his risk of reoffending, including Daniel’s successful completion and

discharge from sex offender treatment, his successful work history in the

community and in prison, he has positive family relationships and family support,

and his education. Mauro noted that Daniel’s neutral factors are that he does not

have antisocial personality disorder or any other personality disorder, and that he

does not suffer from any substance addiction. She explained that Daniel’s sex

offender treatment provider’s notes reflected that the latter portions of Daniel’s

treatment “were not as good of quality as they had been in the past” and that the

therapist noted that he felt that Daniel felt pressure from his attorney to complete

all of the assignments as soon as possible. Mauro testified that she did not agree

with Arambula that denial and minimization are risk factors for Daniel for

reoffending sexually. But, Mauro acknowledged that it is possible that Daniel still

has sexual fantasies of prepubescent male children because the sexual attraction to

children is “thought to be persistent.” Although she agreed that pedophilia is a

condition that can affect a person’s emotional or volitional capacity, she did not

believe that Daniel’s pedophilia has affected his emotional or volitional capacity to

the extent that he is a menace to the health and safety of another person. Mauro did




                                         8
not believe that Daniel has serious difficulty controlling his behavior or has a

condition that affects his emotional or volitional capacity.

      The jury heard Dr. Arambula’s testimony that Daniel has a behavioral

abnormality that makes him likely to engage in predatory acts of sexual violence,

as well as evidence of Daniel’s risk factors, sexual offenses, and diagnoses. The

jury also heard Daniel’s admissions, that he currently still has “triggers” for

reoffending sexually, and that he believes he needs more sex offender treatment.

Arambula testified that Daniel’s risk of reoffending sexually is “rather high.”

Whether a person suffers from an emotional or volitional defect so grave as to

cause behavior that makes him to be a menace is included in the determination of

whether he has a serious difficulty in controlling behavior. Almaguer, 117 S.W.3d

at 505-06. The jury could infer serious difficulty controlling behavior not only

from the expert testimony, but also from Daniel’s past behavior and history. See In

re Commitment of Burnett, No. 09-09-00009-CV, 2009 Tex. App. LEXIS 9930, at

*13 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.); see also In re

Commitment of Grinstead, No. 09-07-00412-CV, 2009 Tex. App. LEXIS 228, at

*20 (Tex. App.—Beaumont Jan. 15, 2009, no pet. ) (mem. op.). As sole judge of

the weight and credibility of the evidence, the jury could reasonably conclude that

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

                                          9
predatory act of sexual violence. See Grinstead, 2009 Tex. App. LEXIS 228, at

**20, 21; see also Almaguer, 117 S.W.3d at 505; Mullens, 92 S.W.3d at 887.

      Viewing the evidence in the light most favorable to the verdict, a rational

jury could have found, beyond a reasonable doubt, that Daniel is a sexually violent

predator. Therefore, we conclude that 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. We overrule issues one and two.

                                RIGHT TO COUNSEL

      In issue three, Daniel contends that the trial court committed reversible error

by denying him the right to have his attorney present at the post-petition

psychiatric examination conducted by the State’s expert prior to trial. We have

held that neither the SVP statute nor the Fourteenth Amendment requires that

counsel be present during a psychiatrist’s post-petition examination. In re

Commitment of Smith, 422 S.W.3d 802, 807 (Tex. App.—Beaumont 2014, pet.

denied). Daniel argues that Smith was based solely on a concession by Smith that

the SVP statute defines a civil commitment proceeding as a “trial or hearing” and

does not appear to encompass a pre-trial psychiatric examination. Id. at 806. In

                                         10
Smith, while we noted that Smith made a concession, we did not use the

concession to reach our holding. Id. at 804-07. Additionally, we have upheld our

ruling in Smith in other cases. See In re Commitment of Edwards, No. 09-13-

00575-CV, 2014 Tex. App. LEXIS10033, at *20 (Tex. App.—Beaumont Sept. 4,

2014, no pet. h.); In re Commitment of Speed, No. 09-13-00488-CV, 2014 Tex.

App. LEXIS 4444, at *2 (Tex. App.—Beaumont Apr. 24, 2014, pet. denied) (mem.

op.); see also In re Commitment of Lemmons, No. 09-13-00346-CV, 2014 Tex.

App. LEXIS 3888, at **1-2 (Tex. App.—Beaumont Apr. 10, 2014, pet. denied)

(mem. op.). We decline to revisit our previous rulings. For the reasoning discussed

in Smith, we overrule Daniel’s third issue.

      AFFIRMED.


                                                   _________________________
                                                      LEANNE JOHNSON
                                                            Justice


Submitted on October 15, 2014
Opinion Delivered November 20, 2014

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




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