                                        In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-15-00126-CV
                           ____________________

                  IN RE COMMITMENT OF RUDY PEREZ
________________________________________________________________________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 14-06-06685 CV
________________________________________________________________________

                          MEMORANDUM OPINION

      The State filed a petition to commit Rudy Perez (Perez) as a sexually violent

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

Supp. 2014) (SVP statute). A jury found that Perez is a sexually violent predator,

and the trial court rendered a final judgment and an order of civil commitment.

Perez filed an appeal. In two appellate issues, Perez argues the trial court erred by

allowing the State to make an improper jury argument and by overruling Perez‟s

objection to the jury charge and in failing to instruct the jury that a “no” finding

does not require a unanimous verdict.



                                          1
                                   BACKGROUND

      At trial, the jury heard Perez‟s admissions to the State‟s requests for

admissions wherein Perez admitted pleading guilty to indecency with a child,

F.A.,1 in 1993. Perez also admitted that he was intoxicated when he sexually

offended against F.A., and that he was also intoxicated when he sexually offended

against S.M.2 Perez admitted he was intoxicated when he committed the sexual

offenses and that he had been arrested for public intoxication at least thirty-five

times. He also admitted that he has been involved in multiple fistfights during his

incarceration, he has an anger problem, and he believes he needs sex offender

treatment.

      The State called Perez to testify as an adverse witness. Perez testified that he

was convicted in 1993 for indecency with a child, F.A., who was eight or nine

years old at the time of the offense. Perez said he met F.A. when Perez went to

mow F.A.‟s grandmother‟s lawn. According to Perez, he went inside the

grandmother‟s house to use the restroom, heard “some noises from the shower[,]”

pulled back the shower curtain, and saw F.A. naked. Perez explained at trial that he

      1
         We identify the victims by using initials. See Tex. Const. art. I, § 30(a)(1)
(granting crime victims the “right to be treated with fairness and with respect for
the victim‟s dignity and privacy throughout the criminal justice process”).
       2
         A 2008 judgment admitted into evidence indicated that Perez pleaded
guilty to the offense of attempted indecency with a child, S.M.
                                          2
finished using the restroom and went outside. Perez testified that when F.A. was

later outside, Perez offered F.A. five dollars to go with him into the woods. Perez

explained that once they were in the woods, Perez fondled F.A., put his mouth on

F.A.‟s penis, and Perez had F.A. do the same thing to Perez. Perez stated at trial

that on the evening of the offense he had consumed “a little bit more than 12

beers[]” and that he told the police on the night of the offense that he blamed his

actions in committing the offense on alcohol. Perez pleaded guilty to indecency

with a child and received a ten-year sentence for the offense.

      Perez testified that on the day he offended against S.M., Perez had already

consumed “more than 12 beers.” Perez was driving and saw S.M. walking his bike

down a hill and Perez offered S.M. a ride home. Perez said S.M. was fifteen years

old at the time of the offense, but Perez testified that he believed S.M. to be

“[a]bout 17[.]” Although Perez denied at trial that he made sexual advances toward

S.M., Perez explained that at some point S.M. jumped out of the truck and left.

Perez testified that he pleaded guilty to attempted indecency with a child for the

offense against S.M. At the time of the commitment trial, Perez was serving an

eight-year sentence for the sexual offense against S.M.

      Perez testified he was released on parole twice, but both times he violated

the conditions of his parole. He also admitted to certain nonsexual convictions and

                                          3
testified that he had been arrested “about 100 times[]” for public intoxication.

Perez acknowledged that while in prison he has received multiple major

disciplinaries, has received two minor disciplinaries, and has been involved with a

gang.

        Perez initially testified at trial that he blames only alcohol for his offenses,

but he later acknowledged that the offenses were his fault “for making [his] own

decisions.” According to Perez, he completed some alcohol treatment programs

that “helped [] a little bit,” but he failed to complete one of the court-ordered

alcohol treatments and he continued to drink when he got out of prison. Perez

admitted at trial that despite his plans to stop drinking because drinking alcohol

would be a violation of his parole conditions, he continued to drink alcohol while

on parole. He testified that alcohol affects his mental state by “mak[ing him] think

differently sometimes[,]” but that he does not believe it will be difficult for him to

refrain from reoffending against children when he drinks alcohol outside of prison.

Perez explained at trial that he does not plan on drinking alcohol when he is

released from prison because “it‟s always getting [him] in trouble[]” and he needs

to stop drinking “because it gets [him] in trouble every time [he] drink[s].” When

asked at trial if it is going to be easy for Perez to refrain from drinking alcohol,

Perez testified that he would have to “try [his] best not to drink no more[]” and in

                                            4
order to avoid his desire to drink when he is released he will “[j]ust try to stay

away from it and stay away from people that drink and stuff.” According to Perez,

he does not want to drink alcohol when he is released because it could be deadly

due to his having diabetes. He testified his plan upon release is to not drink or be

around children and to stay “at [his] brother‟s trailer house where [he] was staying

at[]” or maybe he needed to “change the environment and move somewhere else

instead.” Perez explained that he is ashamed of his sexual offenses and does not

believe he is likely to sexually reoffend.

       Dr. Michael Arambula, a board certified forensic psychiatrist, testified for

the State. Arambula testified that, based on his education, training, experience, and

the methodology that he followed in this case, he formed an opinion that Perez

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

predatory act of sexual violence. Arambula explained his methodology for

assessing a behavioral abnormality, which he testified is the methodology followed

by experts with forensic training who do the same type of evaluations. He stated

that in reaching his opinion he reviewed a behavioral evaluation by a psychologist,

legal records regarding Perez‟s convictions, records relating to Perez‟s nonsexual

offenses, records relating to Perez‟s participation in sex offender treatment, Perez‟s

medical records, Perez‟s deposition, and statements from Perez, family members,

                                             5
witnesses, and victims. Arambula testified that he conducted an interview of Perez

and that the interview was conducted in accordance with Arambula‟s training as a

forensic psychiatrist.

      Dr. Arambula diagnosed Perez with paraphilia, some personality pathology,

mild depression, and alcohol dependence. Arambula stated that Perez‟s sexual

deviance is that he is interested in young boys and that the records indicate that

Perez identified an age group of seven to fifteen as the age of boys he finds

attractive. Arambula explained that “paraphilias and/or sexually deviant

conditions, they‟re almost always chronic[,]” and “[f]or the most part[]” do not

lessen over time but the severity “can be diminished with proper treatment.” He

stated that the “sexual deviance that exists in [Perez‟s] brain interferes with his

ability to control himself despite being punished and being in prison[.]” Arambula

testified that there are signs that Perez‟s sexual deviance still exists and that “when

somebody exhibits still denial, minimization, making excuses for what happened,

then that‟s a here-and-now symptom of his chronic condition called sexual

deviance.” In Arambula‟s opinion, Perez “exhibits rather extensive denial

regarding [S.M.,]” and Perez has not “come to terms with what his illness can do.”

As for the personality pathology diagnosis, Arambula testified that Perez avoids

being around adults his age, was in a gang, and “can‟t keep up with the conditions

                                          6
of supervision and probation and, despite being sent to jail and prison repeatedly,

he doesn‟t get it.”

      Arambula stated that Perez‟s nonsexual criminal offenses factored into his

personality pathology as well as his risk for recidivism, and that Perez‟s criminal

history aggravates his behavioral abnormality. According to Arambula, the records

he reviewed indicate that Perez had been arrested multiple times for driving while

intoxicated and other nonsexual criminal offenses including theft, public

intoxication, burglary of a vehicle, and retaliation. Arambula testified that the

number of arrests for public intoxication is “off the scale.”

      Arambula explained that the details of Perez‟s sexual convictions are

significant because the details assisted Arambula in identifying Perez‟s risk factors.

Arambula explained that the records he reviewed reveal that Perez had fondled

F.A. when F.A. was in the shower, that Perez offered F.A. money to go with him to

the woods where there was mutual fondling and oral sex, and that F.A. and an

eyewitness reported that Perez had attempted anal intercourse with F.A. in the

woods. According to Arambula, the details from the records he reviewed suggest

that the offense “was more planned than what [Perez] told [Arambula.]” Arambula

testified that the multiple differences in Perez‟s different versions of the offense




                                           7
against F.A. indicates that “there are obvious denials associated with what

happened[.]”

      Arambula testified that the records he reviewed indicate that fifteen-year-old

S.M.‟s bicycle was not working and Perez picked S.M. up and drove to a bridge.

Perez then began having sexual thoughts about S.M. According to Arambula‟s

understanding of the records, Perez touched S.M. and then asked S.M. about oral

sex. S.M. hit Perez and left. Arambula testified that the records indicate that Perez

“was afraid because of the reaction that had occurred because of what he did to

[S.M.]” and that later Perez “wanted to apologize to the family for what he did.”

Arambula noted that when Perez met with Arambula, Perez “denied that anything

ever happened” with S.M., and that this discrepancy between what Perez reported

and what the records indicate actually occurred demonstrates that “this is basically

an unfinished case that he needed to work up. . . in treatment[.]”

      Arambula explained that the records reveal that Perez admitted in an April

2011 evaluation that he had had many thoughts about children for a long time and

masturbated to such thoughts as much as twice a day which, according to

Arambula, shows “how important and how prevalent the fantasies are regarding

[children] and how they‟re fused with [Perez‟s] sexual gratification.” Arambula

noted that the amount of fantasies that “have consistently plagued [Perez‟s]

                                          8
brain[]” would be “part of the severe sexual deviance that [Perez] has[.]”Arambula

explained that Perez was fantasizing about children “as late as 2013 per [Perez‟s]

self-report.”

      Arambula stated that Perez has not successfully completed sex offender

treatment and that he has had “numerous chances to come out better than where he

is now, and he‟s failed.” Arambula noted that, at the time of trial, Perez was not

taking any medication for his depression, which could be an “aggravating factor[.]”

According to Arambula, “a person has to make a decision that they want to be able

to control their alcoholism,” and the fact that Perez has not received any significant

treatment for his alcohol dependency and has not completed any formal substance

abuse treatment indicates that Perez is not close to making the decision to control

his alcoholism. Arambula testified that Perez had initially made progress in his sex

offender treatment in prison, but stopped participating, created a “major

disturbance[,]” was “removed from treatment[,]” and did not complete sex

offender treatment.

      Arambula testified that Perez has the following risk factors for sexually

reoffending: he has sexual deviance; he has had fantasies of young boys for many

years; his sexual preference is boys; he has failed treatment twice; he has “bad

alcohol disease[]” that aggravates his sexual deviance; he has a history of

                                          9
substance abuse and could relapse; he has some antisocial characteristics; his

depression, if active, could be an aggravating factor; his victims are strangers; his

victims are young and vulnerable; he has difficulty getting along with adults so he

interacts with children; and, he is considering returning home upon release despite

the fact that he learned in treatment that he should go elsewhere. Arambula

explained that he reviewed the Static-99 actuarial administered to Perez by

psychologist Dr. Turner and Perez‟s score indicated that Perez had a “moderate to

moderate-high” level of risk for sexual re-offense. Arambula testified that, in his

opinion, this level of risk did not accurately reflect Perez‟s true risk level

considering the amount of fantasies Perez has struggled with and because “he‟s

had opportunities to improve himself in treatment and other aspects of his life and .

. . he just doesn‟t get it.”

       The trial court granted the State‟s motion for a directed verdict on the issue

of whether Perez is a repeat sexually violent offender. The jury found that Perez is

a sexually violent predator, and the trial court rendered a final judgment and an

order of civil commitment.

                                   JURY ARGUMENT

       In his first issue, Perez argues that the trial court erred in allowing the State

to make an improper jury argument that exceeded the scope of defense counsel‟s

                                          10
closing argument. To obtain a reversal based on an error that arises during jury

argument, the appellant must show (1) an error occurred, (2) that was not invited or

provoked, (3) that was preserved by proper trial predicate, such as an objection, a

motion to instruct, or a motion for mistrial, and (4) was not curable by an

instruction, a prompt withdrawal of the statement, or a reprimand by the judge. In

re Commitment of Eeds, 254 S.W.3d 555, 560 (Tex. App.—Beaumont 2008, no

pet.) (quoting Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979)).

      “Generally, proper jury argument falls into one of these areas: (1) a

summation of the evidence, (2) a reasonable deduction from the evidence, (3) an

answer to an argument made by opposing counsel, or (4) a plea for the

enforcement of a law.” In re Commitment of Dodson, 434 S.W.3d 742, 751 (Tex.

App.—Beaumont 2014, pet. denied); see generally Tex. R. Civ. P. 269(b), (e).

Arguments that are presented to juries in summation should be confined “strictly to

the evidence and to the arguments of opposing counsel.” Tex. R. Civ. P. 269(e).

      Perez complains of the following portion of the State‟s closing argument:

      [State‟s counsel]: . . . Think about what Dr. Arambula talked about
      when we asked him follow-up questions to those individuals that he
      found did not have a behavioral abnormality. He wasn‟t the first
      person to evaluate those individuals. Another psychiatrist or
      psychologist --

      [Defense counsel]: Objection, Your Honor. Again, this is beyond the
      scope of my close.
                                        11
      THE COURT: Counsel, I will overrule that objection.

      [Defense counsel]: Thank you, Your Honor.

      [State‟s counsel]: -- another psychologist before Dr. Arambula who
      reviewed those records said that . . . -- those nine individuals did have
      behavioral abnormalities. And of the 110 that Dr. Arambula has
      reviewed, before that someone had already determined that those
      individuals had behavioral abnormalities. Then Dr. Arambula
      evaluated those files, and nine times he disagreed with professionals
      in his field making these evaluations, disagreed with those individuals
      and said, no, that those individuals do not have a behavioral
      abnormality.[] Now, these are not random people that are being pulled
      from the prison system to do these evaluations on, and that is the
      difference. These are not random people being pulled off the street
      and he‟s going to find 90 percent of the time that they have a
      behavioral abnormality. No, these are people that have been picked,
      that another person has already said that they have a behavioral
      abnormality --

      [Defense counsel]: Your Honor, this is beyond the scope of my close
      and not in evidence.

      THE COURT: Counsel, both of you may be arguing outside the
      evidence. I‟ve already instructed the jury about that, and it may be
      invited in your close. Thank you.

The trial court overruled Perez‟s objection. On appeal, Perez argues that he was

deprived of a fair and impartial trial by the jury argument that “other individuals,

who did not testify at trial, previously diagnosed Mr. Perez with a behavioral

abnormality, rubber stamped Dr. Arambula‟s testimony[,]” and that the jury

argument made it unnecessary for the jury to weigh Arambula‟s credibility


                                         12
“because the State argued his testimony was correct because other individuals

agreed with him.”

      Dr. Arambula testified on direct examination that, prior to meeting with

Perez, Arambula reviewed records, including “a behavioral evaluation by a

psychologist, a previous one, mental health evaluation[,]” that he relied on in

forming his opinion in the case. On cross-examination, Arambula agreed that in the

approximately 110 behavior abnormality evaluations he had performed, he found

no behavioral abnormality in nine of those cases. When asked if “just loosely

based on these numbers[]” he finds behavioral abnormalities “over 90 percent of

the time[,]” Arambula responded, “[b]ecause of the information pertinent to each

case, yes. That‟s a fair assessment.” Arambula denied that he would say that he is

likely to find a behavioral abnormality because “the individual stands alone[.]”

      We note that prior to the State‟s closing argument, defense counsel argued

the following during the defense‟s closing argument:

      . . . [Arambula] also said that he‟s had 110 of these examinations like
      the one he performed on Mr. Perez, and of those 110 he‟s only found
      nine who did not have behavioral abnormalities. I‟m no
      mathematician, I was an English major and now I‟m a lawyer. But I
      think that‟s above a 90-percent rate. And when my co-counsel asked
      him if that 90-percent rate means that he‟s likely to find that someone
      has a behavioral abnormality, he said no.




                                         13
We also note that Perez‟s brief on appeal omitted the portion of the State‟s closing

argument that immediately preceded the complained-of argument wherein the State

argued as follows:

      . . . Now that brings me to the accusations that opposing counsel has
      made against Dr. Arambula, saying that 90 percent of the time he does
      find that an individual does have a behavioral abnormality with the
      numbers that Dr. Arambula gave. But I want you to not focus on
      another percentage that‟s trying to confuse you here. . . .

Then, the State continued with the argument about which Perez complains on

appeal, wherein the State explained how the “90 percent” figure suggested by the

defense was misleading and the State clarified that Arambula had testified that he

was not the first person to evaluate the individuals.

      The complained-of jury argument was made by State‟s counsel in response

to the arguments advanced by Perez‟s counsel. See Tex. R. Civ. P. 269(e); see

Dodson, 434 S.W.3d at 751 (citing In re Commitment of Garcia, No. 09-12-00194-

CV, 2013 Tex. App. LEXIS 14986, at *11 (Tex. App.—Beaumont Dec. 12, 2013,

pet. denied) (mem. op.)). Furthermore, the jury heard Arambula testify as to his

opinion and that he reviewed another psychologist‟s behavioral evaluation of

Perez. Perez did not object to such testimony. The complained-of argument made

by the State was a summation of the evidence before the jury, and therefore, it was

not improper. See In re Commitment of Lovings, No. 09-13-00024-CV, 2013 Tex.

                                          14
App. LEXIS 12927, at **3-5 (Tex. App.—Beaumont Oct. 17, 2013, no pet.) (mem.

op.). We conclude that the trial court did not abuse its discretion by viewing the

State‟s closing arguments either as proper summation of matters in evidence or as

arguments responsive to the arguments advanced by Perez‟s counsel. Issue one is

overruled.

                                     JURY CHARGE

      In his second issue, Perez argues that the trial court erred by overruling

Perez‟s objection to the jury charge and failing to instruct the jury that a “no”

finding does not require a unanimous verdict. A trial court‟s decision to refuse a

particular instruction in its charge is reviewed for an abuse of discretion. Thota v.

Young, 366 S.W.3d 678, 687 (Tex. 2012). A trial court may refuse to give a

requested instruction or definition that is not necessary to enable the jury to render

a verdict, even if the instruction or definition is a correct statement of the law. In re

Commitment of Taylor, No. 09-10-00231-CV, 2010 Tex. App. LEXIS 9505, at *6

(Tex. App.—Beaumont Dec. 2, 2010, no pet.) (mem. op.).

      Section 841.062(b) states that “[a] jury determination that the person is a

sexually violent predator must be by unanimous verdict.” Tex. Health & Safety

Code Ann. § 841.062(b) (West 2010). The jury charge asked the question, “Do you




                                           15
find beyond a reasonable doubt that RUDY PEREZ is a sexually violent predator?”

The jury charge included the following instruction:

      6. Answer “yes” or “no” to the question. A “yes” answer must be
      based on a belief beyond a reasonable doubt. If you do not find
      beyond a reasonable doubt that the evidence supports a “yes” answer,
      then answer “no.” Your verdict must be unanimous. That means that
      all 12 of the jurors must agree upon the answer made and the verdict.

At trial, Perez objected to the proposed jury charge, arguing as follows:

      Objection to No. 6 on Page 2 of 5. . . .

      ....

      . . . I would prefer an instruction that says “Answer „yes‟ or „no‟ to the
      question. A „yes‟ answer must be based on a belief beyond a
      reasonable doubt. If you do not find beyond a reasonable doubt that
      the evidence supports a „yes‟ answer, then answer „no.‟ A „yes‟
      answer must be unanimous. That means that all 12 of the jurors must
      agree to a „yes‟ answer. A „no‟ answer may be made if 10 jurors agree
      to it.”

The trial court overruled the objection. Perez also included the requested

instruction in his written proposed jury charge. The jury answered “Yes” to the

jury question and the Verdict Certificate under the jury‟s answer stated, “Our

verdict is unanimous. All 12 of us have agreed to the answer. The presiding juror

has signed the certificate for all 12 of us.”

      On appeal, Perez contends that section 841.062(b) is silent as to the

requirements for a verdict that a person is not a sexually violent predator and that

                                           16
the plain meaning of the statute is clear—only a finding that a person is a sexually

violent predator has to be by a unanimous verdict. Perez maintains that because the

statute is silent as to the requirements for the jury to find a person is not a sexually

violent predator, Rule 292 of the Texas Rules of Civil Procedure applies and a

finding of “no” does not require a unanimous verdict. According to Perez, the trial

court erred in overruling his requested instruction because the requested instruction

was “reasonably necessary” for the jury to properly determine whether he was a

sexually violent predator. Perez argues that the trial court‟s omission of this

instruction caused the rendition of an improper verdict because “[w]ithout the

instruction, the jury was unaware that they could reach a „no‟ finding without a

unanimous verdict, so long as 10 of them agreed to that verdict.”

      The State argues on appeal that Perez failed to preserve error because he

“never gave the trial court any basis for his argument[]” regarding the instruction

and that “[t]his lack of specificity and authority in the trial court resulted in

waiver.” The State further argues that, even if Perez preserved error, any error was

harmless.

      Perez made the trial court aware of this complaint, timely and plainly, and

obtained a ruling, and we conclude that he preserved the alleged error regarding

the instruction. See In re Commitment of Hatcher, No. 09-15-00068-CV, 2015 Tex.

                                          17
App. LEXIS 11470, at **5-6 (Tex. App.—Beaumont Nov. 5, 2015, no pet. h.)

(mem. op.) (citing State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d

235, 241 (Tex. 1992) and Tex. R. App. P. 33.1(a)). Assuming without deciding that

the trial court erred in overruling Perez‟s objection to the jury charge and in failing

to properly instruct the jury, such error would only require a reversal of the

judgment if the error was harmful error. See id. at *7 (citing Tex. R. App. P. 44.1).

Rule 44 of the appellate rules provides that “[n]o judgment may be reversed on

appeal on the ground that the trial court made an error of law unless the court of

appeals concludes that the error complained of: (1) probably caused the rendition

of an improper judgment; or (2) probably prevented the appellant from properly

presenting the case to the court of appeals.” Tex. R. App. P. 44.1(a); see also In re

Commitment of Almaguer, 117 S.W.3d 500, 502 (Tex. App.—Beaumont 2003, pet.

denied). We look to the entire record to determine whether the jury charge

probably caused an improper judgment. Transcon. Ins. Co. v. Crump, 330 S.W.3d

211, 225 (Tex. 2010).

      At trial, the State bore the burden of proving that Perez is a sexually violent

predator. See Tex. Health & Safety Code Ann. § 841.062. A “sexually violent

predator” is a person who is a repeat offender and suffers from a behavioral

abnormality. Id. § 841.003(a) (West Supp. 2014). The jury heard Perez‟s

                                          18
admissions to the State‟s requests for admissions wherein Perez admitted his

sexual offenses against F.A. and S.M. The trial court granted a directed verdict on

the issue of whether Perez is a repeat sexually violent offender, leaving the jury to

determine whether Perez has a behavioral abnormality, i.e., a congenital or

acquired condition that, by affecting Perez‟s emotional or volitional capacity,

predisposes him to commit a sexually violent offense, such that he becomes a

menace to the health and safety of another, and that makes him likely to engage in

a predatory act of sexual violence. Id. §§ 841.002(2) (West Supp. 2014),

841.003(a)(2).

      The jury heard Perez‟s admissions and testimony. The jury heard the

methodology used by Arambula in assessing a behavioral abnormality and that, in

his expert opinion, Perez suffers from a behavioral abnormality that makes him

likely to engage in a predatory act of sexual violence. The jury also heard

Arambula‟s testimony regarding Perez‟s diagnoses, criminal history, and lack of

treatment. Our review of the entire record demonstrates that the evidence in this

case was not so sharply conflicting as to warrant reversal. See Crump, 330 S.W.3d

at 226; see also Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex.

2001). Furthermore, there is no indication from the record before us that, had the

instruction requested by Perez been included or otherwise changed to more closely

                                         19
track the language of section 841.062(b), the verdict would have been different.

Under the facts of this case, we cannot say that the instruction probably caused the

rendition of an improper judgment. See Tex. R. App. P. 44.1(a). We overrule issue

two. We affirm the trial court‟s judgment.

      AFFIRMED.

                                                   _________________________
                                                      LEANNE JOHNSON
                                                            Justice


Submitted on October 22, 2015
Opinion Delivered December 10, 2015

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




                                        20
