 
 




                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00100-CV
                           ____________________



           IN RE COMMITMENT OF JOHN JAMES SMITH JR.


_______________________________________________________            ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                        Trial Cause No. 12-05-04918 CV
________________________________________________________            _____________

                                    OPINION

      The State of Texas filed a petition to civilly commit John James Smith Jr. as

a sexually violent predator under the Sexually Violent Predator Act. See Tex.

Health & Safety Code Ann. §§ 841.001–.151 (West 2010 & Supp. 2013) (the SVP

statute). A jury found Smith suffers from a behavioral abnormality that makes him

likely to engage in a predatory act of sexual violence. See id. § 841.003. The trial

court entered a final judgment and an order of civil commitment under the Act.

We affirm the judgment of the trial court.

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      Smith argues on appeal that the trial court committed three reversible errors.

In his first issue, Smith argues that the trial court committed reversible error by

denying his motion to allow his attorney to attend a psychiatric examination

conducted by the State’s expert. In his second issue, Smith argues the trial court

denied Smith’s right to ask a proper commitment question during jury selection. In

his third issue, Smith argues the trial court denied Smith’s right to cross-examine

the State’s expert witness regarding fees paid in prior civil commitment

proceedings.

                                  RIGHT TO COUNSEL

      A person subject to a civil commitment proceeding under the SVP statute “is

entitled to the assistance of counsel at all stages of the proceeding.” Tex. Health &

Safety Code Ann. § 841.144 (a). This statutory right to counsel attaches

immediately after the filing of a petition. Id. The State filed its petition on May 7,

2012. Two days later, the trial court appointed an attorney with the office of State

Counsel for Offenders to represent Smith and granted the State’s motion for a

psychiatric examination of Smith. That same day, through counsel of record, Smith

filed a document asserting the exercise of Smith’s right to counsel. Among other

matters that have not been advanced on appeal, Smith requested that counsel be

present during the State’s psychiatric examination of Smith. On appeal, he

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contends the trial court’s failure to permit counsel to personally attend the

psychiatric examination violated his statutory right to counsel under the SVP

statute and his constitutional right to due process under the Fourteenth

Amendment.

      First, we consider whether Smith has a statutory right to have his attorney

present with him during the psychiatric examination. The person and the State

“are each entitled to an immediate examination of the person by an expert.” Id. §

841.061(c).   “A person who is on trial to determine the person’s status as a

sexually violent predator is required to submit to all expert examinations that are

required or permitted of the state to prepare for the person’s trial.” Id. § 841.061(f).

Smith was represented by counsel when the psychiatric examination occurred, but

he argues “assistance of counsel at all stages of the proceeding” means attendance

by counsel at the examination. See id. § 841.144(a).

      To support his argument, Smith cites a dissenting opinion in a case

concerning a physical examination in breast implant litigation. See Simmons v.

Thompson, 900 S.W.2d 403, 404 (Tex. App.—Texarkana 1995, orig. proceeding)

(Grant, J., dissenting). The dissenting justice reasoned that “the adversarial status

of the examining doctor is a compelling reason to permit attendance by counsel to

prevent improper questioning on liability issues and to observe possible

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shortcomings and improprieties in the examination.” Id. The majority held that

“the right to have one’s attorney present at a physical examination ordered

pursuant to Rule 167a is a matter to be determined within the discretion of the trial

court on a case-by-case basis according to evidence showing a particularized need

therefor.” Id.; see also Tex. R. Civ. P. 204. The relator in Simmons produced no

facts showing a need for her attorney to be present. Simmons, 900 S.W.2d at 404.

In this appeal, Smith does not explain why his counsel could not adequately advise

Smith and protect his rights without being physically present during the psychiatric

examination. Smith does not cite this Court to an objection to any testimony by

the examining psychiatrist about his interview with Smith. Smith identifies no

improprieties that occurred during the examination, he identifies no testimony by

the examining psychiatrist that would not have been obtained if counsel had been

present, and he fails to explain why any concerns could not have been addressed

through motions or objections made before or during the trial. Instead, Smith

contends counsel’s absence from the examination is a denial of counsel for which

reversal should be automatic as it is in situations where the trial court allows

counsel to voluntarily withdraw two days before trial and withhold the client’s

papers and files. See Villegas v. Carter, 711 S.W.2d 624, 626-27 (Tex. 1986).




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      Smith cites cases from other jurisdictions, which he contends enforced a

right to the presence of counsel at a compelled psychiatric examination conducted

after civil commitment proceedings commenced. See In the Matter of State of New

York v. Soto, 860 N.Y.S.2d 725 (Sup. Ct., Bronx County 2008); In re Det. of

Kistenmacher, 178 P.3d 949 (Wash. 2008). The issue in Soto was not whether

Soto’s counsel could attend the examination, but whether the State’s attorney could

attend the examination by the State’s expert. See Soto, 860 N.Y.S.2d at 726. The

State’s attorney wished to attend as an observer and videographer of the

examination. Id. Soto argued the statute provided only for a written report. Id.

Although the statute in question was silent as to whether counsel for either party

may attend the examination, the court noted that counsel for the person being

examined was allowed to attend interviews in involuntary commitment cases and

criminal cases where the insanity defense was at issue. Id. at 727-28 & n.5. The

court reasoned fundamental fairness required a full and fair opportunity for both

sides to prepare for trial, and permitted the State’s attorney to attend the

examination. Id. at 729-30.

      In Kistenmacher, the Washington Supreme Court held the statutory right to

assistance of counsel in a sexually violent predatory commitment case extends to a

precommitment psychological examination. 178 P.3d at 953. Because only three

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events in the sexually violent predator statute could be considered “proceedings”—

the probable cause determination, the psychological examination, and the trial—

the court distinguished commitment cases from parental-rights termination cases

and held the commitment statute gave the person a statutory right to counsel at his

psychological examination. Id. Kistenmacher had counsel but the State failed to

notify counsel of the examination before it occurred. Id. The court held the error

was harmless, because Kistenmacher had no right to remain silent during the

examination and he failed to identify any information obtained in the clinical

examination that was not available from the records the doctor reviewed or from

Kistenmacher’s deposition. Id. Kistenmacher made the same inculpatory

admissions in his psychological examination that he made in his deposition with

counsel present.   Id. at 954.   On appeal he failed to show that the doctor’s

testimony would have been different if his lawyer had been present at the

examination. Id.

      Like the New York and the Washington statutes, under the Texas statute a

person has a right to counsel when the examination occurs, but the statute does not

specify whether counsel may personally attend the examination. See Tex. Health

& Safety Code Ann. §§ 841.061, 841.144. The cases from other jurisdictions do

little to inform our construction of the Texas statute, or to explain why Smith was

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harmed because his attorney was not present during the examination. Smith’s

counsel had notice of the examination and Smith cites no Texas authority for

requiring the trial court to allow counsel to personally attend a psychiatric

examination in other civil and criminal proceedings. See, e.g., Purtell v. State, 761

S.W.2d 360, 374 (Tex. Crim. App. 1988) (A defendant does not have a right to

counsel’s personal attendance at a competency examination in a criminal case.);

Stultz v. State, 500 S.W.2d 853, 854 (Tex. Crim. App. 1973) (Where the insanity

defense is at issue, a defendant does not have a right to counsel’s personal

attendance at a mental examination.). Furthermore, Smith concedes that the Texas

SVP statute defines “‘[c]ivil commitment proceeding’” as a “trial or hearing’”

under three subchapters of the SVP statute, and does not appear to encompass a

pre-trial psychiatric examination. See Tex. Health & Safety Code Ann. §

841.002(3-a).

      Smith argues the statute must yield to his right to counsel as a matter of

federal constitutional law. Determining what process is due in a particular

proceeding requires consideration of three factors: (1) the private interest affected

by the proceeding or official action; (2) the countervailing governmental interest

supporting use of the challenged proceeding; and (3) the risk of an erroneous

deprivation of that interest due to the procedure used. Mathews v. Eldridge, 424

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U.S. 319, 335 (1976). Smith does not challenge the State’s statutory right to an

examination. See Tex. Health & Safety Code Ann. § 841.061(c). The psychiatric

examination is not a deposition conducted for the purpose of discovering Smith’s

testimony; rather, the examination assists the expert in assessing whether the

person has a psychiatric diagnosis that validly informs the expert’s professional

opinion on whether the person has a behavioral abnormality that makes him likely

to engage in a predatory act of sexual violence. Both the person and the State have

a strong interest in ensuring the integrity of the interview and the opinions formed

from it. Counsel would, if present, presumably be able to observe any impropriety

that might form the basis for an objection to the expert’s testimony at trial, but

counsel’s presence during the interview might disrupt the examination and limit

the effectiveness of the interview from a medical standpoint. The risk of an

erroneous deprivation of a person’s interest in a valid examination is lessened

because the expert is subject to being deposed and any evidence that might lead to

the suppression of the expert’s opinion testimony could be discovered in that

process and could form the basis for an objection to the expert’s testimony at trial.

Smith does not explain how counsel’s absence during the psychiatric examination

either invalidated the examination or precluded Smith from challenging the

expert’s testimony at trial. Moreover, when the psychiatric examination occurred,

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Smith was represented by counsel and had prior notice of the examination. Smith

has not shown that he was denied counsel.

       We conclude that neither the SVP statute nor the Fourteenth Amendment

require that counsel be present during a psychiatrist’s post-petition examination.

We overrule issue one.

                           COMMITMENT QUESTION

       In issue two, Smith contends the trial court disallowed a proper commitment

question. We review the trial court’s ruling for abuse of discretion.            In re

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

       Smith’s counsel explored the jury’s attitudes about pedophilia, then without

objection, asked a series of questions, including the following:

     So if I were to tell you that this case involved pedophilia, do you feel
      you could be fair and impartial if you were to sit in that jury box?

     So for example say if he were convicted of two prior offenses sexual
      offenses involving pedophilia, you wouldn’t have to listen to any
      evidence to determine whether or not he had a behavioral
      abnormality, [your] mind would already be made up?

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     I’m going to play the repeat game, so you wouldn’t hold the State to
      the burden of having to prove up that my client has a behavioral
      abnormality if you heard that my client has two prior sexual offenses
      involving pedophilia, that would be enough?

     Who here hears sex offender, pedophilia and wants to take a sex
      offender and drop them in a hole and walk away? In other words, in
      prison, lock away the key for life.

     If you were to hear about my client being in prison, currently in
      prison, would that be enough for you to say I don’t need to hear any
      evidence from the State about a behavioral abnormality, about two
      prior sexual convictions, the fact that he is in prison means he must
      have a behavioral abnormality[?]

The trial court sustained the State’s objection to one question as an improper

commitment question, as follows:

       I want to know if a person has, and you can just raise your card [if]
       you agree with me on some of these statements, if an individual has
       five prior sex offenses, do you feel you could sit and be fair and
       impartial as a juror in that trial? And this is hypothetically, this isn’t
       Mr. Smith. If a person has five prior sex offenses, do you feel you
       would be fair and impartial and unbiased toward him and listen to all
       the evidence with an open mind?

       On appeal, Smith argues his trial counsel presented a proper commitment

question that asked the jurors whether they would require the State to prove “both

elements of a conjunctive statute.” See Hill, 334 S.W.3d at 229. Smith questioned

the venire panel about the predicate convictions and behavioral abnormality

without an objection from the State; therefore, the trial court allowed Smith to ask

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the question that was at issue in Hill. See id. In this case, the State’s objection was

to asking the venire panel if anyone on the panel would be swayed by specific

evidence. Smith’s question isolated one relevant fact and sought to gauge its

impact on the venire panel. See Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743,

756-57 (Tex. 2006). The trial court could reasonably have concluded that Smith

was suggesting that to be fair, the jury must not decide the case based on a relevant

fact, and that the substance of the proposed question did not present a basis for

disqualifying a juror for cause but sought to test the weight jurors would place on

Smith’s four previous convictions. See id. Because the trial court did not abuse its

discretion, we overrule issue two.

                             CROSS-EXAMINATION

      In issue three, Smith contends the trial court denied Smith’s constitutional

and statutory right to cross-examine the State’s expert regarding fees generated

from other civil commitment cases. Smith made a bill of exception of Dr. Michael

Arambula’s excluded testimony, but failed to ask Dr. Arambula any questions

about fees paid to him in other civil commitment cases. The State argues Smith

failed to preserve error in that he failed to make an offer of proof that shows what

Dr. Arambula’s answers would have been.




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      During direct examination, Dr. Arambula stated that he has been evaluating

individuals for behavioral abnormality for six years and has performed over

seventy evaluations. He has been retained by the Special Prosecution Unit and

testified in court in SVP commitment cases approximately fifty times. He has

never been retained by the State Counsel for Offenders. Dr. Arambula stated that

he determined the person did not have a behavioral abnormality in about five

cases. Dr. Arambula testified that he is compensated at an hourly rate of $250 and

that he was going to be compensated in this case but in an amount that was

unknown to him.

      During cross-examination, Smith asked Dr. Arambula, “Do you know how

much you’ve been paid by the special prosecution unit to work in these cases?”

Dr. Arambula replied that he did not know. Smith asked, “You oppose our office

finding out how much you’ve been paid; isn’t that correct?” Dr. Arambula replied,

“Right. It’s private and my wife and my income are all mixed together. Those are

the two reasons.” Smith then asked whether Dr. Arambula opposed State Counsel

for Offenders obtaining his income information from the government agency that

pays him. The trial court sustained the State’s objection that Dr. Arambula has a

privacy interest that protects him from disclosing his IRS filings to the State

Counsel for Offenders.

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      “When cross-examination testimony is excluded, appellant need not show

the answer to be expected but only need show that the substance of the evidence

was apparent from the context within which the question was asked.” Chance v.

Chance, 911 S.W.2d 40, 52 (Tex. App.—Beaumont 1995, writ denied); see also

Tex. R. Evid. 103(a)(2). Because Dr. Arambula had already testified that for

reasons of privacy he opposes disclosing to the State Counsel for Offenders how

much he has been paid by the Special Prosecution Unit, his response to the

excluded question is apparent from the context. See Tex. R. Evid. 103(a)(2). We

conclude in this appeal that we may consider Smith’s challenge to the trial court’s

ruling on the State’s objection.

      “A witness may be cross-examined on any matter relevant to any issue in the

case, including credibility.” Tex. R. Evid. 611(b). The trial court has reasonable

control over the mode and order of interrogating witnesses and presenting

evidence. Id. 611(a). Considerations include the effective ascertainment of the

truth, avoiding needless consumption of time, and protecting witnesses from

harassment or undue embarrassment. Id. A trial court abuses its discretion if it

unduly restricts cross-examination regarding a key issue in the case. In re

Commitment of Campbell, No. 09-11-00407-CV, 2012 WL 2451620, at *6 (Tex.

App.—Beaumont June 28, 2012, pet. denied) (mem. op.).

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      A witness may be impeached by proof of circumstances showing bias or

interest. See Tex. R. Evid. 613(b). The question at issue in this case concerned

whether Dr. Arambula generally opposes having State Counsel for Offenders

obtain from the Special Prosecution Unit information concerning how much the

State has paid Dr. Arambula. This Court has held that an expert witness who

admitted he testifies almost exclusively for defendants could not be compelled to

give deposition testimony regarding his litigation-related income and the

percentage of total income that is litigation-related. In re Weir, 166 S.W.3d 861,

863-65 (Tex. App.—Beaumont 2005, orig. proceeding). An answer to whether Dr.

Arambula opposes such a disclosure would not establish bias. Dr. Arambula

testified that he is paid $250 per hour and had performed seventy evaluations and

testified fifty times for the Special Prosecution Unit; therefore, he neither denied

nor failed to disclose that he received significant compensation for testifying for

the State in SVP commitment cases.         Because information that revealed Dr.

Arambula’s bias or interest was before the jury and the excluded information

would not have added significantly to Smith’s ability to impeach Dr. Arambula’s

credibility, we conclude that the trial court’s ruling did not unduly restrict Smith’s

cross-examination of the State’s expert. See Tex. R. Evid. 611(a). The trial court

did not abuse its discretion. We overrule issue three and affirm the judgment.

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      AFFIRMED.


                                            ________________________________
                                                      CHARLES KREGER
                                                          Justice

Submitted on November 21, 2013
Opinion Delivered January 23, 2014

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




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