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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-14-00260-CV

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IN RE COMMITMENT OF DWIGHT DELEON

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On Appeal from the 435th District Court 

Montgomery County, Texas

Trial Cause No. 13-11-12474 CV 

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MEMORANDUM OPINION 

On motion for rehearing, we withdraw our opinion of February 12, 2015, 

and issue this substitute opinion. 

The State of Texas filed a petition to commit Dwight DeLeon (DeLeon) as a 

sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 

(West 2010 & Supp. 2014). A jury found that DeLeon is a sexually violent 

predator (SVP), and the trial court rendered a final judgment and an order of civil 

commitment. In four appellate issues, DeLeon challenges certain comments by the 

trial court to the jury, challenges the legal and factual sufficiency of the evidence 
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supporting the jury’s finding that he suffers from a behavioral abnormality, and 

argues that this Court’s decision in In re Commitment of Richard, No. 09-13-

00539-CV, 2014 Tex. App. LEXIS 6974 (Tex. App.—Beaumont 2014, pet. 

denied) (mem. op.) renders Chapter 841 unconstitutional. We affirm the trial 

court’s judgment.

TRIAL COURT’S COMMENTS DURING VOIR DIRE

In issue one, DeLeon argues that the trial court improperly commented on 

the weight of the evidence during voir dire. A party complaining of an alleged 

improper comment by the trial court must show not only that the trial court’s 

comments were improper but also that the improper comment also caused harm. 

See World Car Nissan v. Abe’s Paint & Body, Inc., No. 04-12-00457-CV, 2013 

Tex. App. LEXIS 9442, at *8 (Tex. App.—San Antonio July 31, 2013, pet. denied) 

(mem. op.). “We examine the record as a whole to determine whether the comment 

unfairly prejudiced the complaining party.” Id. We will reverse the judgment only 

when the trial court’s comments are improper and probably caused the rendition of 

an improper judgment. Id. at **7-8; see also Tex. R. App. P. 44.1.

During voir dire, the trial court stated:

Now, oftentimes in this court we talk about several different 

issues. One of those is pedophilia. Okay? One of those is 

homosexuality. Those are topics that come up in this court. Now - -

trying to put a little sugar on it for you - - most people, what they 

know about those topics are what you read in the newspapers or on 
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the Internet. And we all know the Internet is never wrong. Right? So 

when you are sitting here as a juror you can expect to hear from a 

doctor, everybody understand that, who is going to explain what these 

issues mean to you potentially. That’s what we’re talking about here 

in this court today. And - - but you don’t get any education - - you 

know, college credit or anything for it. But, you know, you do get to 

learn something that you can go and impress people with. And I let 

you take notes because you’re going to need to take notes because 

they use a lot of big words and put them together really quickly. 

Later, during DeLeon’s voir dire, DeLeon’s counsel asked the venire members, 

“Can you set aside any bias if you find there’s an offense against a child, can you 

listen to all the evidence and follow the law . . . ?” As DeLeon’s counsel began 

asking questions of the individual members of the venire, the following exchange 

occurred:

THE COURT: I’ve asked this question already. Okay? So just 

ask it as a group. It will be a lot faster. Anybody who can’t be fair to a 

pedophile? Don’t answer the question if I’ve already got you down.

[DELEON’S COUNSEL]: This is slightly different. Instead of 

pedophile, it’s if there have been crimes against children.

THE COURT: That’s what pedophile means. Don’t confuse 

these jurors. Ask your question again. 

DeLeon asserts on appeal that these comments by the trial court during voir 

dire (1) “informed the venire that it would have an educational opportunity to hear 

from an expert (whom the court knew to be the State’s expert) on the subjects of 

pedophilia and homosexuality” and thereby emphasized the State’s expert 

testimony and vouched for its credibility; (2) improperly commented on the weight 

of the evidence by commenting on what it believed a pedophile was; and (3) 
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improperly left the venire with the impression that a pedophile is someone who 

commits crimes against children and that appellant’s counsel was attempting to 

confuse the venire. 

To preserve error regarding a judge’s comments during a trial, a party must 

both object to the comment when made and request an instruction, unless an 

instruction concerning the comment would not have rendered the comment 

harmless. In re Commitment of Naden, No. 09-13-00345-CV, 2014 Tex. App. 

LEXIS 10991, at **2-3 (Tex. App.—Beaumont Oct. 2, 2014, pet. filed) (mem. 

op.). The record shows that DeLeon failed to object to these comments during the 

trial, and that he failed to ask for any instructions to mitigate the impression he 

claims the trial court gave the jury through them. DeLeon argues that a limiting 

instruction could not cure any alleged harm. 

Assuming, without deciding, that the trial court’s comments were improper, 

we conclude that DeLeon’s complaints about these matters could have been 

resolved by proper instructions. On request, the trial court could have instructed 

the jury to disregard its remarks and could have explained that its comments were 

not a reflection of the trial court’s views regarding the merits of DeLeon’s case or 

of the testimony, if any, which may or may not be offered by any particular 

witness. Such an instruction, in our opinion, would have been a sufficient remedy 
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that would have cured any alleged prejudice that might relate to the trial court’s 

comments at issue. 

Because appropriate instructions were capable of remedying any alleged 

harm, and because DeLeon failed to object or request that the jury be instructed 

regarding the comments, DeLeon’s complaints about these comments were not 

properly preserved for our review. See id. at **1-2; see also Tex. R. App. P. 

33.1(a)(1)(A). We overrule DeLeon’s first issue.

LEGAL AND FACTUAL SUFFICIENCY

In his second and third issues, DeLeon contends the evidence is legally and 

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

present evidence demonstrating that DeLeon suffers from a behavioral 

abnormality. DeLeon specifically argues that the evidence is legally insufficient to 

support a finding that he suffers from a behavioral abnormality because Dr. 

Arambula’s opinion that DeLeon is a sexually violent predator “has no stated basis 

in his field and is too conclusory to support the jury’s verdict.” DeLeon contends 

that the State presented no other evidence besides Arambula’s testimony to show 

that DeLeon is a sexually violent predator, Arambula’s “sexual deviance” 

diagnosis lacks support because he relies on diagnostic criteria for pedophilia to 

support his diagnosis but he states the DSM chapter on paraphilic disorder (which 

includes paraphilia) is not reliable, and Arambula’s testimony failed to demonstrate 
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that DeLeon is likely to reoffend sexually. DeLeon argues that the evidence is 

factually insufficient to support a finding that he suffers from a behavioral 

abnormality because the State “presented only conclusory and baseless expert 

testimony to support its case” and “the evidence viewed in a neutral light is simply 

too weak to support a finding that Appellant is an SVP[.]” 

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 fairly resolve conflicts in 

the testimony, weigh the evidence, and draw reasonable inferences from basic facts 

to ultimate facts. Id. at 887. Under factual sufficiency review in an SVP 

commitment proceeding, 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 civil commitment 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 DeLeon’s testimony that he was convicted in 

2003 on two counts of aggravated sexual assault of a child. Furthermore, DeLeon

testified that, at the time of trial, he was serving twelve-year sentences for each of 

those convictions, which he was to serve concurrently. The evidence established 

that the victims were his girlfriend’s eleven-year-old daughter and nine-year-old 

son. DeLeon testified that he considered his girlfriend to be his common law wife 

and the children to be his stepchildren, and that he later had two biological children 

with their mother. DeLeon also admitted to two other juvenile offenses for sexual 

assault of a child, offenses he committed against two seven-year-old relatives when 

DeLeon was thirteen or fourteen years old and while he was on juvenile probation. 
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According to DeLeon, he did not know at the time he committed the offenses 

against his relatives that his actions were wrong because he had previously been 

sexually assaulted by cousins. DeLeon testified that at the time he offended against 

his girlfriend’s children, he knew that his actions were wrong. At the time of trial, 

DeLeon did not believe he would ever commit another sexual offense. When he 

was asked whether he thought he was a sex offender, DeLeon answered, “I believe 

I’m a person that made a lot of mistakes.” 

DeLeon told the jury he had completed the classroom component of sex 

offender treatment but he had not completed the exit interview. DeLeon also 

testified that he had smoked marijuana “since he was about seven or eight” and 

was high on all the occasions he molested his victims. DeLeon stated, however, 

that he “can’t blame [his offenses] on marijuana or drugs” but that the offenses 

were a result of his “irrational thinking and stuff.” Although he answered in his 

deposition that he thought he would continue to use marijuana when he was 

released, at trial he said he did not think he would use marijuana because he has 

been sober for ten years and does not get the urge to use marijuana anymore. 

DeLeon admitted at trial that he found young girls “pretty and stuff like that.” 

DeLeon explained that part of his treatment was formulating a plan for avoiding 

reoffending and that his plan was to not put himself in “high-risk situations where 

[he] could have the chances to relapse[.]”
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Dr. Michael Arambula, a medical doctor, board certified in general and 

forensic psychiatry, testified that DeLeon has a behavioral abnormality that makes 

him likely to engage in a predatory act of sexual violence. Arambula testified that 

DeLeon is sexually deviant and suffers from pedophilia, personality disorder with 

antisocial features, and cannabis dependence. Arambula testified that pedophilia is 

a chronic condition. Arambula explained that although he qualified DeLeon’s 

sexual deviance as pedophilia, he does not believe research supports the Diagnostic 

and Statistical Manual of Mental Disorders (DSM) criterion for pedophilia which 

requires at least six months of recurrent, intense arousing fantasies, sexual urges, 

and behaviors regarding children age thirteen years and younger, because the “at 

least six months” requirement “doesn’t exist anywhere in the literature.” 

Dr. Arambula testified that DeLeon had not completed sex offender 

treatment as of the date of trial and that the treatment he had received up until trial 

was not sufficient as evidenced by the fact that, according to Arambula, DeLeon’s 

testimony showed he has “some big blinders on with regards to the boys that he 

exploited, and that makes him dangerous.” In Arambula’s expert opinion, he does 

not believe that DeLeon has fully acknowledged his sexual deviance or fully 

internalized what he has learned in treatment. Arambula explained that the 

following factors increase DeLeon’s risk of re-offense: his early onset of sexual 

deviance, his antisocial features, the fact that when he was young he offended 
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while on probation, the number of victims and the fact that there were multiple acts 

with at least two of the victims, the offenses took place over a relatively long time 

span, the age of the victims, he had both male and female victims, the aggressive 

nature of his acts, the fact that he knew his actions were wrong and wanted to stop 

offending but could not, his significant areas of denial, his history of unstable 

relationships, his need for further treatment, and his drug dependence and lack of 

treatment for it. Arambula explained that he did not score actuarials for DeLeon,

but that he reviewed the actuarial testing conducted and referenced in the 

multidisciplinary team report prepared for the case. Arambula recalled that Dr. 

Reed had scored DeLeon with a “2” on the Static-99R, which indicated a 

“[p]robably low risk” of reoffending. Arambula acknowledged that the Static-99R 

is the most commonly used screen for predicting a sex offender’s risk for 

recidivism, but he stated that the test’s reliability depends on the data and the facts 

of the individual case, and that the authors of the test did not include factors that 

are hard to measure – such as denial. Arambula testified that, “based on the 

information and history, [DeLeon] carries a significant risk to reoffend.” 

On appeal, DeLeon argues Dr. Arambula’s testimony has no stated basis in 

his field and it is too conclusory to support the jury’s verdict. We disagree. Dr. 

Arambula is board certified in general and forensic psychiatry. In reaching his 

conclusions, Arambula discussed his training and experience related to evaluating 
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whether a person has a behavioral abnormality, as well as the information he 

reviewed in DeLeon’s case, and he related the information he reviewed to his 

opinions. The testimony shows that Arambula interviewed DeLeon, reviewed 

records that are relevant to DeLeon’s criminal history, and he reviewed the details 

of DeLeon’s offenses involving sexually violent crimes. The records Arambula 

reviewed are the type of records that experts in Arambula’s field rely on in forming 

opinions. Arambula also explained that he performed his assessment in DeLeon’s 

case in a manner that is consistent with the training Arambula had received as a 

professional. 

After Dr. Arambula explained his methodology and how he applied that 

methodology to DeLeon, the jury heard Arambula testify that in his professional 

opinion DeLeon has a behavioral abnormality that makes him likely to engage in 

predatory acts of sexual violence. The jury heard evidence of DeLeon’s risk 

factors, sexual offenses, and diagnoses. The jury heard DeLeon’s testimony and 

admissions and Arambula’s testimony that there is a significant risk that DeLeon 

will reoffend. We conclude that Arambula’s testimony was not baseless nor was it 

too conclusory to support a finding that DeLeon suffers from a behavioral 

abnormality.

DeLeon also argues that Dr. Arambula failed to demonstrate that DeLeon is 

likely to reoffend sexually. According to DeLeon, Arambula failed to explain the 
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weight of each factor that he believed was related to sexual recidivism or how the 

factors combined to make DeLeon likely to engage in a predatory act of sexual 

violence. DeLeon also asserts that Arambula failed to cite any specific research 

supporting the risk factors he considered.

The record indicates that Dr. Arambula explained to the jury that pedophilia 

is a chronic condition, he discussed DeLeon’s risk factors for reoffending, and he 

stated that, based on his experience and training, he believes DeLeon “carries a 

significant risk to reoffend.” We conclude that Arambula’s testimony and 

conclusions represent “a reasoned judgment based upon established research and 

techniques for his profession and not the mere ipse dixit of a credentialed witness.” 

Day, 342 S.W.3d at 206. In its exclusive role as the sole judge of the credibility of 

the witnesses and the weight to be given their testimony, the jury could have 

resolved any conflicts and contradictions in the evidence by believing all, part, or 

none of the witness’s testimony, and by drawing reasonable inferences from basic 

facts to ultimate facts. Mullens, 92 S.W.3d at 887. The jury heard evidence of 

DeLeon’s offenses, DeLeon’s own testimony, and the expert’s testimony regarding 

his risk for reoffending. Serious difficulty controlling behavior can be inferred 

from DeLeon’s past behavior, his own testimony, and Arambula’s evaluation of 

DeLeon. See In re Commitment of Washington, No. 09-11-00658-CV, 2013 Tex. 
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App. LEXIS 7211, at *16 (Tex. App.—Beaumont June 13, 2013, pet. denied) 

(mem. op.).

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

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

violent predator; therefore, 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. Issues two and three are overruled.

IN RE COMMITMENT OF RICHARD

In his fourth issue, DeLeon contends that this Court’s decision in In re 

Commitment of Richard renders Chapter 841 unconstitutional. We recently 

addressed and rejected this argument. See In re Commitment of Lucero, No. 09-14-

00157-CV (Tex. App.—Beaumont February 5, 2015, no pet. h.) (mem. op.). For 

the same reasoning outlined in Lucero, we reject DeLeon’s constitutional 

arguments and overrule issue four. Having overruled all of DeLeon’s issues, we 

affirm the trial court’s judgment.
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AFFIRMED.

 

_________________________

 LEANNE JOHNSON

 Justice

Submitted on November 21, 2014

Opinion Delivered February 26, 2015

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