1 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 civi l 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 commitmen t, 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 ex clusion of certain ev idence during trial, and the legal and factual sufficiency of th e evidence supporting the jury’s verdict.2 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 tria l 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 que stioned 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 cons idered 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 c ounsel 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 re peat offense or situation--3 The trial court interrupted Scott’s counsel and indicated that he would not allow that question because counsel was “ge tting 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 res ponded, “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 fo r an attorney to master. Unfortunately, many lawyers approach voir dire with only a basic understanding of what questions are proper. However, the Texa s 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 br oad range of questions on vo ir dire to give parties latitude to discover any bias or prejudice by the potential ju rors 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 proh ibit improper voir dire questions, but “[a] trial court may not foreclos e a proper line of questioning[.]” Hyundai Motor Co. v. Vasquez , 189 S.W.3d 743, 758 (Tex. 2006). If th e area of inquiry is proper, but the particular question asked is not, a tria l court, in its discretion, may reject the4 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 make s clear—by words or context—the grounds for the request, and must obtain a ruli ng—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 whethe r 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 prejudi ced for or against a party). However, asking jurors whether they would give sp ecific evidence great or little weight is improper. See Vasquez, 189 S.W.3d at 751-52. To pres erve 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, Sco tt should have stated the basis on which5 he sought to ask the question and obtained an adverse ruling. Here, Scott made no further attempt to pursue the line of ques tioning. 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. Arambul a 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 Sco tt’s counsel to make an of fer of proof prevented the proper presentation of this case to this Co urt. Accordingly, on January 9, 2014, we abated this appeal and remanded it to the tr ial court for Scott to make an offer of proof. The trial court held a hearing on January 21, 2014 a nd 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-6 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 tria l court erred, we will reverse a judgment only if the trial court’ s error probably caused the rendition of an improper judgment or probably pr evented 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 credib ility. 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 abnorm ality that makes him likely to engage in predatory acts of sexual violence. See Tex. Health & Sa fety 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 reco rds he reviewed affected his opinion concerning whether Scott has a behavioral abnormality. During the State’s directexamination, 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 similar7 things had happened” to him. According to Dr. Arambula, the State did not pursue this allegation. Dr. Arambula recalled that Scott denied any se xually inappropriate behavior with his stepson. On cross-examination, Scott’s couns el asked Dr. Arambula about the stepdaughter’s statement to CPS regardi ng 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 relevan ce 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 intervie wed. Dr. Arambula recalled both stepsons denied having been sexually molested by Scott. Dr. Arambula recalled that the youngest stepson ma de 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 ma de 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.8 Sufficiency of the Evidence In his third and fourth issues, Sc ott 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 “impermiss ibly merged the propensity requirement into their behavioral abnormality determ inations.” 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 diffi culty controlling his behavior. The Supreme Court has previously addressed Scott’s argument and held that the question of whether someone “‘suffers from a behavior al abnormality that makes the person likely to engage in a predatory act of se xual 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.—B eaumont 2013, pet. denied).9 In reviewing the evidence for legal suffi ciency, 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 reviewi ng evidence for factual sufficiency, we weigh the evidence to determ ine whether a verdict support ed by legally sufficient evidence nevertheless reflects a risk of inju stice 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 psychol ogist and a licensed sex offender treatment provider, testified for the State. Dr. Proctor is board-certified in forensic psychology. Based on his training, his expe rience, the records he reviewed, and his interview with Scott, Dr. Proctor tes tified he believes Sc ott suffers from a behavioral abnormality that makes him like ly to commit predatory acts of sexual violence. Dr. Proctor explained his methodology fo r assessing behavioral abnormality, which he testified is consiste nt with the accepted standard s 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.10 Dr. Proctor explained, “risk factors are specific factors that suggest an increased risk for someone e ngaging in some type of beha vior in the future.” He then listed for the jury the risk factors he identified in Scott th at increased Scott’s risk of sexually offending. He testified that Scott has a significant history of sexual deviance as demonstrated by his pedoph ilia, non-exclusive type), and his sexual sadism. He also diagnosed Scott with “per sonality disorder not otherwise specified with antisocial traits[.]” Dr. Proctor was car eful to explain that substance abuse is not the cause of Scott’s offending, but id entified his history with substance abuse as another factor that increas ed his risk to offend. Dr. Proctor testified that Scott sexua lly 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 Sco tt was convicted for offendi ng 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 offe nses or attempted sexual offenses of six women, one of which le d to a conviction for aggravated sexual assault. Dr. Proctor also recalled that Sc ott attempted to establish an inappropriate relationship with someone who wa s a non-inmate while in prison.11 Dr. Proctor testified Scott continues to minimize or completely deny certain parts of his sexual offe nding history. Dr. Proctor explai ned that Scott tried to blame his assaults on his alcohol abuse or justif y 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 ChecklistRevised test are related to risks for se xual reoffending. From Scott’s score on the Hare test, Dr. Proctor determined that Sc ott was not psychopathic, but he did test positive for some psychopathic traits, in cluding being prone to boredom, conning and manipulative, callous, and lacking empa thy. He further determined that Scott engaged in promiscuous sexual behavi or, offended while on probation, and demonstrated criminal versatility, which ar e 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 sexua l offending. Scott received a score of six, which places him in the high risk fo r sexual offending category. Dr. Proctor identified a number of risk factors that increase Scott’s risk for sexual offending, including sexual deviance, pedophiliac in terest, sexual sadi sm, multiple sex12 offense convictions, multiple additional a ttempted victims, history of committing sex offenses while under supervision for a nother 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 convicti on, history of employment instability, antisocial pers onality pathology, multiple prior sentencing dates, substance dependence history, ongoing issu es with denial, and minimization and failure to take responsibility for his actions. Dr. Proctor did note some protective f actors 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 ti me 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 fore nsic psychiatrist, described the methodology he uses to assess an indi vidual for a behavior al abnormality. He testified that other experts in his field fo llow the methodology he uses and it is the standard accepted methodology. He testifie d he conducted a clinical exam of Scott and reviewed Scott’s records. Specifica lly, Dr. Arambula reviewed Scott’s mental13 health evaluations, his prison medical records, records of his prior offenses and convictions, victim statements, his ad ministrative prison records, and the deposition transcripts of Sco tt and some other mental h ealth professionals deposed in this case. He testified experts in his fi eld 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 significa nt portion of his sexual behavior or misbehavior. He testified Scott’s current de nial and minimization is evidence of his current mental condition. He also testif ied he found a number of discrepancies in Scott’s self-reporting of his offenses. Dr. Arambula diagnosed Scott with se xual 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 remissi on. He further diagnosed Scott with antisocial personality disorder. Dr. Arambula describe d for the jury the evidence supporting his diagnoses of Scott.14 He explained Scott’s sexua l 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-offens e is controlled. He explained the illness becomes more manageable with treatment. Dr. Aram bula 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 greate st risk factors for reoffending as his sexual deviance and antisocial persona lity. 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 fa mily support, has shown the ability to maintain somewhat steady employment, had a good adjustment in prison where he obtained some job skills and took cour ses towards obtaining a degree. However, Dr. Arambula noted these positive factors are mitigated by the fact that Scott15 offended in the past despite having good family support and, that his stable work history is compromised by apparent problem s he has with controlling his temper. The jury was entitled to draw reasona ble inferences from basic facts to determine ultimate fact issues, and to reso lve 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 tes timony, 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 de viance 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 fo r a sex offense was a major risk factor. Drs. Proctor and Arambula carefully explained to the ju ry the evidence they identified to show Scott’s behavioral abnormality remains ac tive, including his current denial and minimization of his offenses.16 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 likel y 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., Kr eger and Horton, JJ.