in Re Commitment of Cebero Garcia Ochoa
09-15-00486-CV
| Tex. App. | Sep 29, 2016Background
- The State filed an SVP petition under Texas Health & Safety Code ch. 841 to civilly commit Cebero Garcia Ochoa; a jury found him an SVP and the trial court entered a civil-commitment judgment.
- Prior convictions: 2010 municipal conviction (touching victim’s buttock); 2012 convictions for sexual assault and attempted sexual assault (guilty pleas).
- TDCJ-contracted evaluator Dr. Dunham did not complete a clinical interview (Ochoa declined) and therefore did not administer psychopathy testing; he relied on records and actuarial (Static-99R) results and concluded Ochoa has a behavioral abnormality and high risk to reoffend.
- Trial court ordered Dr. Dunham to conduct a limited clinical interview for psychopathy assessment after Ochoa moved to dismiss for lack of psychopathy testing; court denied dismissal.
- The State’s expert, Dr. Sheri Gaines (psychiatrist), reviewed records and consulting experts’ opinions (Dunham, Turner), conducted her own review, and testified to her independent opinion that Ochoa suffers a behavioral abnormality; defense sought to limit her testimony about non-testifying experts’ bases.
- Ochoa raised a facial constitutional challenge to ch. 841 as amended by SB 746 (arguing the amendments force oppressive confinement and remove outpatient-first options), but did not raise the constitutional claim at trial or in the motion for new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by denying motion to dismiss for lack of psychopathy testing under §841.023(a) | Ochoa: Petition baseless because Dr. Dunham did not test for psychopathy as required | State: MDT/assessment process and §841.061(f) allow proceeding despite refusal; expert assessment may rely on records; court can order further evaluation | Court: No error—statute does not make a clinical psychopathy test jurisdictional; court properly ordered limited interview rather than dismissal |
| Whether trial court should have limited scope of State expert Dr. Gaines’s testimony about consulting experts’ opinions and actuarial scores | Ochoa: Dr. Gaines could not explain how consulting experts scored actuarials or their bases, so testimony should be limited to her own opinion | State: Dr. Gaines conducted her own review, may rely on and testify about non-testifying experts’ opinions as matters she reviewed | Court: No abuse of discretion in admission; expert may consider and explain non-testifying experts’ findings; limiting instructions were given |
| Whether amended SVP statute (SB 746) is facially unconstitutional under Fisher intents-effects test | Ochoa: SB 746 mandates oppressive confinement and removes outpatient-first treatment; statute fails Fisher test | State: Amendments create TCCO, tiered supervision, and procedures for less restrictive placements; constitutional challenge not raised at trial | Court: Issue forfeited—Ochoa failed to preserve at trial; similar claims previously rejected; constitutional challenge overruled |
Key Cases Cited
- Wooley v. Schaffer, 447 S.W.3d 71 (Tex. App.—Houston [14th Dist.] 2014) (pleadings construed liberally in motion-to-dismiss review)
- Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000) (abuse-of-discretion standard for evidentiary rulings)
- E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) (abuse-of-discretion and standards for appellate review of trial court discretion)
- Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (definition of abuse of discretion)
- In re L.M.I., 119 S.W.3d 707 (Tex. 2003) (constitutional challenges must be preserved at trial)
- Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211 (Tex. 2002) (preservation requirement applies to constitutional claims)
- Dreyer v. Greene, 871 S.W.2d 697 (Tex. 1993) (constitutional errors may be waived if not raised at trial)