Lead Opinion
OPINION
Mohammad Reza Kalati challenges his civil commitment as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2011) (the SVP statute). Kalati raises nine issues. We hold that the evidence is legally sufficient; however, due to error that occurred during jury selection, we are required to reverse the judgment and remand the case to allow another trial.
The Statute
Under the SVP statute, the State must prove beyond a reasonable doubt that the person it seeks to commit for treatment is a sexually violent predator. Tex. Health & Safety Code Ann. § 841.062(a) (West 2010). As defined by the Legislature, a sexually violent predator is a person who “(1) is a repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.” Id. § 841.003(a) (West 2010). Under the statute, a “[bjehavioral 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.2011).
Sufficiency of the Evidence
When these commitment proceedings commenced, Kalati had previously pled guilty to, and had been convicted of, four sexually violent offenses: three offenses of aggravated sexual assault of a child and one offense of indecency with a child. The victims were girls ranging in age from seven to nine. The offenses had occurred over a six-to-seven month time span, while the girls were overnight guests at the Ka-lati home. The record reveals that, while the girls were in bed, Kalati entered the room and committed the offenses against them. Kalati threatened some of the victims and their families if they told anyone of his actions. Before Kalati completed the sentences he received for having committed these offenses, the State filed a petition seeking Kalati’s involuntary civil commitment under Chapter 841 of the Texas Health & Safety Code.
In issue one, Kalati challenges the legal sufficiency of the evidence to prove beyond a reasonable doubt that his “behavioral abnormality” makes him likely to engage in a predatory act of sexual violence. Kalati argues that the State’s experts’ testimony — that he is “likely” to reoffend when he gets out of prison — is conclusory, baseless, and insufficient to support a finding that his “behavioral abnormality” makes him likely to engage in a predatory act of sexual violence beyond a reasonable doubt. Because Kalati views the opinion testimony provided in this case as having been wholly conclusory, he concludes that the State failed to prove that
With respect to Kalati’s argument that the expert testimony is not sufficiently precise, Kalati relies on Coble v. State,
In this case, Kalati’s challenge concerns testimony given by the State’s two experts, Dr. Dunham, a psychologist, and Dr. Ar-ambula, a psychiatrist. Their testimony addressed whether Kalati would likely commit a future act of sexual violence. During the trial, Dr. Dunham testified that he believed Kalati would likely commit a sex offense after being released from prison. Asked whether “likely” meant Kalati’s chance of reoffending was more than fifty percent, Dr. Dunham declined to place a numerical percentage on his projection, stating:
A. [Dr. Dunham]: You can’t put a number on it. It would be unethical. It would be unwise to say this is his percent level for committing a sex offense. It’s just — it’s not something we can do, actually. So, as a psychologist, I put-things in risk categories. I would say he’s high risk, and there’s a pretty good chance that he’s going to do it.
Asked if “it [is] more likely than not that [Kalati] will commit a sex offense when released from prison[,]” Dr. Dunham stated, “I don’t know.” When asked to express an opinion on the probability that Kalati will reoffend, Dr. Dunham again stated, “I don’t know.”
Dr. Dunham explained the methodology he followed in evaluating Kalati. According to Dr. Dunham, he reviewed the details of Kalati’s offenses, Kalati’s prison and medical records, actuarial scores, the diagnoses in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (Text Revision, 4th ed. 2000) (DSM-IV), the Hare Psychopathy Checklist, articles in the field, and he interviewed Kalati. Dr. Dunham uses this data to assess the subject’s risk of committing another predatory act of sexual violence. Dunham concluded that in Kalati’s case, his risk of reoffending is high.
Dr. Dunham identified a dozen risk factors present in Kalati’s case that the scientific literature supports as being associated with an increased risk of recidivism. Those twelve factors include: (1) the violent nature of Kalati’s prior offenses, (2) the fact that Kalati’s offenses occurred
Kalati also complains about the lack of precision in Dr. Arambula’s assessment of Kalati’s risk for committing a future predatory act of sexual violence. According to Dr. Arambula, the term “likely is an assessment of risk,” not a prediction. Dr. Arambula testified that “likely” means Kalati “probably would.” Like Dr. Dun-ham, Dr. Arambula employed the DSM-IV for his medical diagnosis, interviewed Ka-lati, and reviewed records of the type of records typically relied on by experts in the field to diagnose a person with pedophilia. The records show the details of the offenses committed by Kalati over a six-to-seven-month period against young girls. Dr. Arambula explained that with respect to his opinions in Kalati’s case, he considered risk factors validated by scientific research literature. Based on Kalati’s risk factors, Dr. Arambula concluded that Kala-ti is a “significant risk” to reoffend based on the number of his victims; his return to Iran allegedly to avoid criminal prosecution; his “massive denial” of commission of the offenses; his failure to take responsibility; his lack of treatment; and his lack of remorse. Dr. Arambula also identified factors that he felt were mitigating in Ka-lati’s case, although we note that most of these predate Kalati’s commission of the offenses for which he went to prison. The positive factors that mitigated against Ka-lati committing the underlying offenses included Kalati’s family support, a devoted wife and daughter, as well as at the time the offenses were committed, Kalati had friends in the community, a good job, a good income, and no previous criminal history. Dr. Arambula also noted that Kalati has no drug problems, has had no disciplinary cases in prison, and he is educated. Thus, Dr. Arambula also identified specific risk factors that he considered in assessing the risk that Kalati would reoffend.
In our review of the evidence, we also consider whether the jury could reasonably disregard the testimony of Kalati’s expert, Dr. Quijano, who appraised Kalati’s risk of committing a future predatory act of sexual violence as being low. See City of Keller v. Wilson, 168 S.W.3d 802, 817-819 (Tex.2005) (explaining inclusive standard for reviewing evidence in the light favorable to the verdict). First, we note that Dr. Quijano, a psychologist, agreed that Kalati suffered from pedophilia and that pedophilia is a chronic and lifelong condition. Dr. Quijano concluded that Ka-lati has a behavioral abnormality, and, at one point, stated that Kalati is likely to commit another sex offense. However, Dr. Quijano further explained that he believed the likelihood of Kalati committing another sex offense was very low. Although Dr. Quijano expressed an opinion that contradicts the opinions of the State’s experts, jurors are entitled to “choose to believe one witness and disbelieve another.” Id. at 819.
In summary, the record shows that the State laid a sufficient scientific foundation for the opinions of Dr. Dunham and Dr. Arambula to show that their respective
We also are not persuaded by Kalati’s argument that the opinions of the State’s experts lack clarity because both experts expressed an opinion using the term “likely,” which he asserts is not sufficiently precise. Chapter 841, which employs the term “likely,” does not define it and does not require a numerical or percentage statement of whether a person is “likely” to reoffend. Tex. Health & Safety Code Ann. § 841.003(a)(2) (requiring that sexual violent predators have “a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence”); In re Commitment of Kirsch, No. 09-08-00004-CV,
Here, Dr. Dunham’s and Dr. Arambula’s explanations of their use of the term “likely” went to the weight a jury might choose to give the testimony. Id. (citing In re Commitment of Gollihar,
Having considered all of Kalati’s legal insufficiency arguments, we hold that the evidence is legally sufficient to support the jury’s verdict. Issue one is overruled.
Limitation of Voir Dire
In his third issue, Kalati argues the trial court erred in denying him the “right to ask a proper commitment question regarding pedophilia” during jury voir dire. During voir dire, Kalati’s attorney asked the venire:
[Defense Counsel]: Would anybody on the first row find it hard to give someone who has been diagnosed by an expert as a pedophile a fair trial?
[State]: Objection. It is a commitment question, Your Honor. Getting into a specific diagnosis now.
The Court: Sustained.
A few days before the trial of this case, the Texas Supreme Court provided clear guidance on the scope of permissible voir dire questions in SVP commitment cases. See In re Commitment of Hill,
On appeal to this Court, we relied upon Hyundai Motor Co. v. Vasquez to hold that Hill failed to preserve his complaints because counsel had not re-phrased the questions to address the trial court’s concerns that Hill’s counsel was testing the weight the jury would place on Hill’s prior convictions. See In re Commitment of Hill,
On petition for review, the Supreme Court held that Hill preserved error by asking questions that were proper, and that the trial court abused its discretion by disallowing both lines of inquiry.
As was the case in Hill, Kalati’s sexual history was part of the State’s proof that he has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence, yet the trial court refused a question that went solely to the potential jurors’ ability to give him a fair trial. Id. at 229. The substance of the question posed by counsel was probative of the potential jurors’ prejudices towards persons diagnosed with pedophilia, and the question that was being posed did not ask the members of the venire for their opinions about the strength of the evidence or suggest what weight they would give to the evidence of Kalati’s psychiatric diagnosis. The question concerning Kalati’s pedophilia does not significantly differ from the question concerning Hill’s homosexuality, as both questions concerned the sexual histories that were part of the State’s proof. Because Hill is not distinguishable, we conclude the trial court erred by sustaining the State’s objection to the question at issue. Id. at 229-30.
The State argues that the authorities on this issue are unsettled and confusing, but the State concedes that in SVP cases, the State’s experts typically provide the jury with diagnoses of the person on trial and the factors that increase the subject’s risk for future offending. The State also concedes that both homosexuality and pedophilia are such factors. The broad language in Hill allows counsel to discuss with the jury the subject’s sexual history relevant to the subject’s behavioral abnormality, so that counsel may discover the potential juror’s biases. Id. at 229. The trial court’s refusal to allow the question directed at exposing bias or prejudice relating to Kalati’s sexual history prevented Kalati from discovering how to best exercise his challenges. Id.; see also Babcock v. Nw. Mem’l Hosp.,
We cannot distinguish Hill; consequently, we apply its holding in this case. We hold that the trial court abused its discretion by denying appellant the opportunity to ask a proper question and that the error harmed the appellant. See Tex.R.App. P. 44.1(a). We sustain Kalati’s third issue.
REVERSED AND REMANDED.
Notes
. Because the other issues that Kalati has raised on appeal would not result in greater relief, it is not necessary that we address them. Tex.R.App. P. 47.1.
Dissenting Opinion
dissenting.
I respectfully dissent from this Court’s ruling on issue three, the voir dire question. Kalati complains the trial court erred in denying him what he describes as the “right to ask a proper commitment question regarding pedophilia” during jury voir dire. He points to the following ruling:
[Defense Counsel]: Would anybody on the first row find it hard to give someone who has been diagnosed by an expert as a pedophile a fair trial?
[State]: Objection. It is a commitment question, Your Honor. Getting into a specific diagnosis now.
The Court: Sustained.
The Texas Supreme Court has given trial courts discretion in distinguishing questions that “test jurors’ possible verdicts based on case-specific relevant evidence”
The Texas- Constitution guarantees a trial by a fair and impartial jury, and our courts use voir dire to achieve that goal. Voir dire inquiries that explore external biases and unfair prejudices further the effort, but those that test jurors’ possible verdicts based on case-specific relevant evidence detract from it. The distinction between the two in some cases is a fine one. Thus, we vest trial judges with the discretion to decide whether an inquiry constitutes the former or the latter; as appellate courts, we should defer to their judgment.
Id. at -760 (footnote omitted). When the voir dire includes a preview of the evidence, “a trial court does not abuse its discretion in refusing to allow questions that seek to determine the weight to be given (or not to be given) a particular fact or set of relevant facts.” Id. at 753 (footnote omitted).
Kalati nevertheless argues this case presents the same issue the Texas Supreme Court decided in In re Commitment of Hill,
The Supreme Court has held that it is permissible to disclose “the evidence the jury will hear during the case[,]” because allowing the disclosures “increases the potential for discovering external biases, but inquiries to jurors after doing so should not spill over into attempts to preview the verdict based on the facts as represented to the jurors.” Vasquez,
The emphasis of the question is not ameliorated by asking in it whether jurors could be fair and impartial.... [I]f an inquiry suggests that, to be “fair,” jurors must not decide the case based on a relevant fact, then a trial court reasonably could conclude that the question seeks a response that reveals nothing about a juror’s potential fairness, but instead attempts to guess about his potential verdict.
Id. at 757. The trial court could reason that the inquiry here suggested “that, to be ‘fair,’ jurors must not decide the cased based on” the expert’s diagnosis.
Kalati did not attempt to re-phrase the question to change its focus or explain to the trial court why he was entitled to ask the question, and did not ask to rephrase