Summary
In Ortiz, the SCFO lead counsel for Ortiz appeared on the day of trial and informed the court that her office was changing the designation of counsel and another attorney would be trying the case.
Summary of this case from In re Commitment of WaiteOpinion
No. 09-09-00013-CV
Submitted on May 10, 2010.
Opinion Delivered July 22, 2010.
On Appeal from the 435th District Court Montgomery County, Texas, Trial Cause No. 08-03-02883-CV.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
MEMORANDUM OPINION
The State of Texas filed a petition to civilly commit Daniel Oritz as a sexually violent predator under the Sexually Violent Predator Act (the "Act"). See TEX. HEALTH SAFETY CODE ANN. §§ 841.001-.150 (Vernon 2010). A jury found Ortiz 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 signed a final judgment and an order of civil commitment. We affirm the judgment of the trial court.
MOTION FOR CONTINUANCE
In his first issue, Ortiz argues that the trial court abused its discretion in denying his motion for continuance. On the day of trial, lead counsel assigned to Ortiz's case by the State Counsel for Offenders ("SCFO"), appeared and advised the court that her office was going to change the designation of counsel and that another attorney would be trying the case. Moments after the proceedings commenced, newly designated counsel from SCFO arrived and took the place of the original defending attorneys. SCFO then advised the court that lead counsel who had been handling the case up to that point was not going to try the case because of a threat that had been made against her, which made her afraid to try the case. Counsel further advised the court that Ortiz signed a statement saying he did not want the attorneys originally assigned to his defense to try the case. Counsel advised the court that she and another attorney with SCFO were going to step in and try this case and that they had met with Ortiz the preceding Friday. SCFO then asked the court to grant a seven-day continuance to give the new attorneys in charge time to become familiar with the file and prepare for trial. The court denied the request for continuance but noted that the presentation of evidence would not begin until the following day.
On appeal Ortiz argues that the court's denial of the motion for continuance was "a structural error because it violated [his] statutory and constitutional rights to counsel and due process by hindering his right to a reasonable opportunity to consult with his attorneys and for his attorneys to prepare his defense." We review a trial court's denial of a motion for continuance under an abuse of discretion standard. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). An abuse of discretion occurs when the trial court ""reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.'" Id. (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)).
Generally, the absence of counsel is not good cause for a continuance when a case is called for trial. TEX. R. CIV. P. 253; see also In re N. Am. Refractories Co., 71 S.W.3d 391, 393 (Tex. App.-Beaumont 2001, orig. proceeding). Both civil and criminal courts have upheld the denial of a motion for continuance when lead counsel is unavailable on the day of trial but the defendant is adequately represented by another attorney who is associated with the case. See Rehab. Facility at Austin, Inc. v. Cooper, 962 S.W.2d 151, 155-56 (Tex. App.-Austin 1998, no pet.); see also Rosales v. State, 841 S.W.2d 368, 372-73 (Tex. Crim. App. 1992). In Cooper, lead counsel was unavailable on the day of trial and the defendant was represented by another attorney from the same law firm. Cooper, 962 S.W.2d at 155-56. Because nothing in the record indicated that the attorney who represented the defendant at trial was incapable of rendering adequate representation, the court held that the trial court's denial of the motion for continuance was not an abuse of discretion. Id. at 156. Similarly, in Rosales, lead counsel was ill on the day of trial and the defendant was represented by another attorney who had worked on the defendant's case. Rosales, 841 S.W.2d at 372. Finding that the trial court's denial of the motion for continuance was not an abuse of discretion, the Texas Court of Criminal Appeals stated:
[W]here other counsel is available or supplied who appears to be `as conversant with the case as . . . original counsel' and `in every respect as capable to manage the defense' of the accused, the Court has been loathe to reverse a conviction on the basis of failure to grant a continuance in the absence of original or lead counsel[.] Failure to grant a motion for continuance where lead counsel had been debilitated does not amount to an abuse of discretion, even if associate counsel `was not as familiar with the case as his leading counsel[,]' at least where the `record shows nothing that could have been done for appellant that was not properly done by counsel who managed the case during trial.'
Id. at 373 (citations omitted).
Ortiz has a statutory right to be represented by the SCFO. See TEX. HEALTH SAFETY CODE ANN. § 841.005. Like his original trial counsel, the attorneys who stepped in and represented Ortiz at trial were with the SCFO. In addition, SCFO was made aware of the threat against Ortiz's original attorneys the week before trial, and the new trial attorneys had an opportunity to meet with Ortiz prior to the trial date. Ortiz acknowledges that his trial counsel had at least several days to prepare for trial and become familiar with prior counsels' work. According to Ortiz, his trial attorneys became involved in his defense on or around November 5, 2008, a full week before the court commenced the presentation of evidence in the case. The trial attorneys made the choice to step in and try the case "for the well being" of the attorneys originally assigned to the case by SCFO. This was not a situation in which the original attorney was unavailable on the day of trial and counsel was forced to try the case without the aid of the original attorney in charge. Moreover, the attorneys who tried the case were more experienced than the original attorneys who had made an appearance on behalf of Ortiz in this proceeding. The record demonstrates that Ortiz's trial counsel capably managed his defense at trial. Under these circumstances, we cannot find that Oritiz was denied his right to due process or to counsel.
Finally, when the ground for continuance is the withdrawal of counsel, the movant must show that the failure to be represented at trial was not due to the movant's own fault or negligence. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (citing State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984)). Here, part of the reason the original trial attorneys were replaced on the eve of trial is because Ortiz decided he did not want them to try his case. Trial counsel represented to the court, "Mr. Ortiz has asked that both of these attorneys be removed from [his] case . . . he will not cooperate with them, and does not believe that they . . . will vigorously represent him." Trial counsel represented to the court that she had visited with Ortiz on the Friday preceding his Tuesday trial setting and that he had signed a statement saying he did not want original trial counsel to represent him at trial. To the extent Ortiz was represented at trial by attorneys who were less familiar with his case than his original attorneys, it was because he insisted upon it. We find the trial court did not abuse its discretion in denying the motion for continuance. We overrule issue one.
UNAUTHENTICATED LETTER
In issue two, Ortiz argues that the trial court committed reversible error by allowing one of the expert witnesses to testify about an unauthenticated letter that the Special Prosecution Unit ("SPU") asserted Ortiz wrote. During SPU's direct examination of Dr. Lisa Clayton, SPU questioned Clayton regarding a letter she reviewed allegedly written by Ortiz to his brother, Israel Ortiz. Ortiz contends that the letter was unauthenticated, "yet [Clayton] was allowed to testify as if she knew, and could prove, that [Ortiz] authored the letter." According to Ortiz, the trial court erred by allowing SPU to "mislead the jury by framing questions that asserted a fact not in evidence" and for allowing Clayton's testimony regarding the letter.
Ortiz did not object to Clayton's testimony regarding how the letter aided her in forming her opinion that Oritz suffers from a behavioral abnormality. Ortiz contends that an objection at trial was not necessary to challenge Clayton's testimony on appeal because Clayton's testimony regarding the letter was "speculative and conclusory" and, therefore, "lacked probative value" and was "inadmissible." Ortiz cites Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232-33 (Tex. 2004), in support of this contention. The Texas Supreme Court has recently stated that "conclusory opinions are legally insufficient evidence to support a judgment even if the party did not object to the admission of the testimony." City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (footnote omitted). If no reliable basis is offered for the expert's opinion, the opinion has no weight as probative evidence. Id. at 816-17. However, the Court further explained that when an opinion has a supporting basis, but appellant challenges the reliability of the opinion, an objection "`must be timely made so that the trial court has the opportunity'" to evaluate the underlying methodology, technique, or foundational data relied upon by the expert. Id. at 817 (quoting Coastal Transp. Co., 136 S.W.3d at 233). Here, Ortiz challenges the foundational data Clayton relied on in forming her opinion, specifically her reliance on the letter. Therefore, a proper objection to Clayton's testimony was required to preserve error. See id.
Experts may rely on facts and data that are not admissible in evidence in forming their opinions if such facts and data are "of a type reasonably relied upon by experts in the particular field[.]" TEX. R. EVID. 703. Rule 705(a) of the Texas Rules of Evidence allows an expert to disclose on direct examination the underlying facts or data on which he bases his opinion. TEX. R. EVID. 705(a). To the extent such underlying facts or data would be otherwise inadmissible, "the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial." TEX. R. EVID. 705(d). In addition, if otherwise inadmissible facts are disclosed to the jury, the court is required to give the jury a limiting instruction upon request. Id. Ortiz did not object to Clayton's testimony regarding the letter as unreliable or unfairly prejudicial, nor did he ask the court for a limiting instruction. See TEX. R. EVID. 705(c), (d); Pollock, 284 S.W.3d at 817. We overrule appellant's second issue.
LEGAL AND FACTUAL SUFFICIENCY
In his third and fourth issues, Ortiz argues that the evidence is legally and factually insufficient to support the jury's verdict. To civilly commit a defendant under the Act, the State must prove beyond a reasonable doubt that a person is a sexually violent predator. See TEX. HEALTH SAFETY CODE ANN. § 841.062(a). The Act defines "sexually violent predator" as 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)(1), (2). The jury found that Ortiz suffers from a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence.
In challenging the sufficiency of the evidence, Ortiz argues that the experts "gave conclusory testimony" and "failed to provide the factual basis" for their opinions. Ortiz further argues that there was an "analytic[al] gap between the . . . supporting data and expert witness opinions as to [Oritiz's] current mental state[.]" Ortiz did not present his complaints regarding the legal and factual sufficiency of the evidence to the trial court. See TEX. R. APP. P. 33.1(a)(1)(A). Ortiz argues, however, that he "did not have to object to the conclusory opinions" of the State's expert witnesses to preserve error and that he is "entitled to challenge the conclusory opinions of [the State's] expert witnesses for the first time on appeal" because "the defect in [their testimony] is apparent from the face of the record." See Coastal Transp. Co., 136 S.W.3d at 232-33.
Dr. Randall Price and Dr. Clayton testified at trial. Price testified that he is a forensic and clinical psychologist. Price stated that in conducting his evaluation of whether Ortiz suffers from a behavioral abnormality, he met with Ortiz for approximately three hours. Price also reviewed Ortiz's records, including information about his prior offenses, prison records, including rehabilitation records, disciplinary history, medical history, academic history, records pertaining to sex offender treatment Ortiz participated in while in prison, county files, Ortiz's deposition testimony, and his probation file. Price explained that experts in his field typically review and rely upon such data when making such an evaluation. He further explained that his evaluation of Ortiz was in accordance with his training as a forensic psychologist. Price testified that these records are important in making this type of assessment because "the best predictor of future behavior is past behavior."
Using the definition of "behavioral abnormality" as defined by the Act, Price opined that Ortiz suffers from a behavioral abnormality. Our review of the record reveals that Price explained the basis of his opinion. For example, Price testified regarding the facts of Ortiz's prior sexual offenses and the significance of those facts. Price stated that Ortiz exhibited "a lot of the thinking patterns of sex offenders[,]" and explained that with regard to his offenses, Ortiz did not show any emotion other than anger at being caught. According to Price, Ortiz blamed his victims and denied various aspects of the sexual assaults. Price also testified regarding Ortiz's "long criminal history" and "pattern of violent offenses." Price diagnosed Ortiz with paraphilia not otherwise specified, alcohol dependence, antisocial personality disorder, polysubstance abuse, and borderline intellectual functioning. Price explained the factual basis and significance of each diagnosis. Price testified that these conditions "[i]n combination" constitute "a behavioral abnormality that in his case makes [Ortiz] likely to commit acts of sexual violence."
While Price recognized that Ortiz has participated in sex offender treatment ("SOT"), Price explained that the records he reviewed show that there were some concerns regarding Ortiz's progress and motivation to be in SOT. Specifically, Price stated that Ortiz "is going to [SOT] because he thinks it will help him in this case, he said that to me." Price also found significant that the notes from SOT state that Ortiz had "trouble understanding the concepts[.]"
Price also testified regarding the risk assessment he performed on Ortiz. Price explained that in performing this assessment he looked at various factors that have been found to correlate with a likelihood to re-offend. Price performed three actuarial tests, the Static-99, the Minnesota Sex Offender Screening Test (MN-SOST), and the Psychopathy Checklist. In his testimony, Price explained each of the actuarial tests and the risk factors each evaluates. Price testified that on the Static-99, Ortiz scored a five, which put Ortiz at a "moderately high" risk to re-offend. On the MN-SOST, Ortiz scored a thirteen, which placed Ortiz at a "very high" risk to re-offend. On the Psychopathy Checklist, Ortiz fell into the "moderate" range of psychopathic traits compared to other inmates. Price also discussed sixteen different factors related to the likelihood to re-offend that he observed in Ortiz.
Dr. Clayton testified that she specializes in forensic psychiatry. Clayton testified that she performed her assessment in accordance with the typical process followed by experts in her field and in accordance with her training and experience as a psychiatrist. Clayton stated that she met with Ortiz for approximately two and a half hours. Using the definition of behavioral abnormality contained in the Act, Clayton testified that in her medical opinion, Ortiz suffers from a behavioral abnormality. Clayton explained the basis of her opinion. For example, Clayton explained to the jury that she reviewed Ortiz's criminal history, including his prior sexual offenses. Clayton testified that based on her review of the records and her interview with Ortiz, she found that Ortiz fantasized that "he has relationships with his [sexual assault] victims . . . almost kind of like a romantic fantasy[,]" when in reality he brutally raped his victims. Clayton explained that Ortiz's fantasies are indicative of his sexual deviancy. With respect to the second victim, Clayton observed that Ortiz was "very adamant that [the sexual assault] didn't occur, that this woman wanted him, that . . . they had been [dating][.]" According to Clayton, Ortiz "doesn't think he did anything wrong[.]" Clayton testified that this is also evidence of his antisocial personality disorder.
Clayton stated that Ortiz used violence to perpetrate both prior sexual assaults. In reviewing police reports of Ortiz's prior offenses, Clayton also found that Ortiz had used violence in committing nonsexual offenses. Clayton testified that Ortiz "likes the more vulnerable victims, women, babies, children, [and the] elderly." According to Clayton, Ortiz appeared to have some ability to control his temper in the presence of an authority figure but not in the presence of someone "weaker and smaller."
Clayton explained that she found Ortiz's credibility to be "extremely low." Clayton stated, "this man just makes stuff up, you know, he'll say whatever he thinks . . . will make things easier for him." With respect to Ortiz's prior substance abuse, Clayton testified that Ortiz is "a severe alcoholic," and "cannot control his consumption of alcohol." This was significant because the records indicated that Ortiz was intoxicated during both sexual offenses. In his deposition testimony, which was played for the jury, Ortiz acknowledged that he had eleven public intoxication charges between 1985 and 1996. He further acknowledged five other arrests between 1987 and 1996, which occurred while he was intoxicated. Nevertheless, Ortiz testified that he did not think he had a problem with alcohol, but he stated that he would not drink when he was released because his "liver is weak." However, Clayton testified that her review of Ortiz's medical records indicated his last liver enzyme test was within a normal range. Clayton further testified that she did not believe Ortiz's participation in SOT "really had much effect at all." Clayton diagnosed Ortiz with sexual sadism, paraphilia not otherwise specified, hebephilia, and antisocial personality disorder. Clayton explained the basis and significance of each diagnosis. Clayton characterized Ortiz at a "very high" risk to re-offend.
The record establishes that both experts were experienced and licensed in their respective fields. Both experts interviewed Ortiz and reviewed records related to his history, both before and during his periods of incarceration. Both experts conducted their assessments in accordance with their training and the accepted standards within their fields. Both experts explained in detail the factual bases of their opinions. Ortiz's argument that the expert testimony was so speculative or conclusory as to be lacking in probative value is without merit. Ortiz's other challenges to the sufficiency of the evidence supporting the judgment were not preserved, nor do we find those arguments persuasive. Our review of the record reveals that the evidence was legally and factually sufficient to support the jury's verdict. We overrule issues three and four. Having overruled all of Ortiz's issues on appeal, we affirm the judgment of the trial court.
Ortiz's argument that the expert witnesses' opinions were based solely on historical data, and that an analytical gap existed between the data relied upon by the experts and their opinions is a challenge to the methodology employed by the experts. This complaint was not presented to the trial court and, therefore, not preserved. See TEX. R. APP. P. 33.1(a)(1)(A); see also Coastal Transp. Co., 136 S.W.3d at 233 ("[W]hen a reliability challenge requires the court to evaluate the underlying methodology, technique, or foundational data used by the expert, an objection must be timely made so that the trial court has the opportunity to conduct this analysis."); see generally In re Commitment of Burnett, No. 09-09-00009-CV, 2009 WL 5205387, at *2 (Tex. App.-Beaumont Dec. 31, 2009, no pet.) (mem. op.) ("Although Burnett argues that he is not challenging the methodologies used by the expert witnesses, much of Burnett's argument to issue one challenges the respective methodologies of the State's experts because he asserts the experts used outdated information in determining that Burnett currently suffers from a behavioral abnormality."). Moreover, we note that we have held that current predisposition to commit sexual violence, as required to civilly commit a defendant under the Act, can be inferred from the defendant's past behavior, his testimony, and the testimony of expert witnesses. See In re Commitment of Burnett, 2009 WL 5205387, at *5 (citing In re Commitment of Wilson, No. 09-08-00043-CV, 2009 WL 2616921, at *5 (Tex. App.-Beaumont Aug. 27, 2009, no pet.) (mem. op)).
AFFIRMED.