In Re Commitment of Almaguer

McKEITHEN, C.J., Before BURGESS GAULTNEY, DAVID B. JJ.

OPINION GAULTNEY, B. Justice.

DAVID petition seeking The State filed a involuntarily civilly appellant commit Dan- preda- Almaguer sexually as a iel Safety tor. & Code Ann. Tex. Health (Vernon 2008). Alma- §§ 841.001-841.147 prior violent offenses were guer’s aggravated sexual as- two convictions were of a child. Both offenses com- sault two minor July against mitted on younger than nine. children re- guilty to both offenses and pleaded twenty case of a sentence each ceived There was concurrently. to run years, Almaguer had record that evidence at least ten sexually assaulted children expert testified that The State’s times. (B) is a psychopath likely to reof- acquaintance casual fend, suffers from pedophilia anti- with whom no substantial relationship disorder, social personality and has diffi- exists; or culty controlling his A urges. jury found (C) a person with whom a relationship Almaguer a behavioral abnor- has been promoted established or mality that makes him likely to engage the purpose of victimization. predatory acts of sexual violence. He rais- Safety Tex. Health & Code Ann. es four issues on appeal. (Vernon 841.002(2),(5) 2003). § jury Almaguer first argues Chapter 841 is proposed instruction by Almaguer and re- unconstitutional it punitive because is in jected by stated, the trial court “There nature. He relies on the factors set forth must be of serious difficulty in con- in Kennedy Mendoza-Martinez, trolling behavior.” The State maintains a 144, 168-69, 554, 83 S.Ct. 9 L.Ed.2d separate needed, instruction is not because We have considered and re- volitional control is implicitly included jected complaints similar before. See In within the issue submitted to jury. Martinez, re Commitment 98 S.W.3d A trial court must submit “such 373 (Tex.App.-Beaumont filed); pet. instructions and definitions as shall be Molett, Beasley 95 S.W.3d 607-08 proper to enable the jury to render a (Tex.App.-Beaumont 2002, filed); pet. 277; verdict.” See Tex.R. Civ. P. Union Mullens, re Commitment 92 S.W.3d Williams, Pac. R.R. Co. v. 883-84 (Tex.App.-Beaumont pet. (Tex.2002). filed). Rule 277 affords the trial Issue one is overruled. court considerable deciding discretion in two, In issue Almaguer contends jury what instructions necessary are and process rights due were violated when proper. See Lloyds State Farm v. Nico the trial court requested refused his in lau, (Tex.1997). S.W.2d An struction jury to the on the issue of voli (1) instruction proper if it assists the tional control. The trial court submitted (2) (3) jury, law, accurately states the and jury to the following question and defi finds support the pleadings and evi (5) nitions that track subsections Williams, dence. See 85 S.W.3d at 166. section 841.002 of the Act: An merely instruction that is a phase or you Do find that Daniel suf- shade of the controlling issue does not fers from a behavioral abnormality that have to be jury. submitted to the See likely makes him engage in a predato- Indus., Sheldon L. Corp. Pollack v. Falcon ry act of sexual violence? Inc., (Tex.App.-Cor Abnormality a conge- means BehavioRAL denied). pus Christi writ An error that, nital or acquired condition by af- in refusing instruction is reversible fecting person’s emotional or volitional if only “probably it caused the rendition of capacity, predisposes to com- improper Williams, judgment.” See mit sexually offense, violent to the S.W.3d extent that the becomes men- ace to the health safety of another When, here, governed as a case is person. statute, charge should track PREDATORYAct means an act language provision as committed for the purpose of victimiza- closely Quan possible. See Toennies v. tion and that is directed toward: tum Corp., Chem. S.W.2d

(A)a stranger; 1999), (Tex.App.-Houston aff'd, [1st Dist.] (Tex.2001). Sexually Predator Violent And Rule 277 The Kansas court, for the civil procedures feasi requires the trial “whenever Act establishes ble,” who, individuals, to submit cause broad-form because commitment of Here, P. questions. or disor- personality a mental TexR. Civ. language of the charge tracked the der, acts likely predatory used, statute, broad-form submission was Hendricks, 521 of sexual violence. definitions were submitted to assist “requires a The Act 117 S.Ct. 2072. answering dangerousness, and then finding of future is a whether of a to the existence links find predator. separate We instruction or disor- abnormality’ ‘personality ‘mental was needed. impossi- not difficult, that makes it der’ if Hendricks, ble, dangerous the Supreme In v. to control his Kansas for 358, upheld constitutionality Court 117 521 U.S. at S.Ct. behavior.” Id. Act, added). Sexually Kansas Violent Predator The Court held (emphasis 2072. to the one enacted statute similar proof Act’s coupling that Kansas Kansas Hen- Legislature. Texas See v. proof of some ad- dangerousness with dricks, 346, 2072, 521 U.S. 117 S.Ct. 138 factor, such mental illness or ditional (1997). L.Ed.2d 501 The Court observed “limit abnormality, serves to invol- person’s liberty physi- that a interest from civil to those who suf- untary confinement absolute, cal restraint there impairment rendering fer from volitional every person “manifold restraints to which their control.” dangerous beyond them necessarily subject for common The found that Id. Court Id., 357,117 good.” 521 U.S. at 2072 S.Ct. criteria, Hendricks’ and the evidence of Massachusetts, (quoting Jacobson v. 197 criteria, satisfying those com- condition 11, 26, 358, 49 643 U.S. S.Ct. L.Ed. Id., 521 process. with due U.S. plied (1905)).1 Burger As Chief Justice stated 360,117 S.Ct. concurring in his v. opinion O’Connor later, Crane, v. years Five Kansas Donaldson, “There little that can be doubt again asked to consider an issue Court was power the exercise of a State police its commitment involuntary relating to may solely protect confine individuals always the Kansas Act: Must the State society dangers significant from the an- is com- dangerous individual prove tisocial acts or communicable disease.” control his behavior? See pletely unable to Donaldson, 563, 582-83, 422 U.S. 95 S.Ct. 407, 411, Crane, 534 Kansas v. U.S. 2486, (1975). vein, In 45 L.Ed.2d 396 867, L.Ed.2d The S.Ct. explained, the Court Hendricks “States “inability to behavior” construct control pro- have certain circumstances narrow Hendricks, the Court from where came detainment of vided for forcible civil Act required the Kansas their stated people are unable to control who difficult, for if not impossible, it is thereby pose danger behavior and who Hendricks, to control himself. Hen- safety.” to the health and public Crane, dricks, 117 S.Ct. 2072. 521 U.S. at tory smallpox); for see Com- example, cases the Court held vaccination 1. For in earlier Vapeur Navigation a involuntary quarantine contagious pagnie Francaise De Health, 186 U.S. requirement mandatory vac- Louisiana State Bd. and a diseases (permit- process. 46 L.Ed. due 22 S.Ct. cinations do not violate Massachusetts, persons ting involuntary quarantine suffer- Jacobson diseases). (1905) (manda- 25 S.Ct. L.Ed. 643 communicable State of argued Kansas deed, that a showing of as different amici on opposite lack of control was not required, while sides of agree, this case an absolutist Crane argued the State must show a total approach Moreover, is unworkable. lack of control. 534 U.S. at most ill severely people those —even 122 S.Ct. 867. And the State also argued commonly ‘psychopaths’ termed —retain that a volitional abnormality should not be ability to control their behavior. the only dangerous abnormality may which Insistence upon absolute lack of control justify commitment. See would barring risk the civil commitment 414,122 S.Ct. 867. of highly dangerous persons suffering severe mental abnormalities.

Crane held that the State did not have 411-12, show a total U.S. at lack of behavioral control in S.Ct. 867 (citations omitted). order civilly commit Court Crane as a sexu- ally Id., further predator. observed as follows: 534 U.S. at 122 S.Ct. 867. But the disagreed did not give [W]e to the phrase “lack of with the State “insofar [sought] as it control” [in a particularly Hendricks] claim that the permits Constitution com- narrow or technical meaning. And we mitment type of the of dangerous sexual recognize that cases where lack of offender considered in Hendricks issue, without control is at ‘inability the to con- any Id., lack-of-control determination.” trol behavior’ will not be demonstrable 412,122 534 U.S. at S.Ct. 867. precision. mathematical It is enough to say that there must be proof It is this language in Crane that serious difficulty in controlling be- prompts Almaguer to argue there must be this, havior. And when in light viewed a separate jury finding on “serious difficul- of such features of the case as the na- ty in controlling behavior.” In the ture psychiatric the diagnosis, and Supreme explained the difficulty-in- the severity of the abnormality controlling-behavior language in Hen- itself, must be distinguish sufficient to dricks. The Kansas Court had dangerous the sexual offender whose misconstrued Hendricks as requiring abso- illness, serious mental abnormality, or lute lack of control. 534 at U.S. subjects disorder him to civil commit- 411,122 S.Ct. 867. Crane did not mandate ment from dangerous the typical but a separate jury “control,” instruction on recidivist ordinary convicted in an crimi- and the majority made no mention of the nal case. need for a new instruction or even addi- Id., 534 at tional U.S. jury findings. (empha- S.Ct. 867 Nor did the Court added). sis declare the Act Kansas unconstitutional as written. But Crane did say proof The rejected Court Crane bright- the “serious controlling behavior” line rules advocated by Crane and the required under circumstances like those State in case-specific favor of a analysis. considered in Hendricks —a “volitional” Id., 411-413, U.S. 122 S.Ct. 867. abnormality case. Id. at 122 S.Ct. gave The Court two ap- reasons for this attempted And Crane clarify to First, proach. states retain considerable “difficult, if impossible,” not language set leeway in defining the mental abnormali- out Hendricks as follows: ties and personality disorders that make The word ‘difficult’ indicates that an individual eligible for commitment. lack of control to which second, [the Hendricks And of psychiatry science is an case] referred was not science, absolute. In- “ever-advancing whose distinctions to statutory The criteria submitted precisely not to mirror those of do seek in this ease Id, the Texas statute the law.” S.Ct. severity of the behavioral describes type of 867. The nature or sub- severity abnormality danger and psychiatry field ject change present subject per- be which must advances. The civil commitment. son to no op- said it had Supreme Court by an behavior caused definition describes decide, in Hen- Crane or portunity men- abnormality that makes dricks, solely based whether confinement of another safety ace to the health would be “emotional” 841.002(2). answering § person. See 415,122 constitutional. U.S. it, found submitted cases, Citing earlier Crane S.Ct. 867. two from a behavioral point considering does out that “when civil him, and “predisposes” commitment,” ordinarily the Court does preda- in a “likely,” him makes purposes “for distinguish constitutional violence, to the extent tory act of sexual volitional, emotional, among cognitive to the health and he is menace Id., impairments.” 534 U.S. at 841.002(2), safety §§ of another. States, (citing S.Ct. 867 Jones v. United 841.003. 77 L.Ed.2d recently of appeals The Austin court Texas, (1983), Addington issue in In considered submission 1804, 60 99 S.Ct. L.Ed.2d 323 Browning, re Commitment of (1979)). h.). pet. (Tex.App.-Austin, There, claimed trial court Browning the understand the We and cases refusing question erred in to submit a cited in to the focus constitutional difficulty had asking whether he serious analysis on the seriousness of the abnor- his The controlling behavior. Austin mality danger and the seriousness the of Appeals held that the “broad- Court of society abnormality, to posed by and encompassed form re- submission fundamentally not on the nature determination” and quired lack-of-control “volitional, as abnormality emotional or explained holding its as follows: cognitive.” If the abnormality is volitional from A that a an Hendricks, proof inas of a serious difficul- grave as emotional or volitional defect so

ty controlling distinguish in behavior helps him to threaten health predispose the dangerous sexual offender whose ab- of safety of with acts sexual and others normality subjects him to civil commitment that he violence entails a determination typical recidivist criminal. The controlling be- has ‘serious light “control” evidence is viewed in the of havior.’ other factors the case such as the sever- sub- We conclude here also broad-form ity abnormality of and the nature of encompassed a lack-of-control de- mission diagnosis. termination. analysis process But the due distinguishing person on remains focused here deter implicitly of Almaguer’s who because serious behavioral abnor- mined behavioral mality danger, per- from a poses serious with control: results condition, who, though son free of such a or volitional defect so he has an emotional him dangerous for more behavior that makes appropriately grave reasons cause Thorell, id; In through a menace. See re dealt the criminal laws. (2008); Wash.2d 72 P.3d serious, 718-719 the condition must be and State, Westerheide 831 So.2d 107-08 explain how serious. We conclude (Fla.2002); In re Luckabaugh, 351 S.C. not court did err submit refusing to (S.C. 338, 341, 568 S.E.2d 348-349 Almaguer’s requested See In instruction. 2002).; Cain, In re No. 275 Ill.Dec. Browning, re 113 S.W.3d at Issue 327-28, 480, 482-83, Ill.App.3d 792 two is overruled. 2003); (Ill.5th, N.E.2d 802-03 In re

Laxton, three, issue contends Wis.2d 647 N.W.2d (2002); 794-95 but see Thomas Chapter is unconstitutionally vague (Mo.2002). 791-92 The re separation and violates the powers doc- quested jury simply instruction would have (a)(4),(5), trine of subparts because and emphasized aspect one case already of this subpart section 841.082. He contends implicit in the question broad-form unconstitutionally vague, it re- because A court definitions. trial does quires person’s participation “spe- err refusing not submit instruction specify- cific course of treatment” without on the law already encompassed which is ing argues the treatment. He 5 is subpart in the instructions question. because it vague, requires Almaguer argues further that Crane re- to tracking to “submit a particular quires finding that person’s volitional type tracking any service and other affected, capacity is solely emotion- appropriate supervision” specify- without capacity. al He says the definition “be- places what what go, cannot havioral abnormality,” and the him, expected conduct is and the mean- posed jury, to the allowed the to find “any ing of other appropriate supervision.” to be predator him Finally, subpart he asserts vague 9 is the basis of an emotional with- doctrine, separation powers violates the finding lack disagree. out of control. We judge impose because it allows the trial A condition which affects emotional either any necessary. requirement determined or capacity capacity volitional to the extent arguments We considered these have person a is predisposed to threaten the rejected prior cases and them. In re safety with health of others acts of Shaw, 520, Commitment 117 S.W.3d sexual violence is an which 522, h.); (Tex.App.-Beaumont difficulty pet. causes serious con- behavior Morales, trol. In re Commitment filed); (Tex.App.-Beaumont pet. argues requested that his Mullens, 608-609; at Beasley, 95 S.W.3d necessary instruction because sub- at 887-888. overrule issue We mitted definition of “behavioral abnormali- three. ty” does not lack specify how much disagree.

control is needed. Again, we Almaguer also asserts section 841.085 question The definitions and make clear judgment Fifth and the final violate the a person must have a behavioral ab- privilege against Amendment self-incrimi- normality that predisposes the nation, re- because commitment order acts, sexually commit and that the quires periodic to submit abnormality makes it probable polygraph rejected examinations. We this will commit in the such acts future at argument Mullens. See 92 S.W.3d safety. and be a menace to health make The definitions and clear overrule issue four. We Laxton, ”); In re trial determination.... court af- judgment 647 N.W.2d Wis.2d firmed. nexus be (2002)(concluding proof

AFFIRMED. mental disorder and tween the individual’s Justice, “necessarily implicitly BURGESS, dissenting. dangerousness DON mental person’s proof involves two; except I to issue concur difficulty for the disorder involves serious requir- of a jury court’s refusal instruction behavior”). his or person to control her proof of “serious control- Crane, has conclud jurisdiction I But least one ling behavior.” believe Kansas Crane, ed, 151 L.Ed.2d be constitutional 534 U.S. S.Ct. (2002), require that “de requires, upon proper request, instructions must cannot gree” to which a control such submission. difficulty.” or behavior is “serious her Crane, Supreme In the United States (Mo. 789, 792 Thomas v. “there must be Court determined 2002). Crane, the Mis To comply difficulty in controlling serious behavior.” in Supreme souri Court mandated the 413,122 867. The 534 U.S. S.Ct. defining struction Court vacated the Kansas instruction, used in should read: “As judgment Court’s and remanded the case abnormality’ congenital or ‘mental means proceedings. for further acquired affecting condition emotional Clearly concluding S.Ct. 867. capacity predisposes or volitional majority requiring that the Crane was person to commit violent offenses by lack-of-control determination the fact- degree in a that causes the individual finder, Thomas, Justices Scalia and controlling his behav dissenters, objected Crane because part ior.” Id. they it thought would be too difficult to majority requir-

instruct a as the was jurisdiction Another has remanded ing.1 U.S. at case control” determination for a “lack of mandating specific language without to be re used the trial court. Commit- jurisdictions Subsequently, have reached W.Z., A.2d ment 173 N.J. varying in applying conclusions Crane to (2002). And, jurisdiction, yet another challenges to SVP statutes.2 As the ma here, determining require while Crane does jority jurisdictions does have instruction, specific jury also concluded jury necessarily concluded a finds a defen jurors the link be- would not understand requisite dant lacks the control when the disorder and tween the individual’s mental State links the individual’s mental disorder difficulty controlling behavior a serious dangerousness. See In re Lucka additional instructions. In re baugh, 351 S.C. 568 S.E.2d 349 without (“Inherent (2002) G., Leon 204 Ariz. 59 P.3d within the mental abnor (2002). Leon, Supreme the mality prong of the Act is a lack of control Arizona "Today’s psychiatric severity opinion says diagnosis, and the of the 1. Justice Scalia wrote: itself,’ ante, at 870.” requires that the Constitution the addition 867. finding: subject the third that inability utter to control behavior-not ante, Pfaffenroth, inability, inability and not even C. The Need Coher- See Peter for particular degree, in a but rather constant Commitment Sex ence: States’ Civil Offend- degree light inability vary will ‘in that ers in the Wake Kansas 55 Stan. such of the case as the features nature L.Rev. Court, thus, trial to in- judges questions. directed broad-form See Tex.R. P. Civ. juries Here, struct proceedings in future SVP trial under the court’s use of submission, follows: form the broad State main- prove, beyond The State must a reason- both that tains the volitional control issue doubt, able the question that has mental was included in the asking the highly probable disorder that makes it the jury appellant determine if has that will the in future jury’s and that behavioral the acts of sexual violence. A “yes” answer to this demon- dangerousness, standing alone, is not a strates the found diffi- has ground sufficient an indi- determine culty controlling his behavior. vidual An person. is a Rule 277 the requires trial court dangerousness must individual’s be such “submit instructions and definitions which, by caused a mental disorder in as be proper shall to enable the turn, causes have render verdict.” Tex.R. Civ. P. 277.3 controlling his or her behav- a trial court While has considerable discre ior. submitting jury ques tion in broad-form Id. tions, questions properly must submit I agree New Jer- with Missouri and controlling jury’s fact issues sey Supreme and with Justices Courts determination. Interstate Northbor Scalia and Thomas that Crane requires ough Partnership v.

fact pro- finder in an SVP commitment (Tex.2001); Triplex 224-25 Communica ceeding to determine whether individu- tions, Inc. v. Riley, 900 S.W.2d al controlling has “serious his (Tex.1995)(“If properly pleaded an issue is or her As behavior.” Crane has mandated evidence, supported by and is a liti process requires due constitutional gant controlling is entitled to have ques pro- such a determination commitment jury.”). A tions submitted to the trial ceedings, procedure state laws or rules of reversibly par court it denies a errs when by superseded directive. of a ty proper theory submission valid Const, (“This VI, art. cl. Constitution recovery or a vital defensive issue raised Land; supreme ... shall be the Law of the by pleadings evidence. Exxon every and the Judges State shall be Perez, (Tex. Corp. v. thereby....”). bound 1992). Although appellant argue does not Noting judges trial must provide our procedures State and case law would jury explaining applicable instructions instruction, require of his both submission can readily law in terms the under- majority State and the address stand, the Arizona found and, thus, compel issue me to likewise. do reasoning per- of the Laxton dissent “ I am here convinced court ‘Although the words of [Wiscon- suasive: instruc- should have allowed be might interpreted statute] sin’s SVP tion under the Texas Rules of Civil Proce- lawyers judges to include a link be- dure. and a tween the mental disorder court, behavior, controlling

Rule 277 “when- requires directly ever to submit on on the language feasible” the cause instructions based may govern when the 3. The Texas Court observed mission be feasible Westgate, Ltd. under Rule 277 is not law is unsettled. v. broad form submission (Tex. 1992). suggested sub 455 n. absolute and that broad-form not set statute] do [Wisconsin’s SVP ” In re non-lawyers.’ link for forth this Laxton, G., (quoting at 788

Leon 59 P.3d 798). The Arizona Su- 647 N.W.2d reasoned: Court further preme involved important Given interests proceedings for both the state SVP individual, question should arise to whether the understands dis- importance a mental order, voluntary rather than a decision criminal behav- repetitive ior, dangerous renders a within meaning the SVP statute. G., I agree. re Leon 59 P.3d 788.

Here, a serious whether has is a controlling his behavior Thus, controlling fact issue Crane. reversibly trial court in not sub- erred Almaguer’s in- mitting volitional control Perez, jury. struction Texas, 631; Bank N.A. Commercial Luce, (Tex.App.-Beau- 2002, no pet.). mont two, I would sustain issue and reverse remand for trial. a new COUNTRY PROPERTY CIMARRON ASSOCIATION, OWNERS Appellant, Cheryl Joseph B. KEEN and Keen, Appellees. June No. 09-02-361 CV. Texas, Appeals Court of Beaumont. Aug. Submitted Sept. Decided

Case Details

Case Name: In Re Commitment of Almaguer

Court Name: Court of Appeals of Texas

Date Published: Sep 25, 2003

Citation: 117 S.W.3d 500

Docket Number: 09-02-172-CV

Court Abbreviation: Tex. App.