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in Re: The Commitment of Zachery Halsell ( 2005 )


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    In The



    Court of Appeals



    Ninth District of Texas at Beaumont



    ____________________



    NO. 09-04-393 CV

    ____________________



    IN RE COMMITMENT OF ZACHERY HALSELL



    On Appeal from the 410th District Court

    Montgomery County, Texas

    Trial Cause No. 04-01-00365 CV



    MEMORANDUM OPINION


    The State of Texas filed a petition to commit Zachery Halsell as a sexually violent predator. Tex. Health & Safety Code Ann. §§ 841.001 - .150 (Vernon 2003 and Supp. 2005). A jury found Halsell suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The trial court entered a final judgment and order of civil commitment.

    In his first issue, Halsell contends that the SVP statute, the "Final Judgment and Order of Commitment," and the "Civil Commitment Requirements" are overly broad and vague. He argues they violate his due process rights under the United States and Texas constitutions. Similar arguments have been considered and rejected in other cases. In re Commitment of Johnson, 153 S.W.3d 129, 131-32 (Tex. App.--Beaumont 2004, no pet.); In re Commitment of Castillo, 144 S.W.3d 655, 656-57 (Tex. App.--Beaumont 2004, no pet.); In re Commitment of Browning, 113 S.W.3d 851, 864-65 (Tex. App. --Austin 2003, pet. denied).   

    As to the statute itself, Halsell argues various subsections of section 841.082(a) are unconstitutionally vague. Tex. Health & Safety Code Ann. § 841.082(a) (Vernon Supp. 2005). Halsell contends section 841.082(a)(1) is overly broad and vague because it does not define "appropriate residence" and gives no guidance to the judge in making such a determination. Tex. Health & Safety Code Ann. § 841.082(a)(1) (Vernon Supp. 2005). He also argues the definition of "case manager" in section 841.002(3) is overly broad and vague. Tex. Health & Safety Code Ann. § 841.002(3) (Vernon Supp. 2005). Halsell argues the requirement in section 841.082(a)(4) that he participate in a "specific course of treatment" is overly broad. Tex. Health & Safety Code Ann. § 841.082(a)(4) (Vernon Supp. 2005). As to the judgment, Halsell contends the language forbidding him from having contact with "potential victims" is unconstitutionally vague. Our review of the record indicates these complaints concerning the statute and the judgment were not presented to the trial court.

    Halsell also attacks various "civil commitment requirements" in the order of civil commitment as being overly broad, vague, or both. However, the treatment and supervision contract is not part of the appellate record. In response, the State contends Halsell has waived his complaints in issue one. Because the complaints asserted by Halsell in issue one were not presented to the trial court or concern documents not included in the appellate record, the issue has not been preserved for appellate review. Johnson, 153 S.W.3d at 132; Castillo, 144 S.W.3d at 656-57; Till v. Thomas, 10 S.W.3d 730, 733-34 (Tex. App.-- Houston [1st Dist.] 1999, no pet.); Tex. R. App. P. 33.1; Tex. R. App. P. 34.1. Issue one is overruled.

    In issue two, Halsell argues section 841.082(d) is void for vagueness because it "appears to mandate the trial judge to transfer jurisdiction 'for purposes of appeal' to another district court[.]" Tex. Health & Safety Code Ann. § 841.082(d) (Vernon Supp. 2005) ("Immediately after the case becomes final for purposes of appeal, the judge shall transfer jurisdiction of the case to a district court, other than a family district court, having jurisdiction in the county in which the person is residing, except that the judge retains jurisdiction of the case with respect to a civil commitment proceeding conducted under Subchapters F and G."). We considered and rejected a similar argument in In re Commitment of Lowe, 151 S.W.3d 739, 741-44 (Tex. App.--Beaumont 2004, pet. filed).

    Appellant also appears to argue that the trial court denied him the right to assert his Fifth Amendment privilege against self-incrimination. Halsell refers us to a Motion to Exclude Evidence, in which he objected to the use of any evidence obtained from the State's questioning of him. We find no such pleading in the clerk's record. However, at the beginning of the trial, Halsell's counsel stated "we'd like to put an objection on the record that we don't feel Mr. Halsell should testify based on the Fifth Amendment, that he may be likely to divulge information which will incriminate himself." The court overruled the objection.

    The objection is a blanket assertion of the Fifth Amendment privilege against self-incrimination and the right not to be compelled as a witness against oneself. We considered similar arguments in Lowe and rejected them. Lowe, 151 S.W.3d at 744-45. Blanket assertions of the Fifth Amendment privilege are impermissible in civil cases. In re Speer, 965 S.W.2d 41, 46 (Tex. App.--Fort Worth 1998, orig. proceeding). The privilege must be asserted on a question-by-question basis, and the trial court determines whether the assertion of the privilege is in good faith and justifiable under the totality of the circumstances. Id. Halsell does not point to any questions eliciting information that would subject him to future criminal prosecution. See Lowe, 151 S.W.3d at 745. Issue two is overruled.



    The trial court's judgment is affirmed.

    AFFIRMED.

    _________________________________

    DAVID GAULTNEY

    Justice



    Submitted on May 6, 2005

    Opinion Delivered May 26, 2005



    Before McKeithen, C.J., Gaultney and Horton, JJ.