in Re: The Commitment of Bryan David Webb

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-03-270 CV ____________________ IN RE THE COMMITMENT OF BRYAN DAVID WEBB On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 02-06-04234-CV MEMORANDUM OPINION (1) The State of Texas filed a petition to commit Bryan David Webb as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.147 (Vernon 2003). A jury found Webb to be a repeat sexually violent offender and found that Webb suffers from a behavioral abnormality making him likely to engage in a predatory act of sexual violence. The appellant does not challenge the sufficiency of the evidence to support the jury's findings. The trial court entered a final judgment and order of civil commitment. Webb presents four issues in his appeal. We find no error and affirm the judgment. Issue One contends that Chapter 841 of the Texas Health and Safety Code is unconstitutionally punitive in nature under the factors in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). We have repeatedly rejected similar arguments in other Chapter 841 commitment cases. See Beasley v. Molett, 95 S.W.3d 590, 607-10 (Tex. App.--Beaumont 2002, pet. denied); see also In re Commitment of Adams, No. 09-03-003 CV, 2003 WL 22922662, *1 (Tex. App.--Beaumont December 11, 2003, no pet. h.); In re Commitment of Petersimes, No. 09-03-087 CV, 2003 WL 22736471 *1 (Tex. App.--Beaumont November 20, 2003, no pet. h.); In re Commitment of Almaguer, 117 S.W.3d 500, 502 (Tex. App.--Beaumont 2003, pet. filed); In re Commitment of Graham, 117 S.W.3d 514, 514-15 (Tex. App.--Beaumont 2003, pet. filed); In re Commitment of Mullens, 92 S.W.3d 881, 883-84 (Tex. App.--Beaumont 2002, pet. denied). The same arguments and authorities in Webb's brief were presented in Graham and Adams. Furthermore, Webb does not identify any particular circumstances appearing in the record that would support an argument that Chapter 841 operates unconstitutionally as applied to him notwithstanding its general constitutionality. Because we find the statute in question to be facially constitutional, in accordance with our precedents, we overrule Webb's first issue. Issue Two claims that due process was violated when the trial court refused to submit the issue of volitional control to the jury. In other cases with substantially the same definitions and issues, we have held that the definitions provided by the trial court adequately presented the issue to the jury and thus satisfied due process. Adams, slip op. at 2-3; Petersimes, slip op. at 2-3; Almaguer, 117 S.W.3d at 502-06; Graham, 117 S.W.3d at 515; In re Commitment of Shaw, 117 S.W.3d 520, 524 (Tex. App.--Beaumont 2003, pet. filed). Because a separate instruction on volitional control is not required under Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), we overrule the appellant's second issue. Issue Three asserts that Chapter 841, Texas Health and Safety Code, is unconstitutionally vague and violates the separation of powers doctrine. Arguments and authorities identical to Webb's were considered and rejected in Adams, Petersimes, Almaguer, Graham, and Shaw. Adams, slip op. at 3; Petersimes, slip op. at 3; Almaguer, 117 S.W.3d at 506; Graham, 117 S.W.3d at 515; Shaw, 117 S.W.3d at 524-25. Those cases continued the precedent set in earlier opinions from this Court. See Beasley, 95 S.W.3d at 607-10; see also In re Commitment of Morales, 98 S.W.3d 288, 291 (Tex. App.--Beaumont 2003, pet. denied); Mullens, 92 S.W.3d at 883-84, 887-88. Based on the precedent established in our previous decisions, we overrule Issue Three. Issue Four contends that requiring Webb to submit to polygraph examinations violates the Fifth Amendment privilege against self-incrimination. We have previously held this issue to be subject to the rules for procedural default. Morales, 98 S.W.3d at 291-92. Because the appellant did not assert this claim before the trial court, we do not reach it on appeal. Id.; Tex. R. App. P. 33.1. The arguments raised in Webb's brief were presented without success in other sexually violent predator civil commitment appeals. Petersimes, slip op. at 4; Shaw, 117 S.W.3d at 525; Mullens, 92 S.W.3d at 888; see also In re Commitment of Martinez, 98 S.W.3d 373, 377 (Tex. App.--Beaumont 2003, pet. denied). Webb disagrees with these precedents but does not present any new arguments for overruling them. We would reject his arguments were we to reach the merits of the issue. Issue Four is overruled. Appellant's issues are overruled. The judgment and order of the trial court are affirmed. AFFIRMED. PER CURIAM Submitted on January 26, 2004 Opinion Delivered February 5, 2004 Before McKeithen, C.J., Burgess and Gaultney, JJ. 1. Tex. R. App. P. 47.4.