in Re: The Commitment of Earl Jamison, III

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-04-376 CV ____________________ IN RE COMMITMENT OF EARL JAMISON III On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 04-04-02481 CV MEMORANDUM OPINION The State of Texas filed a petition to commit Earl Jamison III as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001 - .150 (Vernon 2003 and Supp. 2005). A jury found Jamison "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, Jamison contends that the SVP statute, the "Final Judgment and Order of Commitment," and the "Civil Commitment Requirements" are overly broad and vague. He says they violate his due process rights under the United States and Texas constitutions. Similar arguments have been considered and rejected in other cases. See 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, Jamison argues various subsections of section 841.082(a) are unconstitutionally vague. See Tex. Health & Safety Code Ann. § 841.082 (Vernon Supp. 2005). He contends the definition of "case manager" in section 841.002(3) is overly broad and vague. See Tex. Health & Safety Code Ann. § 841.002(3) (Vernon Supp. 2005). As to the judgment, he says 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. Jamison also attacks various "civil commitment requirements" in the treatment and supervision contract as being overly broad, vague, or both. He attaches the document to his appellate brief as an appendix. However, this contract is not part of the appellate record. The State argues Jamison has waived his complaints in issue one. Because the errors asserted by Jamison 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. See 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, Jamison 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[.]" See 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 the Fifth Amendment privilege against self-incrimination. Jamison refers us to his Motion to Exclude Evidence, denied by the trial court, which objected to the use of any evidence obtained from the State's questioning of Jamison. The motion, in effect, 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 have considered similar arguments in Lowe, 151 S.W.3d at 744-45, and rejected them. Blanket assertions of the privilege are impermissible in civil cases. See 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. Jamison 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 April 21, 2005 Opinion Delivered May 5, 2005 Before McKeithen, C.J., Gaultney and Kreger, JJ.