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Click here for the full text of this decision The broad-form submission encompassed a lack-of-control determination. FACTS:The state filed a petition seeking to involuntarily civilly commit appellant, Daniel Almaguer, as a sexually violent predator. Texas Health and Safety Code ��841.001 – 841.147. Almaguer’s prior sexually violent offenses were two convictions for aggravated sexual assault of a child. Both offenses were committed on July 1, 1986, against two minor children younger than 9. Almaguer pleaded guilty to both offenses and received a sentence in each case of 20 years to run concurrently. There was evidence in the record that Almaguer had sexually assaulted the children at least 10 times. The state’s expert testified that Almaguer is a psychopath likely to reoffend, suffers from pedophilia and an anti-social personality disorder and has difficulty controlling his urges. A jury found Almaguer suffers from a behavioral abnormality that makes him likely to engage in predatory acts of sexual violence. HOLDING:Affirmed. When, as here, a case is governed by a statute, the jury charge should track the language of the statutory provision as closely as possible. Texas Rule of Civil Procedure 277 requires the trial court, “whenever feasible,” to submit the cause on broad-form questions. Here, the charge tracked the language of the statute, broad-form submission was used and definitions were submitted to assist the jury in answering the question of whether Almaguer is a sexually violent predator. The court finds no separate instruction was needed. In Kansas v. Crane, the U.S. Supreme Court was asked to consider an issue relating to involuntary commitment under the Kansas Act: Must the state always prove that a dangerous individual is completely unable to control his behavior? Kansas v. Crane, 534 U.S. 407 (2002). The “inability to control behavior” construct came from Kansas v. Hendricks, 521 U.S. 346 (1997), where the court stated the Kansas Act required proof that it is difficult, if not impossible, for the person to control himself. In Crane, the state of Kansas argued that a showing of lack of control was not required, while Crane argued the state must show a total lack of control. And the state also argued that a volitional abnormality should not be the only dangerous abnormality which may justify commitment. Crane held that the state did not have to show a total lack of behavioral control in order to civilly commit a person as a sexually violent predator. But the court disagreed with the state “insofar as it [sought] to claim that the Constitution permits commitment of the type of dangerous sexual offender considered in Hendricks without any lack-of-control determination.” It is this language in Crane that prompts Almaguer to argue there must be a separate jury finding on “serious difficulty in controlling behavior.” The court in Crane rejected the bright-line rules advocated by Crane and the state in favor of a case-specific analysis. The court gave two reasons for this approach. First, states retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for commitment. And second, the science of psychiatry is an “ever-advancing science, whose distinctions do not seek precisely to mirror those of the law.” The nature or type of proof is subject to change as the field of psychiatry advances. The Supreme Court said it had no opportunity to decide, in Crane or Hendricks, whether confinement based solely on an “emotional” abnormality would be constitutional. Citing two earlier cases, Crane does point out that “when considering civil commitment” the court ordinarily does not distinguish “for constitutional purposes among volitional, emotional, and cognitive impairments.” Crane focuses the constitutional analysis on the seriousness of the abnormality and the seriousness of the danger to society posed by the abnormality, and not fundamentally on the nature of the abnormality as “volitional, emotional or cognitive.” If the abnormality is volitional as in Hendricks, proof of a serious difficulty in controlling behavior helps distinguish the dangerous sexual offender whose abnormality subjects him to civil commitment from the typical recidivist criminal. The “control” evidence is viewed in the light of other factors in the case such as the severity of the abnormality and the nature of the diagnosis. But the due-process analysis remains focused on distinguishing a person who because of serious behavioral abnormality poses a serious danger, from a person who, though free of such a condition, is dangerous for reasons more appropriately dealt with through the criminal laws. The statutory criteria submitted to the jury under the Texas statute in this case describes the severity of the behavioral abnormality and the severity of the danger which must be present to subject the person to civil commitment. The statutory definition describes behavior caused by an abnormality that makes the person a menace to the health and safety of another person. In answering the question submitted to it, the jury found that Almaguer suffers from a behavioral abnormality that “predisposes” him, and makes him “likely,” to engage in a predatory act of sexual violence, to the extent that he is a menace to the health and safety of another. ��841.002(2), 841.003. The Austin court of appeals recently considered this jury submission issue in In Re: Commitment of Browning, No. 03-02-00661-CV, 2003 (Tex. App. – Austin, August 14, 2003, no pet. h.). There, Browning claimed the trial court erred in refusing to submit a jury question asking whether he had serious difficulty controlling his behavior. The Austin Court of Appeals held that the “broad-form submission encompassed the required lack-of-control determination” and explained its holding as follows: “A finding that a person suffers from an emotional or volitional defect so grave as to predispose him to threaten the health and safety of others with acts of sexual violence entails a determination that he has `serious difficulty in controlling behavior.’ “ The court concludes that the broad-form submission encompassed a lack-of-control determination. OPINION:Gaultney, J.; McKeithen, C.J., Burgess and Gaultney, JJ. DISSENT:Burgess, J.” ‘Given the important interests involved in SVP proceedings for both the state and the individual, no question should arise as to whether the jury understands the importance of finding that a mental disorder, rather than a voluntary decision to engage in repetitive criminal behavior, renders a person dangerous within the meaning of the SVP statute.’ In re Leon G., 59 P.3d at 788 [In re Leon G., 59 P.3d 779 (2002)]. I agree. “Here, whether Almaguer has a serious difficulty in controlling his behavior is a controlling fact issue under Crane. Thus, the trial court reversibly erred in not submitting Almaguer’s volitional control instruction to the jury.”

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