                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00513-CV
                           ____________________

                 IN RE COMMITMENT OF ALONZO MAY

_______________________________________________________            ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 12-12-13065-CV
________________________________________________________            _____________

                          MEMORANDUM OPINION

      Alonzo May appeals from a jury verdict that resulted in his civil

commitment as a sexually violent predator. See Tex. Health & Safety Code Ann.

§§ 841.001-.151 (West 2010 & Supp. 2014). In two issues, May contends that the

trial court erred by striking his counterclaim, by failing to properly take judicial

notice of two United States Supreme Court cases, and by denying the requests May

submitted to instruct the jury on the meaning of several of the terms used by the

trial court in the charge that was given to the jury. We conclude that May’s issues




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are without merit; therefore, we affirm the judgment and order of civil

commitment.

      In issue one, May argues the trial court erred by striking his counterclaim. In

May’s counterclaim, May asked for a declaratory judgment and temporary

injunctive relief against the State of Texas and the Special Prosecution Unit. May’s

counterclaim asserts that Chapter 841 of the Texas Health and Safety Code, the

statute authorizing the State to seek the civil commitment of sexually violent

predators, is unconstitutional. See id.; Tex. R. Civ. P. 97. The State filed a motion

to strike May’s counterclaim.

      The record shows that the trial court, in a pretrial hearing, considered the

merits of the matters raised in May’s counterclaim. After hearing argument about

whether the SVP statute is unconstitutional, the trial court denied May’s claim and

struck his counterclaim. During the hearing, the trial court noted that the Texas

Supreme Court had rejected the claim that the SVP statute is unconstitutional, and

further stated that the United States Supreme Court had denied the appellant’s

application for a writ of certiorari. See In re Commitment of Fisher, 164 S.W.3d

637 (Tex. 2005).

      May’s claim, that the SVP statute is unconstitutional, is a matter that need

not be raised in a counterclaim, as it is a matter that can be raised as an affirmative

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defense. See Tex. R. Civ. P. 94; In re Commitment of McCain, No. 09-04-237-CV,

2004 WL 2955230, at *1 (Tex. App.—Beaumont Dec. 22, 2004, no pet.) (mem.

op.). May’s Second Amended Petition, his live pleading, asserts the SVP statute is

unconstitutional as an affirmative defense to the State’s suit. Before the case was

submitted to the jury, and based on his affirmative defense which asserts the SVP

statute is unconstitutional, May moved for a directed verdict in his favor. The trial

court denied May’s request for a directed verdict.

      The record shows the trial court heard May’s claim that asserts the SVP

statute is unconstitutional. Additionally, on this record, the trial court did not

prevent May from preserving his challenge to the constitutionality of the SVP

statute. See Tex. R. App. P. 44.1(a)(2). However, although he could have done so,

May has not challenged the constitutionality of the SVP statute in his appeal. May

has neither shown that the trial court’s decision to strike his counterclaim caused

the trial court to render an improper judgment, nor has he shown that the trial

court’s decision to strike his counterclaim prevented him from presenting his

constitutional challenges to the SVP statute on appeal. See Tex. R. App. P. 44.1(a).

We overrule issue one.

      In issue two, May argues that the trial court abused its discretion by failing

to take judicial notice of two United States Supreme Court cases, which address

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the constitutionality of Kansas’s SVP statute. See Kansas v. Crane, 534 U.S 407

(2002); Kansas v. Hendricks, 521 U.S. 346 (1997); see also Tex. R. Evid. 201.

According to May, the trial court denied his request for jury instructions based on

its refusal to judicially notice these two cases. May contends that the two Kansas

decisions entitled him to have the instructions he submitted included in the charge

given to the jury.

      The record does not support May’s claim that the trial court rejected his

request to take judicial notice of the Kansas cases at issue in the appeal. After

being asked to take notice of the cases, the record shows the trial court stated: “I’ll

take judicial notice of all the law, constitution, statues, [and] the rules of procedure.

I’ll take judicial notice of all of them.” While the trial court did take judicial notice

of the applicable law, it did subsequently deny May’s request to submit additional

instructions based on the language found in the two Kansas cases at issue.

      Under Texas law, trial courts are to submit such instructions and definitions

as shall be proper to enable the jury to render a verdict. Tex. R. Civ. P. 277. “The

trial court has considerable discretion in determining the necessity and propriety of

explanatory instructions and definitions.” In re Commitment of Brown, No. 09-10-

00589-CV, 2012 WL 4466348, at *7 (Tex. App.—Beaumont Sept. 27, 2012, pet.

denied) (mem. op.); see Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d

                                           4
909, 911 (Tex. 2000). Even if proposed instructions or definitions represent correct

statements of the law, trial courts may still refuse to give instructions when such

additional instructions are not necessary to enable the jury to render a

verdict. Brown, 2012 WL 4466348, at *7. Additionally, an error by the trial court

“in refusing a proposed instruction or definition is reversible only if it ‘probably

caused the rendition of an improper judgment[.]’” Id. (quoting Tex. R. App. P.

44.1(a)(1)).

      “When a case is governed by a statute, the jury charge should track the

language of the statutory provision as closely as possible.” In re Commitment of

Meyer, No. 09-13-00028-CV, 2014 WL 580723, at *3 (Tex. App.—Beaumont Feb.

13, 2014, no pet.) (mem. op.). The charge the trial court gave to the jury in May’s

case tracks the statute closely. The definitions that May requested are not

substantially different from those provided in the statute. The broad-form charge

the trial court used in May’s case is consistent with the language in the Texas

SVP statute, and it contains the applicable statutory definitions of terms relevant to

SVP cases, including the definition in the statute for the term “‘[b]ehavioral

[a]bnormality[.]’” See Tex. Health & Safety Code Ann. § 841.002(2) (West Supp.

2014); In re Commitment of Hill, No. 09-11-00593-CV, 2013 WL 772834, at *15

(Tex. App.—Beaumont Feb. 28, 2013, pet. denied) (mem. op.);

                                          5
of Myers, 350 S.W.3d 122, 129-30 (Tex. App.—Beaumont 2011, pet. denied). We

have repeatedly held that the trial court may, within its discretion, submit the

controlling issue in a single question and instruct the jury regarding the terms

relevant to the statute by providing the jury with the statutory definitions for those

terms. See In re Commitment of Smith, No. 09-12-00001-CV, 2013 WL 4279647,

at *4 (Tex. App.—Beaumont Aug. 15, 2013, no pet.) (mem. op.).

      In several prior cases, we have addressed the same argument that May raises

in his appeal challenging the trial court’s use of the statutory definition for the term

“behavioral abnormality” in lieu of the defendant’s proposed definition for that

same term. See Hill, 2013 WL 772834, at *15; Brown, 2012 WL 4466348, at **7-

8; In re Commitment of Almaguer, 117 S.W.3d 500, 505-06 (Tex. App.—

Beaumont 2003, pet. denied). We have consistently rejected the argument May

raises in his appeal about the proposed use of an alternative definition for the term

“behavioral abnormality.” See Hill, 2013 WL 772834, at *15; Brown, 2012 WL

4466348, at **7-8; Almaguer, 117 S.W.3d at 505-06. In May’s case, the charge the

trial court gave the jury contains the statutory criteria required by Texas’s SVP

statute. Other instructions on volitional control, such as the ones proposed by May,

which differ from the criteria provided by the SVP statute, would simply “have




                                           6
emphasized one aspect of this case already implicit in the broad-form question and

statutory definitions.” Almaguer, 117 S.W.3d at 506.

      We hold the trial court did not err by refusing the instructions submitted by

May. The matters addressed in May’s requested instructions were encompassed by

the charge the trial court gave the jury. See id. We conclude the trial court did not

abuse its discretion by refusing May’s requested instructions. See Tex. R. Civ. P.

277; Brown, 2012 WL 4466348, at **7-8. We overrule issue two. The trial court’s

judgment and order of civil commitment are affirmed.

      AFFIRMED.


                                             ________________________________
                                                       HOLLIS HORTON
                                                           Justice



Submitted on August 22, 2014
Opinion Delivered December 11, 2014

Before Kreger, Horton and Johnson, JJ.




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