
In The


Court of Appeals


Ninth District of Texas at Beaumont


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NO. 09-03-466 CV

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IN RE COMMITMENT OF LONNIE VANZANDT




On Appeal from the 410th District Court
Montgomery County, Texas

Trial Cause No. 02-12-08262-CV




OPINION
 The State of Texas filed a petition to commit Lonnie VanZandt as a sexually violent
predator.  See Tex. Health & Safety Code Ann. §§ 841.001-.147 (Vernon 2003 &
Supp. 2005).  A jury found VanZandt suffers from a behavioral abnormality making him
likely to engage in a predatory act of sexual violence, and the appellant does not challenge
the sufficiency of the evidence to support the verdict.  VanZandt presents five issues in his
appeal from the judgment and order of civil commitment.  We find no error and affirm the
judgment.
	In his first issue, VanZandt contends the trial court abused its discretion in allowing
rebuttal testimony by the State's witness to exceed the proper scope of rebuttal.  After the
State rested and the appellant and his expert testified, the trial court permitted the State to
present testimony from the therapist who conducted the clinical interview of VanZandt
during the initial evaluation for civil commitment proceedings.  "When it clearly appears
to be necessary to the due administration of justice, the court may permit additional
evidence to be offered at any time; provided that in a jury case no evidence on a
controversial matter shall be received after the verdict of the jury."  Tex. R. Civ. P. 270. 
The decision to permit a party to present additional evidence after having rested is within
the trial court's discretion.  See Word of Faith World Outreach Ctr. Church, Inc. v.
Oechsner, 669 S.W.2d 364, 366 (Tex. App.--Dallas 1984, no writ) (exclusion of rebuttal
evidence held not abuse of discretion).  We cannot reverse a judgment because the trial
court permitted a party to re-open unless that decision was an abuse of discretion.  In re
Protection of H.W., 85 S.W.3d 348, 357-58 (Tex. App.--Tyler 2002, no pet.) (citing Word
of Faith World Outreach Ctr. Church, Inc., 669 S.W.2d at 367).  In H.W., the reviewing
court held the trial court did not abuse its discretion in permitting the State to reopen after
the close of evidence.  In re Protection of H.W., 85 S.W.3d at 357-58 (although the State
failed to show due diligence in offering the expert testimony, the one week delay was not
unreasonable and no injustice was shown).  In this case, VanZandt complains that the
testimony extended beyond the proper scope of rebuttal, but he neither demonstrates
surprise or prejudice from permitting the State to present its testimony out of order, nor
argues the evidence would have been inadmissible on case-in-chief.  Issue one is overruled. 
	The appellant's second issue contends the judgment is void because Health and
Safety Code § 841.041 violates the state constitutional prohibition on the passage of special
and local laws changing the venue in civil and criminal cases.  See Tex. Const. art. 3, §
56; Tex. Health & Safety Code Ann. § 841.041(a) (Vernon Supp. 2005).  VanZandt
did not present this challenge to the trial court, and raises the issue for the first time on
appeal.  Therefore, no error is preserved for appellate review.  In re Commitment of
Johnson, No. 09-04-060 CV, 2004 WL 2955000 (Tex. App.--Beaumont Dec. 22, 2004,
no pet. h.)(not yet reported); Tex. R. App. P. 33.1.  Issue two is overruled.
	In his third issue, VanZandt argues Section 841.082(d) of the Texas Health and
Safety Code is void for vagueness "in that it appears to mandate the trial judge to transfer
jurisdiction 'for purposes of appeal' to another district court. . . ."  See Act of May 30,
1999, 76th Leg., R.S., ch. 1188 § 4.01, 1999 Tex. Gen. Laws 4122, 4148, amended by
Act of May 30, 2003, 78th Leg., R.S., ch. 347, § 24, 2003 Tex. Gen. Laws 1505, 1517
(current version at 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 the same argument in In re
Commitment of Lowe, No. 09-03-475-CV, slip op. at 2-10, 2004 WL 2827140, *1-5 (Tex.
App.--Beaumont Dec. 9, 2004, pet. filed).  We reject VanZandt's argument for the same
reasons expressed in Lowe.  Issue three is overruled.
	The appellant's fourth issue claims that the trial judge showed partiality before the
jury.  VanZandt argues the judge displayed bias by allowing the State to present a witness
after the appellant rested, by making appellant's counsel repeat properly made objections,
and by assisting the State's attorney in offering evidence.  Of the seventeen instances of
error featured in his brief, none of them were the subject of the objection raised on appeal. 
An "objection to a trial court's alleged improper conduct or comment must be made when
it occurs if a party is to preserve error for appellate review, unless the conduct or comment
cannot be rendered harmless by proper instruction."  Dow Chem. Co. v. Francis, 46
S.W.3d 237, 241 (Tex. 2001).  Issue four is overruled.
	In his fifth issue, VanZandt contends the commitment requirements of Health and
Safety Code Section 841.082, and the final judgment and commitment order entered in
accordance with the statute, violate appellant's due process rights because they are overly
broad and vague.  See Act of May 30, 1999, 76th Leg., R.S., ch. 1188 § 4.01, 1999 Tex.
Gen. Laws 4122, 4147-48, amended by Act of May 30, 2003, 78th Leg., R.S., ch. 347,
§ 24, 2003 Tex. Gen. Laws 1505, 1516-17 (current version at Tex. Health & Safety
Code Ann. § 841.082(a) (Vernon Supp. 2005)).  The arguments presented by VanZandt
were also presented and rejected in other appeals taken under the SVP statute.  See
Johnson, slip op. at 4-6; In re Commitment of Castillo, 144 S.W.3d 655, 656-57 (Tex.
App.--Beaumont 2004, no pet.).  As the appellant presents no argument for departing from
that precedent, we shall address only those arguments not considered in Johnson and
Castillo. 
	VanZandt challenges several provisions of a document titled "Civil Commitment
Requirements: Treatment and Supervision Contract."  The document was attached to
VanZandt's pre-trial motion to dismiss the State's petition on the ground that it was
unconstitutionally punitive. (1)  Although the document is attached to a pre-trial motion,
VanZandt did not present the trial court with the vagueness challenge this issue involves,
nor did he object to the individual requirements mentioned in his brief on appeal.  Because
the errors asserted on appeal were not presented to the trial court, the appellant's
arguments have not been preserved for appellate review.  Castillo, 144 S.W.3d at 656;
Tex. R. App. P. 33.1.  Issue five is overruled.  We affirm the judgment.
	AFFIRMED.


							_____________________________
								STEVE MCKEITHEN
								        Chief Justice						


Submitted on January 25, 2005
Opinion Delivered February 3, 2005

Before McKeithen, C.J., Gaultney and Kreger, JJ.
1.  The trial court denied the motion without a hearing.  
