In re Commitment of Bohannan

• Decision Date: 18 January 2013
• Docket Number: No. 10–0605.,10–0605.
• Citation: 388 S.W.3d 296,55 Tex. Sup. Ct. J. 1337
• Parties: In re COMMITMENT OF Michael BOHANNAN.
• Court: Texas Supreme Court

388 S.W.3d 296

55 Tex. Sup. Ct. J. 1337

In re COMMITMENT OF Michael BOHANNAN.

No. 10–0605.

Supreme Court of Texas.

Argued Nov. 8, 2011.

Decided Aug. 31, 2012.

Rehearing Denied Jan. 18, 2013.

Catherine Anne Palmore, Erin Kupcunas Faseler, Special Prosecution Unit, Sean Matthew Fifield, Special Prosecution Unit–Civil Division, Huntsville, TX, Melinda Mayo Fletcher, Special Prosecution Unit, Amarillo, TX, for The State of Texas.

Andrea La Shawn Medley, IRS, Milwaukee, WI, George W. Lang II, Kenneth D. Nash, Mary Elliott McKetta, State Counsel for Offenders' Office, Huntsville, TX, Rebecca Rae Malek, Dallas County Public Defender's Office, Dallas, TX, for Michael Bohannan.

Justice HECHT delivered the opinion of the Court.

We consider in this case what qualifications an expert must have to testify regarding whether a person is a sexually violent predator and therefore subject to civil commitment for outpatient treatment and supervision. Like the court of appeals,¹ though for different reasons, we conclude that the exclusion of expert testimony in this case requires a new trial.

I

A

The Texas Civil Commitment of Sexually Violent Predators Act of 1999 defines a sexually violent predator (“SVP”) as “a repeat sexually violent offender [who] suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.” ² The Act defines “behavioral abnormality” as “a congenital or acquired condition that, by affecting a person's emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person.” ³ A person found to be an SVP in a civil court proceeding must be ordered committed to outpatient treatment and supervision.⁴

Before the State files suit, a person must be administratively determined to be an SVP.⁵ The Act requires that determination to be informed by an expert's “clinical assessment based on testing for psychopathy, a clinical interview, and other appropriate assessments and techniques”.⁶ Once suit is filed, the Act gives both the State and the person the right to a further expert examination.⁷ If the person is indigent, and the trial court determines that expert services are necessary, the court must appoint an expert and approve reasonablecompensation to be paid by the State. ⁸

The Act does not prescribe the qualifications for experts to testify whether a person has the behavioral abnormality required for an SVP. It does provide that “[a] person who suffers from a behavioral abnormality as determined under this chapter is not because of that abnormality a person of unsound mind for purposes of Section 15–a, Article I, Texas Constitution.” ⁹Section 15–a provides in part that “[n]o person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony.” ¹⁰ Thus, in the Legislature's view, an expert used to assess whether a person is an SVP is not constitutionally required to be a physician.

The State must bring SVP commitment proceedings in “a Montgomery County district court other than a family district court”.¹¹ There are seven district courts in Montgomery County.¹² One is required to give preference to family cases.¹³ One other, the 435th District Court, is required to give preference to SVP commitment proceedings.¹⁴ At present, most such proceedings are assigned to that court.

B

In September 1982, Michael Wayne Bohannan, then 26, married, and employed as a machinist, rode his bicycle past K.C.'s home several times and watched her inside through a window. One evening, he donned a ski mask and carrying a large knife, entered the home through the rear door, walked down the hallway past a room in which a child was sleeping, and entered K.C.'s bedroom. She was lying on the bed, reading a newspaper. Bohannan forced her to perform oral and vaginal sex, then left. Looking back on it, Bohannan testified in this case that he thought he would get some satisfaction or self-fulfillment out of raping K.C., and in some way, he expected K.C., 27, to “like being raped”.

Some three weeks later, Bohannan was driving around on his lunch break when he saw P.H., 27, enter her home. He stopped, put on his ski mask, picked up his knife, and walked through the front door. P.H. was with a group of children, whom Bohannan made her move to another room. He then took P.H. to her bedroom and forced her to perform oral and vaginal sex. He now recalls, as before, he thought he would get some satisfaction from raping P.H., “maybe ... feel more of a man”.

Bohannan was apprehended and in 1983 pleaded guilty to two counts of aggravated rape with a deadly weapon, and was sentenced to 25 years' imprisonment. Court papers suggest that he committed a third rape for which he was not charged, but Bohannan denies it.

In 1991, Bohannan was released on mandatory supervision. In April 1992, he was charged with attempting to kidnap a nine-year-old girl in a K–Mart, and in February 1993, he pleaded guilty, though he now denies he committed any crime. His mandatory supervision was revoked and he was returned to prison.

In 1998, Bohannan was again released on mandatory supervision, and in 2000 he moved to South Carolina to live with his mother. While there, he was convicted of exposing his genitals to an eight-year-old girl in a toy store and sentenced to three years' imprisonment. Bohannan denies that the allegations were true. In 2002, he was returned to prison in Texas.

In 2004, Bohannan was released on mandatory supervision a third time. But in 2006, his release was again revoked, this time for viewing child pornography on a computer in a county law library. He was enrolled in sex offender therapy at the time. Bohannan denies that the charges were true.

Bohannan testified that he now knows that the rapes were wrong and devastating to the lives affected.

C

After receiving from the Texas Department of Criminal Justice a psychologist's report that Bohannan is an SVP, the State petitioned for his commitment. The State designated two experts to testify at trial: Dr. Jack Randall Price, a board-certified forensic psychologist, and Dr. Michael R. Arambula, a board-certified forensic psychiatrist. Bohannan designated Dr. Anna Shursen, whose doctoral degree is in family sciences and family therapy. Shursen is licensed in Texas as a professional counselor ¹⁵ and as a sex offender treatment provider.¹⁶

Trial in the case was set for January 16, 2009, in the 435th District Court. On December 15, 2008, a visiting judge in that court refused to allow Shursen to testify as an expert in another SVP commitment proceeding, In re Dodson. Though Shursen had testified a dozen times in other such cases, the judge stated on the record that she was “not qualified to present an opinion” on whether someone is an SVP. On December 24, the State moved to exclude Shursen's testimony in this case for the same reason, having previously moved for an extension of time to file such a motion past the deadline set by the court's docket control order. On January 8, the regular judge of the 435th District Court granted an extension and ordered the motion to exclude to be heard the first day of trial. On January 20, after a jury was impaneled and sworn, the judge conducted a lengthy hearing on the State's motion, and at the end of the day, announced that he would take the matter under advisement overnight. The next morning the court granted the motion, finding that “Shursen lacks the forensic training and experience to answer the ultimate question”, viz, “whether [Bohannan] suffers from a behavioral abnormality that predisposes him to commit predatory acts of sexual violence.” Bohannan moved for a continuance for want of evidence, which the court denied, and the State proceeded to present its case.

Price testified that he entered practice in 1983 and turned to forensic work in 1990. He teaches at the University of Texas Southwestern Medical Center at Dallas, the Southern Methodist University Dedman School of Law, and Richland College, and has written extensively on professional subjects. He stated that he has made from 25 to 30 SVP assessments, and in three to five of them, found that the individuals did not have the requisite behavioral abnormality. Based on prison records and a two-hour personal interview, Price concluded that Bohannan does have a behavioral abnormality. Using the Diagnostic and Statistical Manual of Mental Disorders (“DSM”), he diagnosed Bohannan as having “paraphilia not otherwise specified”—in lay terms, sexual deviance—and “personality disorder not otherwise specified”. Price applied two actuarial tests widely used to evaluate a sexual offender's risk of recidivism: the Static–99 and the Minnesota Sex Offender Screening Technique (“MnSOST”). Price scored Bohannan a “5”—moderately high risk—on the Static–99 and a “10”—high risk—on the MnSOST.

Arambula testified that he graduated from medical school, began training in general psychiatry, and applied for a license to practice in the late 1980s. He teaches at the University of Texas Health Science Center at San Antonio. He stated that he has done 16 or 17 SVP assessments in the last three years, and in two of them, found that the individuals did not have a behavioral abnormality. Based on available records and a three-hour personal interview, he concluded that Bohannan does have a behavioral abnormality. He diagnosed Bohannan with “paraphilia not otherwise specified with features of pedophilia, sadism, and exhibition” and with “personality disorder not otherwise specified with features of antisocial conduct”. Arambula did not use actuarial tests in evaluating Bohannan but concluded that he was at a high risk of reoffending in part because his sexual misconduct has continued since the rapes, despite the therapy he has received, and has involved children.

Shursen testified outside the presence of the jury that she has...