In re Commitment of Bohannan

• Decision Date: 22 July 2010
• Docket Number: No. 09–09–00165–CV.,09–09–00165–CV.
• Citation: 379 S.W.3d 293
• Parties: In re COMMITMENT OF Michael Wayne BOHANNAN.
• Court: Texas Court of Appeals

379 S.W.3d 293

In re COMMITMENT OF Michael Wayne BOHANNAN.

No. 09–09–00165–CV.

Court of Appeals of Texas,

Beaumont.

Submitted April 26, 2010.

Decided July 22, 2010.

George W. Lang II, State Counsel for Offenders, Huntsville, for appellant.

Melinda Fletcher, Special Prosecution Unit, Amarillo, for appellee.

Before GAULTNEY, KREGER, and HORTON, JJ.

MEMORANDUM OPINION

HOLLIS HORTON, Justice.

A jury determined that Michael Wayne Bohannan is a sexually violent predator under Texas law. SeeTex. Health & Safety Code Ann. §§ 841.001–.150 (Vernon 2010) (SVP statute). The jury found that Bohannan suffers from a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence. Bohannan presents seven issues in his appeal from the trial court's judgment and order of civil commitment. In issue three, Bohannan complains that the trial court erred in excluding his sole expert witness. Because we find the trial court erred by excluding the testimony of Bohannan's sole expert witness, we grant Bohannan's request for a new trial.

Legal Sufficiency

Bohannan asserts in his seventh issue that the evidence is legally insufficient to support the jury's verdict.¹ The SVP statute defines “sexually violent predator” as a person who “(1) is a repeat sexually violent offender; and (2) suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence.” Tex. Health & Safety Code Ann. § 841.003(a) (Vernon 2010). “Behavioral abnormality” is defined 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.” Id. at § 841.002(2) (Vernon 2010). As to the first requirement, Bohannan admitted at trial that he had previously been convicted of two sexual assault offenses. As to the second, the State's evidence included expert witnesses who testified that Bohannan suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence.

The SVP statute requires the State to prove beyond a reasonable doubt that a person is a sexually violent predator. SeeTex. Health & Safety Code Ann. § 841.062(a) (Vernon 2010). Thus, when reviewing legal sufficiency issues, we apply the same legal sufficiency standard of review that we apply in criminal cases. In re Commitment of Barbee, 192 S.W.3d 835, 839 (Tex.App.-Beaumont 2006, no pet.). With respect to whether the evidence is legally sufficient to support an affirmative jury finding, we review all of the evidence in a light most favorable to the verdict. Id. Therefore, we review the evidence introduced to the jury during Bohannan's trial to decide if a rational jury could have found, beyond a reasonable doubt, that Bohannan has a behavioral abnormality that creates a serious difficulty in his ability to control his behavior. See id.

In arguing his legal sufficiency challenge, Bohannan asserts that the State's expert witnesses provided “[n]o bases” for their opinions, thus, rendering their opinions “incompetent, conclusory[,] and speculative.” The Texas Supreme Court has explained that “conclusory opinions are legally insufficient evidence to support a judgment even if the party did not object to the admission of the testimony.” City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex.2009) (citing Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex.2004)). If there is no reliable basis offered for the expert's opinion, the opinion has no weight as probative evidence. Id. at 816–17. If the opinion has a supporting basis, but there is a reliability challenge that requires the court to evaluate the underlying methodology, technique, or foundational data, then an objection “ ‘must be timely made so that the trial court has the opportunity to conduct this analysis.’ ” Id. at 817 (quoting Coastal Transp. Co., 136 S.W.3d at 233). In this case, there was no objection to the testimony of either witness on grounds of unreliability.

During their respective examinations, each of the State's experts explained the methodology he had used in formulating his opinions. Each expert examined records and an evaluation packet prepared by the sex offender treatment program. Each examined historical records pertaining to Bohannan's previous offenses and each reviewed Bohannan's records about his various mandatory supervisions. Each also reviewed records about additional offenses that Bohannan committed while on mandatory supervision. Dr. Price administered risk assessment instruments and actuarial tests, and Dr. Arambula reviewed those tests. Additionally, each of the State's expert witnesses interviewed Bohannan.

Dr. Price, a clinical and forensic psychologist who is board certified in forensic psychology and neuropsychology, performed two actuarial tests on Bohannan. One was the “Static 99,” which is used to measure the risk of sexual recidivism; the other was the “Minnesota Sex Offender Screening Tool–Revised” (MnSOST–R), which also predicts the risk of future sexual offenses. Dr. Price scored Bohannan with a “5” on the Static 99, which Dr. Price explained places Bohannan with a “moderately high risk of reoffending.” On the MnSOST–R, Dr. Price scored Bohannan at a “10”, which Dr. Price explained places Bohannan at a high risk of recidivism. Dr. Price diagnosed Bohannan as having “paraphilia not otherwise specified[,]” “personality disorder not otherwise specified [,]” and “cannabis abuse by history in remission, at least partially due to incarceration.” After noting certain details of the aggravated sexual assaults for which Bohannan had been imprisoned, Dr. Price also testified about offenses that Bohannan committed while he had been placed on various mandatory supervisions. Dr. Price explained how these additional offenses affected his opinion. Dr. Price concluded that Bohannan has a behavioral abnormality that predisposes him to engage in predatory acts of sexual violence.

Dr. Arambula, a psychiatrist who is board certified in general psychiatry and forensic psychiatry, diagnosed Bohannan as having personality disorder not otherwise specified with features of antisocial conduct and paraphilia not otherwise specified with features of pedophilia, sadism, and exhibitionism. Dr. Arambula identified several factors as enhancing the probability that Bohannan would reoffend, including (1) the number of victims, five; (2) the variety of his victims' ages; (3) the fact that all of Bohannan's victims were strangers; (4) the fact that Bohannan threatened to injure his victims with a knife when he committed the aggravated sexual assaults; (5) the fact that Bohannan committed additional sex-related offenses while on various mandatory supervisions; (6) the fact that additional sex-related offenses were committed after Bohannan received sex offender treatment; (7) the fact that Bohannan used drugs when he committed the aggravated sexual assaults; and (8) the fact that two of the sex-related offenses Bohannan committed while on mandatory supervisions had involved children. Dr. Arambula concluded that Bohannan has a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence, and that Bohannan was at risk for reoffending.

The record contains evidence that Bohannan is a repeat sexually violent offender who suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. Reviewing the evidence in the light most favorable to the jury's verdict, a rational jury could have found, beyond a reasonable doubt, that Bohannan has serious difficulty in controlling his behavior and that he meets the statutory definitions that are associated with sexually violent predators. We conclude that the evidence is legally sufficient to support the jury's verdict. Issue seven is overruled.

Exclusion of Expert Testimony

In his third issue, Bohannan contends the trial court abused its discretion in excluding the testimony of his only expert, Dr. Anna Shursen. Bohannan argues that trial courts are not limited by Chapter 841 of the Health and Safety Code to appoint experts with medical degrees to assess whether a person meets the definitions contained within the SVP statute. He also argues that the SVP statute does not establish the qualifications required of expert witnesses in SVP cases.

According to Bohannan, had the Legislature intended to limit the persons qualified to assess whether a person has a behavioral abnormality predisposing him to reoffend to psychiatrists and psychologists, “[i]t could have so provided.” Furthermore, Bohannan asserts that the Texas Rules of Evidence do not require that an expert possess any specific type of degree, and instead, he points out that Rule 702 provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702. Finally, Bohannan contends that the trial court's ruling, because it prevented him from presenting his side of the case to the jury, denied him a fair trial.

The State contends that Dr. Shursen is not qualified to present expert testimony. The State argues that Dr. Shursen does not have the requisite forensic training and experience even though it acknowledges she “has extensive experience and training in providing sex offender treatment.” Nevertheless, the State asserts that Dr. Shursen's expertise “does not ‘fit’ with the forensic task of determining whether a person suffers from a behavioral abnormality.” Alternatively, the State maintains that regardless of error, the trial court's decision to exclude Dr. Shursen's testimony was harmless.

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