IN THE SUPREME COURT OF TEXAS
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NO . 10-0605
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IN RE COMMITMENT OF MICHAEL BOHANNAN
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE NINTH DISTRICT OF TEXAS
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Argued November 8, 2011
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
1
___ S.W .3d ___ (Tex. App.–Beaumont 2010).
2
T EX . H EALTH & S AFETY C O DE § 841.003(a).
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 reasonable compensation 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
3
Id. § 841.002(2).
4
Id. § 841.081(a).
5
The determination must be made, at the recommendation of a multidisciplinary team, by either the Texas
Department of Criminal Justice for an inmate, or by the Department of State Health Services for someone adjudged not
guilty by reason of insanity. Id. §§ 841.021-.023.
6
Id. § 841.023(a).
7
Id. §§ 841.061(c), 841.145(a).
8
Id. §§ 841.145(b)-(d), 841.146(c).
2
of unsound mind for purposes of Section 15-a, Article I, Texas Constitution.”9 Section 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
9
Id. § 841.1461; see also id. § 841.001 (“The legislature finds that a small but extremely dangerous group of
sexually violent predators exists and that those predators have a behavioral abnormality that is not amenable to traditional
mental illness treatment modalities . . . . The legislature further finds that treatment modalities for sexually violent
predators are different from the traditional treatment modalities for persons appropriate for involuntary commitment
under [the Texas Mental Health Code].”).
10
T EX . C ON ST . art. I, § 15-a.
11
T EX . H EALTH & S AFETY C O D E § 841.041(a).
12
T EX . G OV ’T C O D E §§ 24.109, 24.110, 24.399, 24.461, 24.505, 24.562, and 24.579.
13
Id. § 24.562.
14
Id. § 24.579.
3
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.
4
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 counselor15 and as a sex offender treatment provider.16
15
See T EX . O CC . C O D E § 503.302(a) (“A person qualifies for a license [as a professional counselor] if the
person: (1) is at least 18 years old; (2) has a master’s or doctoral degree in counseling or a related field; (3) has
successfully completed a graduate degree at a regionally accredited institution of higher education and the number of
graduate semester hours required by board rule, which may not be less than 48 hours and must include 300 clock hours
of supervised practicum that: (A) is primarily counseling in nature; and (B) meets the specific academic course content
and training standards established by the board; (4) has completed the number of supervised experience hours required
by board rule, which may not be less than 3,000 hours working in a counseling setting that meets the requirements
established by the board after the completion of the graduate program described by Subdivision (3); (5) except as
provided by Subsection (b), passes the license examination and jurisprudence examination required by this chapter; (6)
submits an application as required by the board, accompanied by the required application fee; and (7) meets any other
requirement prescribed by the board.”).
16
To be licensed as a sex offender treatment provider, a person: must be licensed to practice in Texas as a
physician, psychologist, counselor, or one of several other specified professionals; must have 1,000 hours of clinical
experience in the areas of assessment and treatment of sex offenders within a seven-year period; and must have 40 hours
of continuing education training within three years. See 22 Tex. Admin. Code § 810.3(c).
5
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
6
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 been in private practice since
2000, providing behavioral therapy treatment for sex offenders. She stated that she has received
more than a 1,000 hours of training, sees more than 100 clients each week, and has made 18 SVP
7
assessments.17 Like Price and Arambula, she reviewed all of Bohannan’s records and interviewed
him personally. She scored him a “5” on the Static-99, the same as Price, and an “8”, a little lower,
on the MnSOST. She also determined from another diagnostic protocol, the Hare Psychopathy
Checklist, that Bohannan is not psychopathic. Shursen testified that in her opinion, based on
Bohannan’s records, her interviews with him, the actuarial tests, and her experience in the field,
Bohannan does not have a behavioral abnormality “at this time”. She was not asked to elaborate on
the qualification.
The jury found that Bohannan suffers from a behavioral abnormality, as defined by statute,
that predisposes him to engage in a predatory act of sexual violence. The trial court issued an order
of civil commitment.18
Bohannan appealed, as Dodson had in the other case in which Shursen’s testimony had been
excluded. The court of appeals decided Dodson first.19 It held that the statutory definition of
behavioral abnormality20 has two separate components: an acquired or congenital condition, and a
predisposition to commit a sexually violent offense.21 The second element, the court noted, was also
17
She testified that she found a behavioral abnormality in 20 to 30% of these cases, though the record does not
reflect a specific number.
18
Bohannan was ordered to reside in supervised housing, not to contact his victims, not to possess alcohol or
other drugs, to participate in treatment, to submit to tracking by a GPS monitor, not to change his residence or leave the
State without court approval, not to be in the presence of children, to notify his case manager of any changes in status,
and to provide blood and hair samples for the State’s DNA Data Bank. See T EX . H EALTH & S AFETY C O D E §§ 841.081-
.083.
19
In re Dodson, 311 S.W .3d 194 (Tex. App.–Beaumont 2010, pet. denied).
20
T EX . H EALTH & S AFETY C O D E § 841.002(2).
21
Dodson, 311 S.W .3d at 199.
8
part of the definition of an SVP — someone “likely to engage in a predatory act of sexual
violence.”22 The court concluded in Dodson that while medical evidence is necessary to prove the
existence of a condition, it is not necessary to prove a predisposition to sexually violent behavior.23
Someone like Shursen, trained in applying actuarial tests evaluating the risk of recidivism, and
experienced in recognizing that risk among her patients, is qualified to testify whether a person
satisfied that part of the definition of behavioral abnormality.24 The court determined that the
exclusion of Shursen’s testimony was harmful error and remanded the case for a new trial.25 In the
present case, the court reached the same result for the same reasons.26
We granted the State’s petition for review.27
II
To begin with, we do not agree with the court of appeals’ bisection of the statutory definition
of behavioral abnormality. The definition, again, is this:
“Behavioral abnormality” means 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.28
22
T EX . H EALTH & S AFETY C O D E § 841.003(a).
23
Dodson, 311 S.W .3d at 199-200.
24
Id. at 200.
25
Id. at 202-204.
26
___ S.W .3d ___ (Tex. App.–Beaumont 2010).
27
Tex. Sup. Ct. J. (June 10, 2010).
28
T EX . H EALTH & S AFETY C O D E § 841.002(2).
9
Boiling it down, a behavioral abnormality is “a . . . condition that . . . predisposes” sexually violent
conduct. The modifier, “predisposes”, qualifies and describes “condition”. The required condition
is the predisposition. The condition has no other qualities, other than that it can be congenital or
acquired. The condition and predisposition are one and the same. The definition might more clearly
be written:
“Behavioral abnormality” means a congenital or acquired predisposition, due to one’s
emotional or volitional capacity, to commit a sexually violent offense, to the extent
that the person becomes a menace to the health and safety of another person.
The condition and predisposition cannot be separate things, as the court of appeals tried to make
them.
The concern regarding the predisposition is, of course, the heightened risk of offense. That
concern is reiterated in the statutory definition of an 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.”29 The court of appeals in Dodson took this reiteration as further indication
that the predisposition (or risk) and the condition required for a behavioral abnormality are separate
things. We think a careful analysis of the definition of an SVP does not support the court’s position.
Substituting the definition of “behavioral abnormality” for that term in the definition of an
SVP yields this:
A person is a sexually violent predator . . . if the person . . . suffers from [a congenital
or acquired condition
29
Id. § 841.003(a) (emphasis added).
10
{Qualifier A} 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]
{Qualifier B} that makes the person likely to engage in a predatory act of sexual
violence.
We see only two possible differences in the two qualifiers. One is that a predisposition to
misconduct may not make a person likely to engage in it, or vice versa, that a person may be likely
to engage in misconduct though not predisposed to do so. We think the import of predisposition and
likelihood is exactly the same: increased risk. An increased likelihood of misconduct indicates a
predisposition, and a predisposition threatens increased likelihood. In this regard, the two qualifiers
are the same. The other possible difference between them is that a menacing offender may not be
predatory, or vice versa, that a predator may not be a menace. If such a distinction were possible,
and we do not think it is, nothing in the Act suggests that it is intended. Thus, Qualifier B simply
explains or restates Qualifier A. Its inclusion in the definition of an SVP certainly does not suggest
that Qualifier A is a separate element of the definition of behavioral abnormality.
Accordingly, we conclude that whether a person “suffers from a behavioral abnormality that
makes the person likely to engage in a predatory act of sexual violence”30 is a single, unified issue.
III
As already noted, the Act does not prescribe the qualifications an expert must have to opine
on whether a person is an SVP, and it contains only two provisions relevant to the issue.
30
T EX . H EALTH & S AFETY C O D E § 841.003(a)(2).
11
One is the statement that “[a] person who suffers from a behavioral abnormality . . . is not
because of that abnormality a person of unsound mind”.31 The obvious purpose of this provision,
entitled “Certain Expert Testimony Not Required”, is to express the Legislature’s view that medical
and psychiatric testimony, a constitutional prerequisite for committing a person of unsound mind,32
is unnecessary in SVP proceedings. The statutory provision was added to the Act after, and perhaps
in response to, the court of appeals’ decision to the contrary in an early case.33 Bohannan argues that
the statute overrules the court’s decision, but while the Legislature may certainly state its view of a
constitutional provision, an authoritative construction is a matter for the courts.34 The State does not
address the issue but obviously takes the position by its trial conduct — relying on the opinion of a
psychologist — that irrespective of whether the constitution requires medical evidence for
commitment of an SVP, it does not render other expert testimony inadmissible. Thus, both parties
agree that the constitution does not preclude evidence in an SVP commitment proceeding from an
expert who is not a physician. Accordingly, we assume without deciding that the constitution is no
impediment to the admission of non-medical expert testimony in an SVP commitment proceeding.35
31
Id. § 841.1461.
32
T EX . C ON ST . art. I, § 15-a.
33
Beasley v. Molett, 95 S.W .3d 590, 598 (Tex. App.–Beaumont 2002, pet. denied); but cf. Dudley v. State, 730
S.W .2d 51, 54 (Tex. App.–Houston [14th Dist.] 1987, no writ) (“W e do not interpret the [constitutional] phrase
‘committed as a person of unsound mind’ as including a person committed as an alcoholic. Rather, we view the
constitutional provision as pertaining to a person suffering from mental illness . . . .”).
34
W. Orange-Cove Consol. Indep. Sch. Dist. v. Alanis, 107 S.W .3d 558, 563 (Tex. 2003) (“The final authority
to determine adherence to the Constitution resides with the Judiciary.”) (citing Marbury v. Madison, 5 U.S. (1 Cranch)
137, 176-178 (1803), and Love v. Wilcox, 28 S.W .2d 515, 520 (Tex. 1930)).
35
And we express no view on whether the constitution requires that commitment be based on medical or
psychiatric testimony.
12
The other provision of the Act relevant to expert qualifications states that at the
administrative stage, an “expert shall make a clinical assessment based on testing for psychopathy,
a clinical interview, and other appropriate assessments and techniques”.36 Obviously, the expert
must have the training and experience necessary to perform as required — to test for psychopathy,
to conduct a clinical interview, and to employ other appropriate evaluative procedures. The Act
gives no reason to think that the qualifications of trial experts should be any different.
Absent more specific statutory direction, we apply the general rule, which is that an expert
must be qualified “by knowledge, skill, experience, training, or education” to “assist the trier of fact
to understand the evidence or to determine a fact in issue”.37 That a witness has knowledge, skill,
expertise, or training does not necessarily mean that the witness can assist the trier-of-fact. Expert
testimony assists the trier-of-fact when the expert’s knowledge and experience on a relevant issue
are beyond that of the average juror and the testimony helps the trier-of-fact understand the evidence
or determine a fact issue.38
Credentials are important, but credentials alone do not qualify an expert to testify. We have
observed, for example, that “a medical license does not automatically qualify the holder ‘to testify
as an expert on every medical question.’”39 “Trial courts must ‘ensur[e] that those who purport to
36
T EX . H EALTH & S AFETY C O D E § 841.023(a).
37
T EX . R. E VID . 702.
38
K-Mart Corp. v. Honeycutt, 24 S.W .3d 357, 360 (Tex. 2000) (citations omitted).
39
Roberts v. Williamson, 111 S.W .3d 113, 121 (Tex. 2003) (quoting Broders v. Heise, 924 S.W .2d 148, 152
(Tex. 1996)); see also Gammill v. Jack Williams Chevrolet, Inc., 972 S.W .2d 713, 719 (Tex. 1998) (“Just as not every
physician is qualified to testify as an expert in every medical malpractice case, not every mechanical engineer is qualified
to testify as an expert in every products liability case.”).
13
be experts truly have expertise concerning the actual subject about which they are offering an
opinion.’”40 The test is “whether ‘the offering party [has] establish[ed] that the expert has
“knowledge, skill, experience, training, or education” regarding the specific issue before the court
which would qualify the expert to give an opinion on that particular subject.’”41
In evaluating an expert’s qualifications, it is important to keep in mind that expert testimony
must be relevant and reliable.42 “To be relevant, the proposed testimony must be sufficiently tied
to the facts of the case that it will aid the jury in resolving a factual dispute.”43 Determining whether
an expert’s theory or technique is reliable requires consideration of all pertinent factors, including
(1) the extent to which the theory has been or can be tested;
(2) the extent to which the technique relies upon the subjective interpretation of
the expert;
(3) whether the theory has been subjected to peer review and/or publication;
(4) the technique’s potential rate of error;
(5) whether the underlying theory or technique has been generally accepted as
valid by the relevant scientific community; and
(6) the non-judicial uses which have been made of the theory or technique.
40
Gammill, 972 S.W .2d at 719 (quoting Broders, 924 S.W .2d at 152).
41
Roberts, 111 S.W .3d at 121 (quoting Broders, 924 S.W .2d at 153).
42
State v. Cent. Expressway Sign Assocs., 302 S.W .3d 866, 870 (Tex. 2009).
43
E. I. du Pont de Nemours & Co. v. Robinson, 923 S.W .2d 549, 556 (Tex. 1995) (internal quotations omitted).
14
These factors may be difficult to apply to an opinion that is based heavily on an expert’s individual
skill, experience, or training. In no case, however, may expert testimony be admitted when “‘there
is simply too great an analytical gap between the data and the opinion proffered.’”44
In SVP commitment proceedings, the only fact issue to be resolved by the trier-of-fact is
whether a person has the behavioral abnormality required for an SVP. The approach of all three
experts in this case was consistent with the little guidance provided by the Act. All agreed that in
assessing whether a person has the behavioral abnormality for an SVP, all available information
should be considered, and that the person should be interviewed. They also suggest that a medical
diagnosis should be made and actuarial risk tests should be applied. Still, “[o]pinions about behavior
. . . and psychology depend largely on the subjective interpretation of the expert”,45 and opinions “too
dependent upon [an expert’s] subjective guesswork” must be excluded.46 The expert’s experience,
knowledge, and training are crucial in determining whether the expert’s opinions are admissible.
A medical diagnosis of a person’s mental health may certainly inform an assessment of
whether he has an SVP’s behavioral abnormality, but the principal issue in a commitment proceeding
is not a person’s mental health but whether he is predisposed to sexually violent conduct. And in
deciding that issue, as this case makes clear, the kind of evaluation done by a psychologist may be
at least as important as a medical diagnosis. The usefulness of the expert’s opinion in assisting the
trier-of-fact rests not on the type of license the expert holds but on the expert’s knowledge, training,
44
Gammill, 972 S.W .2d at 727 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).
45
S.V. v. R.V., 933 S.W .2d 1, 42 (Tex. 1996) (Cornyn, J., concurring).
46
Transcon. Ins. Co. v. Crump, 330 S.W .3d 211, 217 (Tex. 2010).
15
and experience in dealing with sexual offenders. A person’s training and experience in clinical
interviews and actuarial tests is no less helpful merely because the person is not licensed as a
psychologist.
We see no basis for limiting the experts who can testify in SVP commitment proceedings to
physicians and psychologists. The purpose of the Act is to reduce the risk of those who are
behaviorally predisposed to sexually violent conduct. An expert thoroughly acquainted with sexual
offenders’ behavior may be qualified to assess the risk a person poses to others. Accordingly, we
hold that a person is not disqualified from testifying as an expert in an SVP commitment proceeding
merely because the person is not licensed as a physician or psychologist.47
IV
We turn finally to whether the exclusion of Shursen’s testimony was harmful error.
Though Shursen lacks medical or psychological training, she has broad experience in dealing
with sexual offenders. She is licensed by the State to provide treatment for sexual offenders, and
while that license may not in itself qualify her as an expert on SVPs, she has also spent more than
1,000 hours in that work to obtain her license and continues to see more than a 100 patients a week.
She testified that she receives continuing instruction, some of which is geared to applying and
interpreting actuarial tests and to commitment assessments. She is qualified to apply such tests and
has testified repeatedly in commitment proceedings.
47
We need not exclude all possibility that a medical diagnosis might be important in making a risk assessment
in a particular case because the State did not object to Bohannan’s evidence on that basis.
16
The State argues that Shursen is qualified to assess the risk that a person will engage in
sexually violent conduct only for the purpose of providing treatment, and not for the purpose of
commitment proceedings. The State notes that by statute, experts on incompetency and insanity in
criminal proceedings must be licensed physicians or psychologists.48 But the absence of any such
statutory requirement in SVP commitment proceedings tends to contradict the State’s argument.
While the Legislature has discretion to set requirements for expert testimony on specific issues, when
the Legislature has not done so, the State’s attempted distinction between between risk assessments
for purposes of treatment and those for purposes of civil commitment is unfounded.
Risk assessments are to a degree subjective, and in evaluating an expert’s qualifications to
make them, it is important to know what training and experience an expert has in minimizing that
subjectivity. Here, Shursen used the same well-recognized actuarial tests that Price used and was
prepared to defend her scoring, based on Bohannan’s records and her interview with him.
Furthermore, Arambula testified that the risk assessments he uses in SVP proceedings are the same
as those he uses in treating sex offenders.
The trial court’s discretion in determining whether an expert is qualified to testify on a matter
is broad49 but not unbounded. A trial court abuses its discretion when it excludes relevant and
reliable evidence.50 Most SVP commitment proceedings are conducted in a single district court
before a few judges, and appeals are almost always heard by one court of appeals. From the record
48
T EX . C OD E C RIM . P RO C . arts. 46B.022, 46C.102.
49
Broders v. Heise, 924 S.W .2d 148, 151 (Tex. 1996).
50
State v. Cent. Expressway Sign Assocs., 302 S.W .3d 866, 870 (Tex. 2009).
17
before us, the trial court appears to have determined that Shursen is unqualified to testify, not for
reasons peculiar to her experience and training, but because she is not a physician or psychologist.
In this context, we think a more careful review of the trial court’s ruling is warranted.
We conclude that the trial court abused its discretion in excluding Shursen’s testimony. The
State does not challenge the court of appeals’ holding that the exclusion was harmful, and therefore
we do not consider the issue.
* * *
For the reasons given, the judgment of the court of appeals is
Affirmed.
Nathan L. Hecht
Justice
Opinion delivered: August 31, 2012
18