Texas Supreme Court Holds Expert Need Not Be Psychiatrist or Psychologist to Testify in SVP Commitment Proceeding

In re Commitment of Bohannan, 2012 Tex LEXIS 734 (Aug. 31, 2012)

The Texas Supreme Court ruled on August 31, 2012 that a licensed professional counselor and sex offender treatment provider was qualified to testify in a civil commitment proceeding for a sexually violent predator. Because the Texas statute did not limit expert testimony to only physicians or psychologists, the Court held that the general rule merely required an expert to have the knowledge, skill, experience, training or education to assist the trier of fact to understand the evidence or to determine a fact in issue.

On two separate occasions in 1982, the defendant Michael Wayne Bohannan stalked women, broke into their homes and raped them at knife point. He was sentenced to 25 years in prison, but was released on mandatory parole in 1991. In April 1992, he was charged with attempting to kidnap a nine-year-old girl at K-Mart and was returned to prison. The defendant was again released in 1998 on mandatory supervision and in 2000 moved to South Carolina to live with his mother. There he was convicted of indecent exposure to an eight-year-old girl in a toy store. He denied the allegations but was returned to prison in Texas. The defendant was again released on mandatory supervision in 2004, but in 2006 his release was revoked for viewing child pornography in a county law library.

At the defendant’s SVP civil commitment hearing, a board certified forensic psychiatrist and board certified forensic psychologist testified that Bohannan was a sexually violent predator. Bohannan designated a licensed professional counselor as his expert. She testified outside the presence of the jury that she had been in private practice since 2000 providing behavioral therapy treatment for sex offenders, had received more than 1000 hours of training, sees more than 100 clients each week and has completed 18 SVP assessments. She also testified that, like the other experts, she had reviewed Bohannan’s records and interviewed him personally. She scored him a “5” on the Static-99 and an “8” on the MnSOST, somewhat lower than the government’s psychologist. Using the Hare Psychopathy Checklist, she also determined that Bohannan was not psychopathic. She further testified that in her opinion Bohannan did not have a behavioral abnormality at this time. The trial judge refused to permit her to testify, finding that only a physician or psychologist could provide medical testimony as to a behavioral abnormality. The jury then found Bohannan to be a sexually violent predator and the court ordered him committed.

On appeal, the Texas Court of Appeals reversed the trial court and ordered a new trial, finding that the Texas statutory definition of behavioral abnormality has two components, the first being whether a defendant has an acquired or congenital condition, and a predisposition to commit a sexually violent act to which a medical expert must testify. The second component the Court determined was whether a defendant is likely to commit a sexually violent act for which a medical expert is not required.

On further appeal, the Texas Supreme Court rejected the Court of Appeals’ bifurcated definition finding that the definition of behavioral abnormality was one all encompassing definition. It upheld the reversal, however, finding that the Texas statute did not require an expert to be a physician or psychologist. It noted that experts in criminal proceedings were required by statute to be physicians or psychologists, but no such requirement is found in the SVP statute therefore indicating that the legislature did not intend to impose such a requirement in SVP proceedings. The Supreme Court went on to find that the failure to permit Bohannan’s expert from testifying was not harmless error thus requiring a new trial.

Found in DMHL Volume 31 Issue 6