## Facts

- The State of Texas filed a petition under Texas Health & Safety Code Chapter 841 seeking to civilly commit David Dodson as a “sexually violent predator” (SVP).
- To obtain commitment, the State had to prove beyond a reasonable doubt that Dodson is an SVP, including that he “suffers from a behavioral abnormality that predisposes [him] to engage in a predatory act of sexual violence,” as defined by the statute (a condition that, by affecting emotional or volitional capacity, predisposes the person to commit sexually violent offenses to the extent the person becomes a menace to others).
- The case was tried to a jury. The jury received a broad-form question tracking the statutory behavioral-abnormality element and answered in the State’s favor.
- Dodson offered testimony from Dr. Anna Shursen, a state-licensed sex-offender treatment provider and licensed professional counselor who was not a medical doctor.
- Shursen’s background included a doctorate in family sciences, a master’s degree in counseling and psychotherapy, extensive clinical training (including thousands of hours), and more than a decade of experience treating and assessing juvenile and adult sex offenders.
- Shursen interviewed Dodson for approximately three hours and was offered to testify that he did not meet the statutory concept of behavioral abnormality and was not likely to reoffend in a predatory way.
- During Shursen’s testimony, the State objected that her risk-assessment work related to treatment and did not qualify her to opine on whether Dodson had a “behavioral abnormality” or whether he was an SVP under Chapter 841.
- Outside the jury’s presence, the trial court sustained the objection and excluded Shursen’s opinion testimony on whether Dodson suffers from a behavioral abnormality (and, as the court described it, on the subject matter at the heart of the suit), while noting she might be an excellent treatment provider.
- The trial court rendered judgment on the verdict and entered an order of civil commitment. Dodson appealed, challenging the exclusion of his witness’s opinion testimony.

## Issues

1. Whether the trial court abused its discretion by ruling that Dodson’s licensed sex-offender treatment counselor was not qualified under Texas Rule of Evidence 702 to give opinion testimony on whether Dodson suffers from a “behavioral abnormality” as defined by Chapter 841.
2. Whether the exclusion probably caused the rendition of an improper judgment, requiring reversal and a new trial.

## Decision

- The court of appeals held the trial court abused its discretion by excluding Shursen’s opinion testimony on behavioral abnormality.
- The court held the error was harmful because the excluded testimony bore directly on the dispositive question submitted to the jury and Dodson was prevented from presenting competing opinion testimony on the only controlling disputed element.
- The judgment and commitment order were reversed, and the case was remanded for a new trial.

## Legal Principles

- A trial court’s decision to admit or exclude opinion testimony under Texas Rule of Evidence 702 is reviewed for abuse of discretion; a witness may be qualified by knowledge, skill, experience, training, or education.
- Chapter 841 uses a statutory definition of “behavioral abnormality” that does not limit admissible opinion testimony to physicians or psychiatrists; the statute contemplates examinations “by an expert” without tying that term to a single profession.
- Determining “behavioral abnormality” under Chapter 841 involves assessing risk of sexual-offense recidivism and evaluating whether a condition affects a person’s ability to control sexually violent behavior; training and work in sex-offender assessment and treatment can qualify a witness to assist the jury on that statutory question.
- A categorical ruling that a qualified, trained, and licensed sex-offender treatment professional may not offer any opinion on behavioral abnormality can fall outside the zone of reasonable disagreement when the witness’s education and practical work relate to the statute’s required assessment.
- Under Texas appellate harm standards for evidentiary error, exclusion warrants reversal when it probably caused an improper judgment, including when it keeps the respondent from presenting evidence contesting the single dispositive issue submitted in broad form.

## Conclusion

Because Chapter 841 does not restrict behavioral-abnormality testimony to medical doctors, and because Shursen’s education, licensure, clinical training, and long-term work assessing and treating sex offenders qualified her to assist the jury on the statute’s behavioral-abnormality question, the trial court abused its discretion by excluding her opinions; given that the jury’s broad-form verdict turned on that disputed element and the State presented its own opinion evidence, the exclusion likely affected the outcome, so the commitment order was reversed and the case remanded for a new trial.


In re Commitment of Dodson, 311 S.W.3d 194 (2010)