Appeals Court Overturns 435th for Fourth Time

by Nancy Flake of The Courier of Montgomery County

Posted Friday, March 9, 2012 at 12:31 am

    In the fourth such ruling in less than two years, the 9th state Court of Appeals has reversed Judge Michael Seiler for disallowing either expert defense witnesses or testimony from experts in civil commitment cases of sexually violent predators.

    But Seiler, who oversees the 435th state District Court – the only court in Texas to hear the civil commitment cases – said the Texas Supreme Court heard oral arguments Nov. 8 in one of the cases the appellate court overturned and his court is waiting to see how the Supreme Court justices rule and what impact it could have on the other cases.

    The four cases that have been overturned are the only reversals Seiler has had in the civil commitment trials. He has heard 103 of those cases since he took the bench in June 2008, an official on his staff said.

    The Texas Legislature created the 435th court in 2007 for the specific purpose of holding jury trials to determine the civil commitment of sexually violent predators released from prison.

    In Thursday’s appellate reversal, Justices Charles Kreger and Hollis Horton ruled, in an opinion written by Kreger, that the trial court committed “harmful error” by not allowing Dr. John Tennison, a forensic psychiatrist, to give testimony before a jury that Lester Winkle had a behavioral abnormality causing him to sexually assault several elderly women.

    The state claimed Tennison’s testimony did not look at Winkle’s history to educate the jury on whether he had a behavioral abnormality, and that his evaluation “ends at his interpretation of the statute (defining sexually violent predators),” Kreger’s opinion states.

    But Tennison’s pretrial hearing testimony “demonstrates the inaccuracy of the factual assertion presented by the state in its motion,” the opinion states. “Tennison did look to the particular facts of Winkle’s history in forming his professional opinion.

    “Winkle presented an expert who could provide testimony that was both relevant and that could assist the jury in determining a fact in issue.”

    It is “no surprise,” Tennison said Thursday, that the appellate court overturned the arguments.

    “The arguments ... were simply false arguments,” he said. “In the case of harming the Winkle case – harm did result.”

    But 9th Court of Appeals Justice David Gaultney dissented with Kreger and Horton, writing that Tennison previously testified that the statute enacting the 435th court and which state that “those predators have a behavioral abnormality” does not exist.

    “Dr. Tennison’s view arguably may be relevant to an attack on the statute,” Gaultney wrote, “but issues of law are not presented to the jury for determination.  In this proceeding, it is not the jury’s role to set aside the legislative finding.”

    Seiler may have reasoned, Gaultney wrote, that Tennison’s prior testimony reflected his actual opinion.

    “If the trial court concluded that the witness held this view,” Gaultney’s dissenting opinion states, “the court could reasonably question how the witness’s testimony would assist the jury with its assigned task under the statute.

    “I would not reverse the judgment.”

    In the case before the state Supreme Court, the 9th Court of Appeals justices found that the 435th court erred by excluding the testimony of Dr. Anna Shursen, the only expert witness for Michael Wayne Bohannan during his civil commitment trial in April 2009.

    Shursen previously was excluded from testifying in a February 2009 civil commitment trial for David Dodson, and the appellate court reversed the jury’s decision in that case in April 2010.

    Bohannan, 53, was convicted in 1983 in Tarrant County for the aggravated sexual assault of a 27-year-old woman. He was sentenced to 25 years in prison and paroled in January 2009.

    Dodson, 49, was convicted in 1984 for the sexual assault of a 39-year-old woman and the aggravated sexual assault of a 43-year-old woman, as well as two counts of burglary of a habitation while intending to commit a sexual offense. He received a total of 165 years in prison, with the sentences for all four convictions to run concurrently. He was paroled in 2009 to Harris County.

    Last June, the 9th Court of Appeals overturned the trial court’s decision to exclude testimony from Tennison for Raymond Scott Hinkle after the state had cross-examined Tennison as an adverse witness.

    “Before jury selection began, the trial court notified the parties that it would not permit Tennison to testify that Hinkle had not committed the crimes for which Hinkle had been finally convicted,” Kreger wrote in his opinion.

    Tennison did testify that he believed Hinkle may have been wrongfully convicted of sexually assaulting two 18-year-old women. The the appellate court ruled that the 435th court did not err in excluding “irrelevant testimony.”

    “The trial court acknowledged that Tennison qualified as an expert, but the trial court excluded the witness because the trial court concluded that Tennison’s testimony would confuse the jury,” Kreger wrote. “... the trial court presumed that Tennison believed and would testify that behavioral abnormality does not exist. We hold it was error to exclude Tennison’s testimony on the record before the court.”

    Because the 435th court erred by excluding Tennison’s “relevant and material testimony on a critical issue” and because Hinkle had no other expert testify on those critical issues, Kreger wrote, the appellate court overturned the trial court.


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