The State of Texas for the Best Interest and Protection of M.F.--Appeal from Probate Court No 1 of Bexar County

MEMORANDUM OPINION

No. 04-07-00617-CV

THE STATE OF TEXAS FOR THE BEST INTEREST AND PROTECTION

OF M.F. AS A MENTALLY ILL PERSON

From Probate Court No. One, Bexar County, Texas

Trial Court No. 2007-MH-2338

Honorable Oscar J. Kazen, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

Delivered and Filed: December 28, 2007

AFFIRMED

This is an appeal from the trial court's order for a temporary commitment for inpatient mental health services. We affirm.

SUFFICIENCY OF THE EVIDENCE

A trial court may order a proposed patient to receive temporary inpatient mental health services only if the trier of fact concludes from clear and convincing evidence that the proposed patient is mentally ill and:

(2) as a result of that mental illness the proposed patient:

(A) is likely to cause serious harm to himself;

(B) is likely to cause serious harm to others; or

(C) is:

(i) suffering severe and abnormal mental, emotional, or physical distress;

(ii) experiencing substantial mental or physical deterioration of the proposed patient's ability to function independently, which is exhibited by the proposed patient's inability, except for reasons of indigence, to provide for the proposed patient's basic needs, including food, clothing, health, or safety; and

(iii) unable to make a rational and informed decision as to whether or not to submit to treatment.

Tex. Health & Safety Code Ann. 574.034(a)(2) (Vernon 2003).

Clear and convincing evidence is that "degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). To be clear and convincing, the evidence must include expert testimony and, unless waived, evidence of a recent overt act or a continuing pattern of behavior that tends to confirm "(1) the likelihood of serious harm to the proposed patient or others; or (2) the proposed patient's distress and the deterioration of the proposed patient's ability to function." Tex. Health & Safety Code Ann. 574.034(d).

An expert diagnosis, without more, is not sufficient to confine a patient for compulsory treatment. See Mezick v. State, 920 S.W.2d 427, 430 (Tex. App.--Houston [1st Dist.] 1996, no writ). The State must present evidence of the behavior of the proposed patient that provides the factual basis for the expert opinion. See id.

In reviewing the legal sufficiency of the evidence where the burden of proof is clear and convincing evidence, we consider all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume the trier of fact resolved disputed facts in favor of its finding if a reasonable trier of fact could do so, and we must disregard all contrary evidence that a reasonable trier of fact could have disbelieved or found to be incredible. Id.

In reviewing factual sufficiency challenges, we review all the evidence in the record, both supporting and opposing the trial court's findings. In re C.H., 89 S.W.3d 17, 27-29 (Tex. 2002). Under the clear and convincing standard, we determine whether the evidence is such that the trier of fact could reasonably form "a firm belief or conviction" as to the truth of the allegations sought to be established by the State. Id. We must consider whether disputed evidence is such that a reasonable trier of fact could not have reconciled that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. If, in light of the entire record, the disputed evidence that a reasonable trier of fact could not have credited in favor of the finding is so significant that a trier of fact could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

Here, the trial court found appellant to be mentally ill and the court's written order affirmatively found the State's allegations under subsections (A), (B), and (C) to be true. On appeal, appellant does not challenge the finding that he is mentally ill. Instead, in a single issue, appellant asserts the evidence is legally and factually insufficient to support the findings under subsections (A), (B), and (C). Appellant contends the evidence is insufficient because the expert's opinion is not adequately supported by a factual basis and, alternatively, any factual basis is supported only by meager circumstantial evidence. We disagree on both counts. Appellant's first argument rests on his assertion that the testimony of the State's expert and sole witness, Dr. Iva Timmerman, was not based on personal knowledge of the factual basis for her opinion. However, in support of her opinion that appellant was likely to cause harm to himself or others, Dr. Timmerman explained that appellant had previously been temporarily committed in June 2007, prior to which he had steered his car into other vehicles. In the three weeks between the discharge from the June 2007 commitment and the August 9, 2007 application underlying this commitment hearing, appellant had stopped taking his medication and was found walking into traffic. Dr. Timmerman's testimony was admitted without objection. Additionally, Dr. Timmerman stated she personally heard appellant threaten a staff member and appellant "gets angry and agitated very easily." When asked on cross-examination if appellant's becoming angry or agitated was a sufficient basis to commit him, Dr. Timmerman replied:

Not in and of itself, but when he is maybe - - during his admission when he came in on the 13th . . . he would get in people's face[s] and threaten to slap and choke the staff. That was considered threatening. It's not the agitation itself; it's the threats that were made with it and his history of, per his own report, assaulting others.

Dr. Timmerman conceded the incidents of appellant's verbally threatening others had decreased since he had been admitted to the hospital on an order of protective custody, but she believed appellant should be committed because "I just tried to discharge him three weeks ago and he ended up right back in the hospital." Appellant testified and admitted at least twice that he "was not afraid to slap, possibly punch."

We conclude Dr. Timmerman's testimony, combined with appellant's own admission, provided an adequate factual basis for Dr. Timmerman's opinion. We also conclude the trial judge, as the trier of fact, could have reasonably found, by clear and convincing evidence, that appellant was likely to cause serious harm to himself or others, and thus that sections 574.034(a)(2)(A) and (B) have been satisfied. Because only one statutory criterion must be met under section 574.034(a)(2) to form the basis of the trial court's order for temporary mental health services, we are not required to decide whether there was sufficient evidence to satisfy section 574.034(a)(2)(C). See Mezick, 920 S.W.2d at 431.

CONCLUSION

We overrule appellant's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice