The State of Texas for the Best Interest and Protection of E. E.--Appeal from County Court at Law of Cherokee County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00060-CV
______________________________
THE STATE OF TEXAS
FOR THE BEST INTEREST
AND PROTECTION OF E. E.
On Appeal from the County Court at Law No. 1
Cherokee County, Texas
Trial Court No. 34,532
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

At the hearing on the State's application for an order that psychoactive medications be administered to E.E. during her previously ordered involuntary commitment, (1) E.E. testified on her own behalf. During her testimony, E.E. first said she would take the medication, then asked that she be changed back to medications she had earlier been taking, then discussed various side-effects from taking Risperdal, including urinating on herself and being dizzy and light-headed. After being asked by her attorney whether, in fact, she had "no objections to medication," E.E. mentioned that she would take the medication if God said it was permissible to take the medication. When asked specifically about whether she had any objection to "anti-depressants, Prozac," E.E. indicated her objection was that she had a "low drug tolerance" and that the 200 milligram dosage of Thorazine--which, incidentally, is classified according to the record, not as an antidepressant, but as an antipsychotic drug--she was previously taking knocked her "out practically all day." Later, when asked whether the antipsychotic drug, Risperdal, was "okay" with her, E.E. responded, "Yes," thereby apparently contradicting her earlier complaints about its side effects. Then she indicated her objection to two other drugs: Antivan made her nervous and was too strong, and Depakote was objectionable because she has a "low drug tolerance."

E.E. appeals the trial court's order authorizing the administration of psychoactive medication. She contends the order authorizing administration of psychoactive medications to her is invalid because it rests on legally and factually insufficient evidence and because it violates E.E.'s constitutional freedom of religion and freedom of speech. We disagree.

The trial court may enter an order authorizing the administration of psychoactive medication if it finds by clear and convincing evidence that (1) the patient is under an order for temporary or extended mental health services, (2) the patient lacks capacity to make a decision about medications, and (3) treatment is in the best interest of the patient. See Tex. Health & Safety Code Ann. 574.106(a) (Vernon Supp. 2006). 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).

In The State for the Best Interest and Protection of E.E., cause number 06-07-00045-CV, this Court today affirms the trial court's commitment order, concluding that such order was supported by legally and factually sufficient evidence. Thus, E.E. is subject to the necessary order of commitment, and the first requirement of the statute is satisfied.

We will examine whether clear and convincing evidence supports the trial court's findings that E.E. lacks capacity to decide about medications and that the treatment is in her best interest.

The State's evidence at the hearing on its application to administer psychoactive medications (which immediately followed the commitment proceeding) consisted of the medication application and its attached exhibit, listing the various drugs in question, and the testimony of Dr. Larry Hawkins, E.E.'s treating physician. Hawkins testified that E.E. lacked the capacity to make a decision about medications and that the medications were in the proper course of her treatment, are in her best interest, and likely will benefit her more than put her at risk. Hawkins also testified that--although E.E. told him she would not accept the medications, because Jesus will take care of her without the medications--no alternative exists to the medications that could provide the same or similar result.

In reviewing the legal sufficiency of the evidence where the burden of proof is clear and convincing evidence, we consider all of 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 that the trier of fact resolved disputed facts in favor of its finding if a reasonable trier of fact could do so, and 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). We must give due consideration to evidence the trier of fact could reasonably have found to be clear and convincing. Id. at 25. 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. The trial court as the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. In re Estate of Canales, 837 S.W.2d 662, 669 (Tex. App.--San Antonio 1992, no writ).

The only evidence concerning E.E.'s capacity to decide about medications and whether the medications were in her best interest were that she did not have the necessary capacity and that the medications were in her best interest. There is no evidence to the contrary. This could be understood by the trial court as showing that she had a lack of capacity to make decisions about taking medications and that those medications were in her best interest. The evidence presented was sufficient to support the trial court's determination.

E.E. further contends the trial court's order to administer psychoactive medications was error because it violated her rights to freedom of religion and freedom of speech. We have reviewed the record in this case. Those matters were never raised or argued before the trial court. When an issue is not brought to the attention of the trial court, any complaint thereon is typically waived. Tex. R. App. P. 33.1. A failure to object waives even constitutional rights. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only . . . all other complaints, whether constitutional, statutory or otherwise, are forfeited by failure to comply with Rule 33.1(a)." Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004); Laster v. State, 202 S.W.3d 774, 777 (Tex. App.--San Antonio 2006, no pet.). Those matters were forfeited by not raising them with the trial court.

We affirm the trial court's order authorizing the administration of psychoactive medication.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: April 27, 2007

Date Decided: May 4, 2007

 

1. E.E. contends, in a companion case, cause number 06-07-00045-CV, also decided today, that the trial court's temporary commitment order is invalid. In that case, we affirm that commitment order.