IN THE BEST INTEREST AND PROTECTION OF J. M.--Appeal from Probate Court of Hidalgo County

NUMBER 13-03-479-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE BEST INTEREST AND PROTECTION OF J.M.

On appeal from the Probate Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Castillo

Memorandum Opinion by Justice Ya ez

Appellant, J.M., appeals a Hidalgo County trial court s judgment temporarily committing him to a mental health facility for ninety days. By two issues, appellant claims: (1) the physician s medical examination certificates fail to comply with statutory requirements of section 574.009 of the Texas Health and Safety Code; // and (2) the evidence is both legally and factually insufficient to support the trial court s findings for court-ordered mental health services. We affirm. //

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the court s decision and the basic reasons for it. //

By his first issue, appellant argues that the physicians medical examination certification forms fail to comply with the statutory requirements of Texas Health and Safety Code Section 574.009. // Appellant claims specifically that the forms do not indicate whether they were authored by psychiatrists, which he argues is a requirement of the statute. Consequently, appellant claims that the trial court erred in its order in light of the alleged deficient certification forms. The State, in contrast, argues that appellant failed to preserve this complaint for appellate review because appellant s trial counsel failed to object at trial.

To preserve a complaint for appellate review, appellant was required to make a timely specific objection. // A specific objection is one that enables the trial court to understand the precise grounds so as to make an informed ruling and that affords the opposing party the opportunity to remedy the defect if possible. //

In this case, the record reflects that appellant objected to the certificates on the basis of hearsay. However, no objection was made regarding the physicians failure to state that they were psychiatrists. Because the arguments advanced in this issue do not comport with the specific objection made at trial, nothing is presented for our review. // Appellant s first issue is therefore overruled.

By issue two, appellant challenges the legal and factual sufficiency of evidence supporting the trial court s decision to order in-patient mental health services.

In a legal sufficiency review where the burden of proof is clear and convincing evidence, we must look at 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. // We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable fact finder could do so and disregard all evidence that a reasonable fact finder could have disbelieved or found incredible. // This does not mean that we are required to ignore all evidence not supporting the finding because that might bias a clear and convincing analysis. //

The appropriate standard for reviewing a factual sufficiency challenge is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the petitioner s allegations. // In determining whether the fact finder has met this standard, we consider all the evidence in the record, both in support of and contrary to the trial court s findings. // Further, we must consider whether disputed evidence is such that a reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. // If the disputed evidence is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. //

Under Texas law, a trial court can order temporary in-patient mental health services if the court finds from clear and convincing evidence // that the proposed patient is:

(1) 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 from 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 rational and informed decisions as to whether or not to submit to treatment. //

The health and safety code also provides that to meet the clear and convincing standard of proof, 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. // A medical diagnosis alone is not sufficient to confine a patient for compulsory treatment. // Expert opinions recommending involuntary commitment must be supported by a showing of the factual basis on which they are grounded. //

The record reflects that on July 14, 2003, the trial court held an evidentiary hearing to determine whether appellant should be temporarily committed. At the hearing, only two witnesses testified, Dr. Moron, a psychiatrist at the Texas Rio Grande Mental Health and Mental Retardation Center (RGMHMR), and appellant.

Doctor Moron s Testimony

Dr. Moron confirmed that appellant suffered from schizophrenia and that he had interviewed appellant on three different occasions, reviewed appellant s medical records from a previous hospitalization, and met with nurses and other staff members who had regular contact with appellant during his previous hospitalization.

Dr. Moron s staff members informed him that during appellant s previous hospitalization, appellant claimed he was God. When Dr. Moron confronted appellant about this claim, appellant responded with a disorganized thought process and jumped from idea to idea. According to Dr. Moron, appellant described his activities, which included playing music for patients in the hospital, picking-up cigarette butts, and watering dying rose bushes. During appellant s previous hospitalization, he refused to take his medications, which resulted in erratic, aggressive behavior. Consequently, hospital staff administered emergency injections to appellant to suppress his dangerous behavior.

Dr. Moron testified that he met with appellant immediately prior to the hearing. During the meeting, appellant told the doctor that he was a judge for his family s mail, an attorney, and a professional mariachi. According to the doctor, appellant demonstrated a disorganized thought process, rapid speech, had symptoms of mania, marked impairment, and poor insight of judgment regarding his mental illness. . .

Additionally, the following exchange occurred between Dr. Moron and the district attorney:

District Attorney:In your opinion, Doctor, do you believe that [appellant] is likely to cause serious harm to others?

Dr. Moron: My opinion is that he will if he s released at this point in time. . . He feels that he has no psychiatric problem or disorder, that he does not need the medication that the physician feels will be effective, Risperdal, and because of that the risk of his becoming violent and aggressive, as he has in the past, is very high.

District Attorney:Okay. Doctor, in your opinion do you believe that [appellant] will continue to suffer from severe and abnormal mental, emotional, physical distress if he s not further treated?

Dr. Moron:My opinion is that he will. As I mentioned above he still continues with some symptoms of mania. He has also had some marked impairment and insight of judgment regarding his current mental illness, and my belief is he . . . would decompensate further if released from the hospital. Even in the hospital now he was on Abilify. On Abilify the doctor felt that it was not helping him, tried to put him on Risperdal, and he s refused that medication. . .

Based on his recent observations of appellant, his familiarity with appellant during his previous hospitalizations, and appellant s refusal to take all of his medications, the doctor indicated that in his expert opinion, appellant should be temporarily committed.

Testimony of Appellant

Immediately following Dr. Moron s testimony, appellant testified on his own behalf. According to appellant, in response to Dr. Moron s claim regarding the rose bush, appellant stated, I had written to the public responsibility committee of the Rio Grande State Center, and told them I wish someone would take care of this rose bush that is dying here. He also claimed he sang to patients to sooth[e] them, giving them music therapy. Appellant further testified that he gave his social security check to the poor. Appellant also claimed that he . . . feeds [himself] fairly well. . . and lose[s] weight because I don t have a car and I gave it to a man who said I don t believe in God. Finally, he admitted that the hospital staff sedated him during his prior hospitalization because he refused to take his medication.

Affidavit of Maria Martinez

Appellant s mother submitted a sworn affidavit detailing appellant s behavior. According to her affidavit, appellant: (1) wanders about at night; (2) crawls on all fours in the middle of the road; (3) refuses to take his medications; (4) is paranoid and delusional; (5) refuses to admit he has a problem; and (6) continues to put himself in dangerous situations.

The Trial Court s Findings

After hearing testimony from Dr. Moron and appellant, the trial court found that appellant, if not committed, would continue to suffer severe and abnormal mental . . . and physical distress and will continue to experience deterioration of his ability to function. . . he is unable to make a rational and informed decision as to whether or not to submit to treatment. // Consequently, the trial court ordered appellant committed to the RGMHMR for a period not to exceed ninety days.

Analysis

After reviewing the evidence in this case, we conclude the evidence is legally and factually sufficient to support the trial court s order of temporary commitment.

Appellant claims there was no evidence of a recent overt act or continuing pattern of behavior that tended to confirm appellant s distress and deterioration as required by statute. // Appellant also contends that Dr. Moron did not set forth any factual basis in support of his testimony. We disagree.

Regarding appellant s first sub-issue, he relies on this Court s holding in Broussard v. State, 827 S.W.2d 619, 622-23 (Tex. App. Corpus Christi 1992, no writ). In Broussard, we reversed the trial court s order of commitment because we determined that the evidence was insufficient to support commitment. // Broussard was diagnosed by two medical experts as suffering from chronic paranoid schizophrenia. // Broussard s delusions included that she was, inter alia, an attorney, an FBI agent, and a former medical student. // Finally, one of her physicians testified that Broussard admitted she had not been taking her medication because it was poisonous. // Based on the physician s observations, he believed Broussard required further treatment and that she posed a possible risk of harm to herself or others if not treated. // Broussard s attending physician, Dr. Davis, also testified that she had delusions and incoherency of thoughts, refused to take her medication, and that she was somewhat hostile. // He concluded that Broussard could be harmed by others, and that it was likely Broussard would continue to deteriorate if not treated. //

After hearing the evidence and testimony, the jury found that Broussard was mentally ill, that she was likely to cause harm to others, // but not to herself, and that she would, if not treated, continue to suffer severe and abnormal distress and continue to experience deterioration of her ability to function independently. // The jury also determined that Broussard was unable to make a rational and informed decision as to whether to submit to treatment. Based on these findings, the trial court ordered that she be committed. //

On appeal, we held that the State failed to prove the elements required for involuntary commitment under section 574.034(a)(2)(B) of the health and safety code. // We held that there was no evidence Broussard was likely to cause serious harm to others because both experts had agreed that it was neither likely nor a clear imminent risk. // Thus, we held that [t]he judgment must be supported, if at all, by the jury s finding on distress and continued deterioration of ability to function, under subsection (C). // With respect to subsection 574.034(a)(2)(C), // we held that the State had failed to present evidence of an overt act or continuing pattern of behavior that would generally affect Broussard s ability to function independently on a day-to-day basis without the imposition of court-ordered mental health services. // Consequently, we held that the State did not sustain its burden of presenting evidence of a recent overt act or a continuing pattern of behavior that tends to confirm the likelihood of Broussard s deterioration of ability to function. //

We find the facts of this case distinguishable from Broussard. First, both experts in Broussard agreed that it was unlikely that Broussard would harm others. // In this case, however, Dr. Moron testified that based on his observation of appellant s behavior, appellant would harm others if he does not receive treatment. According to the doctor, the risk of his becoming violent and aggressive, as he has in the past, is very high.

Second, in Broussard, we determined that continued delusional behavior may be sufficient to demonstrate that an individual suffers from mental illness; however, we concluded, on the facts in Broussard, that the evidence did not sufficiently demonstrate that Broussard was experiencing a deterioration of her ability to function. // In this case, however, as a consequence of appellant discontinuing his medication, he began to experience delusions, and crawled on all fours in the middle of the road. These actions constitute overt acts demonstrating a continued pattern of deterioration and a threat to appellant s personal safety. Unlike Broussard, where the evidence failed to demonstrate a deterioration of her ability to function, // we conclude that appellant s behavior up to trial demonstrates a marked deterioration of his ability to function.

In regard to appellant s second sub-issue concerning the factual basis of Dr. Moron s testimony, under Texas law, expert opinions recommending involuntary commitment must be supported by a showing of the factual bases on which they are grounded. //

Here, the record supports that Dr. Moron s medical opinion and recommendation were grounded in facts. As stated above, Dr. Moron s interaction with appellant was extensive. This was reflected in Dr. Moron s testimony, which detailed the times he met with appellant, the substance of their past meetings, and most importantly, his ability to compare appellant s past behavior with his condition immediately before and during the hearing. We find appellant s argument regarding Dr. Moron without merit.

Texas law does not require relatives or physicians of the mentally ill (or the courts) to stand idly by until serious harm occurs. . .[T]he purpose of temporary commitment is to avoid just such harm. // Considering the evidence in the light most favorable to the trial court s finding, we conclude that evidence supports the trial court s conclusion that appellant was likely to suffer a substantially deteriorated ability to function independently due to his severe mental distress and that he is unable to take the steps needed to remedy it. // Further, in this case, we conclude that the trial court reasonably found that the facts justified commitment. We therefore hold that the evidence was legally and factually sufficient to support the trial court s order of commitment under section 574.034(a)(2)(C). // Appellant s second issue is therefore overruled.

The judgment of the trial court is affirmed.

LINDA REYNA YA EZ

Justice

Memorandum Opinion delivered and filed this

the 24th day of February, 2005.