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

NO. 12-01-00335-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
APPEAL FROM THE

THE STATE OF TEXAS

FOR THE BEST INTEREST

 
COUNTY COURT AT LAW OF

AND PROTECTION OF B.M.

 
CHEROKEE COUNTY, TEXAS

Appellant B.M. appeals from an order of commitment for temporary inpatient mental health

services. After a hearing without a jury, the trial court ordered Appellant committed to Rusk State Hospital for a period not to exceed ninety days. In six issues, Appellant asserts his constitutional rights to due process and equal protection have been violated, the evidence is legally and factually insufficient to support the order, and he was denied effective assistance of counsel. We affirm.

On October 5, 2001, an application for court-ordered temporary mental health services was filed requesting the court commit Appellant to Rusk State Hospital for a period not to exceed ninety days. The application was supported by a certificate of medical examination for mental illness, prepared by a physician, Dr. Moin, who had examined Appellant on that day. Dr. Moin diagnosed Appellant as Bipolar I and indicated that Appellant is likely to cause serious harm to himself and is suffering severe and abnormal mental, emotional or physical distress, is experiencing substantial mental or physical deterioration of his ability to function independently, and is unable to make a rational and informed decision as to whether or not to submit to treatment. He based this opinion on Appellant's aggression and illogical speech. He indicated that on October 5, Appellant cut and burned his hair and started abusing "MJ." Dr. Moin also stated that Appellant presents a substantial risk of serious harm to himself or others if not immediately restrained. This risk was demonstrated by Appellant's behavior and by evidence of severe emotional distress and deterioration in his mental condition to the extent that he cannot remain at liberty.

On October 8, 2001, Appellant was examined by Dr. Shakil Siddiqui who then also prepared a certificate of medical examination for mental illness. Dr. Siddiqui also diagnosed Appellant as Bipolar I, manic with pychosis. He found that Appellant is likely to cause serious harm to others and is suffering severe and abnormal mental, emotional or physical distress, is experiencing substantial mental or physical deterioration of his ability to function independently, and is unable to make a rational and informed decision as to whether or not to submit to treatment. Dr. Siddiqui relied on the records which indicated that Appellant was aggressive and disorganized on October 5. He agreed that Appellant presents a substantial risk of serious harm to self or others if not immediately restrained, an opinion he based on Appellant's behavior and on evidence of severe emotional distress and deterioration in Appellant's mental condition to the extent he cannot remain at liberty. Dr. Siddiqui indicated that, on the date he examined Appellant, he was loud, irritable and paranoid and that, according to his records, Appellant had been aggressive and disorganized three days earlier.

Dr. Siddiqui testified at the hearing, first restating his diagnosis that Appellant is Bipolar I, manic with psychosis. He noted that Appellant's hospitalization on October 5 came within forty-eight hours of his having been discharged from the hospital. Dr. Siddiqui explained that a recent overt act led to Appellant's hospitalization. Because he was anxious about attending a party, Appellant took more than the prescribed amount of his medication, which had adverse affects. Dr. Siddiqui testified that blood tests revealed the amount of medication was in the toxic range. In the hospital, Appellant was aggressive, threatening, and disorganized. He had to be sedated. Also, he made inappropriate comments to women, was intrusive with them, and chased them. He further explained that Appellant needs prompting to dress himself and to feed himself, although he can take care of his personal hygiene. Finally, he stated that Appellant "goes away," meaning that he loses track of a conversation.

Appellant testified in his own behalf. He stated that he wanted to leave the hospital. He explained that he had lived alone, without medication, for over a year, at different periods of time. He intends to live with his father and get a job as a cook or a waiter. When asked if he had any intent to hurt himself or anyone else he answered, "I never have."

In his sixth issue, Appellant asserts the evidence is neither legally nor factually sufficient to support the order of commitment. He contends the record is devoid of any factual basis in support of Dr. Siddiqui's testimony and the record merely reflects that Appellant is mentally ill. Thus, he argues, the State failed to meet its evidentiary burden under the statute.

In reviewing no evidence points of error, the reviewing court must consider only the evidence and inferences tending to support the trial court's finding, disregarding all contrary evidence and inferences. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). If there is any evidence of probative force to support the finding, the no evidence issue must be overruled and the finding upheld. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, no more than a scintilla of evidence exists and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). However, if the evidence supplies some reasonable basis for differing conclusions by reasonable minds as to the existence of a vital fact, some evidence or, in other words, more than a scintilla of evidence exists. Id.

In addressing a factual sufficiency of the evidence challenge, this court must consider and weigh all of the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Where no findings of fact and conclusions of law were requested of or filed by the trial court all questions of fact are presumed and found in support of the judgment. Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987). In the absence of findings of fact and conclusions of law, the judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex. 1968).

The trial judge may order a proposed patient to receive court-ordered temporary inpatient mental health services if the judge or jury finds, from clear and convincing evidence, that the proposed patient is mentally ill and, as a result of the mental illness he is likely to cause serious harm to himself, is likely to cause serious harm to others, or is (i) suffering severe and abnormal mental, emotional, or physical distress, (ii) experiencing substantial mental or physical deterioration of his ability to function independently, which is exhibited by his inability, except for reasons of indigence, to provide for his 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) (Vernon Supp. 2002). To be clear and convincing under this statute, 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 either the likelihood of serious harm to the proposed patient or others, or the proposed patient's distress and the deterioration of his ability to function. Tex. Health & Safety Code Ann. 574.034(d) (Vernon Supp. 2002). Clear and convincing evidence means the measure or 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).

The State provided expert testimony explaining that Appellant is mentally ill and describing an overt act by Appellant, which occurred eleven days before the hearing. Due to anxiety about attending a party, Appellant took more than the prescribed amount of his medication. Dr. Siddiqui described the amount as "toxic." As a result, he was so aggressive he had to be sedated. This expert testimony of an overt act tends to confirm the likelihood of serious harm to both Appellant and others, thus satisfying the statutory requirement for clear and convincing evidence in support of the order for temporary inpatient mental health services. See Tex. Health & Safety Code Ann. 574.034(d). The evidence is legally sufficient to support the trial court's order. See McLaughlin, 943 S.W.2d at 430.

In addressing Appellant's factual sufficiency complaint, we consider his testimony in addition to Dr. Siddiqui's testimony. Appellant denied having the intent to hurt himself or anyone else. Weighing all the evidence, we cannot say that the trial court's finding that Appellant is likely to cause harm to others and its decision to order Appellant to submit to inpatient mental health services are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain, 709 S.W.2d at 176. Thus, the evidence is factually sufficient to support the trial court's finding. Because we hold the evidence is both legally and factually sufficient to support the trial court's order, we overrule Appellant's sixth issue.

In his first and second issues, Appellant contends the trial court erred in rendering judgment in violation of state and federal guarantees of due process. He asserts that certain terms found in section 574.034 of the Health and Safety Code are overly broad, vague, and ambiguous so the statute is susceptible to a variety of interpretations, making it violative of the due process clause of each constitution. In his third and fourth issues, he asserts that application of section 574.034 results in a violation of his right to equal protection under both the state and federal constitutions.

Appellant did not complain to the trial court that his state and federal constitutional rights to due process and equal protection were being violated. A constitutional claim must have been asserted in the trial court to be raised on appeal. Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993). Therefore, Appellant has not preserved these complaints for review. We overrule Appellant's issues one, two, three, and four.

In his fifth issue, Appellant contends he was denied effective assistance of counsel because trial counsel failed to object to the constitutionality of the applicable statutes. He argues that this resulted in his being subjected to unconstitutional statutes at trial and the loss of relief due to waiver on appeal.

The United States Supreme Court has established a two-part test, also adopted by Texas courts, to determine whether the representation of counsel was effective. The defendant must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. The appellant has the burden of proving ineffective assistance of counsel claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Claims of ineffective assistance of counsel must be supported by the record. See Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App. [Panel Op.] 1981). When the record contains no evidence of the reasoning behind counsel's conduct, we cannot conclude counsel's performance was deficient. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

The record is silent as to counsel's trial strategy. We have no evidence from counsel's perspective concerning whether he considered challenging the constitutionality of section 574.034 and, if so, the reasons he decided not to. Therefore, we are unable to determine that the failure to raise those issues in the trial court constitutes ineffective assistance of counsel. Jackson, 877 S.W.2d at 771. Appellant has failed to show that his counsel's performance fell below the objective standard of reasonableness. Further, even if we agreed that trial counsel's performance was deficient, Appellant has failed to make any showing that he was prejudiced as a result. Appellant alludes to the fact that, had counsel made the objections, the trial court might have agreed with him. However, he presents no authority from which we can determine that counsel's constitutional challenges, if raised, would have been sustained by the trial court. Appellant has failed to show that there is a reasonable probability that the result of the proceeding would have been different but for the alleged error made by counsel. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Appellant has failed to meet his burden of proving ineffective assistance of counsel. Jackson, 973 S.W.2d at 956. Accordingly, we overrule Appellant's fifth issue.

We affirm the trial court's order.

JIM WORTHEN

Justice

 

Opinion delivered June 28, 2002.

Panel consisted of Worthen, J., and Griffith, J.

 
(DO NOT PUBLISH)