The State of Texas for the Best Interest of J. S.--Appeal from County Court at Law of Cherokee County

NO. 12-04-00297-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE STATE OF TEXAS FOR APPEAL FROM THE

THE BEST INTEREST AND COUNTY COURT AT LAW

PROTECTION OF J.S. CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Appellant J.S. appeals from an order of commitment for temporary inpatient mental health services. After a hearing without a jury, the trial court ordered J.S. committed to Rusk State Hospital for a period not to exceed ninety days. In one issue, J.S. asserts the evidence is legally and factually insufficient to support that order. We affirm.

Background

On September 7, 2004, an application for court-ordered temporary mental health services was filed requesting the court commit J.S. 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. William Todd, who had examined J.S. on September 6. Dr. Todd diagnosed J.S. as suffering from bipolar I disorder. He found that J.S. is mentally ill and likely to cause serious harm to himself.

Dr. Todd reached these conclusions because, on or about September 5, J.S. attempted suicide by pointing a gun at his head, inflicting lacerations to his harm, and attempting to drown himself. Dr. Todd found that J.S. presents a substantial risk of serious harm to himself or others if not immediately restrained, an opinion he based on J.S. s behavior. Dr. Todd formed this opinion because J.S. was suicidal as set out above.

On September 8, 2004, J.S. was examined by Dr. Charles Plyler who then also prepared a certificate of medical examination for mental illness. Dr. Plyler diagnosed J.S. with bipolar disorder and indicated that J.S. is mentally ill and likely to cause serious harm to himself. He came to this conclusion because J.S. had attempted suicide by holding a gun to his head and then minimized having threatened suicide by holding a gun to his head, hanging himself, cutting his wrist, and drowning. Dr. Plyler is also of the opinion that J.S. presents a substantial risk of serious harm to himself or others if not immediately restrained, which is demonstrated by J.S. s behavior.

Dr. Plyler testified at the hearing, explaining that J.S. is suffering from bipolar disorder. He testified that, because J.S. made a verbal threat to kill himself and held a gun to his head, and talked about possibly hanging himself and cutting his wrists, the doctor thinks J.S. is likely to cause serious harm to himself. Dr. Plyler based his testimony on his examination of J.S., a review of his medical history, and on reasonable medical probability. The doctor stated that Rusk State Hospital is the least restrictive available option for J.S. at this time.

On cross-examination, Dr. Plyler testified that the threat was reported by the referring authority and by J.S. The doctor was not aware of any attempts to harm himself since J.S. had been in the hospital. He stated that, to an extent, J.S. has been a cooperative patient and is not as self-destructive as he was. J.S. has a history of non-compliance and would not be well suited for outpatient care at this time. The doctor stated that J.S. would not need to stay in the hospital for more than a couple of weeks. In that time, he would try to find a suitable psychotropic medication to alter some of the symptoms. Dr. Plyler described J.S. as better in terms of self-injury, but he still has not demonstrated much insight into his condition. The doctor explained that J.S. cut his arm before coming to the hospital and he tends to minimize the seriousness of what is going on with him.

J.S. testified in his own behalf. He said he does not need additional time in Rusk State Hospital, explaining that he should be in the military hospital instead. When asked to explain why he felt the Veterans Administration hospital could better serve his needs, he responded that here, this is actually depressing me. He said he has a place to go if released from the hospital and he has no desire to hurt himself, describing his attempt as a stupid, one-time thing.

The court stated on the record that he was going to grant the State s motion and let him stay and get his medication straight. Dr. Plyler then interjected that J.S. is not eligible for treatment through the Veterans Administration because, before even finishing boot camp, he was discharged for hitting a superior officer in the nose.

The trial court entered an order for temporary inpatient mental health services after determining that the evidence supports the allegations that J.S. is mentally ill and that he is likely to cause serious harm to himself. The court ordered J.S. committed to Rusk State Hospital for a period not to exceed ninety days.

Sufficiency of the Evidence

In his sole issue, J.S. asserts the evidence is neither legally nor factually sufficient to support the order of commitment. He asserts that, because the State did not introduce into evidence his medical records or the physicians certificates supporting the application for commitment, those documents were not properly before the trial court and are not properly a part of the appellate record. He contends that, in the absence of those records, which contain the factual bases of his commitment, the evidence merely shows, if anything, that he is mentally ill and may be in need of hospitalization. He argues that the doctor s testimony alone is not probative evidence and the State did not present the required expert testimony needed to support the commitment. Accordingly, he argues, the evidence does not show that J.S. is likely to cause serious harm to himself and the State failed to meet its evidentiary burden under the statute.

Standard of Review

In a legal sufficiency review where the burden of proof is clear and convincing evidence, the reviewing court must 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 finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). The reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. A court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id.

In addressing a factual sufficiency of the evidence challenge, we must consider all the evidence in the record, both that in support of and contrary to the trial court s findings. In re C.H., 89 S.W.3d 17, 27-29 (Tex. 2002). This court must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id. at 25. We must determine

whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State s allegations. 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. In re J.F.C., 96 S.W.3d at 266. Appellate courts retain deference for the constitutional roles of the factfinder. In re C.H., 89 S.W.3d at 26. The trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. See id. at 27; In re J.J.O., 131 S.W.3d 618, 632 (Tex. App. Fort Worth 2004, no pet.).

Applicable Law

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 2003). To be clear and convincing under the 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 2003).

The Texas Mental Health Code requires at least two certificates of medical examination for mental illness to be completed by two different physicians who have examined the patient and filed with the application for court-ordered mental health services. Tex. Health & Safety Code Ann. 574.009 (Vernon 2003). A court can consider these certificates that are on file, in the record of the case, even though they are not admitted into evidence at the hearing. Johnstone v. State, 961 S.W.2d 385, 387 n.1 (Tex. App. Houston [1st Dist.] 1997, no writ); K.L.M. v. State, 735 S.W.2d 324, 325 (Tex. App. Fort Worth 1987, no writ).

Analysis

The State provided expert testimony explaining that J.S. is mentally ill and describing his behavior and statements. In his certificate of medical examination, Dr. Todd explained that J.S. was suicidal, naming three different methods for killing himself that J.S. considered. Dr. Plyler stated in his certificate of medical examination that J.S. had threatened to kill himself four different ways. At the hearing, Dr. Plyler testified that he believed J.S. was likely to cause serious harm to himself because he verbally threatened to kill himself, held a gun to his head, and talked about hanging himself and cutting his wrists. This is expert testimony of a recent overt act that tends to confirm the likelihood of serious harm to himself. The trial court could have disbelieved J.S. s testimony that his desire to harm himself was a one-time thing. See In re J.F.C., 96 S.W.3d at 266.

Considering all the evidence in the light most favorable to the findings, we conclude a reasonable trier of fact could have formed a firm belief or conviction that J.S. is likely to cause serious harm to himself. See In re J.F.C., 96 S.W.3d at 266. The evidence is legally sufficient to support the trial court s order. See id.

In addressing J.S. s factual sufficiency complaint, we consider the evidence, giving due consideration to evidence the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. J.S. assured the court that his desire to harm himself was a one-time thing. The trial court was entitled to disbelieve J.S. s testimony and disregard evidence contrary to the State s position. See id. at 27. Accordingly, in light of the entire record, the evidence that the trial court could not have credited in favor of its findings is not so significant that it could not reasonably form a firm belief or conviction that J.S. is mentally ill and is likely to cause serious harm to himself. See id. Thus, the evidence is factually sufficient to support the trial court s findings. Because we hold the evidence is both legally and factually sufficient to support the trial court s order, we overrule J.S. s sole issue.Disposition

We affirm the trial court s order of commitment for temporary inpatient mental health services.

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 30, 2005.

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

(PUBLISH)