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

NO. 12-05-00121-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE STATE OF TEXAS FOR THE APPEAL FROM THE

BEST INTEREST AND COUNTY COURT AT LAW

PROTECTION OF R.B. CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Appellant R.B. appeals from the trial court s order committing him to the Rusk State Hospital for a period not to exceed ninety days pursuant to section 574.034 of the Texas Health and Safety Code. In one issue, R.B. challenges the legal and factual sufficiency of the State s evidence to support the order of commitment. // We affirm.

Background

On March 29, 2005, Mike Dorsey filed an Application for Court Ordered Temporary Mental Health Services (the application ) with the County Clerk of Cherokee County, Texas. The application stated that R.B. was mentally ill and that he met the criteria set forth in section 574.034 of the Texas Health and Safety Code. At the time the application was filed, R.B. was living at a private residence and was not charged with a criminal offense.

The hearing on the application was held on April 5, 2005. At the end of the hearing, the trial court found that R.B. was mentally ill and as a result of that mental illness was likely to cause serious harm to others. See Tex. Health & Safety Code Ann. 574.034(a)(2)(B) (Vernon 2003). As a result of the trial court s findings, R.B. was ordered committed to the Rusk State Hospital for inpatient care for a period not to exceed ninety days.

Burden of Proof and Standard of Review

Section 574.034 of the Texas Health and Safety Code contains the criteria for court-ordered temporary inpatient mental health services. The court may order a proposed patient to receive temporary inpatient mental health services only if the factfinder concludes from clear and convincing evidence that the proposed patient is mentally ill and also meets at least one of the additional criteria set forth in section 574.034(a)(2). Specifically, subsection (a)(2) provides that the factfinder must conclude that as a result of mental illness, the proposed patient

(A) is likely to cause 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).

The State has the burden of establishing by clear and convincing evidence that the proposed patient meets at least one of the additional criteria listed in section 574.034(a)(2). Mezick v. State, 920 S.W.2d 427, 430 (Tex. App. Houston [1st Dist.] 1996, no writ). Clear and convincing evidence is an intermediate standard, falling between the preponderance of the evidence standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979) (per curiam). The Texas Supreme Court has defined clear and convincing evidence as 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. Addington, 588 S.W.2d at 570. When court-ordered temporary mental health services are sought, an additional requirement for clear and convincing evidence is imposed. To be clear and convincing under subsection (a), 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) (Vernon 2003).

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.)

The Evidence

At the beginning of the hearing, R.B. s attorney stipulated that Dr. Charles Plyler, the State s testifying expert and also R.B. s treating physician at the hospital, was an expert in the field of mental health care. R.B. s attorney also stipulated that the Physician s Certificate[s] of Medical Examination for Mental Illness (the certificates ), the recommendations of the treatment team, and medical records of the Texas Department of Criminal Justice-Institutional Division pertaining to R.B. were business records, but conditioned the stipulation on his right to assert objections to those documents on the bases of privilege, prejudice, personal knowledge, hearsay, and relevance. The certificates were prepared by Dr. Plyler and a Dr. Cuellar, another doctor who examined R.B. at the hospital. Dr. Cuellar s certificate reflects that he examined R.B. on March 28, 2005 and that during the examination, R.B. told him he saw ghosts and was rambling non-stop, [and] incoherent. Dr. Cuellar s report also noted that on March 21, R.B. threatened neighbors with a gun and also threatened suicide. His report states that he had diagnosed R.B. as suffering from bipolar I disorder. Dr. Cuellar s report further states that R.B. was mentally ill and was likely to cause serious harm to himself and others. He also opined that R.B. presented a substantial risk of serious harm to self or others if not immediately restrained, as demonstrated by 1) R.B. s behavior and 2) evidence of severe emotional distress and deterioration in his mental condition to the extent that R.B. could not remain at liberty.

Dr. Plyler s certificate stated that he examined R.B. on March 29 and that his diagnosis of R.B. s condition was bipolar disorder, a condition for which he prescribed R.B. antipsychotic medications. Dr. Plyler also noted that on March 28, R.B. stated that [t]he police found the gun that was hid in the garage. On March 29, Dr. Plyler noted that R.B. had smeared feces on hospital wall, flooded hospital room, threatened neighbors with gun, and was verbalizing suicidal ideations. Dr. Plyler s report stated that he believed R.B. was mentally ill and that, as a result of that illness, he was likely to cause serious harm to himself and others.

Dr. Plyler testified at the hearing and stated that R.B. was mentally ill and was suffering from bipolar disorder. As a result of that mental illness, Dr. Plyler believed that R.B. was likely to cause serious harm to himself and might cause serious harm to others. Dr. Plyler stated that he arrived at these conclusions because R.B. had been threatening neighbors. // He further stated that he arrived at his opinion by reading the original examining physician s report from ETMC.

Dr. Plyler noted that since R.B. was admitted to the hospital, he had observed R.B. being really loud and intrusive [and] provok[ing] other patients to attack him from time to time. Dr. Plyler also stated that R.B. had smeared feces on the hospital bathroom wall and flooded the room. He also testified that R.B. threatened a neighbor with a gun. Dr. Plyler said that touching feces was not safe conduct because that conduct could cause the spread of disease and infections. This behavior was one of the reasons Dr. Plyler thought that R.B. was likely to cause harm to himself and to others. Dr. Plyler reached his conclusions as to R.B. s mental health after personally examining him and conducting several interviews with him. Dr. Plyler could not satisfactorily interview R.B. because although R.B. would respond to his questions, the responses R.B. gave were nonsensical. Dr. Plyler believed that those nonsensical responses were the result of R.B s mental illness. In Dr. Plyler s opinion, the Rusk State Hospital was the least restrictive environment for R.B. at that time. The trial court then admitted the physicians certificates into evidence.

On cross-examination, Dr. Plyler stated that R.B s judgment was so poor that he is very likely to hurt himself. When asked if R.B. had committed an overt act that would indicate his likelihood to cause serious harm to himself, Dr. Plyler replied that R.B. had not done anything, physically, to harm himself. He further stated that [t]here ha[d] been no overt act, unless you consider his intrusiveness and his irritating manner toward people. Dr. Plyler acknowledged that R.B. had not taken any steps to harm himself and had not assaulted anyone during his stay at the hospital.

R.B. did not testify or put on any evidence; however, the record shows that at multiple times, R.B. interrupted the proceedings by speaking unintelligible words and pointing to the ceiling during Dr. Plyler s testimony. Both parties subsequently rested and closed, and the trial court signed an order stating that

after considering all of the evidence, including the Certificates, the recommendation for the most appropriate treatment alternative, if any, and the expert, competent medical or psychiatric testimony, it appears to the Court that the allegations of the Application and Certificates are true and correct and are supported by clear and convincing evidence that the Patient is mentally ill, and as a result of that mental illness the Patient . . . is likely to cause serious harm to others.

The order also committed R.B. to the Rusk State Hospital for inpatient care for a period not to exceed 90 days. That same day, R.B. filed a notice of appeal.

Legal Sufficiency of the Evidence

The evidentiary standards for involuntary commitment are high. Harris v. State, 615 S.W.2d 330, 333 (Tex. Civ. App. Fort Worth 1981, writ ref d n.r.e.). The State must produce expert testimony to support its contention that involuntary commitment is necessary. Tex. Health & Safety Code Ann. 574.034(d) (Vernon Supp. 2002). However, an expert diagnosis, without more, is not sufficient to confine a patient for compulsory treatment. Mezick, 920 S.W.2d at 430. The State cannot meet its burden of proof without presenting evidence of the behavior of the proposed patient that provides the factual basis for the expert opinion. Id. To be clear and convincing, the evidence must show a recent overt act or a continuing pattern of behavior that tends to confirm the likelihood that the patient will seriously harm himself or others or that his ability to function is deteriorating because of his distress. Tex. Health & Safety Code Ann. 574.034(d) (Vernon 2003). The recent overt act or continuing pattern of behavior shown by the State must also relate to the criterion on which the judgment is based. See T.G. v. State, 7 S.W.3d 248, 252 (Tex. App. Dallas 1999, no pet.); In re Breeden, 4 S.W.3d at 788.

In the case at hand, the trial court found that R.B. was mentally ill and as a result of that mental illness is likely to cause serious harm to others. See Tex. Health & Safety Code Ann. 574.034(a)(2)(B). The State s only witness, Dr. Plyler, testified that R.B. was likely to cause harm to others and based this opinion on the fact that R.B. had smeared feces on a hospital wall, flooded a hospital room, threatened neighbors with a gun, and verbalized suicidal ideations. The foregoing evidence supports the State s assertion that R.B. 1) is likely to harm others and 2) has a continuing pattern of behavior that demonstrates his mental, physical, or emotional distress, deterioration of independent functioning, or inability to make a rational and informed decision as to whether or not to submit to treatment. Thus, we conclude that a reasonable trier of fact could have formed a firm belief or conviction that R.B. is likely to cause harm to others. The evidence is legally sufficient to support the trial court s order. R.B. s sole issue, as it pertains to the legal sufficiency of the evidence, is overruled.

Factual Sufficiency of the Evidence

In addressing R.B. 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.

The evidence contrary to the trial court s findings was presented during the cross-examination of Dr. Plyler. On cross-examination, Dr. Plyler admitted that R.B. had made no overt act during his stay at the hospital and that he was not present when R.B. threatened his neighbors with a gun. After reviewing all of the evidence, both in support of and contrary to the trial court s findings, we hold that the trial court could have reasonably found that R.B. had a continuing pattern of behavior that demonstrated his mental distress and deterioration of independent functioning. R.B. s 1) unintelligible, nonsensical speaking during the hearing, 2) threatening a neighbor with a gun, 3) smearing feces on the wall, 4) flooding his hospital room, and 5) verbalizing suicidal ideations support the trial court s finding that R.B. s pattern of behavior meets the statutory requirement for clear and convincing evidence. Although Dr. Plyler never personally observed 1) an overt act or 2) R.B. threaten his neighbors with a gun, 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 R.B. is mentally ill and is likely to cause serious harm to others. See id. at 27. Thus, the evidence is factually sufficient to support the trial court s findings. R.B. s sole issue, as it pertains to the factual sufficiency of the evidence, is overruled.

Disposition

The judgment of the trial court is affirmed.

DIANE DEVASTO

Justice

Opinion delivered September 7, 2005.

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

(PUBLISH)