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

NO. 12-05-00322-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

APPEAL FROM THE

THE STATE OF TEXAS FOR THE

BEST INTEREST AND PROTECTION COUNTY COURT AT LAW OF

OF J.W.

CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Appellant J.W. appeals from an order of commitment for temporary inpatient mental health services and an order to administer psychoactive medication. After a hearing without a jury, the trial court ordered J.W. committed to Rusk State Hospital for a period not to exceed ninety days and entered an order authorizing the Texas Department of Mental Health and Mental Retardation to administer psychoactive medication to J.W. In two issues, J.W. asserts the evidence is legally and factually insufficient to support the order of commitment and the trial court erred in granting the State s application to administer psychoactive medication. We reverse and render.

Background

On September 19, 2005, an application for court ordered temporary mental health services was filed requesting the court commit J.W. 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. C. Cuellar, who had examined J.W. on September 16. Dr. Cuellar diagnosed J.W. as suffering from schizoaffective disorder. He found that J.W. is mentally ill, 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 to submit to treatment.

Dr. Cuellar reached these conclusions because, on September 16, J.W. exhibited illogical, garrulous speech and, on September 15, he was actively hallucinating. Dr. Cuellar found that J.W. presents a substantial risk of serious harm to himself or others if not immediately restrained, an opinion he based on J.W. s behavior and on evidence of severe emotional distress and deterioration in J.W. s mental condition to the extent he cannot remain at liberty. Dr. Cuellar formed this opinion because of J.W. s pressured speech, the fact that he was out of touch with reality, and his actions of September 15.

On September 21, 2005, J.W. was examined by Dr. Larry Hawkins who then also prepared a certificate of medical examination for mental illness. Dr. Hawkins diagnosed J.W. with bipolar disorder I, manic, severe with psychotic features and indicated that J.W. is mentally ill and likely to cause serious harm to others. He further determined that he is suffering severe and abnormal mental, emotional, or physical distress, is experiencing substantial mental or physical deterioration of his ability to function independently, which is exhibited by his inability to provide for his basic needs, and he is unable to make a rational and informed decision as to whether or not to submit to treatment. He came to these conclusions because J.W. exhibited very pressured speech, flight of ideas, disorganized thoughts, and paranoia. J.W. believed others had placed chemicals in his body.

Dr. Hawkins testified at the hearing, explaining that he diagnosed J.W. with bipolar disorder I, manic, severe with psychotic features. He testified that J.W. is likely to cause serious harm to others. He explained that J.W. has very disorganized thought processes and very fragmented thoughts making it difficult for him to communicate his needs to others. It takes an extended period of time for the listener to get some understanding of what J.W. is trying to say. Therefore, he is not able to function in the community in a reasonable fashion to get his needs met. Dr. Hawkins determined that J.W. is suffering severe and abnormal mental, emotional, or physical distress and is unable to take care of his daily needs. He explained that J.W. demonstrated very agitated behavior. He became very angry and irritable when hospital personnel tried to discuss these issues with him. The doctor explained that has happened several times leading him to believe that there s some impending intimidation, kind of aggressive features to his verbalization. Further, J.W. believes that when he allowed other patients to stay in his home, they brought in illicit drugs that somehow caused him to be chemically poisoned. Dr. Hawkins testified that trying to get a complete, understandable, cohesive, coherent story from J.W. is next to impossible. J.W. talks about four different topics, all in fragmented phrases, that he tries to weave together. J.W. is very fragmented, unable to carry on a rational conversation, and very easily agitated over the fact that he cannot be understood by others. The doctor testified that this could lead to harm to J.W., harm to others, or deterioration. Because of the way he acts toward others, it looks as though he may go off, and he could be harmed in that kind of situation. J.W. s posture toward others could evoke a physical reaction. Dr. Hawkins based his diagnosis on personal examinations, reviews of medical histories, and reasonable medical probabilities. He estimated that, once J.W. is on medications, he would need to remain in the hospital for two to three weeks. The doctor stated that Rusk State Hospital is the least restrictive available option for J.W. at this time.

On cross examination, Dr. Hawkins testified that J.W. has not assaulted anyone at the hospital or shown an intent to harm himself. J.W. has the capacity to feed himself and, after prompting, can take care of his own personal hygiene. J.W. might understand the inherent dangers of sitting in a fire ant bed, but there are some inherent dangers in the community that he might not understand. The doctor was uncertain whether J.W. could effectively communicate to seek medical attention if needed. Due to his disorganized thought and speech patterns, it would be almost impossible for him to get his point across to people in the community to get his needs met in a reasonable time period. This difficulty in communication could lead to frustration and aggravation on the part of J.W. and those with whom he speaks.

On redirect, the doctor explained that, while hospital personnel are often able to avoid assaultive behavior, in the community it would be easier to provoke assaultive responses. Therefore, J.W. is better off in a structured situation such as Rusk State Hospital.

On further cross examination, Dr. Hawkins stated that, while J.W. had previously had difficulty in the community, he had not been assaulted. Upon questioning by the court, the doctor clarified the connection between J.W. s disorganized thought and speech patterns and his anger, irritability, and disruption. Even after listening to J.W. for thirty or forty-five minutes, the listener still has to piece his story together, and J.W. gets very angry if the listener interrupts for clarification. A lot of anger and frustration builds into the process, caused by the mental illness. The doctor testified that this is a continuing pattern of behavior that has been going on for over six months. Because J.W. cannot get answers and no one seems to understand, it causes J.W. severe distress. J.W. s condition will deteriorate if not treated.

J.W. testified in his own behalf. He denied wanting to hurt himself or anyone else. He receives social security checks and takes care of himself outside of the hospital. He knows how to avail himself of the public bus system and has obtained medical services when needed. He does his own cooking, cleaning, and shopping. He knows not to sit on a fire ant mound and what to do if his house were burning. If released, he has a place to live. He denied ever trying to rob anyone. He shops at the cheapest places because he has a limited income.

On cross examination, J.W. said he had an apartment to go to if released from the hospital. He explained that he has a roommate and the apartment is affordable on his social security income. He testified that he never hurt anyone. He explained that some people at the apartment complex tried to teach him a lesson that was not funny although they thought it was.

The trial court entered an order for temporary inpatient mental health services after determining that the evidence supports the allegations that J.W. is mentally ill and that he is suffering severe and abnormal mental, emotional, or physical distress; experiencing substantial mental or physical deterioration of his ability to function independently, which is exhibited by his inability to provide for his basic needs; and he is unable to make a rational and informed decision as to whether or not to submit to treatment. The court ordered J.W. committed to Rusk State Hospital for a period not to exceed ninety days.

A separate hearing was then held on the State s application for court ordered administration of psychoactive medication. Dr. Hawkins testified as to J.W. s need for medication and J.W. s refusal to take it. J.W. testified, explaining that while he did not object to the use of medication, he did not see the purpose of it. At the close of evidence, the court entered an order to administer psychoactive medication for the period of temporary commitment.

Commitment Order

In his first issue, J.W. asserts the evidence is neither legally nor factually sufficient to support the order of commitment. He contends that the evidence merely shows that he may be mentally ill. He argues that the evidence does not show an overt act or continuing pattern of behavior tending to confirm that he is suffering severe and abnormal mental, emotional, or physical distress, experiencing substantial mental or physical deterioration of his ability to function independently as exhibited by an inability to provide for his basic needs, or that he is unable to make a rational and informed decision as to whether or not to submit to treatment. Thus, he argues, the State failed to meet its evidentiary burden under the statute.

Applicable Law

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.

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).

 Discussion

The State provided expert testimony explaining that J.W. is mentally ill and describing his behavior. Dr. Cuellar stated in his certificate of medical examination that J.W. exhibited illogical, garrulous, pressured speech, was hallucinating, and was out of touch with reality. Dr. Hawkins stated in his certificate that J.W. exhibited pressured speech, flight of ideas, disorganized thoughts, and paranoia. Dr. Hawkins testified that J.W. has difficulty communicating his needs to others. J.W. gets angry and irritable when speaking to hospital personnel. The doctor s testimony focused on J.W. s manner of communication and the possible problems that may stem from conversations he might have with people in the community. These conversations lead to frustration and aggravation and cause J.W. severe distress. This is expert testimony of a continuing pattern of behavior, difficulty in communicating that results in frustration and anger.

However, there is no expert testimony that this pattern of behavior tends to confirm the likelihood of the deterioration of J.W. s ability to function. There is only Dr. Hawkins s bare assertion that J.W. is unable to function in the community in a reasonable fashion to get his needs met. The doctors statements are conclusory and the factual bases for their opinions are lacking. See K.T. v. State, 68 S.W.3d 887, 893 (Tex. App. Houston [1st Dist.] 2002, no pet.). Moreover, Dr. Hawkins testified that J.W. can feed himself and take care of his personal hygiene. The fact that J.W. has communication problems does not support a finding that he is experiencing substantial mental or physical deterioration of his ability to function independently. Further, much of the doctor s testimony focused on the possibility that J.W. might aggravate someone he spoke to, eliciting a physical response. However, as the trial court did not find that J.W. is likely to cause harm to himself or others, this evidence does not support the order of commitment.

We conclude there is no evidence of a recent overt act or continuing pattern of behavior that tends to confirm the deterioration of J.W. s ability to function independently. The evidence presented does not satisfy 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 not legally sufficient to support the trial court s order. See In re J.F.C., 96 S.W.3d at 266. We sustain J.W. s first issue to the extent he complains of the legal sufficiency of the evidence. We need not reach his factual sufficiency complaint. See Tex. R. App. P. 47.1.

Psychoactive Medication

In his second issue, J.W. asserts the trial court erred in entering an order authorizing administration of psychoactive medication. He argues that such an order must be based on a valid order for inpatient mental health care and, due to the reasons asserted in his first issue, the trial court s order for inpatient mental health care is not valid.

The court may enter an order authorizing the administration of psychoactive medication if it finds by clear and convincing evidence that the patient is under an order for temporary or extended mental health services, the patient lacks the capacity to make a decision regarding the administration of the proposed medication, and treatment with the proposed medication is in the best interest of the patient. Tex. Health & Safety Code Ann. 574.106(a) (Vernon 2003).

Having found the evidence legally insufficient to support the trial court s order of commitment, we have determined that the trial court s order for temporary mental commitment is invalid. Therefore, the order authorizing administration of psychoactive medication is also invalid. See Tex. Health & Safety Code Ann. 574.106(a). We sustain J.W. s second issue.

Conclusion

The evidence is legally insufficient to support the trial court s order of commitment for temporary inpatient mental health services. It follows that the order for administration of psychoactive medication is invalid.

We reverse the trial court s orders of commitment for temporary inpatient mental health services and for administration of psychoactive medication. We render judgment denying the State s applications for court ordered temporary mental health services and for an order to administer psychoactive medication.

JAMES T. WORTHEN

Chief Justice

Opinion delivered May 26, 2006.

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

(PUBLISH)