J. A. v. The State of Texas--Appeal from County Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-95-021-CV

J. A.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court

Ellis County, Texas

Trial Court # 94-3074-MH

O P I N I O N

Appellant J.A. appeals from an order of the trial court committing her to the Terrell State Hospital for inpatient care for a period not to exceed ninety days.

On December 9, 1994, Appellant's mother Irma Olivo applied for emergency detention of Appellant, alleging depression, threats of self-harm, rambling, non-sensical speech, and a history of mental illness. After a hearing, the judge ordered protective custody, committing Appellant to the Terrell State Hospital.

On December 20, 1994, a hearing was held to determine if the commitment should continue. Upon hearing the testimony of the treating psychiatrist from the Terrell State Hospital and others, the court ordered Appellant committed to the Terrell State Hospital for a period not to exceed ninety days. On January 9, 1995, Appellant was released from the Terrell State Hospital. //

Appellant appeals on two points of error. Point one: "The trial court lacked sufficient evidence to conclude that Appellant should be involuntarily committed to a state hospital."

Texas Health and Safety Code 574.034 provides:

(a)The judge or jury may determine that a proposed patient requires court ordered temporary mental health service only if the judge or jury finds from clear and convincing evidence that:

(1) The proposed patient is mentally ill; and

(2) As a result of the 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) will, if not treated, continue to suffer severe and abnormal mental, emotional, or physical distress, will continue to experience 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.

(b) The judge or jury must specify which criterion in subsection (a)(2) forms the basis for the decision.

(c) To be clear and convincing under this section, 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 the likelihood of serious harm to the proposed patient or others, or the proposed patient's distress and the deterioration of ability to function.

The trial judge found Appellant was mentally ill and, as a result of that mental illness, will, if not treated, continue to suffer severe and abnormal mental, emotional, or physical distress and will continue to experience deterioration of her ability to function independently, and is unable to make a rational and informed decision as to whether or not to submit to treatment.

Dr. Methner, Appellant's treating psychiatrist at the Terrell State Hospital, diagnosed Appellant as suffering from a schizo-affective disorder. He testified to a specific pattern of behavior by way of a continuing deterioration of insight and judgment; that if not treated, she will continue to deteriorate; that she had attempted to leave the hospital and had refused to accept treatment; that she had fixated thinking regarding a personal involvement with the Super Collider even though she had no connection with the Super Collider; that she could not organize her thinking; that she was not able to care for herself, much less her ten-months-old child; that Appellant had a long documented history in Illinois from 1986 to 1993 with at least one hospitalization a year to stabilize her; that she needs to be stabilized on psychotropic medication and needs inpatient care at Terrell State Hospital for a period not greater than ninety days.

Ms. German, the hospital liaison for Ellis County Mental Health Services testified Appellant had suspicious and paranoid thinking about her husband and their personal finances; that Appellant carried many of her bills and papers with her at all times; and that her paranoia extended to an unwillingness to enter the clinic door or to release her child from her arms.

Appellant testified that she was not mentally ill and that her illness is related to some physical medical problem instead of mental illness. Her testimony overall indicates that her thought processes were confused and disjointed.

We find there is sufficient clear and convincing evidence to meet the statutory requirement that there be expert testimony and sufficient evidence of a continuing pattern of behavior tending to confirm Appellant's distress and deterioration of ability to function. Banks v. State, 570 S.W.2d 121 (Tex. App. Austin 1978); Holliman v. State, 762 S.W.2d 656 (Tex. App. Texarkana 1988). Point one is overruled.

Point two: "Trial attorney rendered ineffective assistance of counsel." Appellant asserts ineffective assistance of counsel in that: (1) her trial attorney did not cross-examine Dr. Methner; she asserts if he had done so, he could have established that she was not a danger to herself or others; (2) her trial attorney failed to introduce documents; she asserts she had bills and records that would have substantiated her claim she was not mentally ill, but rather was experiencing normal stress from her bills and problems with utility disputes; and (3) her trial counsel failed to request a list of acts committed by her that the State would attempt to prove at trial.

The standard for review where ineffective assistance of counsel is alleged, is set out in Strickland v. Washington, 466 U.S. 688, and Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). These cases require a showing that counsel's performance was deficient by norms of the community, plus a showing that the deficiency so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result. This is judged by the totality of counsel's representation and not by isolated acts and omissions. Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1980). The burden of proving ineffective assistance of counsel is on the appellant and must be proved by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985). Matters not present in the record of the trial provide no basis upon which an appellate court can make a decision. Tex. R. App. P. 50(a). Mere allegations of the existence of facts may not be considered. Williams v. State, 485 S.W.2d 274 (Tex. Crim. App. 1972). Where alleged inadequacies of trial counsel are errors of omission or dehors the record, rather than errors of commission revealed in the trial record, the proper vehicle for complaint is a habeas corpus attack which permits the development of facts concerning the alleged ineffectiveness. Barrera v. State, 664 S.W.2d 372, 375 (Tex. Crim. App. Corpus Christi 1983); Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980).

All three of the alleged basis for ineffectiveness of trial counsel are allegations of omission, or the failure to do something. Under the authorities cited Appellant has not proved her trial counsel's representation ineffective. Point two is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Appellant delivered and filed October 4, 1995

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