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

Annotate this Case
NO. 12-02-00101-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 OF

PROTECTION OF M.G.

 
CHEROKEE COUNTY, TEXAS

Appellant M.G. appeals from a judgment ordering his commitment for temporary inpatient mental health services pursuant to Tex. Health & Safety Code Ann. 574.034 (Vernon Supp. 2002). After a hearing, the trial court ordered M.G. committed to Rusk State Hospital for a period not to exceed ninety days. (1) In five issues, M.G. challenges the legal and factual sufficiency of the evidence, as well as the trial court's admission of evidence over his objection. We affirm the judgment of the trial court.

 
Background

On March 25, 2002, Steve Peters, patient care coordinator with a Texas Department of Criminal Justice - Institutional Division psychiatric facility, filed an Application for Court-Ordered Temporary Mental Health Services with the County Clerk of Cherokee County, Texas. The application stated that M.G. was mentally ill and that he met the criteria in section 574.034 of the Texas Mental Health Code for court-ordered temporary mental health services. At the time of the hearing, M.G. was incarcerated at the Skyview Unit of TDCJ-ID, but was scheduled to be released on April 4, 2002.

The hearing on the application was held on March 27, 2002. In the Order for Temporary In-Patient Mental Health Service, which was signed the same day, the court stated the following:

 

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 meets at least one of the following specified additional criteria: is likely to cause serious harm to himself/herself; or will, if not treated, continue to suffer severe and abnormal mental, emotional or physical distress and will continue to experience deterioration of his/her ability to function independently is unable to make a rational and informed decision as to whether or not to submit to treatment.

 

See Tex. Health & Safety Code Ann. 574.034(a)(2)(A), (B), (C) (Vernon Supp. 2002).

 

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 the factfinder must conclude that as a result of mental illness, the proposed patient:

 
is likely to cause 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 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 Supp. 2002).

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." Id. 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:

 
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 Supp. 2002). The clear and convincing standard does not alter the appropriate standard of review. In re Caballero, 53 S.W.3d 391, 395 (Tex. App.--Amarillo 2001, pet. denied).

Legal Sufficiency of the Evidence

In reviewing a legal sufficiency or no evidence complaint, the appellate court must consider only the evidence and inferences tending to support the challenged findings and disregard all evidence and inferences to the contrary. If there is more than a scintilla of evidence to support the challenged findings, the no evidence challenge fails. Leitch v. Hornsley, 935 S.W.2d 114, 118 (Tex. 1996). In the context of the State's heightened burden of proof in a temporary commitment case, a no evidence challenge will be sustained if the evidence is insufficient to produce in the mind of the factfinder a firm belief or conviction as to the truth of the facts. In re Breeden, 4 S.W.3d 782, 785 (Tex. App.--San Antonio 1999, no pet.).

The Evidence

At the commitment hearing, the State called one witness, Dr. Wanda Michaels. She testified that she was M.G.'s treating physician and that she had examined him on March 10, 2002. She stated that M.G. was suffering from major depressive disorder with recurrent bipolar disorder, borderline personality disorder with poor impulse control, and anemia. Dr. Michaels indicated that she believed M.G. was likely to cause serious harm to himself and others and was not able to provide for his basic needs. In discussing her reasoning, the doctor stated that M.G. has a "persistent pattern of self-injurious behavior and has shown difficulty in controlling his impulses. I went back two years and found that he has a repeated history of doing this severe self-injurious behavior. . .." At this time, counsel objected and took the witness on voir dire.

On voir dire, Dr. Michaels admitted that she was not M.G.'s treating physician at the time of the alleged past injurious behavior and that she had no personal knowledge of the incidents to which she was referring. She further acknowledged that all of the information to which she was alluding had been told to her or received by some outside source other than herself. Counsel then offered his objections to the testimony on the grounds of lack of personal knowledge, hearsay, and unfair prejudice. The State responded that the medical records were already stipulated as business records and admitted into the record. But M.G.'s counsel countered that he had reserved the right to object on the grounds of privilege, prejudice and personal knowledge. On appeal, M.G.'s counsel further points out that he had stipulated the medical reports were business records, but that there was no stipulation as to their admission. He also notes that the record does not reflect that any of M.G.'s medical records were admitted into evidence, nor are they attached to the reporter's record for our review.

An expert's opinions and recommendations must be supported by a showing of the factual basis on which they are grounded. In re J.S.C., 812 S.W.2d 92, 95 (Tex. App.-San Antonio 1991, no writ). In this case, the factual basis for a portion of Dr. Michaels' opinion was medical reports, not her own, which were not offered or admitted into evidence. However, Rule 703 of the Rules of Evidence provides that expert opinions may be based on facts or data not admissible in evidence if they are of a type reasonably relied upon by experts in the witness' field in drawing conclusions or inferences upon the subject. Tex. R. Evid. 703. This rule eliminates the need to introduce any underlying data. See State v. Resolution Trust Corp., 827 S.W.2d 106, 108 (Tex. App.-Austin 1992, writ denied). In a commitment case, medical records clearly provide facts reasonably relied upon by psychologists and psychiatrists who testify to a patient's recent overt act or a continuing pattern of behavior. We hold, therefore, that even though a portion of Dr. Michaels' opinion was based upon documents not in evidence, whatever "facts" she testified to from those documents may be considered in determining the sufficiency of the evidence.

At the commitment hearing, Dr. Michaels testified that M.G. suffers from a mental illness, specifically major depressive disorder with recurrent bipolar disorder, borderline personality disorder with poor impulse control and anemia. She also stated the following:

 

So going back, the patient does have a repeated history of cutting himself, injuring himself very seriously. Each time - - there have been several times that he has injured himself that have required transfusions - - blood transfusions - - because of the seriousness of the cutting that he's done. . .. He also has been hospitalized several times at both Jester IV facility and at Skyview for his self-mutilative behavior. And he has been tried on several medications and has been - - which have been unsuccessful so far sometimes due to his not staying on medications long enough for them to work. He - - at patient's request, he was taken off of medications and observed in a structured environment at Jester IV. And after a period of approximately five or six months, he again - - in February of 2002, was admitted to Crisis Management with a suicidal threat. He cut himself on February 24th, 2002 when - - for the record - - and he did this while at Jester IV. . .. As I said, February 24th he cut himself. That was the most recent one. That one was very serious. He lost a large amount of blood. That's why he has the anemia. He had to go to the hospital to have a blood transfusion due to a large amount of blood loss.

 

Dr. Michaels further stated that during her interview of M.G., he admitted that he had a poor tolerance for stress and that he had a tendency to cut himself in response to stress.

We hold that this testimony is legally sufficient evidence that M.G. is mentally ill, and that he engaged in an overt act which showed by clear and convincing evidence that he is a danger to himself.

Factual Sufficiency of the Evidence

When conducting a factual sufficiency review, this court must consider all of the evidence, including any evidence contrary to the verdict. Plas-Tex. Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We must reverse on the basis of a factual insufficiency or great weight and preponderance point if the court's finding is so against the great weight and preponderance as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

The Evidence

In addition to the evidence cited in the legal sufficiency analysis, there was also extensive testimony from M.G.'s mother. None of her testimony, however, supports or detracts from the ultimate issues in this case. M.G. did not testify. Dr. Michaels testified that M.G. was on medications, but that he had no record of ever requiring any emergency medications. On cross-examination, Dr. Michaels admitted that M.G.'s condition had improved, that he was able to dress himself, feed himself, and take care of his personal hygiene without assistance or prompting. The doctor also stated that M.G. could initiate and respond to conversation. In response to further questioning, Dr. Michaels acknowledged that M.G. never touched her, nor did he ever threaten to touch her, that he was "not assaultive," and that he had no suicidal or homicidal ideations. She agreed that M.G. was not a dangerous individual, and that he was voluntarily on medications for his mental illness. She concluded by saying that M.G.'s in-house treatment could last as few as four weeks.

Considering all of the evidence, including any evidence contrary to the verdict, we cannot say that the court's finding is so against the great weight and preponderance as to be manifestly unjust. Accordingly, we hold that there is both legally and factually sufficient evidence to find that M.G. is mentally ill and that he is likely to cause harm to himself based upon overt acts of self-mutilation. We overrule issue one.

 

Admission of Evidence

In issues two through five, M.G. complains that the trial court erred when it admitted Dr. Michaels' testimony and M.G.'s medical records (2) into evidence over objections of privilege, lack of personal knowledge, hearsay, and prejudice. Evidentiary rulings are "committed to the trial court's sound discretion." City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial court abuses its discretion when it rules "without regard for any guiding rules or principles." Id. at 754. An appellate court must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. See State Bar of Texas v. Evans, 774 S.W.2d 656, 658 n.5 (Tex. 1989). Moreover, we will not reverse a trial court for an erroneous evidentiary ruling unless the error probably caused the rendition of an improper judgment. Tex. R. App. P. 44.1(1).

Section 611.006 of the Texas Health & Safety Code states that a professional may disclose confidential information in an involuntary commitment proceeding for court-ordered treatment under Chapter 574. Tex. Health & Safety Code Ann. 611.006 (Vernon Supp. 2002). Consequently, M.G.'s objection that the evidence was privileged has no merit.

Once the proper predicate has been laid (3) in accord with Rule 803 of the Texas Rules of Evidence, the person testifying from that business record is not required to have personal knowledge of the truth of the contents of that business record. Tex. R. Evid. 803 (exceptions to the hearsay rule may be invoked without regard to whether the declarant is available to testify); see also Tex. R. Evid. 703. Therefore, the trial court did not abuse its discretion when it overruled M.G.'s objection that Dr. Michaels lacked personal knowledge of the information to which she testified.

Also according to Rule 803 of the Texas Rules of Evidence, as records of regularly conducted activity, M.G.'s medical records are an exception to the hearsay rule. Tex. R. Evid. 803. Furthermore, Rule 703 of the Rules of Evidence provides that expert opinions may be based on facts or data "perceived by, reviewed by, or made known to the expert" if they are of a type reasonably relied upon by experts in the witness' field in drawing conclusions or inferences upon the subject. Tex. R. Evid. 703. Thus, it was not error for Dr. Michaels to testify from such records.

The fact that evidence has some prejudicial effect is insufficient to warrant its exclusion. Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 772 (Tex. App.-Corpus Christi 1999, pet. denied). Rather, there must be a demonstration that introduction of the evidence would create a danger of unfair prejudice to the objecting party. Tex. R. Evid. 403 (emphasis added). "Unfair prejudice" means "an undue tendency to suggest [a] decision on an improper basis, commonly, though not necessarily, an emotional one." Weidner v. Sanchez, 14 S.W.3d 353, 365 (Tex. App.-Houston [14th Dist.] 2000, no pet.). Moreover, there must be a demonstration that the danger of unfair prejudice substantially outweighs the evidence's relevance. Tex. R. Evid. 403 (emphasis added). In this case, the facts presented at the hearing went directly to the issues upon which the State had the burden of proof. Evidence of M.G.'s acts of self-mutilation were vital to proving both an overt act and a continuing pattern of behavior. Further, M.G. does not show how evidence of M.G.'s previous acts suggests a decision based upon an improper basis. We cannot say that the probative value of Dr. Michaels' testimony and the information derived from the medical records is substantially outweighed by the danger of unfair prejudice. Consequently, the trial court did not abuse its discretion when it allowed Dr. Michaels' testimony derived from M.G.'s medical records. Accordingly, we overrule issues two through five.

The judgment of the trial court is affirmed.

 

SAM GRIFFITH

Justice

 

Opinion delivered December 18, 2002.

Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.

 
(DO NOT PUBLISH)

1. The ninety-day commitment period has expired, but this appeal is not moot. In State v. Lodge, 608 S.W.2d 910, 911 (Tex. 1980), the Texas Supreme Court held that the doctrine of mootness does not apply to appeals from involuntary commitments.

2. Again we note that M.G.'s medical records were neither offered nor admitted into evidence.

3. M.G.'s counsel stipulated that the medical records were business records, precluding the need to lay the predicate.