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

NO. 12-03-00004-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 M.R.

 
CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION

Appellant M.R. appeals from an order of commitment for extended inpatient mental health

services and an order to administer psychoactive medication. After a hearing without a jury, the trial court ordered M.R. committed to Rusk State Hospital for a period not to exceed twelve months. On the same day, the trial court entered an order authorizing the Texas Department of Mental Health and Mental Retardation to administer psychoactive medication to M.R. while he is committed to Rusk State Hospital. In seven issues, M.R. asserts the evidence is legally and factually insufficient to support the order of commitment, the trial court erred in ordering administration of psychoactive medication, his constitutional rights to due process and equal protection have been violated, and he was denied effective assistance of counsel. We affirm.

 

Background

On December 9, 2002, an application for court-ordered extended mental health services was filed requesting the court commit M.R. to Rusk State Hospital for a period not to exceed twelve months. The application was supported by a certificate of medical examination for mental illness, prepared by a physician, Dr. Harry Thompson, who had examined M.R. on December 5. Dr. Thompson diagnosed M.R. as having "Bipolar I Disorder, manic, severe, with psychotic features." He found that M.R. is mentally ill and 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, except for reasons of indigence, to provide for his basic needs; and is unable to make a rational and informed decision as to whether or not to submit to treatment. Dr. Thompson reached these conclusions because M.R. had been hospitalized since April 23, 2002 with no improvement to his condition. On December 5, M.R. stated that he "thinks in fifty dimensions" and knew more than Newton when he was born. The doctor described M.R. as engaging in nonstop loud talk with grandiose content. When the doctor asked M.R. why treatment has been unsuccessful M.R. held up a copy of the New Testament, but did not reply. Dr. Thompson also stated that he expects M.R.'s condition to continue for more than ninety days because M.R. has had poor response to several medications and combinations of medications. He is still manic and psychotic and requires more time to determine the most efficient medications.

On December 9, 2002, M.R. was examined by Dr. Larry Hawkins who then also prepared a certificate of medical examination for mental illness. Dr. Hawkins also diagnosed M.R. with Bipolar Disorder, manic with psychosis, and indicated that M.R. is mentally ill and likely to cause serious harm to himself and 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, on December 6, M.R. refused his blood pressure medication and received emergency medication because he threatened to harm another patient. He also explained that, as of December 9, M.R. was still delusional and grandiose. M.R. believes he is a rock and roll star. Additionally, M.R. frequently has verbal altercations with other patients. Dr. Hawkins stated that he expected M.R.'s condition to continue for more than ninety days because he has not responded well to his medications and often refuses to take them.

Dr. Thompson testified at the hearing, first restating his diagnosis that M.R. is suffering from Bipolar I Disorder, manic, severe, with psychotic features. He determined that M.R. is mentally ill and 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 is unable to make a rational, informed decision as to whether or not to submit to treatment. He based this determination on his examination of M.R., review of medical records, and on reasonable medical probabilities. Dr. Thompson explained that M.R. has been hospitalized since April 23, 2002 with very little improvement. He stated that M.R. "has had a very stormy course with his psychosis, and he has had almost no relief of the ongoing degree of delusions and the degree of a manic condition with his bipolar disorder." His medications have been ineffective causing him to maintain the same degree of psychotic thought process and manic behavior. Therefore, M.R. is unable to make decisions about his treatment. M.R.'s history of mental illness dates back to his early twenties. The doctor indicated that M.R.'s behavior has changed from "affective disturbance and psychosis, with grandiosity" to irritability and hostility. M.R. was fifty-one years old at the time of the hearing.

Dr. Thompson explained that the symptoms M.R. has displayed throughout his mental illness history, as well as the symptoms he currently displays, evidence a continuing pattern of behavior tending to confirm M.R.'s distress and the deterioration of his ability to function. Dr. Thompson testified that M.R.'s symptoms would inhibit him from obtaining and keeping a job and from interacting appropriately in a public setting. Further, because his illness included some conflict with fellow tenants and his landlord, the symptoms would inhibit his ability to live independently. His present illness also includes impairment of the capacity to perform ordinary daily chores of living, such as preparing meals, washing clothing and dishes, and cleaning the house. Dr. Thompson testified that M.R.'s condition is likely to continue for more than ninety days and M.R. had received court-ordered inpatient mental health services for at least sixty consecutive days within the last twelve months. Finally, Dr. Thompson stated that Rusk State Hospital is the least restrictive available option for M.R. at this time.

On cross-examination, Dr. Thompson explained that M.R. refuses to take his medications. Therefore, he endangers himself by placing himself at risk for extreme high blood pressure when he refuses to take his anti-hypertensive and by letting the manic psychosis persist by refusing to take anti-psychotics and mood stabilizers. The doctor agreed that, while at the hospital, M.R. has committed no overt act to harm anyone. He further explained that M.R. can dress himself, take care of his personal hygiene, and feed himself without assistance. Also, he can initiate conversation and respond to questions. The doctor explained that M.R. is not eligible for services in a less restrictive environment because he has had such a difficult time in his management at Rusk State Hospital.

On re-direct, Dr. Thompson explained that they were not getting the anti-manic result they were seeking. There were medical complications with the medications, making the mania more difficult to treat. M.R. tries to refuse his medications, but even when he takes them, they are not very effective. His history of refusing to take his medications evidences a continuing pattern of behavior resulting in "the continuation of a worsening of his severe psychotic state."

M.R. testified in his own behalf. His attorney asked him what his thoughts are on the matter of his staying at the hospital. Initially, he made no verbal response. Instead, he pointed his hands to the sky. When asked to explain the significance of that action he responded, "I'm in Christ, and I'm right, and I feel right when I'm off my medicine, because I'm well, because I've worked my faith, and it will work for you, too, because I love everybody, including my enemies."

The trial court entered an order for extended inpatient mental health services after determining that the evidence supports the allegations that M.R. is mentally ill and 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. The court ordered M.R. committed to Rusk State Hospital for a period not to exceed twelve months.

The trial court immediately held the medication hearing. Dr. Thompson testified as to the need for an order to administer medication. M.R. testified to explain that he did not want to take the prescribed medications because use of medication is against his religion. The trial court granted the State's application for an order to administer psychoactive medication. It entered an order authorizing the State to administer certain medication to M.R. during his extended commitment to Rusk State Hospital.

 

Sufficiency of the Evidence

In his first issue, M.R. asserts there is no evidence, or in the alternative, factually insufficient evidence to support the order of commitment. M.R. contends that Dr. Thompson's testimony is no more than bare psychiatric testimony, unsupported by specific factual circumstances, which cannot support the commitment. He asserts that he has the ability to function in a group home and therefore should not be committed to Rusk State Hospital. He argues that his refusal to take his medication is not an overt act or continuing pattern of behavior and cannot be grounds for involuntary commitment, especially since his refusal is based on religious reasons. M.R. also asserts that evidence of his history of mental illness is insufficient to support commitment. Accordingly, he contends the State failed to show a recent overt act or a continuing pattern of behavior tending to confirm his distress and the deterioration of his ability to function, or his inability to make a rational and informed decision as to whether to submit to treatment. Thus, he argues, the State failed to meet its evidentiary burden under the statute.

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, this court must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). 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. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." In re J.F.C., 96 S.W.3d at 267.

The trial judge may order a proposed patient to receive court-ordered extended 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; the proposed patient's condition is expected to continue for more than ninety days; and the proposed patient has received court-ordered inpatient mental health services for at least sixty consecutive days during the preceding twelve months. Tex. Health & Safety Code Ann. 574.035(a) (Vernon 2003). To be clear and convincing under this statute, the evidence must include expert testimony and 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. 574.035(e) (Vernon 2003).

The State provided expert testimony explaining that M.R. is mentally ill and describing a recent overt act by M.R. He threatened to harm another patient and became so agitated that he required emergency medication to calm him. M.R. frequently has verbal altercations with other patients. He is psychotic, delusional, irritable, and hostile. He frequently engages in nonstop loud talk with grandiose content. This expert testimony of an overt act, as well as M.R.'s mental state, tends to confirm that M.R. is suffering severe and abnormal mental, emotional, or physical distress. Dr. Thompson specifically testified that M.R.'s symptoms inhibit his ability to perform the ordinary chores of daily living and his ability to obtain and keep a job. His symptoms also inhibit him from interacting appropriately in public. Thus, he is experiencing deterioration of his ability to function independently. Further, M.R. refuses to take some of his medications and, although he has experienced problems for almost thirty years, he denies his need for medication. This indicates he is unable to make a rational and informed decision as to whether to submit to treatment. Considering all the evidence in the light most favorable to the finding, we conclude a reasonable trier of fact could have formed a firm belief or conviction that this finding was true. See In re J.F.C., 96 S.W.3d at 266. This evidence satisfies the statutory requirement for clear and convincing evidence in support of the order for extended inpatient mental health services. See Tex. Health & Safety Code Ann. 574.035(a). The evidence is legally sufficient to support the trial court's order. See In re J.F.C., 96 S.W.3d at 266.

In addressing M.R.'s factual sufficiency complaint, we consider the evidence the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. The evidence shows M.R. can dress himself, feed himself, and take care of his personal hygiene without assistance. He is able to initiate conversation and respond to questions. However, this cannot negate the evidence that he is not able to perform his own housekeeping chores, be successfully employed, or interact appropriately outside the hospital. Further, his responses to counsel's questions indicate that he is not entirely rational. In light of the entire record, we cannot say that the trial court could not reasonably form a firm belief or conviction that M.R. is distressed and that his ability to function has deteriorated, thereby requiring further inpatient mental health services. See id. Thus, the evidence is factually sufficient to support the trial court's findings. We overrule M.R.'s first issue.

 

Constitutional Claims

In his third and fourth issues, M.R. contends the trial court erred in rendering judgment in violation of state and federal guarantees of due process. He asserts that certain terms found in section 574.035 of the Health and Safety Code are overly broad, vague, and ambiguous so the statute is susceptible to an arbitrary and unreasonable interpretation, making it violative of the due process clause of each constitution. In his fifth and sixth issues, he asserts that application of section 574.035 results in a violation of his right to equal protection under both the state and federal constitutions.

M.R. did not complain to the trial court that his state and federal constitutional rights to due process and equal protection were being violated. A constitutional claim must have been asserted in the trial court to be raised on appeal. Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993). Therefore, M.R. has not preserved these complaints for review. We overrule M.R.'s issues three, four, five, and six.

 

Ineffective Assistance of Counsel

In his seventh issue, M.R. contends he was denied effective assistance of counsel because trial counsel failed to object to the constitutionality of the applicable statutes. He argues that this resulted in his being subjected to unconstitutional statutes at trial and the loss of relief due to waiver on appeal.

The United States Supreme Court has established a two-part test, also adopted by Texas courts, to determine whether the representation of counsel was effective. The defendant must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. The appellant has the burden of proving ineffective assistance of counsel claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Claims of ineffective assistance of counsel must be supported by the record. See Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App. [Panel Op.] 1981). When the record contains no evidence of the reasoning behind counsel's conduct, we cannot conclude counsel's performance was deficient. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

The record is silent as to counsel's trial strategy. We have no evidence from counsel's perspective concerning whether he considered challenging the constitutionality of section 574.035 and, if so, the reasons he decided not to. Therefore, we are unable to determine that the failure to raise those issues in the trial court constitutes ineffective assistance of counsel. Jackson, 877 S.W.2d at 771. M.R. has failed to show that his counsel's performance fell below the objective standard of reasonableness. Further, even if we agreed that trial counsel's performance was deficient, M.R. has failed to make any showing that he was prejudiced as a result. M.R. alludes to the fact that, had counsel made the objections, the trial court might have agreed with him. However, he presents no authority from which we can determine that counsel's constitutional challenges, if raised, would have been sustained by the trial court. M.R. has failed to show that there is a reasonable probability that the result of the proceeding would have been different but for the alleged error made by counsel. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. M.R. has failed to meet his burden of proving ineffective assistance of counsel. Jackson, 973 S.W.2d at 956. Accordingly, we overrule M.R.'s seventh issue.

 

Psychoactive Medication

In his second issue, M.R. 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 other issues, the trial court's order for inpatient mental health care is not valid. M.R. also asserts that the trial court erred in ordering the administration of psychoactive medication because, in spite of a statutory requirement to do so, the trial court considered neither alternatives to psychoactive medication, nor M.R.'s preferences regarding treatment with psychoactive medication.

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). In determining that there is a need for psychoactive medication, the court is required to consider the following:

 

(1) the patient's expressed preferences regarding treatment with psychoactive medication;

 

(2) the patient's religious beliefs;

 

(3) the risks and benefits, from the perspective of the patient, of taking psychoactive medication;

 

(4) the consequences to the patient if the psychoactive medication is not administered;

 

(5) the prognosis for the patient if the patient is treated with psychoactive medication; and

 

(6) alternatives to treatment with psychoactive medication.

 

Tex. Health & Safety Code Ann. 574.106(b) (Vernon 2003).

Dr. Thompson testified at the hearing on the State's application for court-ordered administration of psychoactive medication. He stated that M.R. refuses to take his medication voluntarily and, in his opinion, M.R. lacks the capacity to make a decision regarding the administration of such medication. Dr. Thompson stated that M.R.'s psychosis impairs his decision-making ability. The doctor testified that treatment with the medications indicated on the application is the proper course of treatment for M.R. and in his best interest. He said M.R. would benefit from their use and the benefits outweigh the risks. Dr. Thompson also testified that M.R.'s stay in the hospital would likely be shortened with the use of these medications. On cross-examination, Dr. Thompson acknowledged that M.R. said he did not want the medications. Initially, M.R. insisted nothing was wrong with him and therefore he did not need medications. Then he insisted that his treatment should involve ancient Chinese medicine. Then, two weeks before the hearing, he began claiming religious-based reasons for refusing the medicine. Dr. Thompson explained that, in his opinion, M.R. did not evoke his right of refusal as a religious belief, but rather as a psychotic delusional concept regarding the idea of religion. He also repeated his earlier testimony that use of the prescribed medicines would improve M.R.'s condition and allow him to leave the hospital earlier. The doctor testified that there are no alternatives to the use of psychoactive medications that could render the same or similar results.

M.R. testified that use of the prescribed medications is against his religion. He explained that he does not need the medication because he has faith, a higher power than medicine. He also said that he is well, he feels right when off his medicine, and he does not need the medicine. He believes that any illness can be cured by faith in God and the use of the medications would interfere with his relationship with God.

Having disagreed with all of M.R.'s assertions in his other six issues, we have determined that the trial court's order for extended mental commitment is valid. Therefore, we reject M.R.'s argument that the order authorizing administration of psychoactive medication is invalid on that basis. See Tex. Health & Safety Code Ann. 574.106(a).

Dr. Thompson's testimony encompassed the factors in Section 574.106. M.R. did express his preference to be free of medications; however, the trial court is not required to defer to his preference on the subject. We conclude that the trial court met the obligations imposed on it by Section 574.106. We overrule M.R.'s second issue.

 

Conclusion

The evidence is legally and factually sufficient to support the trial court's order of commitment for extended inpatient mental health services. M.R.'s constitutional complaints have not been preserved and his trial counsel was not ineffective. Further, the trial court did not err in ordering administration of psychoactive medication.

We affirm the trial court's orders of commitment for extended inpatient mental health services and for administration of psychoactive medication.

 

DIANE DEVASTO

Justice

 

Opinion delivered August 29, 2003.

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

 

 
(PUBLISH)