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

NO. 12-06-00042-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 OF

PROTECTION OF M.H. CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

M.H. appeals from an order entered by the trial court after a hearing without a jury authorizing the Texas Department of Mental Health and Mental Retardation to administer psychoactive medication to M.H. In three issues, M.H. asserts he was denied due process, trial counsel was ineffective, and the evidence is legally and factually insufficient to support the order. We affirm.

Background

On January 6, 2006, the trial court entered an order for inpatient mental health services pursuant to Chapter 46C of the Texas Code of Criminal Procedure. On January 20, 2006, an application for court ordered authorization for the administration of psychoactive medication was filed. The application was prepared by a physician, Dr. Satyajeet Lahiri, because M.H. refused to take medication voluntarily. Dr. Lahiri diagnosed M.H. as suffering from schizoaffective disorder, bipolar.

M.H. was represented by appointed counsel JoAl Cannon Sheridan but wanted to hire an attorney from Beaumont. On January 24, the trial court appointed Forrest Phifer as co-counsel for M.H. On January 31, the trial court continued the case at M.H. s request to give him time to contact the Beaumont attorney. Sheridan spoke with that attorney who denied that M.H. was his client. On February 1, Sheridan filed a motion to withdraw because M.H. did not want her to represent him. On February 2, the trial court entered a revised order appointing Phifer. At the hearing on February 3, M.H. refused to participate because the Beaumont attorney was not present. The trial court granted Sheridan s motion to withdraw and, because the Beaumont attorney denied that M.H. was his client, and had not contacted the court to say he was M.H. s attorney, the court proceeded with the hearing. Phifer represented M.H. at the hearing. Dr. Satyajeet Lahiri testified regarding the need for the court s intervention. At the close of evidence, the court entered an order to administer psychoactive medication.

Due Process

In his first issue, M.H. contends he was denied due process under the Fourteenth Amendment to the United States Constitution and Article 1, Section 19 of the Texas Constitution. He argues that he was denied the right to counsel when the trial court denied his motion for continuance and proceeded in the absence of his retained counsel of choice.

The subject of an involuntary civil commitment proceeding has the right to due process of law. Moss v. State, 539 S.W.2d 936, 941 (Tex. Civ. App. Dallas 1976, no writ). The constitutions of both the United States and Texas contemplate the right to counsel of one s choosing. See Gonzalez v. State, 117 S.W.3d 831, 836-37 (Tex. Crim. App. 2003). However, this right is not unqualified or absolute. Id. at 837. Further, the right to retain counsel of one s choosing must be balanced with a trial court s need for fair and orderly administration of justice. Id. What is required is the fair or reasonable opportunity to obtain particular counsel. Newton v. Dretke, 371 F.3d 250, 255 (5th Cir. 2004). When examining alleged deprivation of the right to counsel, courts focus on the integrity of the adversarial process. Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 1697, 100 L. Ed. 2d 140 (1988).

Here, M.H. had appointed counsel at least ten days before the hearing. He was allowed one continuance to give him time to hire the attorney of his choice. That attorney told M.H. s appointed attorney that he did not represent M.H. There is no constitutional right to an advocate who declines the offer of employment. Gonzalez, 117 S.W.3d at 837. M.H. was not denied due process of law under these circumstances. We overrule M.H. s first issue.

Ineffective Assistance of Counsel

In his second issue, M.H. asserts that he was denied effective assistance of counsel. He complains that his counsel was appointed the day before the hearing. Arguing that this is not enough time to prepare an adequate defense, he contends this is prima facie proof of ineffective assistance of counsel.

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); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).

The record contains a motion indicating that Phifer was appointed on January 24, several days before the February 3 hearing. A revised order appointing him was signed on February 2. Prior to February 3, Sheridan was also M.H. s appointed attorney. At the hearing, Phifer said this was the first opportunity he had to speak with M.H. However, counsel proceeded to represent M.H., requesting a continuance, explaining M.H. s position to the court, and cross examining the State s witness. There is no indication that any defense counsel in such a matter as this would need more than a few days to prepare for trial. M.H. does not complain of any act or omission by Phifer in his representation of M.H. M.H. has not met his burden to overcome the strong presumption that counsel s conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065-66. M.H. has not shown that Phifer s performance was deficient. We overrule M.H. s second issue.

Psychoactive Medication

In his third issue, M.H. asserts the evidence is neither legally nor factually sufficient to support the order to administer psychoactive medication. He contends that the State did not prove by clear and convincing evidence that he lacks the capacity to make a decision regarding the administration of psychoactive medicine. He argues that the record does not show that he did not have the ability to understand the nature and consequences of taking medication.

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. However, we consider undisputed evidence that does not support the jury finding. 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 to their testimony. See id. at 27; In re J.J.O., 131 S.W.2d 618, 632 (Tex. App. Fort Worth 2004, no pet.).

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 Supp. 2005). 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;

(6) alternatives to treatment with psychoactive medication; and

(7) less intrusive treatments likely to secure the patient s agreement to take the psychoactive medication.

Tex. Health & Safety Code Ann. 574.106(b) (Vernon Supp. 2005).

Discussion

Dr. Lahiri testified that M.H. was, at the time of the hearing, under an order for mental health services pursuant to Chapter 46C of the Texas Code of Criminal Procedure. The doctor testified that M.H. suffers from schizoaffective disorder, bipolar type, and he shows signs of paranoid psychosis and hypermanic symptoms. He said M.H. lacks the capacity to make a decision regarding administration of psychoactive medication or to give consent. M.H. refuses to take any medication other than Risperdal Consta. Dr. Lahiri explained that M.H. s insight and judgment are grossly impaired. M.H. believes he knows what medications are best for him, but his thinking is influenced by his psychosis. M.H. believes everyone is out to give him the wrong medication. The requested medications are in the proper course of treatment and are in M.H. s best interests, the benefits outweigh the risks, and his hospital stay would be shortened if medications are used. Dr. Lahiri testified that, if he does not have access to these medications, M.H. will continue to deteriorate and pose a danger to others. He said there are no alternatives to treatment with these medications.

On cross examination, Dr. Lahiri said he discussed the use of these medications with M.H., and M.H. indicated an awareness of the nature of the conversation. M.H. told Dr. Lahiri that he preferred to take Risperdal because M.H. believes it works for him and he is tolerating it well. While Risperdal is within the category of antipsychotics included in the list of requested medications, Dr. Lahiri said it is not a fair and reasonable option for M.H. because it is not working. Dr. Lahiri reiterated that there are no alternatives to the use of psychoactive medications that could render the same or similar results. The doctor estimated that M.H. might show improvement in four to six weeks once he begins taking the medications and may be discharged in ninety days.

Considering all the evidence in the light most favorable to the findings, we conclude a reasonable trier of fact could have formed a firm belief or conviction that M.H. lacked the capacity to make a decision regarding administration of the proposed medication. 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 administration of psychoactive medication. See Tex. Health & Safety Code Ann. 574.106(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.H. s factual sufficiency complaint, we consider all 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. M.H. presented no testimony at the hearing. Although the doctor believed that M.H. understood the nature of the conversation about medication, he also believed M.H. was not competent to make a decision about medication. In light of the entire record, the evidence that the trial court could not have credited in favor of its findings is not so significant that the trial court could not reasonably form a firm belief or conviction that M.H. lacks the capacity to make a decision regarding the administration of the proposed medication and that treatment with the proposed medication is in his best interest. See id. Thus, the evidence is factually sufficient to support the trial court s findings. See Tex. Health & Safety Code Ann. 574.106(a). Because we hold the evidence is both legally and factually sufficient to support the trial court s order, we overrule M.H. s third issue.

Conclusion

M.H. was denied neither due process nor effective assistance of counsel. The evidence is legally and factually sufficient to support the trial court s order for the administration of psychoactive medication.

We affirm the trial court s order.

SAM GRIFFITH

Justice

Opinion delivered July 31, 2006.

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

(PUBLISH)