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

NO. 12-07-00068-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.R.

CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

J.R. appeals from an order of commitment for temporary inpatient mental health treatment. After a hearing without a jury, the trial court ordered J.R. committed to Rusk State Hospital for a period not to exceed ninety days. In a single issue, J.R. asserts that the evidence is legally and factually insufficient to support the order of commitment. We reverse and render.

Background

On January 23, 2007, an application for court ordered temporary mental health services was filed requesting the court commit J.R. to Rusk State Hospital for a period not to exceed ninety days. The application was supported by certificates of medical examination for mental illness, prepared by Dr. Larry Hawkins, who had examined J.R. on January 22, and Dr. G. Paul Kula, who examined J.R. on January 25. Both doctors diagnosed J.R. as suffering from schizophrenia, paranoid type. Both doctors found that J.R. 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. Both doctors also found that J.R. presents a substantial risk of serious harm to himself or others if not immediately restrained, which is demonstrated by his behavior. The trial court sustained J.R. s objection to the portions of the two physician s certificates describing J.R. s prehospitalization behavior that served as the basis for both doctors opinions.

Dr. Charles Plyler testified at the trial, stating his diagnosis that J.R. is suffering from paranoid schizophrenia. He explained that J.R. is a danger to himself in the sense that he is incompetent to see to his own safety. Dr. Plyler testified that J.R. is experiencing substantial mental, emotional, or physical deterioration that affects his ability to function independently in society. He explained that J.R. has not required any special services in the hospital, such as restraint or medication, and is cooperative. However, J.R. is unable to communicate with others at all. He is unable to go to the store and buy food and is unable to provide for his basic needs. Dr. Plyler testified that J.R. s diagnosis is not real bright. The doctor stated that Rusk State Hospital is the least restrictive treatment option at this time and J.R. will gain maximum benefit within a month at the hospital.

On cross examination, Dr. Plyler testified that J.R. has committed no overt act in an attempt to harm himself or others. He does not require assistance in feeding or dressing himself. It is necessary to remind J.R. to bathe and take care of his personal hygiene. Dr. Plyler explained that he is not sure J.R. knows the inherent dangers of remaining outside in freezing rain because J.R. is insensitive to issues of danger to himself. The doctor testified that J.R. could possibly survive safely in freedom and he could survive in a less restrictive environment. He stated that J.R. consented to take medication while in the hospital.

The court found J.R. mentally ill and that, as a result of mental illness, he is likely to cause serious harm to himself. In accordance with those findings, the trial court entered an order requiring J.R. to submit to temporary inpatient mental health services for a period not to exceed ninety days.

Commitment Order

In his sole issue, J.R. asserts the evidence is neither legally nor factually sufficient to support the order of commitment. He contends that the evidence does not show an overt act or continuing pattern of behavior tending to confirm that he is likely to harm himself.

Standard of Review

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.

Applicable Law

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 stating that J.R. is mentally ill. Dr. Plyler testified that J.R. cannot see to his own safety, communicate with others, or provide for his basic needs. However, he specifically stated that J.R. has committed no overt act of harm to himself and the record does not contain evidence of a continuing pattern of behavior tending to confirm the likelihood of serious harm to himself. To satisfy the statute, the expert opinion must be supported by a factual basis. See K.T. v. State, 68 S.W.3d 887, 893-94 (Tex. App. Houston [1st Dist.] 2002, no pet.).

We conclude there is no evidence of an overt act or continuing pattern of behavior that tends to confirm that J.R. is likely to cause serious harm to himself. 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 legally insufficient to support the trial court s order. See In re J.F.C., 96 S.W.3d at 266. We sustain J.R. 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.

Conclusion

The evidence is legally insufficient to support the trial court s order of commitment for temporary inpatient mental health services. Therefore, we reverse the trial court s order of commitment for temporary inpatient mental health services. We render judgment denying the State s application for court ordered temporary mental health services.

JAMES T. WORTHEN

Chief Justice

Opinion delivered May 29, 2007.

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

(PUBLISH)