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

NO. 12-06-00181-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE STATE OF TEXAS APPEAL FROM THE

FOR THE BEST INTEREST COUNTY COURT AT LAW

AND PROTECTION OF J.H. CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

J.H. appeals from an order for extended inpatient mental health services and an order for administration of psychoactive medication. In three issues, J.H. asserts that the evidence is legally and factually insufficient to support the order for extended inpatient mental health services, that the trial court erred in allowing the State to present evidence of acts committed by J.H., and that the trial court erred in granting the State s application for an order to administer psychoactive medication because the order for extended inpatient mental health services is invalid. We affirm.

Background

On April 25, 2006, Dr. Harry Thompson signed an application for an order to administer psychoactive medication to J.H. Thompson stated that J.H. had been diagnosed with schizophrenia, paranoid type, continuous with prominent negative symptoms and requested the trial court to compel J.H. to take nine psychoactive medications: two anxoilytics/sedatives/hypnotics, six antipsychotics, and a mood stabilizer. Thompson stated that J.H. had often suddenly stopped taking several medicines. In Thompson s opinion, J.H. lacked the capacity to make a decision regarding administration of psychoactive medications because he attributed delusional reasons for the pattern of sudden abrupt refusals to take medications, such as insisting that an endocrinologist he was referred to for diabetes told him not to take the medications.

Thompson concluded that these medications were the proper course of treatment for J.H. and that, if he were treated with the medications, his prognosis was fair if recent initiation of Fazaclo1 was effective, but stated that J.H. had responded poorly to more than twenty years of continuous treatment. However, Thompson believed that if J.H. were not administered the medications, the consequences would be a persistence of his schizophrenic psychosis, continued hospitalization, and increased risk of aggression as he acts on the paranoid delusions. Thompson considered other medical alternatives to psychoactive medication, but determined that those alternatives would not be as effective. Moreover, Thompson believed the benefits of the psychoactive medications outweighed the risks in relation to present medical treatment and J.H. s best interest.

On April 27, 2006, Elmer Stewart, a social worker at Rusk State Hospital (the Hospital ), filed a revised application for court ordered extended mental health services requesting the trial court to commit J.H. to the Hospital for a period not to exceed twelve months. At the time the application was filed, J.H. was a patient at the Hospital. A trial on the State s application was held on May 26, 2006. After the trial, the jury found that J.H. was mentally ill, was likely to cause serious harm to others as a result of that mental illness, and was suffering severe and abnormal mental, emotional, or physical distress, was experiencing substantial mental or physical deterioration of his ability to function independently, that was exhibited by his inability, except for reasons of indigence, to provide for his basic needs, including food, clothing, health or safety, and was unable to make a rational and informed decision as to whether or not to submit to treatment. Further, the jury found that J.H. s condition was expected to continue for more than ninety days. On May 26, the trial court entered an order for extended inpatient mental health services, committing J.H. to the Hospital for a period not to exceed twelve months.

On the same date, the trial court conducted a hearing on the application to administer psychoactive medications. On May 26, after considering all the evidence, including the application and the expert testimony, the trial court found that the allegations in the application were true and correct and supported by clear and convincing evidence. Further, the trial court found that treatment with the proposed medication was in the best interest of J.H. and that J.H. lacked the capacity to make a decision regarding administration of the medication. Thus, the trial court entered an order authorizing the Texas Department of Mental Health and Mental Retardation (the Department ) to treat J.H. with psychoactive medications, including antipsychotics, mood stabilizers, and anxiolytics/sedatives/hypnotics. This appeal followed.

Sufficiency of the Evidence

In his first issue, J.H. argues that the evidence is neither legally nor factually sufficient to support the order of commitment.

Standard of Review

In a legal sufficiency review where the burden of proof is clear and convincing evidence, we must look at all 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 findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable fact finder could do so and disregard all evidence that a reasonable fact finder could have disbelieved or found incredible. Id. This does not mean that we are required to ignore all evidence not supporting the finding because that might bias a clear and convincing analysis. Id.

The appropriate standard for reviewing a factual sufficiency challenge is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the petitioner s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). In determining whether the fact finder has met this standard, we consider all the evidence in the record, both that in support of and contrary to the trial court s findings. Id. at 27-29. Further, we must consider whether disputed evidence is such that a reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. If the disputed evidence is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

Extended Involuntary Commitment Order

The trial judge may order a proposed patient to receive court ordered extended inpatient mental health services only if the jury, or the judge if the right to a jury is waived, finds, from clear and convincing evidence, that (1) the proposed patient is mentally ill; (2) as a result of that mental illness, he (A) is likely to cause serious harm to himself, (B) is likely to cause serious harm to others, or (C) 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; (3) his condition is expected to continue for more than ninety days; and (4) he has received court ordered inpatient mental health services under Subtitle C, Texas Mental Health Code, or under Chapter 46B, Code of Criminal Procedure, for at least sixty consecutive days during the preceding twelve months. Tex. Health & Safety Code Ann. 574.035(a) (Vernon Supp. 2006).

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. Id. 574.035(e). Clear and convincing evidence means the measure or degree of proof that 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. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). The statutory requirements for an involuntary commitment are strict because it is a drastic measure. In re C.O., 65 S.W.3d 175, 182 (Tex. App. Tyler 2001, no pet.).

Analysis

First, J.H. argues that the trial court failed to find, by clear and convincing evidence, two criteria necessary to commit him. He contends that the order for extended inpatient mental health services did not include a finding that his condition was expected to continue for more than ninety days. See Tex. Health & Safety Code Ann. 574.035(a)(3). However, the statute does not specify that the order must contain this finding, only that the jury make this finding from clear and convincing evidence. See id. The jury made the required finding. J.H. further contends that the order did not include a finding that he received court ordered inpatient mental health services under subtitle C, Texas Mental Health Code, or under Chapter 46B, Code of Criminal Procedure, for at least sixty consecutive days during the preceding twelve months. See id. 574.035(a)(4). Again, the statute does not specify that the order must contain this finding, only that the jury must make this finding from clear and convincing evidence. See id. Moreover, the jury is not required to make this finding if the proposed patient has already been subject to an order for extended mental health services. See id. 574.035(d). During trial, the trial court took judicial notice that there was an order for extended inpatient mental health services dated April 26, 2005. Thus, the jury was not required to make this finding. See id.

J.H. further argues that there was insufficient evidence of an overt act or pattern of behavior that tended to confirm the likelihood of his causing serious harm to others. At trial, Dr. Rudolfo H. Rodriguez, a ward psychiatrist at the Hospital, testified that he completed a physician s certificate of medical examination for mental illness regarding J.H. on May 1, 2006, and conducted a medical examination for mental illness. Rodriguez determined that J.H. suffered from schizophrenia, paranoid type. He stated that J.H. s mental illness seemed to be longstanding and that the symptoms were refractory, or not completely alleviated even with the current medications or treatment. Although most patients respond quite well to medications for schizophrenia, patients who do not are usually treated with Clozaril. J.H. was being treated with Clozaril and Seraquel. According to Rodriguez, a patient must take Clozaril for about one year before showing beneficial effects and J.H. had been taking Clozaril for about two months. When Rodriguez saw J.H. on the day before trial, he was disappointed because J.H. had not changed since their initial meeting.

Rodriguez stated that J.H. s symptoms and circumstances required hospitalization. In his opinion, J.H. suffered from chronic paranoid schizophrenia, associated with paranoid and grandiose delusions. Rodriguez believed that if J.H. did not receive extended treatment at the Hospital that he would likely cause harm to others. J.H. stated that he heard voices and Rodriguez noted that J.H. also had delusions that others were trying to harm him in a variety of ways. J.H. told Rodriguez that other people were bothering him, stating that sometimes they pester me. They beat you down. They team up with each other. My mind says I m gay. Rodriguez believed that J.H. was referring to hallucinations that tell him that he may be homosexual. J.H. also told Rodriguez that

[t]hey say it to pester my mind. I m tired of it. They try to get me down. They get into my personal business. They reverse the truth. They talk about me being a homosexual in my mind. They re plotting against me. If they try to do more and I sneaked out the door, I would blow their heads off. The ladies put nauseous on my tray. They always put stuff in the food. All of this is against my will. I hear voices. People can tell what I m thinking. I never have peace of mind. They can put things in my membrane.

At that point, Rodriguez stated that J.H. pointed to the back of his head, referred to his brain, and continued, stating

I would get a plank and knock the hell out of the guy when he s drunk. They get in my ears and go to town. If I plug my ears up they say damn. That means they are erasing their mind out of my ear. Dr. Thompson sexually abused me when I was here before. They want me to stay here to brutalize somebody. I could shoot a man and go about my business. I don t think I could do manslaughter, but I could shoot somebody.

Rodriguez is afraid that, because J.H. is verbalizing ideas of hitting someone over the head with a board, he might follow up the verbalization of those ideas with action. J.H. essentially told Rodriguez that he believed others were trying to harm him, that he felt like a victim, and that he felt persecuted and paranoid. Rodriguez was concerned that J.H. was frightened most of the time, paranoid, and believed that others were trying to harm him. J.H. also believed that his food was being tampered with in some way. Rodriguez had to transfer J.H. to a unit for patients who were the most violent and volatile because he was frightening other patients. J.H. was uncomfortable if anyone stood behind him, because he believed that he was about to be sexually assaulted. As a result, he would threaten such persons, stand along the wall, and glare at people. Rodriguez stated that J.H. believed he had resources to purchase food services or buy a car, but he did not have those resources. According to Rodriguez, J.H. might go into society and insist that certain things were his or that he was entitled to certain things. If people react negatively, Rodriguez was not sure how J.H. would respond. His greatest concern was that J.H. was going to misperceive something in the community that would be interpreted as a personal assault or a physical assault, and at that point might take matters into his own hands. Rodriguez stated that the intensity of J.H. s paranoid delusions concerned him. However, he admitted that as recently as February 2006, J.H. had not engaged in any overt aggressive or assaultive behaviors. In fact, Rodriguez had no complaint about the way J.H. interacted with him, noting that he had not been aggressive or assaultive to him. He also agreed that J.H. was not subject to close observation, one to one observation, or two to one observation.

Rodriguez stated that J.H. engaged in spontaneous rambling, disorganized conversation, and loose thought associations. He stated that J.H. expressed a variety of paranoid delusions, admitted to hearing voices, and described thought broadcasting and mind control. Rodriguez explained that thought broadcasting is a symptom that patients with psychosis experience, believing that other people in the room can tell what they are thinking and feeling. Rodriguez stated that, in his opinion, J.H. s illness and symptoms of this illness would continue for more than ninety days. However, Rodriguez stated that he remained optimistic that Clozaril would reverse some of these symptoms.

Elmer Stewart, a social worker at the Hospital, testified that he was on J.H. s treatment team. It was the opinion of the treatment team that due to J.H. s level of mental illness, he should be recommitted and his commitment extended. Stewart testified that J.H. received court ordered inpatient mental health treatment at least sixty consecutive days within the twelve months immediately preceding the trial. As a member of the treatment team, Stewart concurred that J.H. s condition was likely to continue for more than ninety days.

Dr. Harry Thompson, a staff psychiatrist at the Hospital, testified that he was J.H. s treating physician. According to Thompson, J.H. had received inpatient mental health services under a court order pursuant to the Texas Health and Safety Code at least sixty consecutive days within the last twelve months immediately preceding this hearing. Thompson believed that J.H. s condition was likely to continue for more than ninety days. He conducted a medical examination of J.H. on April 25, 2006 and found him to be suffering from schizophrenia, paranoid type, continuous, with prominent negative symptoms. Thompson explained that the continuous portion of his diagnosis had to do with the sustained longevity of an schizophrenic episode and the fact that J.H. s condition has been in existence continuously for months. Prominent negative symptoms include poor motivation and flattened or blunted affect. Thompson also stated that J.H. was taking two medications, Seraquel and Clozapine. Thompson believed that J.H. represented a serious harm to others because he had several delusions, those delusions were well entrenched, and in those paranoid delusions, J.H. attributed unintended motives to other people. According to Thompson, J.H. made false accusations of other people s motives and attributed motives to specific individuals and to the public in general. Thompson stated that J.H. frequently attacked other people, although he admitted that had not occurred recently. J.H. would suddenly blow up, hit someone, and make accusations toward them. Recently, J.H. threatened the dining room staff because he had delusions that they were giving him make-believe chicken and keeping food away from him that he was supposed to have. J.H. stated that he was supposed to have roman meal, apparently a kind of nutritional package.

Thompson stated that one element of J.H. s psychosis and paranoia was homophobia. J.H. would not let anyone around him within society s comfort zone, and if someone got too close in line to him, he accused them of having homosexual intent and was frequently aggressive. J.H. told him that the Mexican warden is out to get me. J.H. believed that he had a conflict with a particular warden and that the warden was still negatively influencing him. J.H. identified patients that came and went randomly as the warden s agents. When J.H. saw the staff rotating, he had the tendency to identify them as out to get him. Not only did J.H. have the delusion that the dining room staff was mistreating him, but he believed they were doing so as a result of being assigned or planted. According to Thompson, part of J.H. s psychosis was the presence of delusions and his preoccupation with them. J.H. also had impaired communication in a socially inappropriate manner. Thompson believed that J.H. would approach someone and would very soon be speaking about his delusions or in a grossly disorganized manner. In his opinion, J.H. did not understand that he had a mental illness and lacked insight, which impaired his ability to function in daily life. Thompson believed that J.H. would very likely be rude and quite aggressive in approaching a merchant or a waitress.

We consider J.H. s threats against the kitchen staff and persons he believed were against him, threats and aggression against those he believed were attempting to sexually assault him, delusions that others were trying to harm him, and inability to recognize his mental illnesses to be recent overt acts or a continuing pattern of behavior that tended to confirm the likelihood of serious harm to others. See Tex. Health & Safety Code Ann. 574.035(e). Viewing 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 J.H. was likely to cause serious harm to others. See id. 574.035(a), (e); In re J.F.C., 96 S.W.3d at 266. Therefore, the evidence is legally sufficient to support the trial court s order. See In re J.F.C., 96 S.W.3d at 266.

Having determined that the evidence is legally sufficient to support the order, we address factual sufficiency and consider all of the evidence, both that in support of and contrary to the trial court s findings. See In re C.H., 89 S.W.3d at 25. We note that J.H. was not subject to close observation by the hospital staff, that he had not been aggressive toward the physicians or staff, and that he had not been overtly aggressive or assaultive since February 2006. However, the trial court was entitled to disregard evidence contrary to the State s position. See id. Based upon our review of the record as a whole, we conclude that, although there is some disputed evidence, this evidence is not so significant that a reasonable trier of fact could not have reconciled this evidence in favor of its finding and formed a firm belief or conviction that J.H. was likely to cause serious harm to others. See Tex. Health & Safety Code Ann. 574.035(a), (e); In re J.F.C., 96 S.W.3d at 266. Therefore, the evidence is factually sufficient to support the trial court s order. See In re C.H., 89 S.W.3d at 25. Having found the evidence to be legally and factually sufficient to support one of the jury s reasons for committing J.H. to the Hospital, we need not consider the additional criteria used to support his commitment. See Tex. Health & Safety Code Ann. 574.035(a); Tex. R. App. P. 47.1. Accordingly, we conclude that the trial court met the obligations imposed by Section 574.035 of the Texas Health and Safety Code and overrule J.H. s first issue.

Request for Disclosure

In his second issue, J.H. contends that the trial court erred in allowing the State to present evidence of acts committed by J.H. Section 574.007 states that a proposed patient s attorney may request information from the county attorney or district attorney in accordance with this section if the attorney cannot otherwise obtain the information. Tex. Health & Safety Code Ann. 574.007(a) (Vernon 2003). If the proposed patient s attorney requests the information at least forty-eight hours before the time set for the hearing, the county or district attorney shall provide the proposed patient s attorney with a statement that includes

(1) the provisions of subtitle C, Texas Mental Health Code, that will be relied on at the hearing to establish that the proposed patient requires court ordered temporary or extended inpatient mental health services;

(2) the reasons voluntary outpatient services are not considered appropriate for the proposed patient;

(3) the name, address, and telephone number of each witness who may testify at the hearing;

(4) a brief description of the reasons court ordered temporary or extended inpatient or outpatient, as appropriate, mental health services are required; and

(5) a list of any acts committed by the proposed patient that the applicant will attempt to prove at the hearing.

 Id. 574.007(b).

On April 25, 2006, J.H. s counsel filed a Request for Disclosure of Information pursuant to section 574.007 of the Texas Health and Safety Code asking that the county attorney provide him with all the information described in subsection (b) of the statute. Before trial, J.H. s counsel stated that he had received no response from the State and, thus, argued that the State should not be able to present evidence, specifically any acts committed by J.H. that the State would attempt to prove at trial. Although J.H. s counsel acknowledged that J.H. s medical records were made available to him, he said had no idea which acts the State might attempt to prove. As a result, he requested the trial court dismiss the case or, as one of several alternatives, prohibit the State from presenting evidence of any acts committed by J.H.

The trial court asked the State if it intended to bring anything that hasn t been part of the open medical record, part of the applications on file, part of what s the basis of the doctors opinions in their certificates, other things that you think might be a surprise or new to J.H. s counsel. The State responded that it was not going to use anything that isn t in this record or on these certificates or recommendation of the treatment team. Further, the trial court asked the State if it intended to bring up any specific acts, other than what occurred during the last year. The State replied that it did not. The trial court denied J.H. s counsel s requests, but limited testimony to specific acts committed by J.H. not more than one year before trial or any prior hospital admissions other than the one required for an extended commitment. As a basis for its ruling, the trial court stated that the State had adequately shown it was not going to present evidence beyond what was obvious and open in the record, and that the hospital records had been available to J.H. s counsel for approximately one month, including the physicians certificates and the recommendation of the treatment team. Further, the trial court noted that only when the proposed patient s records were not open and available would the statute hold a party to a special burden, prohibit testimony, or require dismissal of an action.

We review a trial court s evidentiary rulings for an abuse of discretion. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion when it rules without regard for any guiding rules or principles. Id. An appellate court must uphold the trial court s evidentiary ruling if there is any legitimate basis for the ruling. Id. Moreover, we will not reverse a trial court for an erroneous evidentiary ruling unless the error probably caused the rendition of an improper judgement. Id. The trial court based its ruling on section 574.007(a) of the Texas Health and Safety Code and determined that J.H. s counsel should have been able to obtain the information contemplated by the statute from J.H. s hospital records, which were provided to him approximately one month before trial. The record confirms the trial court s finding. Therefore, the trial court did not err in refusing to exclude evidence of acts committed by J.H. Thus, we overrule J.H. s second issue.

Psychoactive Medication Order

In his third issue, J.H. contends that the trial court erred in granting the State s application for an order to administer psychoactive medication because it was not based on a valid order for extended inpatient mental health services. A trial court may issue an order authorizing the administration of one or more classes of psychoactive medications to a patient who is under a court order to receive inpatient mental health services. Tex. Health & Safety Code Ann. 574.106(a) (Vernon Supp. 2006). We have held that the order for extended mental health services was valid. Because the order for extended inpatient mental health services was valid, we overrule J.H. s third issue.

Disposition

The judgment of the trial court is affirmed.

SAM GRIFFITH

Justice

Opinion delivered August 30, 2007.

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

(PUBLISH)

1 Fazaclo is an antipsychotic medication and is also referred to as Clozapine and Clozaril. See http:\\www.drugs.com\fazaclo.html.