COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-15-00163-CV
IN THE MATTER OF S.S.
----------
FROM THE PROBATE COURT OF DENTON COUNTY TRIAL COURT NO. MH-2015-216
CONCURRING AND DISSENTING MEMORANDUM OPINION1
I concur with the majority opinion with the exception that, rather than
rendering judgment denying the State’s application and ordering S.S.’s
immediate release, I would remand this cause to the trial court for a new trial in
the interest of justice because the evidence was not fully developed. See Tex. R.
App. P. 43.3(b). Documents contained in S.S.’s file on which Dr. Shupe must
1 See Tex. R. App. P. 47.4. have relied in forming his opinions refer to specific witnesses and facts reported
or recorded by those individuals, such as one or more of the police officers who
responded to calls regarding S.S.’s bizarre behavior and actually witnessed it, as
well as the clinicians who evaluated and screened S.S. upon admission to the
hospitals in Denton and Wichita Falls. Testimony is surely available through one
or two of those fact witnesses regarding overt physical acts by S.S. that caused
neighbors or concerned citizens to call the police on at least four recent
occasions preceding his arrest, as well as his behavior and any verbal
statements he made during or after his arrest about his actions in fighting and
disarming imaginary people. See State v. K.E.W., 315 S.W.3d 16, 22 (Tex.
2010) (holding that the term “overt act” within the meaning of section 574.034(d)
of the health and safety code includes verbal statements, as well as physical
acts).
When reversing a trial court’s judgment, a court of appeals must render the
judgment that the trial court should have rendered, except when the interests of
justice require a remand for another trial. Tex. R. App. P. 43.3(b). When a court
of appeals reverses a trial court’s judgment based on legal insufficiency of the
evidence, a remand for retrial is permitted in the interest of justice if the evidence
was not fully developed. Jackson v. Hall, 147 Tex. 245, 247, 214 S.W.2d 458,
459 (1948); Butt v. Gonzalez, 646 S.W.2d 584, 586 (Tex. App.—San Antonio
2 1983, no writ).2 Here, the clerk’s record before us indicates evidence was
available—had it been developed and properly introduced into evidence at the
hearing—to establish the existence and nature of any overt acts, as well as a
continuing pattern of behavior by S.S., to support S.S.’s temporary commitment
for mental health services for his psychosis that admittedly renders him mentally
ill.
The record reflects that the State filed its application for temporary mental
health services for not more than ninety days on April 29, 2015, supported by two
Certificates of Medical Examination for Mental Illness and a motion for interim
protective custody. On the same date, the trial court granted the order of
protective custody, issued a writ of attachment for S.S., set a probable cause
hearing for 2:00 p.m. that day, appointed an attorney for S.S., and set a hearing
on the application for temporary mental services for May 13, 2015.
S.S., through his attorney, waived the right to be present at the probable
cause hearing but reserved the right to contest mental illness and to present
defenses available at the hearing on the merits. On the same day, April 29,
2015, the trial court signed its order for continued detention based on probable
2 This is not to say that a court of appeals may reverse an errorless judgment in the interest of justice. See Chrismon v. Brown, 246 S.W.3d 102, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see also Davis v. Bryan & Bryan, Inc., 730 S.W.2d 643, 644 (Tex. 1987) (holding that a court of appeals may remand only when there is error in the trial court’s judgment; absent such error, a court of appeals cannot reverse the trial court’s judgment and remand in the interest of justice).
3 cause, effective to the date of the hearing on the application for mental health
services, stating that it had examined screening reports from Brandi Brooks (an
emergency clinician with MHMR) and Detective Gary Hall of the Denton County
Sheriff’s Department and the certificate of medical examination by Dr. Sabahat
Faheem and had taken judicial notice of the complete file. However, at the
outset of the final hearing on the application for temporary mental health
services, S.S.’s attorney objected on the ground of hearsay to any documents in
the file other than the second certificate of medical examination of Dr. Diana
Isachievici; the trial court sustained the objection to “everything” except for the
certificate. Thus, as the majority points out, the only evidence before the court at
the hearing other than the Dr. Isachievici’s certificate of medical examination was
the testimony of Dr. Shupe, who had only met with S.S. shortly before the
hearing.3
Dr. Shupe testified that trying to get a timeline from S.S. about what had
happened was very difficult, that S.S.’s understanding of what was going on and
why people were concerned about him was very limited, and that S.S. did not
believe he had an illness or a reason to seek treatment. It is therefore obvious
from his testimony that Dr. Shupe must have reviewed the entire file because he
3 Even if the trial court had taken judicial notice of the narrative report of Detective Hall, the screening form completed by Ms. Brooks, and the certificates of medical examination, it could not have taken judicial notice of the truth of any allegations contained in those documents. See State ex rel. K.H., No. 02-02- 00301-CV, 2003 WL 21404821, at *2 (Tex. App.—Fort Worth June 19, 2003, no pet.) (mem. op.).
4 was familiar with the multiple calls to the police about S.S.’s “bizarre behavior”
and with S.S.’s explanation that he had been fighting other people and had been
disarming them of their weapons. It also appears obvious from the associate
judge’s findings at the hearing that he was well aware of the documents in the file
and the potential harm to which S.S.’s continued behavior in fighting imaginary
people would subject him and others. Reviewing the unedited transcript before
him, the associate judge stressed on the record that the police contact with S.S.
on the evening of April 27 and again early in the morning of April 28—when S.S.
told the police he had been fighting people and disarming them but could not
logically discuss with the police what he was doing—constituted evidence of
recent overt acts by S.S. and that those acts would tend to indicate a
deterioration of S.S.’s ability to satisfy his basic need for “safety.” Counsel for
S.S. disagreed that an overt act had been shown and also responded that there
was no testimony as to what affected or hurt S.S.’s “safety” or why he was no
longer safe because he was having delusions. But, absent the ability of the State
to introduce the records into evidence, there was no evidence of facts
constituting overt physical acts or even any verbal statements constituting “overt
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-15-00163-CV
IN THE MATTER OF S.S.
----------
FROM THE PROBATE COURT OF DENTON COUNTY TRIAL COURT NO. MH-2015-216
CONCURRING AND DISSENTING MEMORANDUM OPINION1
I concur with the majority opinion with the exception that, rather than
rendering judgment denying the State’s application and ordering S.S.’s
immediate release, I would remand this cause to the trial court for a new trial in
the interest of justice because the evidence was not fully developed. See Tex. R.
App. P. 43.3(b). Documents contained in S.S.’s file on which Dr. Shupe must
1 See Tex. R. App. P. 47.4. have relied in forming his opinions refer to specific witnesses and facts reported
or recorded by those individuals, such as one or more of the police officers who
responded to calls regarding S.S.’s bizarre behavior and actually witnessed it, as
well as the clinicians who evaluated and screened S.S. upon admission to the
hospitals in Denton and Wichita Falls. Testimony is surely available through one
or two of those fact witnesses regarding overt physical acts by S.S. that caused
neighbors or concerned citizens to call the police on at least four recent
occasions preceding his arrest, as well as his behavior and any verbal
statements he made during or after his arrest about his actions in fighting and
disarming imaginary people. See State v. K.E.W., 315 S.W.3d 16, 22 (Tex.
2010) (holding that the term “overt act” within the meaning of section 574.034(d)
of the health and safety code includes verbal statements, as well as physical
acts).
When reversing a trial court’s judgment, a court of appeals must render the
judgment that the trial court should have rendered, except when the interests of
justice require a remand for another trial. Tex. R. App. P. 43.3(b). When a court
of appeals reverses a trial court’s judgment based on legal insufficiency of the
evidence, a remand for retrial is permitted in the interest of justice if the evidence
was not fully developed. Jackson v. Hall, 147 Tex. 245, 247, 214 S.W.2d 458,
459 (1948); Butt v. Gonzalez, 646 S.W.2d 584, 586 (Tex. App.—San Antonio
2 1983, no writ).2 Here, the clerk’s record before us indicates evidence was
available—had it been developed and properly introduced into evidence at the
hearing—to establish the existence and nature of any overt acts, as well as a
continuing pattern of behavior by S.S., to support S.S.’s temporary commitment
for mental health services for his psychosis that admittedly renders him mentally
ill.
The record reflects that the State filed its application for temporary mental
health services for not more than ninety days on April 29, 2015, supported by two
Certificates of Medical Examination for Mental Illness and a motion for interim
protective custody. On the same date, the trial court granted the order of
protective custody, issued a writ of attachment for S.S., set a probable cause
hearing for 2:00 p.m. that day, appointed an attorney for S.S., and set a hearing
on the application for temporary mental services for May 13, 2015.
S.S., through his attorney, waived the right to be present at the probable
cause hearing but reserved the right to contest mental illness and to present
defenses available at the hearing on the merits. On the same day, April 29,
2015, the trial court signed its order for continued detention based on probable
2 This is not to say that a court of appeals may reverse an errorless judgment in the interest of justice. See Chrismon v. Brown, 246 S.W.3d 102, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see also Davis v. Bryan & Bryan, Inc., 730 S.W.2d 643, 644 (Tex. 1987) (holding that a court of appeals may remand only when there is error in the trial court’s judgment; absent such error, a court of appeals cannot reverse the trial court’s judgment and remand in the interest of justice).
3 cause, effective to the date of the hearing on the application for mental health
services, stating that it had examined screening reports from Brandi Brooks (an
emergency clinician with MHMR) and Detective Gary Hall of the Denton County
Sheriff’s Department and the certificate of medical examination by Dr. Sabahat
Faheem and had taken judicial notice of the complete file. However, at the
outset of the final hearing on the application for temporary mental health
services, S.S.’s attorney objected on the ground of hearsay to any documents in
the file other than the second certificate of medical examination of Dr. Diana
Isachievici; the trial court sustained the objection to “everything” except for the
certificate. Thus, as the majority points out, the only evidence before the court at
the hearing other than the Dr. Isachievici’s certificate of medical examination was
the testimony of Dr. Shupe, who had only met with S.S. shortly before the
hearing.3
Dr. Shupe testified that trying to get a timeline from S.S. about what had
happened was very difficult, that S.S.’s understanding of what was going on and
why people were concerned about him was very limited, and that S.S. did not
believe he had an illness or a reason to seek treatment. It is therefore obvious
from his testimony that Dr. Shupe must have reviewed the entire file because he
3 Even if the trial court had taken judicial notice of the narrative report of Detective Hall, the screening form completed by Ms. Brooks, and the certificates of medical examination, it could not have taken judicial notice of the truth of any allegations contained in those documents. See State ex rel. K.H., No. 02-02- 00301-CV, 2003 WL 21404821, at *2 (Tex. App.—Fort Worth June 19, 2003, no pet.) (mem. op.).
4 was familiar with the multiple calls to the police about S.S.’s “bizarre behavior”
and with S.S.’s explanation that he had been fighting other people and had been
disarming them of their weapons. It also appears obvious from the associate
judge’s findings at the hearing that he was well aware of the documents in the file
and the potential harm to which S.S.’s continued behavior in fighting imaginary
people would subject him and others. Reviewing the unedited transcript before
him, the associate judge stressed on the record that the police contact with S.S.
on the evening of April 27 and again early in the morning of April 28—when S.S.
told the police he had been fighting people and disarming them but could not
logically discuss with the police what he was doing—constituted evidence of
recent overt acts by S.S. and that those acts would tend to indicate a
deterioration of S.S.’s ability to satisfy his basic need for “safety.” Counsel for
S.S. disagreed that an overt act had been shown and also responded that there
was no testimony as to what affected or hurt S.S.’s “safety” or why he was no
longer safe because he was having delusions. But, absent the ability of the State
to introduce the records into evidence, there was no evidence of facts
constituting overt physical acts or even any verbal statements constituting “overt
acts” tending to confirm that S.S.’s safety or that of others was likely in jeopardy
or tending to demonstrate his distress and deterioration of his ability to function.
S.S.’s safety and his future may hang in the balance if he does not get the
treatment he needs. Therefore, I would remand this case for a new trial in the
5 interest of justice so that the evidence may be fully developed.4 See Jackson,
214 S.W.2d at 459; see also Scott v. Liebman, 404 S.W.2d 288, 294 (Tex. 1966)
(holding that when appellate court finds error in the judgment, both court of
appeals and supreme court have discretion to remand in the interest of justice),
abrogated in part on other grounds by Parker v. Highland Park, Inc., 565 S.W.2d
512, 517 (Tex. 1978); Dahlberg v. Holden, 150 Tex. 179, 187, 238 S.W.2d 699,
704 (1951) (holding that when there is error in judgment, whether to render or
remand is a question “regarding which appellate courts are given broad
discretion” (citing former Texas Rules of Civil Procedure 434 and 505)). For the
reasons stated, I join in the majority’s reversal but dissent from the majority’s
rendition of judgment denying the State’s application for court-ordered temporary
mental health services and ordering S.S.’s immediate release.
/s/ Anne Gardner ANNE GARDNER JUSTICE
DELIVERED: July 28, 2015
4 The likely expiration of the ninety-day period for which S.S. was ordered to receive inpatient mental health services before the remanded case can be reheard will not render the retrial moot. See K.E.W., 315 S.W.3d at 20 (holding that expiration of ninety-day period for services did not require that appeal be dismissed for mootness); see also State v. Lodge, 608 S.W.2d 910, 911 (Tex. 1980) (holding that mootness doctrine does not apply to appeals from temporary commitment orders).