State

Opinion

NO. 12-02-00127-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 D.M.

§ CHEROKEE COUNTY, TEXAS

---

Appellant D.M. appeals from an order of commitment for temporary inpatient mental health

services. After a hearing without a jury, the trial court ordered D.M. committed to Rusk State Hospital for a period not to exceed ninety days. In six issues, Appellant asserts the evidence is legally and factually insufficient to support the order, his constitutional rights to due process and equal protection have been violated, and he was denied effective assistance of counsel. We affirm.

Background

On April 4, 2002, an application for court-ordered temporary mental health services was filed requesting the court commit Appellant to Rusk State Hospital for a period not to exceed ninety days. The application was supported by a certificate of medical examination for mental illness, prepared by a physician, Dr. S. Lahiri, who had examined Appellant on April 3, 2002. Dr. Lahiri diagnosed Appellant as having schizoaffective disorder, and as being depressed and mentally ill. He also indicated that Appellant is likely to cause serious harm to others 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. His opinion was based on the fact that Appellant told him he was hearing voices that told him others were trying to kill him. He indicated that on April 3, Appellant experienced auditory hallucinations and delusions, and threatened to harm others. Dr. Lahiri also stated that Appellant presents a substantial risk of serious harm to himself or others if not immediately restrained. This risk was demonstrated by Appellant's behavior and by evidence of severe emotional distress and deterioration in his mental condition to the extent that he cannot remain at liberty. He based that opinion on the facts that Appellant stated he was hearing voices that were telling him to hurt others and that he threatened to kill family members.

On April 4, 2002, Appellant was examined by Dr. Zaki Moin who then also prepared a certificate of medical examination for mental illness. Dr. Moin diagnosed Appellant as suffering from schizoaffective disorder, bipolar type. He found that Appellant is mentally ill, likely to cause serious harm to others, 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 or not to submit to treatment. This opinion was based on his examination of Appellant, and on records of the Sabine Valley Center which evaluated and referred Appellant on April 3. Dr. Moin stated that Appellant was paranoid. He was hearing voices and felt that others were trying to kill him. Further, Appellant was threatening others.

Dr. Moin testified at the commitment hearing and verified the information in his certificate. He explained that, based on his personal examination of Appellant and his review of the history, Appellant was feeling depressed and he was making threats toward his family. He made verbal threats and was delusional and paranoid that the doctors had been trying to kill him. On cross-examination, Dr. Moin explained that Appellant has improved in thought and mood since his admission to the hospital. He stated that Appellant has committed no overt act or made any overt statement of intent to harm himself or others since his admission to the hospital. He can dress and feed himself, take care of his personal hygiene and initiate and respond to conversation.

Appellant explained to the court that there is nothing wrong with him and he wants to go home. He also stated that he does not "intend to do her any harm" and he intends "to leave her a way to go to the doctor." He then told the court he needed to get out of Panola County for a while.

The trial court entered an order for temporary inpatient mental health services after determining that the evidence supports the allegations that Appellant is mentally ill, likely to cause serious harm to others, suffering severe and abnormal mental, emotional, or physical distress, experiencing substantial mental or physical deterioration of his ability to function independently, and unable to make a rational and informed decision as to whether to submit to treatment. The court ordered Appellant committed to Rusk State Hospital for a period not to exceed ninety days.

Sufficiency of the Evidence

In his first issue, Appellant asserts the evidence is neither legally nor factually sufficient to support the order of commitment. He contends the trial court erred in allowing Dr. Moin's testimony as it was based on medical records from the Sabine Valley Center, an outpatient facility where Appellant was seen on April 3, rather than on medical records of Rusk State Hospital. He asserts Dr. Moin did not have personal knowledge of the contents of the records; therefore, they are hearsay. Further, if the records are business records, he argues, they should not be allowed because they are highly prejudicial and in violation of the patient-physician privilege. As Dr. Moin relied on inadmissible records, his argument continues, his opinion cannot be considered. Therefore, he contends, the record does not show evidence of a recent overt act or continuing pattern of behavior tending to confirm the likelihood that he will cause serious harm to himself or to others, is suffering severe and abnormal mental, emotional, or physical distress, is experiencing substantial deterioration of the ability to function independently, or is unable to make a rational and informed decision regarding whether to submit to treatment. Thus, he argues, the State failed to meet its evidentiary burden under the statute.

In reviewing no evidence points of error, the reviewing court must consider only the evidence and inferences tending to support the trial court's finding, disregarding all contrary evidence and inferences. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). If there is any evidence of probative force to support the finding, the no evidence issue must be overruled and the finding upheld. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, no more than a scintilla of evidence exists and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). However, if the evidence supplies some reasonable basis for differing conclusions by reasonable minds as to the existence of a vital fact, some evidence or, in other words, more than a scintilla of evidence exists. Id.

In addressing a factual sufficiency of the evidence challenge, this Court must consider and weigh all of the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Where no findings of fact and conclusions of law were requested of or filed by the trial court, all questions of fact are presumed and found in support of the judgment. Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987). In the absence of findings of fact and conclusions of law, the judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex. 1968).

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 Supp. 2002). To be clear and convincing under this 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 Supp. 2002). Clear and convincing evidence means the measure or degree of proof which 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 State provided expert testimony explaining that Appellant is mentally ill and describing an overt act by Appellant, his threats toward his family. Dr. Moin explained that Appellant was delusional and paranoid, heard voices, felt others were trying to kill him, and he was threatening to kill others. This testimony was based on both his personal examination of Appellant on April 4 and the medical records in Appellant's file at Rusk State Hospital. Appellant stipulated that the medical records of Rusk State Hospital are business records, not subject to the hearsay rule. The record shows Appellant objected to Dr. Moin's testimony based on his assertion of the patient-physician privilege. The State responded that there is a notice in the medical records stating that all communications are not privileged. However, the Sabine Valley Center records are not in the record before this court. In the absence of the Sabine Valley Center records we are unable to determine whether Appellant waived the privilege. Therefore, Appellant has not shown any error in admitting Dr. Moin's testimony. See In re A.P., 46 S.W.3d 347, 350 (Tex. App.- Corpus Christi 2001, no pet.) (Issues raised for an appellate court's review dependent on the state of the evidence cannot be reviewed absent a complete record.).

Dr. Moin's testimony constitutes expert testimony of an overt act that tends to confirm the likelihood of serious harm to others, thus satisfying 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 sufficient to support the trial court's order. See McLaughlin, 943 S.W.2d at 430.

In addressing Appellant's factual sufficiency complaint, we consider the remainder of the evidence. On cross-examination, Dr. Moin stated that Appellant had not committed any overt acts or made any statements of intent to harm others since being admitted to the hospital. Although Dr. Moin appears to have contradicted himself on cross-examination, both his certificate and his testimony on direct examination support a finding that Appellant threatened others. Where there is conflicting evidence, the trier of fact's verdict on such matters is generally regarded as conclusive. Beall v. Ditmore, 867 S.W.2d 791, 796 (Tex. App.- El Paso 1993, writ denied). Thus, the evidence shows a substantial threat of future harm to others based on a threat in the recent past. See Seekins v. State, 626 S.W.2d 97, 99 (Tex. Civ. App. - Corpus Christi1981, no writ).

Weighing all the evidence, we cannot say that the trial court's finding that Appellant is likely to cause harm to others and its decision to order Appellant to submit to inpatient mental health services are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain, 709 S.W.2d at 176. Thus, the evidence is factually sufficient to support the trial court's finding. Because we hold the evidence is both legally and factually sufficient to support the trial court's order, we overrule Appellant's first issue.

Constitutional Claims

In his second and third issues, Appellant 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 574.034 of the Health and Safety Code are overly broad, vague, and ambiguous so the statute is susceptible to a variety of interpretations, making it violative of the due process clause of each constitution. In his fourth and fifth issues, he asserts that application of section 574.034 results in a violation of his right to equal protection under both the state and federal constitutions.

Appellant 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, Appellant has not preserved these complaints for review. We overrule Appellant's issues two, three, four, and five.

Ineffective Assistance of Counsel

In his sixth issue, Appellant 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 574.034 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. Appellant 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, Appellant has failed to make any showing that he was prejudiced as a result. Appellant 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. Appellant 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. Appellant has failed to meet his burden of proving ineffective assistance of counsel. Jackson, 973 S.W.2d at 956. Accordingly, we overrule Appellant's sixth issue.

We affirm the trial court's order.

LOUIS B. GOHMERT, JR.

Chief Justice

Opinion delivered October 31, in the Year of our Lord 2002.

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

(DO NOT PUBLISH)