State

Opinion

NO. 12-02-00107-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 W.R.

§ CHEROKEE COUNTY, TEXAS

PER CURIAM

Appellant W.R. appeals from a judgment ordering his commitment for temporary inpatient mental health services pursuant to Tex. Health & Safety Code Ann. § 574.034 (Vernon Supp. 2002). After a hearing, the trial court ordered W.R. committed to Rusk State Hospital for a period not to exceed ninety days. ⁽¹⁾ In five issues, W.R. challenges the factual sufficiency of the evidence and raises various constitutional issues. We reverse and render judgment for W.R.

Background

On February 26, 2002, Mike Dorsey filed an Application for Court-Ordered Temporary Mental Health Services with the County Clerk of Cherokee County, Texas. The application stated that W.R. was mentally ill and that he met the criteria in section 574.034 of the Texas Mental Health Code for court-ordered temporary mental health services. On that same date, the trial court signed an order of protective custody; consequently W.R. was already a patient at Rusk State Hospital at the time of the hearing.

The hearing on the application was held on March 26, 2002. At the conclusion of the hearing, the trial court found that W.R. was mentally ill and that he met at least one of the three additional criteria for commitment listed in section 574.034(a)(2). See Tex. Health & Safety Code Ann. § 574.034(a)(2)(A), (B), (C) (Vernon Supp. 2002). The judgment does not specify which criterion formed the basis for the commitment, and findings of fact and conclusions of law were not requested or filed.

Burden of Proof and Standard of Review

Section 574.034 of the Texas Health and Safety Code contains the criteria for court-ordered temporary inpatient mental health services. The court may order a proposed patient to receive temporary inpatient mental health services only if the fact finder concludes from clear and convincing evidence that the proposed patient is mentally ill and also meets at least one of the additional criteria set forth in section 574.034(a)(2). Specifically, subsection (a)(2) provides the factfinder must conclude that as a result of mental illness, the proposed patient

• is likely to cause 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 the proposed patient's ability to function independently, which is exhibited by the proposed patient's inability, except for reasons of indigence, to provide for the proposed patient's 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)(2) (Vernon Supp. 2002).

The State has the burden of establishing by clear and convincing evidence that the proposed patient meets at least one of the additional criteria listed in section 574.034(a)(2). Mezick v. State, 920 S.W.2d 427, 430 (Tex. App.--Houston [1st Dist.] 1996, no writ). "Clear and convincing evidence" is an intermediate standard, falling between the preponderance of the evidence standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979) (per curiam). The Texas Supreme Court has defined "clear and convincing evidence" as "that 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." Addington, 588 S.W.2d at 570. When court-ordered temporary mental health services are sought, an additional requirement for clear and convincing evidence is imposed. To be clear and convincing under subsection (a), 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

• the likelihood of serious harm to the proposed patient or others; or

(2) the proposed patient's distress and the deterioration of the proposed patient's ability to function.

Tex. Health & Safety Code Ann. § 574.034(d) (Vernon Supp. 2002). The clear and convincing standard does not alter the appropriate standard of review. In re Caballero, 53 S.W.3d 391, 395 (Tex. App.--Amarillo 2001, pet. denied).

Factual Sufficiency of the Evidence

When conducting a factual sufficiency review, this court must consider all of the evidence, including any evidence contrary to the verdict. Plas-Tex. Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We must reverse on the basis of a factual insufficiency or great weight and preponderance point if the court's finding is so against the great weight and preponderance as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Findings of fact are the exclusive province of the factfinder. Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744 (Tex. 1986). This court is not a fact finder and may not pass on the credibility of the witnesses or substitute its judgment for that of the trier of fact, even if a different answer could be reached on the evidence. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988); Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.-Dallas 1986, writ ref'd n.r.e.).

The Evidence

Upon direct examination, Dr. Harry Thompson testified that he examined W.R. and stated that his patient had been previously diagnosed with Bipolar I Disorder, manic phase, and at other times with Schizoaffective Disorder, bipolar type. Dr. Thompson testified that W.R. is likely to cause serious harm to himself as he has a history of destabilizing when he is out of the hospital. He also stated that W.R. is a danger to himself because he engages in cocaine abuse and that lifestyle, coupled with being psychotic, makes him a danger to himself in terms of poor judgment and recklessness.

On cross-examination, Dr. Thompson admitted that W.R. responds to treatment, and that when he is ready for discharge, he is intact as far as behavior and thought processes. The doctor testified that since W.R.'s stay at Rusk State Hospital, he has required an injection only once because of agitation that put him and other people at risk; but other than that, there has been no violence or aggression on W.R.'s part.

Dr. Thompson testified that W.R. can dress and feed himself without assistance or prompting, and can take care of his own personal hygiene. He also stated that his patient has the ability to make a rational and informed decision regarding medication, and that W.R. is conversant with medication and has the capacity to make informed consent.

Because the State did not meet its burden in proving one of the criteria of Tex. Health & Safety Code Ann. § 574.034(a)(2) (Vernon Supp. 2002), ⁽²⁾ we hold that the evidence is factually insufficient to support court-ordered temporary mental health services.

Accordingly, we reverse and render judgment for W.R. ⁽³⁾

Opinion delivered August 14, 2002.

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

(DO NOT PUBLISH)

1.

The ninety-day commitment period has expired, but this appeal is not moot. In State v. Lodge, 608 S.W.2d 910, 911 (Tex. 1980), the Texas Supreme Court held that the doctrine of mootness does not apply to appeals from involuntary commitments.

2.

The State admits that the evidence is factually insufficient to support the trial court's order.

3.

It is not necessary that we address W.R.'s constitutional complaints, since we are reversing on the issue of factual sufficiency.