State

Opinion

NO. 12-02-00234-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 L.W.

§ CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Appellant L.W. appeals from an order of commitment for temporary inpatient mental health

services. After a hearing without a jury, the trial court ordered L.W. committed to Rusk State Hospital for a period not to exceed ninety days. In six issues, L.W. asserts the evidence is legally and factually insufficient to support the order of commitment, the trial court erred in admitting evidence, and the trial court erred in rendering judgment that is void as a matter of law. We affirm.

Background

On July 29, 2002, an application for court-ordered temporary mental health services was filed requesting the court commit L.W. 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. Charles Plyler, who had examined L.W. on July 26. Dr. Plyler diagnosed L.W. as suffering from psychosis, NOS. He found that L.W. is mentally ill, likely to cause serious harm to herself, and is suffering severe and abnormal mental, emotional or physical distress, is experiencing substantial mental or physical deterioration of her ability to function independently, and is unable to make a rational and informed decision as to whether to submit to treatment. Dr. Plyler reached these conclusions because, on July 26, L.W. was confused and disoriented and wandered away from her home, which is by a big highway. Dr. Plyler found that L.W. presents a substantial risk of serious harm to herself or others if not immediately restrained, an opinion he based on L.W.'s behavior and on evidence of severe emotional distress and deterioration in L.W.'s mental condition to the extent that she cannot remain at liberty. Dr. Plyler indicated that, on the date he examined L.W., she had wandered away from home in a confused state.

On July 31, 2002, L.W. was examined by Dr. Zak Moin who then also prepared a certificate of medical examination for mental illness. Dr. Moin diagnosed L.W. with schizoaffective disorder, bipolar type, and indicated that L.W. is mentally ill and likely to cause serious harm to herself. He further determined that she is suffering severe and abnormal mental, emotional or physical distress, is experiencing substantial mental or physical deterioration of her ability to function independently, which is exhibited by her inability to provide for her basic needs, and she is unable to make a rational and informed decision as to whether or not to submit to treatment. He came to these conclusions because L.W. exhibited loose, tangential, and disorganized thinking. Further, she was confused, grandiose, and delusional.

Dr. Moin testified at the hearing, first restating his diagnosis that L.W. is suffering from schizoaffective disorder, bipolar type. He determined that L.W. is mentally ill and likely to cause harm to herself, and is suffering severe and abnormal mental, emotional, or physical distress, is experiencing substantial mental or physical deterioration of her ability to function independently, which is exhibited by her inability to provide for her basic needs, and is unable to make a rational, informed decision as to whether or not to submit to treatment. He based this determination on his examination of L.W., review of medical records, and on reasonable medical probabilities. Dr. Moin explained that L.W. was recently discharged and readmitted within about a week. He described L.W. as very confused and disorganized, very agitated, lacking insight into her illness, grandiose, and delusional. Since her admission to the hospital, she has required medication on an emergency basis. He explained that her most recent episode of disorganized thinking and grandiose delusional behavior evidences a continuing pattern of behavior that tends to confirm her distress and the deterioration of her ability to function. During his interview with her, she was so disorganized she could not focus and she rambled from one topic to another. The doctor stated that Rusk State Hospital is the least restrictive available option for L.W. at this time.

On cross-examination, Dr. Moin stated that L.W.'s condition has not improved since coming to Rusk State Hospital. He further explained that, with prompting, L.W. can dress herself and take care of her personal hygiene without assistance, and she can feed herself without prompting or assistance. Also, she can initiate and respond to conversation, albeit inappropriately. The doctor explained that she is currently on medication that she consented to take. This indicates she has the ability to make an informed decision regarding medication. Dr. Moin does not believe there is a less restrictive environment that would render the same or similar supervision. She is in lock-up and does not have privileges on the grounds.

On redirect examination, Dr. Moin stated that L.W. has suffered from her mental illness for at least the last several months. The disorganized thinking, confused behavior, grandiose and delusional behavior and ideas which have been persistent throughout those months evidence a continuing pattern of behavior that tends to confirm L.W.'s distress and the deterioration of her ability to function.

L.W. testified in her own behalf. She stated that she wants to go home and she has income to live on in the form of disability payments. She does not want to hurt herself or anyone else. She has worked all her life and needs no help taking showers, combing her hair, or putting on clothes.

On cross-examination, in response to the State's questions about her prior job experience, L.W. said she had been living in a little trailer in the woods with no transportation and no job. She clarified that now she has money for transportation. She stated that she did architecture and drafting. She also stated she worked as a banquet waitress. She was on food stamps and someone from a state social service agency took her grocery shopping. She prepared her own meals and lived by herself.

The trial court entered an order for temporary inpatient mental health services after determining that the evidence supports the allegations that L.W. is mentally ill and that she is suffering severe and abnormal mental, emotional, or physical distress, is experiencing substantial mental or physical deterioration of her ability to function independently, which is exhibited by her inability to provide for her basic needs, and she is unable to make a rational and informed decision as to whether or not to submit to treatment. The court ordered L.W. committed to Rusk State Hospital for a period not to exceed ninety days.

Privileged Communications

In her second issue, L.W. asserts the trial court erred in admitting evidence over objections of privilege. Specifically, she complains that Dr. Plyler's certificate indicates that he failed to inform her that communication with him would not be privileged. She argues that the physician-patient privilege provided for in Texas Rules of Evidence 509 and 510 applies, making that certificate, and all information regarding L.W. prior to her stay at Rusk State Hospital, inadmissible. In her sixth issue, L.W. asserts that Dr. Plyler's failure to inform L.W. that the communication would not be privileged was a fatal defect that rendered that certificate invalid. Further, she argues, because one of the certificates was invalid there was, in effect, only one of the two required physicians' certificates on file at the time of the hearing. Therefore, her argument continues, the judgment was void as a matter of law.

Evidentiary rulings are committed to the trial court's sound discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Id. at 754. An appellate court must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. State Bar of Texas v. Evans, 774 S.W.2d 656, 658 n.5 (Tex. 1989) (per curiam).

L.W. was committed pursuant to Chapter 574 of the Texas Health and Safety Code. See Tex. Health & Safety Code Ann. §§ 574.001-574.154 (Vernon 2003). The Texas Health and Safety Code provides that a professional, defined as a person licensed by the state to diagnose, evaluate, or treat mental disorders, may disclose confidential information in an involuntary commitment proceeding for court-ordered treatment under Chapter 574. Tex. Health & Safety Code Ann. §§ 611.001(2)(B), 611.006(a)(10)(B) (Vernon 2003). Further, Section 574.031(e) specifically provides that the Texas Rules of Evidence apply to a hearing for court-ordered mental health services unless those rules are inconsistent with the Texas Mental Health Code. Tex. Health & Safety Code Ann. § 574.031(e) (Vernon 2003). Therefore, the trial court did not err in allowing into evidence Dr. Plyler's certificate and any information contained in it or any information regarding L.W. prior to her stay at Rusk State Hospital.

A warning regarding the relinquishment of confidentiality is not statutorily required to be included in the certificate of medical examination for mental illness. Tex. Health & Safety Code Ann. § 574.011 (Vernon 2003). Therefore, the failure to warn does not constitute a defect in the certificate. As the certificate was not fatally defective, it is properly counted as one of two valid physician's certificates on file at the time of the hearing. We overrule issues two and six.

Personal Knowledge and Hearsay

In her third and fourth issues, L.W. contends the trial court erred in admitting the physicians' certificates, recommendations of the treatment team, and the medical records of Rusk State Hospital because the testifying witness, Dr. Moin, had no personal knowledge of the alleged incidents to which he testified and the information contained in the material offered is the product of hearsay. She argues that Dr. Moin went into great detail regarding reports from unnamed sources as to alleged acts of self injury and the extent of L.W.'s injuries. She contends that since Dr. Moin had no personal knowledge of the incidents, he could not have attested to their accuracy or the credibility of their source.

L.W.'s counsel stipulated to the qualifications of the testifying doctor as an expert in the field of mental health care and that the physicians' certificates, recommendations of the treatment team, and the medical records of Rusk State Hospital are business records. This stipulation precluded the need for the State to lay a predicate. Pursuant to Rule of Evidence 803, business records are excluded from the hearsay rule and the person testifying from a business record is not required to have personal knowledge of the truth of the contents of that business record. Tex. R. Evid. 803(6). Further, an expert is permitted to rely on the facts and data upon which he bases an opinion even in the absence of personal knowledge. Tex. R. Evid. 703. The trial court did not abuse its discretion by overruling L.W.'s objections based on hearsay and a lack of personal knowledge. We overrule L.W.'s third and fourth issues.

Prejudice

In her fifth issue, L.W. contends the trial court erred in admitting Dr. Moin's testimony because it was highly prejudicial and that prejudice greatly outweighed any relevance to the matters before the court. She argues that to allow the doctor to "testify to unproven allegations of acts of an unspecified time period and from an unidentified source not present for cross-examination as to accuracy and credibility was clearly meant to prejudice the trier-of-fact and commit [her] on unfounded and unproven allegations."

The fact that evidence has some prejudicial effect is insufficient to warrant its exclusion. Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 772 (Tex. App.-Corpus Christi 1999, pet. denied). Rather, there must be a demonstration that introduction of the evidence would create a danger of unfair prejudice to the objecting party. Tex. R. Evid. 403; Walters, 1 S.W.3d at 772. Unfair prejudice means an undue tendency to suggest a decision on an improper basis. Weidner v. Sanchez, 14 S.W.3d 353, 365 (Tex. App.-Houston [14th Dist.] 2000, no pet.). Moreover, there must be a showing that the danger of unfair prejudice substantially outweighs the evidence's relevance. Tex. R. Evid. 403.

Here, the facts presented at the hearing went directly to the issues upon which the State had the burden of proof. Dr. Moin is L.W.'s treating physician and his testimony was, in large part, based on his personal interactions with her. L.W. does not direct our attention to specific testimony of "unproven allegations of acts of an unspecified time period and from an unidentified source." Our review of Dr. Moin's testimony reveals no such testimony. We cannot say that the probative value of Dr. Moin's testimony and the information derived from the medical records is substantially outweighed by the danger of unfair prejudice. Consequently, the trial court did not abuse its discretion in allowing the testimony over L.W.'s objection that the evidence was prejudicial. We overrule L.W.'s fifth issue.

Sufficiency of the Evidence

In her first issue, L.W. asserts there is no evidence, or in the alternative, factually insufficient evidence to support the order of commitment. She argues that the record is devoid of any factual basis in support of the doctor's testimony. She further argues that the evidence merely shows she may be mentally ill and may be in need of hospitalization which is insufficient to justify commitment. Accordingly, she contends the State failed to show clear and convincing evidence tending to confirm her distress and the deterioration of her ability to function, or of her ability to make a rational and informed decision as to whether to submit to treatment. Thus, she argues, the State failed to meet its evidentiary burden under the statute.

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.

In addressing a factual sufficiency of the evidence challenge, this court must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations. Id. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." In re J.F.C., 96 S.W.3d at 267.

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 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 2003). 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 L.W. is mentally ill and describing a continuing pattern of behavior by L.W. The doctors' certificates indicate that L.W. is confused, disoriented, grandiose, delusional, and exhibiting disorganized thinking. Dr. Moin explained that L.W. is very confused, disorganized, very agitated, lacks insight into her illness, is grandiose, and delusional which evidences a continuing pattern of behavior that tends to confirm her distress and the deterioration of her ability to function. Considering 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 these findings were true. See In re J.F.C., 96 S.W.3d at 266. This satisfies 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 In re J.F.C., 96 S.W.3d at 266.

In addressing L.W.'s factual sufficiency complaint, we consider the evidence the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. The evidence shows D.P. can dress herself, feed herself, and take care of her personal hygiene without assistance. However, rather than creating confidence in her ability to provide for herself, L.W.'s various explanations as to her prior job experience raise more questions as to her ability to provide for herself. The evidence regarding her disability income was vague and unsubstantiated. She is able to initiate conversation and respond to questions, but somewhat inappropriately. Her responses to questions put to her by the State and her own counsel indicate that she is not entirely rational. In light of the entire record, we cannot say that the trial court could not reasonably form a firm belief or conviction that L.W. is distressed and that her ability to function has deteriorated, thereby requiring inpatient mental health services. See id. Thus, the evidence is factually sufficient to support the trial court's findings. Because we hold the evidence is both legally and factually sufficient to support the trial court's order, we overrule L.W.'s first issue.

Conclusion

The trial court did not err in admitting the complained-of evidence and the order is not void for failure to have two physician's certificates on file at the time of the hearing. Further, the evidence is legally and factually sufficient to support the trial court's order of commitment for temporary inpatient mental health services.

Accordingly, we affirm the trial court's order of commitment for temporary inpatient mental health services.

SAM GRIFFITH

Justice

Opinion delivered October 22, 2003.

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

(PUBLISH)