State

Opinion

NO. 12-04-00025-CV

                     IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                TYLER, TEXAS

THE STATE OF TEXAS FOR                        '                 APPEAL FROM THE

THE BEST INTEREST AND                          '                 COUNTY COURT AT LAW

PROTECTION OF G.S.P.                               '                 CHEROKEE COUNTY, TEXAS

                                                     MEMORANDUM OPINION

Appellant G.S.P. appeals from an order for temporary inpatient mental health services.  In five issues, G.S.P. challenges the legal and factual sufficiency of the evidence and also asserts federal and state due process and equal protection violations.  We affirm.

                                                               Background

On January 5, 2004, an application for court-ordered temporary mental health services was filed requesting the court commit G.S.P. to Rusk State Hospital (the AHospital@) for a period not to exceed ninety days.  The application was supported by two certificates of medical examination for mental illness.  One of the certificates was prepared by a Dr. Cuellar who examined G.S.P. on January 5, 2004.  In Dr. Cuellar=s opinion, G.S.P. is suffering from schizoaffective disorder, bipolar type, and is likely to cause serious harm to others.  As a basis for his opinion, the doctor stated that on January 4, 2004, G.S.P. had threatened to kill his son.  Additionally, G.S.P. was highly agitated, actively hallucinating, paranoid, and running in his underwear in public. 

The second certificate was completed by Dr. Zaki Moin.  He examined G.S.P. on January 7, 2004, and concurred in Dr. Cuellar=s diagnosis.  Dr. Moin concluded that G.S.P. 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, which is exhibited by the proposed patient=s inability, except for reasons of indigence, to provide for his basic needs, including food, clothing, health, or safety; and is unable to make a rational and informed decision as to whether or not to submit to treatment.  As the basis for his opinion, Dr. Moin cited G.S.P.=s threat against his son and also stated that G.S.P. had made threatening statements about the people he had been in contact with prior to coming to the Hospital.

On January 13, 2004, a hearing without a jury was conducted on the application.  Dr. Moin testified and reaffirmed the opinion stated in his certificate of medical examination.   He stated that his opinion is based on his review of the records and talking to G.S.P.  Dr. Moin learned that G.S.P. had threatened to kill his son and made threatening statements about people he had been in contact with prior to coming to the Hospital.  G.S.P. also believed people were after him or out to get him and that he had been threatened by them.  In addition, Dr. Moin received a report that G.S.P. became combative with officers at ETMC.  G.S.P. also believes that the Texas Rangers are after him and that he is here on a mission.  According to Dr. Moin, G.S.P.=s threat to kill his son was one of the reasons G.S.P. was admitted to the Hospital.  The doctor testified that the Hospital is the least restrictive alternative at the time.

On cross examination, Dr. Moin stated that he had learned about the threat to G.S.P.=s son from a social worker, not from G.S.P.=s family.  He also testified that upon learning of the threat, G.S.P.=s family believed the threat was Arealistic.@  The doctor was unaware of the circumstances under which the threat was made.  Although Dr. Moin stated that G.S.P. had been taking his medication, he also noted that G.S.P. had received emergency medication the day before after becoming Aagitated, psychotic agitation.@

G.S.P. testified that he was ready to be discharged and that his son and daughter in law would pick him up and go to Lufkin.  He denied threatening his son and stated that the information could be somebody=s delusion.  He stated that he has no intention of doing anyone any harm.  However, he admitted that he got to the Hospital because he was picked up by the police on a friend=s property after being accused of making a terroristic threat.

At the conclusion of the hearing, the court granted the application for temporary inpatient mental health services.  The court also signed an order including findings that G.S.P. is mentally ill and is likely to cause serious harm to others.  This appeal followed.

                                              Sufficiency of the Evidence

In his first issue, G.S.P. contends that the evidence is legally and factually insufficient to support the commitment order.  Specifically, G.S.P. contends that the State did not prove an overt act or continuing pattern of behavior as required by Section 574.034 of the Texas Health and Safety Code.  Therefore, G.S.P. concludes, the State=s evidence only amounts to a showing that he is mentally ill, which is insufficient to support the trial court=s order.

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. 

Order for Temporary Mental Health Services

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 her 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 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.BTyler 2001, no pet.).

Analysis

The State provided expert testimony explaining that G.S.P. is mentally ill and describing him as delusional, paranoid, believing that others are after him or out to get him, threatening to kill others, and combative with ETMC personnel.  This testimony is based on the doctor=s personal examination of G.S.P., interviews with G.S.P.=s family and social worker, and review of G.S.P.=s medical records.  This 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).  Therefore, the evidence is legally sufficient to support the trial court=s order.

G.S.P. denied that he threatened his son.  However, the trial court could have disbelieved G.S.P.=s testimony and reconciled this disputed evidence in favor of its finding.  Moreover, G.S.P. did not dispute that he had threatened others or that he became combative with ETMC personnel.  Therefore, the evidence is factually sufficient to support the trial court=s order.  We overrule G.S.P.=s first issue.

                                                Constitutional Violations

In his second and third issues, G.S.P. contends the trial court erred in rendering judgment in violation of state and federal due process guarantees.  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. 

G.S.P. 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, G.S.P. has not preserved these complaints for review.  We overrule G.S.P.=s second, third, fourth, and fifth issues.

                                                                 CONCLUSION

Having overruled G.S.P.=s first, second, third, fourth, and fifth issues, the trial court=s order is affirmed.

    SAM GRIFFITH   

   Justice

Opinion delivered May 19, 2004.

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

                                                                     (PUBLISH)