State

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00100-CV ______________________________



THE STATE OF TEXAS FOR THE BEST INTEREST AND PROTECTION OF G. B.

---

On Appeal from the County Court at Law Hunt County, Texas Trial Court No. M-08852

---

Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

G. B., a mentally ill resident of Collin County, reported that she had awakened in a Greenville motel room while a man--whose identity was unknown to her and who had managed to get into her room without her recalling how--was trying to force sex on her. This was part of the evidence at a hearing in the County Court at Law of Hunt County which resulted in an order temporarily committing G. B. for mental health services.

G. B. appeals the trial court's order of commitment arguing that the evidence is legally and factually insufficient to support the order. Because we hold the evidence is both legally and factually sufficient, we affirm the trial court's order.

A trial 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 satisfies at least one of subparagraphs (A), (B), and (C) of Section 574.034(a)(2) of the Texas Health and Safety Code:

(2) as a result of that mental illness the proposed patient:

(A) is likely to cause serious harm to himself;

(B) is likely to cause serious harm to others; or

(C) 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 2003). Here, the trial court's written order affirmatively found the State's allegations under (A) and (C) to be true. ⁽¹⁾

G. B. does not challenge the determination that she was mentally ill. See Tex. Health & Safety Code Ann. § 574.034(a)(1). She contends the evidence was insufficient to support these findings: that she was likely to cause serious harm to herself (Section 574.034(a)(2)(A)); that she was suffering severe and abnormal mental, emotional, or physical distress (Section 574.034(a)(2)(C)(i)); that she was experiencing a substantial mental or physical deterioration of her ability to function independently (Section 574.034(a)(2)(C)(ii)); or that she was unable to make a rational and informed decision as to whether to submit to treatment (Section 574.034(a)(2)(C)(iii)).

The evidentiary standards for involuntary commitment are high. State ex rel. L.H., 183 S.W.3d 905 (Tex. App.--Texarkana 2006, no pet.); Harris v. State, 615 S.W.2d 330, 333 (Tex. Civ. App.--Fort Worth 1981, writ ref'd n.r.e.). 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). See Mezick v. State, 920 S.W.2d 427, 430 (Tex. App.--Houston [1st Dist.] 1996, no writ). Clear and convincing evidence is 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." State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979).

When court-ordered temporary mental health services are sought under Section 574.034(a), specific requirements for clear and convincing evidence are imposed: 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 "(1) 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 2003). An expert diagnosis, without more, is not sufficient to confine a patient for compulsory treatment. Mezick, 920 S.W.2d at 430. The State cannot meet its burden of proof without presenting evidence of the behavior of the proposed patient that provides the factual basis for the expert opinion. See id. The recent overt act or continuing pattern of behavior shown by the State must also relate to the criteria on which the judgment is based. See T.G. v. State, 7 S.W.3d 248, 252 (Tex. App.--Dallas 1999, no pet.).

In reviewing the legal sufficiency of the evidence where the burden of proof is clear and convincing evidence, we 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 findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the trier of fact resolved disputed facts in favor of its finding if a reasonable trier of fact could do so, and must disregard all contrary evidence that a reasonable trier of fact could have disbelieved or found to be incredible. Id.

In reviewing factual sufficiency challenges, we review all the evidence in the record, both supporting and opposing the trial court's findings. In re C.H., 89 S.W.3d 17, 27-29 (Tex. 2002). We must give due consideration to evidence the trier of fact could reasonably have found to be clear and convincing. Id. at 25. Under the clear and convincing standard, we determine whether the evidence is such that the trier of fact could reasonably form "a firm belief or conviction" as to the truth of the allegations sought to be established by the State. Id. We must consider whether disputed evidence is such that a reasonable trier of fact could not have reconciled that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. The trial court as the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. In re Estate of Canales, 837 S.W.2d 662, 669 (Tex. App.--San Antonio 1992, no writ).

At the temporary commitment hearing, the State presented the testimony of Dr. Heath Penland, who testified that G. B. had been diagnosed with bipolar disorder, manic with psychotic features, with methamphetamine dependence. He testified that the methamphetamine dependence made the mental conditions worse. After waking in the Greenville motel room with a man she did not know, G. B. went to the Greenville emergency room complaining of exhaustion. Dr. Penland testified that, after G. B.'s hospitalization, she had been constantly on the telephone, that other patients requested to leave when around her, that family members reported she had overloaded their voice mail, that other patients had labeled her as a "wild woman," and that G. B. had reported that other patients and staff were trying to harm her. Dr. Penland testified that G. B. will get worse if not treated, but also recognized that at present she can feed, bathe, and clothe herself. He also testified that G. B. had been hospitalized for three consecutive years for these problems and that she had been noncompliant with her prescription drug regimen for several months before arriving in the Greenville emergency room.

Dr. Penland acknowledged that G. B. denied any thoughts of hurting anyone and that, although she was physically agitated at times, she had not been physically aggressive. He also agreed that she could receive treatment on an outpatient basis.

In her testimony, G. B. agreed she needed medication, stated she would not hurt herself or anyone else, and testified about how she had gotten to Greenville. G. B.'s testimony showed that she had a poor relationship with her family and that she believed the relationship was their fault because they believed things about her that were untrue.

The State's evidence in this case consisted of live testimony from Dr. Penland, and certificates from Dr. Penland and from Dr. Paul Lee. Penland's certificate describes G. B.'s mental state as manic, hyperactive, and irritable, with no insight into her illness and with impaired judgment. It indicates she has been belligerent to staff and that she reported waking up in a motel room with a man forcing himself on her, with no recall of how she got there. Penland also reports that G. B. has been abusing methamphetamine daily.

Dr. Lee's certificate states that G. B. was very disorganized and irritable, that she acted inappropriately in the unit, and that she had been reported by her family to have threatened suicide.

Dr. Penland testified to his concerns that G. B. was likely to cause serious harm to herself, explaining that the reason for that was the impairment in her judgment caused by her mental illness, exacerbated by her use of methamphetamine. Opinion, supported by facts, can support a commitment order. In re J.S.C., 812 S.W.2d 92, 95 (Tex. App.--San Antonio 1991, no writ).

G. B.'s testimony surrounding the Greenville incident sets out an unusual series of events. According to G. B., she drove herself from Allen to McKinney to deposit a check. Then the McKinney police took her to the Samaritan Inn in McKinney, and someone there took her the thirty miles to Greenville and dropped her off at the Greenville Shelter, from which she went to the emergency room. According to G. B., after she left the emergency room, Greenville police picked her up and dropped her off at a restaurant, where an unknown Christian couple took her to a motel and paid for her room, telling her they would call her the next morning. According to her testimony, at that motel she was awakened by a man trying to have sex with her. She also testified that her family was "all wrong" and that they had turned their backs on her. She stated that she wanted to attend a clinic called La Hacienda that she had seen on the television show Dr. Phil and that she could easily do the jobs of the people at the clinic better than they.

We conclude the evidence is sufficient to support the trial court's finding that G. B. was likely to cause serious harm to herself (Section 574.034(a)(2)(A)). The above evidence, if believed by the trial court, could convince it that G. B. was not in touch with reality, that she had pieced together a story as best she could, and that she had been under the influence of her mental illness to the extent she was likely to cause serious harm to herself by completely failing to connect with reality, thus becoming a target for those who seek out the weak or injured. There is also evidence she had recently threatened suicide, and the trial court was not bound to believe her current testimony in its place.

We also conclude the evidence is sufficient to support the trial court's findings that G. B. was suffering severe and abnormal mental, emotional, or physical distress (Section 574.034(a)(2)(C)(i)); that she was experiencing a substantial mental or physical deterioration of her ability to function independently (Section 574.034(a)(2)(C)(ii)); and that she was unable to make a rational and informed decision as to whether to submit to treatment (Section 574.034(a)(2)(C)(iii)). The evidence set out above, if believed, shows that G. B. is suffering severe mental and emotional distress that is going to continue to get worse as time goes on if not treated. There was also evidence that she had been hospitalized for mental health treatment every August and December for the past three years for similar episodes, and her behavior and her attempts to explain that behavior both show a deterioration of her mental and emotional abilities, and, with the final bizarre events that led up to this proceeding, an inability to function independently. Dr. Penland also testified that G.B. has poor insight into her illness and is not able to make sound judgments, as is also supported by the recounting of her recent behavior and her lack of lucidity when questioned.

The evidence is both legally and factually sufficient to support the trial court's findings. We overrule G. B.'s point of error and affirm the trial court's order.

Josh R. Morriss, III

Chief Justice

Date Submitted: November 8, 2006

Date Decided: December 5, 2006

1. In its order of commitment, the trial court found that G. B. "is likely to cause serious harm to self, or will, if not treated continue to suffer severe abnormal mental, emotional or physical distress." Additionally, the trial court found that G. B.

will, if not treated, continue to suffer severe abnormal mental, emotional or physical distress, is experiencing substantial mental or physical deterioration of [her] ability to function independently which is exhibited by the Proposed Patient's inability, except for reasons of indigence, to provide for 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.

is Court's opinion in Maysonet regarding the admissibility of radar evidence. Lipscomb next asserts that because there were other cars nearby, of which Freeman also checked the speed, it is possible Freeman's radar measured only the speed of these other cars and not the speed of Lipscomb's car. Because there was sufficient evidence to provide Freeman probable cause to believe Lipscomb was speeding, we reject these arguments.

            Freeman's testimony, if believed by the trial court—and we assume it was because the trial court ruled against Lipscomb—would support a finding that Lipscomb was committing a crime by speeding. Seventy miles per hour is the maximum lawful speed during daytime hours on Texas interstate roadways. Tex. Transp. Code Ann. § 545.352(b) (Vernon Supp. 2004–2005). Traveling in excess of that speed on a Texas interstate is unlawful. Tex. Transp. Code Ann. § 545.352(a) (Vernon Supp. 2004–2005). Freeman, a certified peace officer and a fourteen-year veteran of the sheriff's department, testified he first observed Lipscomb traveling at a speed Freeman believed to be in excess of the posted speed limit. Freeman also testified that, based on his experience, he "can get pretty close to telling that a vehicle is traveling faster than the normal flow of traffic." Freeman subsequently verified his suspicions using "calibrated" radar. Based on his visual observations and the confirmation he received from his radar unit, Freeman had specific information that would logically lead him to conclude Lipscomb was unlawfully speeding. We believe Freeman's testimony about using calibrated radar, testimony which the trial court could have properly interpreted to mean the radar was operating correctly, when combined with the officer's earlier testimony that he had visually estimated Lipscomb's speed to be excessive, was sufficient to satisfy the requirements we set forth in Maysonet. And, to the extent that there may have been conflicting evidence about which car Freeman's radar measured, the trial court resolved such factual conflicts against Lipscomb. Because, here, that conflict resolution is supported by the record, we will not disturb it.

            Accordingly, we cannot say the trial court erred by holding Freeman was authorized to stop Lipscomb for speeding. The initial traffic stop was, therefore, lawful.

(2)       The Traffic Stop Was of Reasonable Length

            In his second and third points of error, Lipscomb contends Freeman unnecessarily prolonged the traffic stop and searched Lipscomb's vehicle without valid consent. Officers are permitted to ask for identification, a valid driver's license, and proof of insurance during a traffic stop. Davis v. State, 947 S.W.2d 240, 245 n.6 (Tex. Crim. App. 1997). Officers may also check for outstanding warrants. Id. The officer must, however, use "the least intrusive means reasonably available to verify or dispel his suspicion in a short period of time." Id. Under Davis, Freeman's detention of Lipscomb "was required to be temporary and could last no longer than was necessary" to satisfy or dispel the officer's original suspicion of speeding and to conclude the stop. Id.

            In this case, a videotape of the traffic stop was entered into evidence. A review of that videotape shows Freeman initiated the stop and made first contact with Lipscomb at 7:53 a.m. Freeman informed Lipscomb of the purpose of the stop, asked for Lipscomb's license and proof of insurance, and briefly inquired into Lipscomb's driving and criminal histories. This initial conversation lasted barely one minute. Freeman then returned to his patrol car, contacted a dispatcher, and requested a criminal and out-of-state license history on Lipscomb. Eight to nine minutes later, the dispatcher contacted Freeman with those histories, including verification that Lipscomb had spent time in the penitentiary for narcotics trafficking. Freeman then returned to the rear of Lipscomb's car and asked Lipscomb to step to the rear of that vehicle. Freeman then appears to tell Lipscomb he will receive only a warning citation, and Freeman then asks for consent to search, which Lipscomb provides.

            Consent to search is "one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause." Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997)). The videotape clearly shows Lipscomb gave willing consent to the officer's request to search the vehicle. Lipscomb's contention on appeal to the contrary is disingenuous and not supported by the evidence. Less than ten seconds passed between the time Freeman informed Lipscomb (at the rear of the car) that the latter would receive a warning citation and the moment when Lipscomb consented to a search of the vehicle. Thus, we cannot conclude, given the sequence of discrete facts of this case, that the lapse of ten seconds amounted to an unreasonable extension of the duration of the traffic stop. We therefore overrule Lipscomb's second and third points of error.

(3)       The Confession Was Admissible

            In his final point of error, Lipscomb contends his written custodial confession should have been inadmissible because it was taken before he was taken to a magistrate to receive the warnings required by Article 15.17 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 15.17 (Vernon 2005). "It is well settled that the failure to take an arrestee before a magistrate in a timely manner will not invalidate a confession unless there is proof of a causal connection between the delay and the confession." Renfro v. State, 958 S.W.2d 880, 887 (Tex. App.—Texarkana 1997, pet. ref'd) (citing Cantu v. State, 842 S.W.2d 667, 680 (Tex. Crim. App. 1992)). "Additionally, when a person is properly warned of his rights by the person taking his confession, the failure to take the accused before a magistrate before taking the confession does not invalidate the confession." Id. (citing Self v. State, 709 S.W.2d 662, 667 (Tex. Crim. App. 1986)).

            Lipscomb has made no effort to point to any evidence in the record showing a causal connection between the delay in being brought before a magistrate and his confession, nor has any been shown by our review of the record. Moreover, the first paragraph of Lipscomb's confession reads,

I, TERRENCE [sic] LAMONTE LIPSCOMB, do freely and voluntarily make the following statement to Investigator MIKE CLAXTON and Ranger RONNY GRIFFITH after having been warned by him on the 18th day of August 2003 at 9:30 AM at the Gregg County Sheriff's Office CID, that I have the right to remain silent and not make any statement at all and that any statement I make may be used against me at my trial; any statement I make may be used as evidence against me in court; I have the right to have a lawyer present to advise me prior to and during any questioning; [i]f I am unable to employ a lawyer, and I have the right to have a lawyer appointed to advise me prior to and during questioning; and I have the right to terminate the interview at any time. Knowing and intelligently understanding my rights, I freely and voluntarily wish to waive the above rights and do hereby make this statement . . . .

The statement itself shows Lipscomb was warned of his rights before the statement was taken; Article 15.17 therefore does not bar the statement's admissibility. We overrule Lipscomb's final point of error.

            For the reasons stated, we affirm the trial court's judgment.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          July 12, 2005

Date Decided:             August 31, 2005

Do Not Publish