State, 01-15-00784-CV

State

01-15-00784-CV

| Tex. App. | Dec 21, 2015

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Case Information

*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/21/2015 2:41:43 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-00784-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 12/21/2015 2:41:43 PM CHRISTOPHER PRINE CLERK

No. 01-15-00784-CV

__________ I N THE F IRST C OURT OF A PPEALS H OUSTON , T EXAS

__________

I N THE I NTEREST OF E.S.R.

__________ On Appeal from Probate Court No. 4 Harris County, Texas, Cause No. I-218340 B RIEF OF A PPELLEE S TATE OF T EXAS ______________________________________________________________

V INCE R YAN Harris County Attorney K EIT H A. T OLER Assistant County Attorney State Bar No. 24088541 H ARRIS C OUNTY A TTORNEY ’ S O FFICE 1019 Congress, 15th Floor Houston, Texas 77002 Phone: (713) 274-5265 Fax: (713) 755-8924 Email: Keith.Toler@cao.hctx.net Counsel for Appellee State of Texas *2

I DENTITY OF P ARTIES AND C OUNSEL Appellant Counsel

E.S.R. T ERESA S CARDINO Attorney at Law 4309 Yoakum, Suite 360 Houston, Texas 77006 Trial Counsel M ICHAEL S COTT T HOMAS Thomas & Williams, L.L.P. 2626 S. Loop West, Suite 561 Houston, Texas 77054 Appellate Counsel Appellee Counsel

State of Texas V INCE R YAN Harris County Attorney Of Counsel

M ELINDA B RENTS Senior Assistant County Attorney Trial Counsel K EIT H A. T OLER Assistant County Attorney Appellate Counsel H ARRIS C OUNTY A TTORNEY ’ S O FFICE 1019 Congress, 15th Floor Houston, Texas 77002 - ii -

T ABLE OF C ONTENTS

Identity of Parties and Counsel ......................................................................... ii

Table of Contents ............................................................................................ iii

Index of Authorities .......................................................................................... v

Statement of the Case ....................................................................................... 2

Statement Regarding Oral Argument ............................................................... 2

Statement Regarding Record References ......................................................... 3

Reply Points ...................................................................................................... 3

Statement of Facts ............................................................................................. 4

Summary of the Argument ............................................................................. 14

Argument ........................................................................................................ 16

I. Standard of Review ............................................................................................... 16

II. The evidence is legally and factually sufficient to support the

temporary commitment order. ............................................................................ 17 A. The State showed a recent overt act or continuing pattern of behavior tending to confirm the likelihood E.S.R. would seriously harm others. ................................................................................. 19 1. E.S.R.’s threats to kill his parents suffice alone. ......................... 20 2. E.S.R. also requested the return of his gun and hallucinated people stalking and assaulting him. ........................ 22

B. The State also showed a recent overt act or continuing pattern of behavior tending to confirm E.S.R.’s distress and the deterioration of his ability to function. ................................................... 24

III. Because the temporary commitment order is valid, the order

authorizing administration of psychoactive medication is also valid. ......................................................................................................................... 27 - iii -

Conclusion & Prayer ....................................................................................... 29

Certificate of Compliance ............................................................................... 30

Certificate of Service ...................................................................................... 30

Appellee’s Appendix ...................................................................................... 31

1) Texas Health & Safety Code § 574.034

2) Texas Health & Safety Code § 574.106

Note : The probate court orders are not included in the Appendix because they are sealed. See C.R. at 26, 27.

- iv -

I NDEX OF A UTHORITIES

Cases Page

G.H. v. State ,

Nos. 01-13-00422-CV, 01-13-00423-CV, 2013 WL 5613457 (Tex. App.—Houston [1st Dist.] Oct. 10, 2013, no pet.) ......................20 Goldwait v. State ,

961 S.W.2d 432 (Tex. App.—Houston [1st Dist.] 1997, no writ) ........25 Hagberg v. City of Pasadena ,

224 S.W.3d 477 (Tex. App.—Houston [1st Dist.] 2007, no pet.).........28 J.M. v. State ,

178 S.W.3d 185

(Tex. App.—Houston [1st Dist.] 2005, no pet.) ............................. 18, 24 Mezick v. State ,

920 S.W.2d 427 (Tex. App.—Houston [1st Dist.] 1996, no pet.).........17 M.S. v. State ,

137 S.W.3d 131 (Tex. App-Houston [1st Dist.] 2004, no pet.) ..... 16, 19 K.T. v. State ,

68 S.W.3d 887 (Tex. App.—Houston [1st Dist.] 2002, no pet.).... 24, 26 State ex. rel. E.R. ,

287 S.W.3d 297 (Tex. App.—Texarkana 2013, no pet.) ......................19 State v. K.E.W. ,

315 S.W.3d 16 (Tex. 2010) ................................................ 16, 19, 20, 27 - v -

Statutes

Tex. Health & Safety Code

§ 574.034(a) (West 2015) ......................................................................17 § 574.034(c) (West 2015) ......................................................................17 § 574.034(d) (West 2015) ......................................................... 17, 19, 20 § 574.106(a) (West 2015) ......................................................................27 - vi -

No. 01-15-00784-CV

__________ I N THE F IRST C OURT OF A PPEALS H OUSTON , T EXAS

__________

I N THE I NTEREST OF E.S.R.

__________ On Appeal from Probate Court No. 4 Harris County, Texas, Cause No. I-218340 B RIEF OF A PPELLEE S TATE OF T EXAS ______________________________________________________________

To the Honorable Justices of the First Court of Appeals:

The probate court below properly ordered E.S.R. committed for temporary mental-health services and authorized doctors to administer

psychoactive medication to E.S.R. Appellee State of Texas offered sufficient

evidence to show E.S.R. was likely to seriously harm others and was suffering

distress and deterioration of his ability to function. Thus, the State respectfully

requests this Court affirm both the judgment committing E.S.R. and the final

order authorizing administration of medication.

S TATEMENT OF THE C ASE E.S.R.’s father initiated this case by filing an application for emergency detention and to commit E.S.R. for temporary mental-health services. ^[1] Dr.

Hawkins, E.S.R.’s treating doctor, filed a petition to authorize administration

of psychoactive medication. ^[2] After a hearing, the probate court ordered E.S.R.

committed for temporary inpatient mental-health services and authorized

administration of psychoactive medication. E.S.R. appeals both final orders.

S TATEMENT R EGARDING O RAL A RGUMENT Appellee State of Texas believes the facts and legal arguments in this case are adequately presented in the briefs and records, and the decisional

process would not be significantly aided by oral argument. However, the State

acknowledges that this case involves a fact-specific inquiry and the State

welcomes the opportunity to present oral argument if the Court determines it

would be helpful.

*9 S TATEMENT R EGARDING R ECORD R EFERENCES The records on appeal are designated as follows:  C.R. – Clerk’s Record (filed Sept. 10, 2015)  S.C.R. – Supplemental Clerk’s Record (filed Sept. 22, 2015)  R.R. – Reporter’s Record (filed Oct. 12, 2015) R EPLY P OINTS

Reply Point 1

To support an order for temporary commitment, the evidence must show an overt act or continuing pattern of behavior tending to confirm either (1) the

likelihood of serious harm to self or others, or (2) the distress and deterioration

of the ability to function independently. At the commitment hearing, the State

showed E.S.R. threatened to kill his parents, requested the return of his gun,

and claimed people stalked, assaulted, and shot at him. The State also showed

the medication classes necessary to treat E.S.R. and the effect of his refusal to

be treated. Was the evidence legally and factually sufficient to support the

temporary commitment order?

Reply Point 2

An order authorizing administration of psychoactive medication is only valid if the patient is under a valid temporary commitment order. E.S.R.

challenges the medication order only because he argues the commitment order

is not valid. But if the commitment order is valid, then is the medication order

also valid?

S TATEMENT OF F ACTS A. Events Prior to Filing the Commitment Application E.S.R. is a middle-aged male with a long history of mental illness and who supports himself with disability payments. ^[5] Shortly after E.S.R. moved

from Austin to Houston to live with his parents, his father filed an application

to temporarily commit him for mental-health services (commitment

application). ^[6] On August 24, 2015, only a few weeks after moving home, E.S.R.

began ranting, yelling, and threatening to kill his parents if they turned him in

for psychiatric care. ^[7] E.S.R. also requested his parents return his gun and

complained people were stalking and attacking him through locked doors and

people were shooting at him. ^[8]

The next day, E.S.R.’s father applied for emergency detention and a magistrate issued an order and warrant to apprehend and detain E.S.R. ^[9] He was

detained on the same day and taken to Methodist Hospital for evaluation. ^[10]

*11 B. The Commitment Application

Two days later, E.S.R.’s father filed the commitment application. ^[11] In it,

he stated E.S.R. is mentally ill and, as a result, is likely to seriously harm

himself or others. The application also stated E.S.R. is suffering substantial

deterioration of his ability to function independently, to provide for his basic

needs, and to make a rational and informed decision whether to submit to

treatment. ^[12] E.S.R.’s father also filed an affidavit detailing E.S.R.’s ranting,

yelling, threatening to kill his parents, requesting the return of his gun, and

complaining someone was stalking and attacking him. ^[13]

Two doctors examined E.S.R. in the two days between his admission to Methodist Hospital and the filing of the commitment application on August

27. ^[14] Dr. Hawkins, the primary treating doctor, certified he examined E.S.R.

and diagnosed him with schizophrenia and other medical and mental illnesses.

Relying on E.S.R.’s father’s observations of E.S.R., particularly the threat to

kill his parents, Dr. Hawkins determined E.S.R. is “currently psychotic and

*12 cannot care for himself due to [his psychosis] or protect himself from danger.” ^[16]

Dr. Hawkins also stated, “[E.S.R.] is paranoid and delusional and disorganized

and as a result, he cannot care for himself or protect himself from danger[,]”

and there is “[n]o less restrictive means to ensure [E.S.R.’s] safety or the safety

of others.” ^[17]

Dr. Smith also examined E.S.R. on August 26 and diagnosed him with unspecified psychosis. ^[18] Dr. Smith relied on E.S.R.’s father’s observations that

E.S.R. asked for his gun, threatened to kill his parents, and “has been attempting

to break through doors at home.” ^[19] Dr. Smith found that “[E.S.R.] is

uncooperative with poor insight and judgment[,]” he is “[an] acute risk to

himself and others[,]” he is “psychotic with delusions and paranoia[,]” and he

“is likely to deteriorate further [without] treatment and hospitalization.” ^[20]

E.S.R.’s father filed both Drs. Hawkins’ and Smith’s certificates of medical

examination with the commitment application. ^[21]

*13 C. The Medication Petition

On September 2, 2015, Dr. Hawkins filed a petition to administer psychoactive medication to E.S.R. (medication petition). ^[22] In his petition, Dr.

Hawkins stated he diagnosed E.S.R. with schizophrenia, explaining E.S.R.

“appears delusional [and] disorganized and as a result, he cannot care for

himself, including making an informed decision on his own behalf.” ^[23]

Dr. Hawkins determined E.S.R. needed treatment with psychoactive medication, including antidepressants, antipsychotics, anxiolytics/sedatives/

hypnotics, and mood stabilizers. ^[24] E.S.R.’s prognosis with the proposed

treatment was “fair to good,” and the consequences without was “poor with

further deterioration.” ^[25] Dr. Hawkins considered group or individual therapy as

an alternative to medication, but the therapy was “not demonstrated to be

effective alone.”

*14 D. The Evidence Supporting the Commitment Application On September 3, 2015, the probate court heard the commitment application and the medication petition. ^[27] Counsel for the State began the

commitment hearing by asking E.S.R.’s counsel to stipulate to the facts in

E.S.R.’s father’s affidavit. E.S.R. interrupted and the court warned E.S.R. about

interrupting. No further discussion of or objection to the stipulation appears in

the record. ^[28]

The State also offered Dr. Hawkins’ testimony. He testified he had been working with E.S.R. for just over a week. ^[29] Despite E.S.R.’s lack of

participation in the examination, Dr. Hawkins testified E.S.R. suffers from a

chronic condition of either schizophrenia or schizoaffective disorder. ^[30] Dr.

Hawkins acknowledged E.S.R.’s long history of mental illness going back to

at least 1983. He described E.S.R.’s behaviors as “disorganized and outside

the norm,” finding E.S.R. suffers from “paranoid delusions”:

He has fear that people are hurting him. . . . [H]e’s concerned that folks are shooting [at] him. The family became concerned after [E.S.R.] requested they bring a firearm. He also has made threats *15 against the family . . . [and stated something like] if they had him committed to the psychiatric hospital that he would kill them or harm them in some way . . . ” ^[32]

Dr. Hawkins believed E.S.R. was capable of acting on the threats. ^[33]

While E.S.R. was in the hospital on the emergency detention order, Dr.

Hawkins observed E.S.R.’s “paranoia, believing things are happening that the

staff are not observing . . . ” ^[34] Dr. Hawkins testified E.S.R. has refused to

cooperate with the diagnosis and he refuses medication and some work at the

hospital. ^[35] Dr. Hawkins also testified E.S.R. is likely to cause serious harm to

either himself or others as a result of his mental illness. Dr. Hawkins’ primary

concerns were the likelihood E.S.R. would harm others and his ability to care

for himself. ^[36] According to Dr. Hawkins’ testimony, “[E.S.R.’s] level of

psychosis would make it difficult for him to care for himself and protect[]

himself and mak[e] sure to do the things he needs to do to live.” ^[37]

Dr. Hawkins also stated he believes E.S.R. would suffer severe and abnormal mental, emotional, and physical distress if he was released without

*16 treatment. ^[38] Dr. Hawkins did not believe E.S.R. could make decisions regarding

his own basic needs, including health and safety, or that E.S.R. was able to

make a rational and informed decision as to whether to commit to treatment. ^[39]

Dr. Hawkins recommended a “complete medical workup” and treatment. ^[40] He

opined, “I think if we can get his psychosis under control, he’d be more better

able to participate with us in evaluating his medical concerns . . . I do believe

that if we get him on medication, his symptoms will decrease and [he will] be

able to work with us . . . ” ^[41]

In response, E.S.R. testified that he disagreed with commitment and offered either to go to a hotel or to ask a friend to stay on his property. ^[42] E.S.R.

denied threatening to harm himself or his parents. ^[43] He admitted he tried to get

his gun for “self[-]defense” because “[he’s] been stalked and assaulted for a

number of times. [He] reported out to five police forces and gotten no actual

response or help from them.” ^[44] E.S.R. said that people tried to harm him during

*17 the entirety of his two years living in Austin, and that was a factor in his

decision to move to Houston. ^[45] He admitted he was committed to mental-health

services in Round Rock. ^[46] E.S.R. also testified that the manifestations of mental

illness are due to neurological issues, not psychological issues, but offered no

proof. ^[47] E.S.R. indicated he would consider neurological treatment, which Dr.

Hawkins testified was possible while committed. ^[48]

E. The Court Orders E.S.R. Temporarily Committed At the hearing, the probate court ordered E.S.R. temporarily committed for mental-health services (commitment order or judgment). ^[49] The court stated,

“the information that’s in the two doctors’ letters is very compelling, and . . . I

wouldn’t feel comfortable with myself if I did not commit [E.S.R] based upon

the second and third criteria for commitment.” ^[50] The court expressly found by

clear and convincing evidence that:

“[E.S.R.] is mentally ill and as . . . the result of that mental illness [1] is likely to cause harm to others; [and] [2](i) is suffering severe abnormal mental, emotional, or physical distress; (ii) is *18 experiencing substantial and mental or physical deterioration of his ability to function independently, except for reasons of indigence, to provide for [his] basic needs; including food, clothing, health, or safety; and (iii) is not able to make a rational and informed decision as to whether to submit to treatment.” ^[51] The court’s judgment committed E.S.R. to Methodist Hospital up to 90 days

for mental-health services. ^[52]

F. The Court Authorizes the Administration of Medication Immediately following the commitment hearing, the probate court heard the petition to authorize administration of psychoactive medication. ^[53] Again,

Dr. Hawkins and E.S.R. testified. Dr. Hawkins testified to his diagnosis of

schizophrenia or schizoaffective disorder and his prognosis that “with

medication, potentially, [E.S.R.] can do fairly well; without . . . I think the

outcome will be poor.” ^[54]

E.S.R. denied having any delusions and testified he refused to cooperate with Dr. Hawkins because he disagrees with the treatment plan. E.S.R. again

stated his condition was neurological, not psychological, and Dr. Hawkins

*19 replied that he is unaware of any neurological conditions that cause persistent

delusions. ^[56]

At the end of the hearing, the court authorized the administration of medication (medication order). ^[57] Recognizing the “serious problems set out in

the doctor’s letter[,]” the court reasoned that “Dr. Hawkins really has [E.S.R.’s]

best interest at heart[.]” ^[58] The court expressly relied on Dr. Hawkins’ testimony

and reasoned that “the medication sought to be administered is the least

invasive yet an effective form of treatment.” ^[59] The medication order authorized

Dr. Hawkins and Methodist Hospital to administer psychoactive medication to

E.S.R., and E.S.R. timely appealed both orders.

*20 S UMMARY OF THE A RGUMENT This appeal presents a fact-specific inquiry into the legal and factual sufficiency of two court orders. The probate court ordered E.S.R. temporarily

committed for mental-health services and authorized administration of

psychoactive medication. E.S.R. appeals both orders. But the evidence legally

and factually supports both orders.

To support a temporary commitment order, the State of Texas need only show the presence of one statutory criterion by clear and convincing evidence.

Here, the State showed two criteria: (1) E.S.R. was likely to harm others, and

(2) E.S.R. was in distress and his ability to function independently was

deteriorating.

The State showed E.S.R. threatened to kill his parents, requested his gun, hallucinated people were stalking and assaulting him through locked doors, and

had delusions about people shooting at him. This behavior began shortly after

E.S.R. moved to Houston from Austin to live with his parents, and just days

before E.S.R.’s father initiated these proceedings. The behavior continued

while he was in the hospital, where E.S.R. had paranoia, delusions, irritability,

and agitation.

In addition, Dr. Hawkins testified at trial about his opinions and their factual bases. Dr. Hawkins relied on E.S.R.’s father’s statements and his own

observations after treating E.S.R. for nearly a week. While E.S.R.’s verbal

threats to kill his parents are sufficient alone to support the commitment order,

the State offered other evidence tending to confirm E.S.R. was likely to cause

serious harm to others, he was distressed, and his ability to function was

deteriorating. Thus, the evidence is legally and factually sufficient to support

the order temporarily committing E.S.R. for mental-health services.

Because the temporary commitment order is valid, the order authorizing medication is also valid. E.S.R. only argues the medication order is invalid

based on his erroneous challenge to the commitment order. E.S.R. waived any

other argument. Because the commitment order is valid, the medication order

is also valid. Therefore, this Court should affirm both orders.

A RGUMENT

I. Standard of Review

When a party challenges the sufficiency of clear and convincing evidence, the appellate court considers whether the evidence “will produce in

the mind of the trier of fact a firm belief or conviction as to the truth of the

allegations . . . ” ^[61] When reviewing the factual sufficiency of the evidence, the

court considers “all the evidence to determine if it was sufficient to produce a

firm belief or conviction in the mind of the fact finder of the allegations

pleaded.” ^[62] When reviewing the legal sufficiency of the evidence, on the other

hand, the court considers “only the evidence and inferences tending to support

the finding, and [the court] disregard[s] all contrary evidence and inferences.”

If any probative evidence supports the finding, the court should uphold the

decision.

*23 II. The evidence is legally and factually sufficient to support the

temporary commitment order.

The temporary commitment order is valid. Section 574.034 of the Mental Health Code authorizes a court to order temporary, involuntary mental-health

services only if clear and convincing evidence shows a person is mentally ill

and, as a result, the person:

 is likely to cause serious harm to self;

 is likely to cause serious harm to others; or  is experiencing substantial mental or physical deterioration of the ability to function independently and is unable to decide whether to submit to treatment. ^[65]

To be clear and convincing, the evidence must include both (1) expert testimony supported by a factual basis and (2) evidence of a recent overt act or

continuing pattern of behavior tending to confirm one of the three criteria listed

above. ^[66] The court’s order must specify which criterion forms the basis of its

decision. Although the order may be based on more than one criteria, a valid

order requires only one. The overt act or continuing pattern of behavior must

*24 relate to the criterion specified in the order. ^[69] For example, there must be an

overt act showing a likelihood of harm to others if that is the specified criterion.

On appeal, E.S.R. challenges the State’s evidence on the two criteria the probate court found to support the judgment: (1) likelihood of seriously

harming others, and (2) distress and deterioration of E.S.R.’s ability to function.

E.S.R. does not dispute that:

 he is mentally ill; ^[70]  Dr. Hawkins’ qualifies as an expert, as stipulated by E.S.R.; and  the temporary commitment order expressly bases its decision on two criteria.

Thus, if the State’s evidence supports a showing of either (1) a likelihood of

serious harm to others or (2) distress and deterioration, then the commitment

order is valid.

*25 A. The State showed a recent overt act or continuing pattern of behavior tending to confirm the likelihood E.S.R. would seriously harm others.

The evidence was legally and factually sufficient to support finding E.S.R. was likely to seriously harm others. To satisfy this criterion, the State

must show a likelihood E.S.R. will seriously harm others. While the State

need not show actual harm to others, it must show more than the presence of

mental illness. For example, showing only that someone is intrusive and has

poor boundaries with others is not enough. But the Supreme Court in State v.

K.E.W. found the following overt acts sufficiently showed a likelihood K.E.W.

would seriously harm others:

 statements that he was assigned to impregnate specific women, including hospital workers and his stepdaughter;  statement seeking access to certain female hospital workers;  written plans detailing his mission and including names of specific women whom he firmly believed he must impregnate; and  verbal insistence on searching for the women.

*26 And this Court determined in G.H. v. State that G.H.’s threatening to kill hospital staff and throwing objects at workers were sufficient overt acts or

continuing patterns of behavior to support a commitment order. ^[76]

1. E.S.R.’s threats to kill his parents suffice alone.

Because the State must only show a likelihood of seriously harming others, E.S.R.’s threats to kill his parents is sufficient evidence of an overt act. ^[77]

A verbal threat is a sufficient overt act. ^[78] The Mental Health Code authorizes

commitment of a person whose statements “foreshadow violence.” ^[79]

E.S.R.’s father first claimed E.S.R. threatened to kill his parents in an affidavit supporting the commitment application. Dr. Hawkins’ testified about

the threat at the hearing. ^[80] His certificate of medical examination also partly

relied on the affidavit to conclude E.S.R. was psychotic and no less restrictive

means would ensure the safety of E.S.R. and others. ^[81] The probate court

*27 expressly relied on Dr. Hawkins certificate in finding E.S.R. is likely to cause

serious harm to others.

Although E.S.R. denied threatening anyone, the factfinder discredited his testimony because it is contradicted by other evidence. For example,

E.S.R.’s father and treating doctor both claimed E.S.R. made the threats. And

E.S.R.’s testimony admitting other bizarre behavior—such as requesting a gun

from his parents and hallucinating people were stalking and assaulting him—

shows E.S.R. is willing to concede some overt acts except the threats. E.S.R.

denied threatening to kill his parents because he does not want to be committed,

and the threat alone is sufficient to commit him. Thus, E.S.R.’s self-serving

testimony that he did not threaten his parents is inconsistent with other

evidence.

E.S.R. argues on appeal that the evidence was insufficient partly because Dr. Hawkins did not testify about the date E.S.R. threatened his family. But the

commitment application and affidavit show E.S.R. threatened his parents on

August 24, the day before he was detained on an emergency warrant and just

three days before his father initiated these proceedings. Dr. Hawkins also

testified the threats were made because E.S.R. did not want to be committed

*28 for psychiatric care. ^[84] That his father filed the application soon after E.S.R.

moved to his parents’ house shows the threats were made soon before the filing.

E.S.R. also argues Dr. Hawkins did not explain his diagnosis of schizophrenia or schizoaffective disorder. E.S.R. waived this argument by

failing to cross-examine Dr. Hawkins on it. And E.S.R. concedes he is mentally

ill. In any event, the alternate diagnosis is inconsequential because Dr.

Hawkins’ opinions were the same for either diagnosis—E.S.R.’s actions and

behavior show he is likely to harm others.

Thus, E.S.R.’s threat alone is sufficient to support the commitment order. 2. E.S.R. also requested the return of his gun and hallucinated people stalking and assaulting him.

In addition to threatening to kill his parents, E.S.R. also:  requested his parents return his gun; ^[85]

 thought he was being stalked and attacked through locked doors; ^[86]  thought he was being shot at; ^[87] and

 believed things were happening in the hospital that staff did not see, and otherwise behaved with paranoia, irritability, and agitation. *29 All of the evidence showed a sufficient overt act or continuing pattern of behavior tending to confirm the likelihood E.S.R. will seriously harm others.

Within a few weeks of moving to his parents’ house in Houston, E.S.R.’s

behavior caused his father to file the commitment application. Like K.E.W.’s

statements of impregnating women and his detailed plans and insistence on

searching for the women, E.S.R.’s overt acts and continuing patterns of

behavior support his temporary commitment. E.S.R. threatened to kill his

parents if they turned him in for psychiatric care, sought return of his gun,

hallucinated people were trying to harm him, and was irritable and agitated.

These actions and continuing patterns of behavior are the kinds that the Mental

Health Code seeks to address through temporary mental-health services.

E.S.R. argues that Dr. Hawkins did not testify to E.S.R.’s ownership, possession, custody, or control of a gun. But E.S.R.’s father’s affidavit stated

E.S.R. “requested the return of his gun . . . ” And the fact that E.S.R. lacked

possession, custody, and control of the gun confirms the likelihood he may

seriously harm someone: E.S.R.’s father knows E.S.R. and decided it best

E.S.R. not have access to the gun. For E.S.R.’s own health, safety, and

protection, the probate court ordered him committed for treatment. The

*30 commitment order is supported by legally and factually sufficient evidence, and

this Court should affirm it.

B. The State also showed a recent overt act or continuing pattern of behavior tending to confirm E.S.R.’s distress and the deterioration of his ability to function.

The State’s evidence of E.S.R.’s distress and deterioration of his ability to function was also sufficient to support the commitment order. Although

refusal of medication alone is insufficient, it may suffice if the State also shows

the necessary medication and the effect of the patient’s refusal to take it.

This was the fatal flaw in J.M. v. State , in which this Court found the evidence was legally and factually insufficient. Instead of showing what

medication is necessary to help J.M. and the effect of his refusal to take it, the

State argued that involuntary commitment and treatment was necessary

because J.M. would not voluntarily submit to it. Without evidence of the

necessary medication and the consequences of the refusal to take it, the J.M.

Court described this reasoning as tautological, and rejected it.

*31 In Goldwait v. State , on the other hand, this Court found the evidence sufficient to support a temporary commitment order. ^[93] In Goldwait , the

examining physician diagnosed Goldwait with paranoid schizophrenia and

recommended he not be released. The physician opined that Goldwait’s

judgment was impaired beyond his ability to function properly, he would

further deteriorate, and he was incapable of making a rational and informed

decision about the need for treatment. ^[94] Goldwait’s brother also testified about

“unnerving events,” including making disturbing phone calls and letters, selling

all of his belongings, losing contact with friends, appearing tired, claiming he

had been gassed and forced off the road recently, asking to remove his brother’s

blood, and continuing the bizarre behavior after coming to Houston with his

brother. ^[95] This Court found that these overt acts and continuing patterns of

behavior were sufficient to support the temporary commitment order. ^[96]

Here, the State showed E.S.R. refused medication, what medication was necessary, the effect of E.S.R.’s failure to take it, and other overt acts or

*32 continuing patterns of behavior tending to confirm E.S.R.’s distress and the

deterioration of his ability to function independently. Dr. Hawkins agreed that

E.S.R. should be treated with psychotic medication to begin improvement and

then reevaluate as necessary. ^[98] He stated the medicine would help treat E.S.R.’s

symptoms, such as being “disorganized and outside the norm” and suffering

paranoia, delusions, irritability, and agitation. ^[99] Each of these overt acts and

continuing patterns of behavior tend to confirm E.S.R.’s distress and the

deterioration of his ability to function at the time of the hearing, not at some

time in the future.

To the extent E.S.R. challenges the factual bases of Dr. Hawkins’ opinions, E.S.R. is mistaken. ^[100] Dr. Hawkins relied on the information in

E.S.R.’s father’s affidavit. Dr. Hawkins also relied on his experience treating

E.S.R. for almost a week at the time of the hearing. ^[101] He observed E.S.R. was

disorganized and outside the norm, suffered paranoia, delusions, irritability,

and agitation. E.S.R. also refused to cooperate with Dr. Hawkins’ evaluation

*33 and refused medication. ^[103] E.S.R. pleads “the Fifth” when Dr. Hawkins

questions him about his delusions. ^[104]

Thus, the State’s evidence was sufficient to show an overt act or continuing pattern of behavior tending to confirm E.S.R.’s distress and the

deterioration of his ability to function independently. Because the commitment

order was valid, this Court should affirm it.

III. Because the temporary commitment order is valid, the order

authorizing administration of psychoactive medication is also valid. E.S.R. challenges the medication order on one ground: that its validity depends on the validity of the commitment order, which E.S.R. disputes. A

court may only authorize administration of psychoactive medication in limited

circumstances, such as when a person is under a valid temporary commitment

order. When a party solely relies on its argument against the validity of a

commitment order to argue that a dependent medication order is invalid, and

an appellate court upholds the commitment order, the appellate court should

also uphold the medication order.

*34 On appeal, E.S.R. only challenges the validity of the medication order on the erroneous ground the commitment order is invalid. He waived any

other argument not raised in his appellate brief. Therefore, because the

commitment order was valid, this Court should also affirm the medication

order.

*35 C ONCLUSION & P RAYER E.S.R.’s behavior is the kind the Legislature intended to commit a person for temporary, involuntary mental-health services under the Mental Health

Code. The Legislature has limited this remedy to three narrow circumstances

primarily involving the health and safety of the mentally ill person and others.

E.S.R. threatened to kill his parents, requested they return his gun, and

hallucinated and deluded about people stalking and assaulting him. This is the

kind of behavior warranting temporary commitment to protect the health and

safety of E.S.R. and others. Because the evidence is sufficient, this Court

should affirm the final judgment and medication order.

Respectfully submitted, V INCE R YAN Harris County Attorney /s/ Keith A. Toler K EIT H A. T OLER Assistant County Attorney State Bar No. 24088541 H ARRIS C OUNTY A TTORNEY ’ S O FFICE 1019 Congress, 15th Floor Houston, Texas 77002 Phone: (713) 274-5265 Fax: (713) 755-8924 Email: Keith.Toler@cao.hctx.net Counsel for Appellee State of Texas *36 C ERTIFICATE OF C OMPLIANCE I certify that this document was produced on a computer using Microsoft Word and contains 4,765 words, as determined by the computer software’s

word-count function, excluding the portions of the document exempted by

Texas Rule of Appellate Procedure 9.4(i)(1). I further certify that the form of

this brief meets the requirements of Texas Rule of Appellate Procedure 9.4.

/s/ Keith A. Toler K EIT H A. T OLER Counsel for Appellee C ERTIFICATE OF S ERVICE I certify that on December 21, 2015, I served a true and correct copy of this brief on Michael Scott Thomas, counsel for Appellant, by electronic

transmission via the electronic filing manager or by email.

Michael Scott Thomas

Thomas & Williams, L.L.P.

2626 S. Loop West, Suite 561

Houston, Texas 77054

mstlawyer@aol.com

Counsel for Appellant

/s/ Keith A. Toler K EIT H A. T OLER Counsel for Appellee *37 No. 01-15-00784-CV

__________ I N THE F IRST C OURT OF A PPEALS H OUSTON , T EXAS

__________

I N THE I NTEREST OF E.S.R.

__________ On Appeal from Probate Court No. 4 Harris County, Texas, Cause No. I-218340 A PPELLEE ’ S A PPENDIX ______________________________________________________________

List of Documents

1) Texas Health & Safety Code § 574.034 ..........................................Tab 1

2) Texas Health & Safety Code § 574.106 ..........................................Tab 2

TAB #1

§ 574.034. Order for Temporary Mental Health Services, TX HEALTH & S § 574.034

KeyCite Yellow Flag - Negative Treatment

Proposed Legislation

(a) The judge may order a proposed patient to receive court-ordered temporary inpatient mental

health services only if the judge or jury finds, from clear and convincing evidence, that:

(1) the proposed patient is a person with mental illness ; and

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

(A) is likely to cause serious harm to the proposed patient ;

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

(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, © 2015 Thomson Reuters. No claim to original U.S. Government Works. ^[1] *40 § 574.034. Order for Temporary Mental Health Services, TX HEALTH & S § 574.034

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.

(b) The judge may order a proposed patient to receive court-ordered temporary outpatient mental

health services only if:

(1) the judge finds that appropriate mental health services are available to the proposed patient;

and

(2) the judge or jury finds, from clear and convincing evidence, that:

(A) the proposed patient is a person with mental illness ;

(B) the nature of the mental illness is severe and persistent;

(i) suffer severe and abnormal mental, emotional, or physical distress; and

(ii) experience deterioration of the ability to function independently to the extent that the

proposed patient will be unable to live safely in the community without court-ordered

outpatient mental health services; and

(D) the proposed patient has an inability to participate in outpatient treatment services

effectively and voluntarily, demonstrated by:

(i) any of the proposed patient's actions occurring within the two-year period which

(ii) specific characteristics of the proposed patient's clinical condition that make impossible

a rational and informed decision whether to submit to voluntary outpatient treatment.

by Subsection (a), the judge or jury must specify which criterion listed in Subsection (a)(2) forms

the basis for the decision.

(d) 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:

(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.

(e) To be clear and convincing under Subdivision (b)(2), 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 proposed patient's distress;

(2) the deterioration of ability to function independently to the extent that the proposed patient

will be unable to live safely in the community; and

(3) the proposed patient's inability to participate in outpatient treatment services effectively and

voluntarily.

(f) The proposed patient and the proposed patient's attorney, by a written document filed with

the court, may waive the right to cross-examine witnesses, and, if that right is waived, the

court may admit, as evidence, the certificates of medical examination for mental illness. The

certificates admitted under this subsection constitute competent medical or psychiatric testimony,

and the court may make its findings solely from the certificates. If the proposed patient and the

proposed patient's attorney do not waive in writing the right to cross-examine witnesses, the court

shall proceed to hear testimony. The testimony must include competent medical or psychiatric

testimony. In addition, the court may consider the testimony of a nonphysician mental health

professional as provided by Section 574.031(f).

(g) An order for temporary inpatient or outpatient mental health services shall state that treatment

is authorized for not longer than 90 days. The order may not specify a shorter period.

(h) A judge may not issue an order for temporary inpatient or outpatient mental health services for

a proposed patient who is charged with a criminal offense that involves an act, attempt, or threat

of serious bodily injury to another person.

(i) Repealed by Acts 2013, 83rd Leg., ch. 1170 (S.B. 646), § 11.

Credits

Added by Acts 1991, 72nd Leg., ch. 76, § 1, eff. Sept. 1, 1991. Amended by Acts 1993, 73rd Leg.,

ch. 107, § 6.49, eff. Aug. 30, 1993; Acts 1995, 74th Leg., ch. 770, § 7, eff. June 16, 1995; Acts

1997, 75th Leg., ch. 744, § 5, eff. Sept. 1, 1997; Acts 2013, 83rd Leg., ch. 1170 (S.B. 646), § 11,

eff. Sept. 1, 2013; Acts 2015, 84th Leg., ch. 1 (S.B. 219), § 3.1379, eff. April 2, 2015.

V. T. C. A., Health & Safety Code § 574.034, TX HEALTH & S § 574.034

Current through the end of the 2015 Regular Session of the 84th Legislature

§ 574.106. Hearing and Order Authorizing Psychoactive..., TX HEALTH & S §...

(a) The court may issue an order authorizing the administration of one or more classes of

psychoactive medication to a patient who:

(1) is under a court order to receive inpatient mental health services; or

(2) is in custody awaiting trial in a criminal proceeding and was ordered to receive inpatient

mental health services in the six months preceding a hearing under this section.

(a-1) The court may issue an order under this section only if the court finds by clear and convincing

evidence after the hearing:

(1) that the patient lacks the capacity to make a decision regarding the administration of the

proposed medication and treatment with the proposed medication is in the best interest of the

patient; or

(2) if the patient was ordered to receive inpatient mental health services by a criminal court with

jurisdiction over the patient, that treatment with the proposed medication is in the best interest of

the patient and either:

(A) the patient presents a danger to the patient or others in the inpatient mental health facility in

which the patient is being treated as a result of a mental disorder or mental defect as determined

under Section 574. 1065; or

(B) the patient:

(i) has remained confined in a correctional facility, as defined by Section 1.07, Penal Code, for a

period exceeding 72 hours while awaiting transfer for competency restoration treatment; and

(ii) presents a danger to the patient or others in the correctional facility as a result of a mental

disorder or mental defect as determined under Section 574.1065.

(b) In making the finding that treatment with the proposed medication is in the best interest of the

patient, the court shall consider:

(1) the patient's expressed preferences regarding treatment with psychoactive medication;

(2) the patient's religious beliefs;

(3) the risks and benefits, from the perspective of the patient, of taking psychoactive medication;

(4) the consequences to the patient if the psychoactive medication is not administered;

(5) the prognosis for the patient if the patient is treated with psychoactive medication;

(6) alternative, less intrusive treatments that are likely to produce the same results as treatment

with psychoactive medication; and

(7) less intrusive treatments likely to secure the patient's agreement to take the psychoactive

with probate jurisdiction, except as provided by Subsection (d).

(d) A judge may refer a hearing to a magistrate or court-appointed associate judge who has training

regarding psychoactive medications. The magistrate or associate judge may effectuate the notice,

set hearing dates, and appoint attorneys as required in this subchapter. A record is not required if

the hearing is held by a magistrate or court-appointed associate judge.

(e) A party is entitled to a hearing de novo by the judge if an appeal of the magistrate's or associate

judge's report is filed with the court within three days after the report is issued. The hearing de novo

shall be held within 30 days of the filing of the application for an order to authorize psychoactive

medication.

(f) If a hearing or an appeal of an associate judge's or magistrate's report is to be held in a county

court in which the judge is not a licensed attorney, the proposed patient or the proposed patient's

attorney may request that the proceeding be transferred to a court with a judge who is licensed to

practice law in this state. The county judge shall transfer the case after receiving the request, and

the receiving court shall hear the case as if it had been originally filed in that court.

(g) As soon as practicable after the conclusion of the hearing, the patient is entitled to have provided

to the patient and the patient's attorney written notification of the court's determinations under this

section. The notification shall include a statement of the evidence on which the court relied and

the reasons for the court's determinations.

(h) An order entered under this section shall authorize the administration to a patient, regardless of

the patient's refusal, of one or more classes of psychoactive medications specified in the application

and consistent with the patient's diagnosis. The order shall permit an increase or decrease in a

medication's dosage, restitution of medication authorized but discontinued during the period the

order is valid, or the substitution of a medication within the same class.

(i) The classes of psychoactive medications in the order must conform to classes determined by

the department.

(j) An order issued under this section may be reauthorized or modified on the petition of a party.

The order remains in effect pending action on a petition for reauthorization or modification. For

the purpose of this subsection, “modification” means a change of a class of medication authorized

in the order.

(k) This section does not apply to a patient who receives services under an order of protective

custody under Section 574.021.

(l) For a patient described by Subsection (a-1)(2)(B), an order issued under this section:

(1) authorizes the initiation of any appropriate mental health treatment for the patient awaiting

transfer; and

(2) does not constitute authorization to retain the patient in a correctional facility for competency

restoration treatment.

Credits

Added by Acts 1993, 73rd Leg., ch. 903, § 1.08, eff. Aug. 30, 1993. Amended by Acts 1995,

74th Leg., ch. 770, § 12, eff. June 16, 1995; Acts 2005, 79th Leg., ch. 717, § 3, 4, eff. June 17,

2005; Acts 2009, 81st Leg., ch. 334, § 8, eff. Sept. 1, 2009; Acts 2009, 81st Leg., ch. 624, § 1,

eff. June 19, 2009.

V. T. C. A., Health & Safety Code § 574.106, TX HEALTH & S § 574.106

Current through the end of the 2015 Regular Session of the 84th Legislature

[1] C.R. at 8, 14.

[2] C.R. at 19.

[3] C.R. at 26, 27.

[4] C.R. at 6.

[5] E.g. , C.R. at 8; R.R. at 13:24 – 14:1.

[6] C.R. at 8; R.R. at 15:10–17, 17:24 – 18:2.

[7] C.R. at 10; R.R. at 7:22 – 8:6.

[8] C.R. at 10; R.R. at 7:22 – 8:6.

[9] C.R. at 12, 13, 14.

[10] C.R. at 12, 15.

[11] C.R. at 8.

[12] C.R. at 8.

[13] C.R. at 10.

[14] C.R. at 9, 15. See also C.R. at 8, 12.

[15] C.R. at 9.

[16] C.R. at 9.

[17] C.R. at 9.

[18] C.R. at 15.

[19] C.R. at 15.

[20] C.R. at 15.

[21] C.R. at 8, 9, 15.

[22] C.R. at 19–20.

[23] C.R. at 19.

[24] C.R. at 19.

[25] C.R. at 19.

[26] C.R. at 20.

[27] See R.R. at 1.

[28] R.R. at 4:23 – 5:17.

[29] R.R. at 6:8–10.

[30] R.R. at 6:16–23.

[31] R.R. at 7:3–8.

[32] R.R. at 7:15 – 8:6.

[33] R.R. at 11:3–5.

[34] R.R. at 8:7–9.

[35] R.R. at 6:20–23, 9:3–16.

[36] R.R. at 10:19–25.

[37] R.R. at 10:22–25.

[38] R.R. at 11:6–9.

[39] R.R. at 11:10–20.

[40] R.R. at 11:21–24.

[41] R.R. at 11:25 – 12:5.

[42] R.R. at 13:14–23.

[43] R.R. at 14:12–16.

[44] R.R. at 14:17–24.

[45] R.R. at 15:10–21.

[46] R.R. at 15:21–23.

[47] R.R. at 16:21 – 17:23.

[48] R.R. 18:11–16, 20:14 – 21:11.

[49] R.R. at 23:3–14. See also C.R. at 27.

[50] R.R. at 23:5–10.

[51] C.R. at 27.

[52] C.R. at 27.

[53] R.R. at 23.

[54] R.R. at 23:19–23, 24:20–24.

[55] R.R. at 27:6–15, 29:20–24.

[56] R.R. at 26:5–16, 27:16–19.

[57] R.R. at 32:16–17. See also C.R. at 26.

[58] R.R. at 28:25 – 29:2, 32:23–24.

[59] C.R. at 26.

[60] C.R. at 6, 26.

[61] State v. K.E.W. , 315 S.W.3d 16, 20 (Tex. 2010) (citations omitted).

[62] M.S. v. State , 137 S.W.3d 131, 135 (Tex. App-Houston [1st Dist.] 2004, no pet.) (citations omitted).

[63] Id. (citations omitted). See also K.E.W. , 315 S.W.3d at 20.

[64] M.S. , 137 S.W.3d at 135 (citations omitted).

[65] Tex. Health & Safety Code Ann. § 574.034(a) (West 2015).

[66] Tex. Health & Safety Code Ann. § 574.034(d) (West 2015).

[67] Tex. Health & Safety Code Ann. § 574.034(c) (West 2015).

[68] Mezick v. State , 920 S.W.2d 427, 431 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (citations omitted) (finding that because one statutory criterion was met, reviewing court was not required to decide whether second criterion met).

[69] J.M. v. State , 178 S.W.3d 185, 193 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citations omitted).

[70] Appellant’s Brief at p. 11.

[71] R.R. at 6:4–7.

[72] C.R. at 27.

[73] K.E.W. , 315 S.W.3d at 22–23 (citing Tex. Health & Safety Code Ann. § 574.034(d) (West 2015)). See also State ex. rel. E.R. , 287 S.W.3d 297, 305 (Tex. App.—Texarkana 2013, no pet.).

[74] M.S. , 137 S.W.3d at 137.

[75] K.E.W. , 315 S.W.3d at 26.

[76] G.H. v. State , Nos. 01-13-00422-CV, 01-13-00423-CV, 2013 WL 5613457, at *6 (Tex. App.—Houston [1st Dist.] Oct. 10, 2013, no pet.).

[77] K.E.W. , 315 S.W.3d at 22–23 (citing Tex. Health & Safety Code Ann. § 574.034(d) (West 2015)).

[78] K.E.W. , 315 S.W.3d at 26.

[79] G.H. , 2013 WL 5613457, at *4.

[80] E.g. , R.R. at 8:1–6.

[81] R.R. at 7:22 – 8:9; C.R. at 9.

[82] R.R. at 23:5–7.

[83] C.R. at 10. See also C.R. at 8, 12.

[84] R.R. at 7:21 – 8:6.

[85] E.g. , C.R. at 10; R.R. at 7:24–25, 8:15–16.

[86] E.g. , C.R. at 10; R.R. at 7:20–22, 8:16–17.

[87] R.R. at 7:21–25.

[88] R.R. at 8:7–9.

[89] See supra text accompanying note 75.

[90] C.R. at 10. See also R.R. at 8:15–16.

[91] See J.M. , 178 S.W.3d at 194–95 (citations omitted).

[92] Id. See also K.T. v. State , 68 S.W.3d 887, 893 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (finding patient’s leaving hospital did no more than demonstrate she did not wish to be treated or to remain at hospital).

[93] Goldwait v. State , 961 S.W.2d 432, 435–36 (Tex. App.—Houston [1st Dist.] 1997, no writ) (citations omitted).

[94] Id. at 435.

[95] Id.

[96] Id. (citations omitted).

[97] R.R. at 6:11–22, 9:3 – 10:12. See also C.R. at 19.

[98] C.R. at 19; R.R. at 9:17 – 10:12.

[99] R.R. at 7:15–21, 8:7–9, 9:17–23.

[100] See K.T. , 68 S.W.3d at 893–94.

[101] R.R. at 6:8–10, 7:22 – 8:6.

[102] R.R. at 7:15–21, 8:7–9, 9:17–23.

[103] R.R. at 6:20–22, 9:15–16.

[104] R.R. at 8:17–22.

[105] Tex. Health & Safety Code Ann. § 574.106(a) (West 2015).

[106] K.E.W. , 315 S.W.3d at 26.

[107] Appellant’s Brief at pp. 15–16.

[108] E.g. , Hagberg v. City of Pasadena , 224 S.W.3d 477, 480–81 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citations omitted).

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