State ( 2007 )

                                                                                                        NO. 12-06-00423-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 F.B.         §                      CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

            F.B. appeals from an order authorizing the administration of psychoactive medication-forensic.  In his sole issue, F.B. argues that the trial court erred in granting the order based upon the United States Supreme Court’s opinion in Sell v. United States, 539 U.S. 166, 123 S. Ct. 2174, 156 L. Ed. 2d 197 (2003).  We reverse and render.

Background

            On December 11, 2006, Dr. Sethurama Srinivasan filed an application for an order to administer psychoactive medication-forensic to F.B.  In the application, Srinivasan stated that F.B. was subject to an order dated November 29, 2006 for court ordered inpatient mental health services under Chapter 46B of the Texas Code of Criminal Procedure because he had been found incompetent to stand trial.  Srinivasan stated that F.B. had been diagnosed with schizophrenia and wanted the trial court to compel F.B. to take four psychoactive medications: an antidepressant, an anxoilytic/sedative/hypnotic, a mood stabilizer, and an antipsychotic. Srinivasan stated that F.B. verbally refused to take the medications voluntarily and that he believed F.B. lacked the capacity to make a decision regarding administration of psychoactive medications because he was psychotic.

            Srinivasan determined that the proposed medications were the proper course of treatment for F.B. and that if he were treated with the medications his prognosis would be fair.  However, Srinivasan believed that if F.B. was not administered the medications, his mental health would deteriorate.  Srinivasan considered other medical alternatives to psychoactive medication, but determined that those alternatives would not be as effective. He also considered less intrusive treatments likely to secure F.B.’s agreement to take the psychoactive medications. Finally, Srinivasan believed that the benefits of the psychoactive medications outweighed the risks in relation to present medical treatment and F.B.’s best interest.

            On December 15, the trial court held a hearing on the application.  Srinivasan testified that he was F.B.’s treating physician and that F.B. was currently under court ordered mental health services under Chapter 46B because he had been found incompetent to stand trial.  Srinivasan stated that F.B. verbally or otherwise refused to accept medications voluntarily and that he believed F.B. lacked the capacity to make a decision regarding the administration of psychoactive medications. Srinivasan stated that he completed the application for psychoactive medications and that F.B. suffered from schizophrenia.  He testified that the classifications of medications listed in the exhibit attached to the application were in the proper course of treatment and that treatment with these medications was in F.B.’s best interest. Srinivasan stated that F.B. would likely benefit from the use of these medications, that the benefits outweighed the risks, and that F.B.’s hospital stay would likely be shortened.  He also stated that F.B. was transferred to the hospital on November 29, 2006.

            On cross examination, Srinivasan stated that he had F.B.’s medical records in his possession at the hearing and that he normally relied upon these records in making his determination regarding medication. Further, he admitted that he was the custodian of F.B.’s medical records and that these records were made at or near the time of the incident by someone with knowledge of the incident. Under the section of F.B.’s medical records marked “prior summaries,” Srinivasan stated that this hearing was based upon the fact that F.B. had been charged with possession of marijuana, less than two ounces.  The records also indicated that the charge was a Class B misdemeanor and that F.B. had been arrested on June 15, 2006.  Srinivasan also acknowledged that the psychiatric evaluation was filed with the court on September 11, 2006.

            Srinivasan stated that he spoke to F.B. regarding the use of medications and that, initially, F.B. agreed to take the medications. After a few days, F.B. withdrew his consent.  Since withdrawing his consent, F.B.’s condition had deteriorated.  Srinivasan stated that F.B. was under a 120 day commitment and that he did not expect F.B. to become competent without medication. Srinivasan believed that with medication, F.B. could be released after four to six weeks.

            At the beginning of Srinivasan’s cross examination, the trial court noted that F.B. had been constantly talking loudly and interrupting his counsel’s questioning.  Shortly thereafter, the trial court again noted that F.B. had been speaking out and disturbing the proceedings.  The trial court ordered that F.B. be taken out of the courtroom, stating that no one could hear because of his constant loud talking.  The trial court ordered that F.B. be put in a chair where he could see what was occurring in the courtroom, but far enough away that his loud talking would not interrupt the proceedings.

            Before closing, F.B. moved for directed verdict based upon Sell v. United States, 539 U.S. 166, 123 S. Ct. 2174, 156 L. Ed. 2d 197 (2003).  F.B. stated that there was no governmental interest in medicating him because the sentence for a Class B misdemeanor was a maximum of six months confinement.  The trial court took judicial notice that there was a governmental interest in convicting F.B. because the offense was enhanced, noting that “they become multiple offenses.”¹ Thus, the trial court denied F.B.’s motion.

            On December 15, 2006, after considering all the evidence, including the application and the expert testimony, the trial court found that the allegations in the application were true and correct and supported by clear and convincing evidence.  The trial court found that F.B. lacked the capacity to make a decision regarding administration of medications and that treatment with the proposed medication was in F.B.’s best interest.  The trial court authorized the Texas Department of State Health Services to administer F.B. psychoactive medications, including antidepressants, antipsychotics, mood stabilizers, and anxiolytics/sedatives/hypnotics.  This appeal followed.

Involuntary Administration of Psychoactive Medications

            In his sole issue, F.B. argues that the trial court erred in granting the order authorizing administration of psychoactive medication-forensic.  More specifically, F.B. contends that the State had no important governmental interest in medicating him.  He further contends that if important government interests are at stake, involuntary medication will not significantly further those interests, involuntary medication is not necessary to further those interests, and administration of the drugs is not medically appropriate and in F.B.’s best medical interest.

Applicable Law

            An individual has a constitutionally protected liberty interest in avoiding the involuntary administration of antipsychotic drugs.  Sell, 539 U.S. at 178, 123 S. Ct. at 2183; United States v. Leveck-Amirmokri, No. EP-04-CR-0961-DB, 2005 WL 1009791, at *3 (W.D. Tex. Mar. 10, 2005). The United States Constitution permits the government to involuntarily administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant “competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.”  Sell, 539 U.S. at 179, 123 S. Ct. at 2184.  In applying the above standard, a court must (1) find that important governmental interests are at stake, (2) conclude that involuntary medication will significantly further those concomitant state interests, (3) conclude that involuntary medication is necessary to further those state interests, and (4) conclude that administration of the drugs is medically appropriate.  Id., 539 U.S. at 180-81, 123 S. Ct. at 2184-85.  A court need not consider whether to allow forced medication for purposes of rendering the defendant competent to stand trial if forced medication is warranted for a different purpose, such as the defendant’s dangerousness or where refusal to take drugs puts the defendant’s health at risk.  Id., 539 U.S. at 181-82, 123 S. Ct. at 2185.

Analysis

            As an initial matter, we note that there is no evidence that F.B. was dangerous to himself or others.  The trial court found that F.B. lacked the capacity to make a decision regarding administration of medications, not that he was a danger to himself or others.  The trial court also found that treatment with the proposed medication was in F.B.’s best interest, but there was no testimony or finding that his health was at risk if he did not take the proposed medications. Therefore, under Sell, we must determine whether the involuntary administration of psychoactive drugs to F.B. in order to render him competent to stand trial was constitutionally permissible.  See id., 539 U.S. at 179, 123 S. Ct. at 2184.

            Under the first component of the Sell standard, we must determine if there were important governmental interests at stake that necessitate the involuntary administration of these drugs to F.B. See id., 539 U.S. at 180, 123 S. Ct. at 2184.  The government’s interest in bringing to trial an individual accused of a serious crime is important, whether the offense is a serious crime against persons or property.  See id., 539 U.S. at 180, 123 S. Ct. at 2184. Thus, the relevant question becomes what constitutes a “serious crime.”  See United States v. Barajas-Torres, No. CRIM.EP-03-CR-2011KC, 2004 WL 1598914, at *2  (W.D. Tex. July 1, 2004).  When addressing other constitutional issues, the United States Supreme Court and the Texas Supreme Court have defined a “serious offense” as one for which a defendant may be sentenced to imprisonment for more than six months.  See Baldwin v. New York, 399 U.S. 66, 69, 90 S. Ct. 1886, 1888, 26 L. Ed. 2d 437 (1970) (determining whether defendant had a right to a jury trial); Ex parte Werblud, 536 S.W.2d 542, 547 (Tex. 1976)(determining whether relator had a right to a jury trial in a contempt hearing).

            According to Srinivasan’s records, F.B. was charged with possession of marijuana of two ounces or less, a Class B misdemeanor.²  If convicted, F.B. may be punished by confinement in jail for a term not to exceed 180 days, or six months.³  Because F.B.’s potential punishment was not more than six months of confinement, the crime F.B. is charged with is not a “serious crime.”  See Baldwin, 399 U.S. at 69, 90 S. Ct. at 1888; Ex parte Werblud, 536 S.W.2d at 547.  We note that the trial court stated that F.B.’s offense was enhanced and that “they become multiple offenses.”  However, nothing in the record supports the trial court’s comments.  Thus, we conclude that no important governmental interests were at stake in involuntarily administering antipsychotic drugs to F.B. in order to render him competent to stand trial.  See Sell, 539 U.S. at 179, 123 S. Ct. at 2184. Because the State failed to satisfy the first component of the Sell standard, we need not consider the remaining three elements. Accordingly, F.B.’s sole issue is sustained.

Conclusion

            Based upon our review of the record, we conclude that the State failed to show that there were important governmental interests at stake in involuntarily administering psychoactive drugs to F.B. in order to render him competent to stand trial.

            We reverse the trial court’s order authorizing the administration of psychoactive medication-forensic.  We render judgment denying the State’s application for an order to administer psychoactive medication-forensic.

                                                                                                    SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered July 31, 2007.

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

(PUBLISH)

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¹ The trial court did not elaborate on why the Class B misdemeanor charge was enhanced nor did it explain how the offense against F.B. became “multiple offenses.”

² See Tex. Health & Safety Code Ann. § 481.121(a), (b)(1) (Vernon 2003).

³ See Tex. Penal Code Ann. § 12.22 (Vernon 2003).