in the Matter D.S. ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00446-CV
IN THE MATTER D.S.
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FROM THE PROBATE COURT OF DENTON COUNTY
TRIAL COURT NO. MH-2017-493
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MEMORANDUM OPINION1
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In three issues, Appellant D.S. challenges the legal and factual sufficiency
of the evidence to support an order authorizing the administration of
psychoactive medication. We will reverse and remand.
By an order signed on August 22, 2017, and pursuant to code of criminal
procedure article 46B.073, the trial court ordered D.S. committed to an inpatient
mental health facility for the purpose of attaining competency to stand trial for the
felony offense of stalking. See Tex. Code Crim. Proc. Ann. art. 46B.073(b) (West
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See Tex. R. App. P. 47.4.
Supp. 2017). On November 21, 2017, Carmen Llauger-Mier, M.D. filed an
application seeking an order to authorize the administration of psychoactive
medication to D.S. See Tex. Health & Safety Code Ann. § 574.104(a) (West
2017). Among other things, Dr. Llauger-Mier indicated in the application that
D.S. “has poor insight,” “does not believe she is mentally ill,” “suffer[s] grandiose
and paranoid delusions,” and had recently exhibited aggressive and assaultive
behavior.
The trial court appointed D.S. counsel and signed an order on November
27, 2017, authorizing the mental health facility to administer psychoactive
medication to her. However, at D.S.’s requests, the trial court stayed its order
and granted D.S. a de novo hearing on Dr. Llauger-Mier’s application. At the
conclusion of a hearing on December 11, 2017, at which both Dr. Llauger-Mier
and D.S. testified, the trial court rendered judgment in favor of the State,
expressly finding that a criminal court had ordered D.S. to receive inpatient
mental health services for the purpose of restoring her competency, that D.S.
presented a danger to herself or to others at the inpatient mental health facility
where she was being treated, and that the treatment is in D.S.’s best interest.
D.S.’s three issues raise evidentiary-sufficiency complaints. The State’s
burden of proof under health and safety code section 574.106 is clear and
convincing evidence. See Tex. Health & Safety Code Ann. § 574.106(a-1) (West
2017). Clear and convincing evidence is that measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of
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the allegations sought to be established. Tex. Civ. Prac. & Rem. Code Ann.
§ 41.001(2) (West Supp. 2017); Tex. Fam. Code Ann. § 101.007 (West 2014); U-
Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012); State v. K.E.W., 315
S.W.3d 16, 20 (Tex. 2010).
In evaluating the evidence for legal sufficiency, we must determine
whether the evidence is such that a factfinder could reasonably form a firm belief
or conviction that its finding was true. K.E.W., 315 S.W.3d at 20; Columbia Med.
Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008), cert.
denied, 290 S.W.3d 873 (2009). We review all the evidence in the light most
favorable to the finding. Waldrip, 380 S.W.3d at 138; Hogue, 271 S.W.3d at 248.
We resolve any disputed facts in favor of the finding if a reasonable factfinder
could have done so. K.E.W., 315 S.W.3d at 20; Hogue, 271 S.W.3d at 248. We
disregard all evidence that a reasonable factfinder could have disbelieved.
Hogue, 271 S.W.3d at 248.
In evaluating the evidence for factual sufficiency, we determine whether,
on the entire record, a factfinder could reasonably form a firm conviction or belief
that its finding was true. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). If, in
light of the entire record, the disputed evidence that a reasonable factfinder could
not have credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction in the truth of its finding, then
the evidence is factually insufficient. Id.
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The findings made by the trial court at the conclusion of the hearing on
December 11, 2017, align with health and safety code subsections 574.106(a)(2)
and (a-1)(2)(A). Under subsection (a)(2), a court may issue an order authorizing
the administration of psychoactive medication to a patient who “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.”
Tex. Health & Safety Code Ann. § 574.106(a)(2). Under subsection (a-1)(2)(A), if
a criminal court ordered the patient to receive inpatient mental health services to
restore her competency, then to issue an order authorizing psychoactive
medication, a court must find by clear and convincing evidence, after a hearing,
(1) that treatment with the proposed medication is in the patient’s best interest
and (2) that the patient presents a danger to herself or to others in the inpatient
mental health facility where she is being treated. Id. § 574.106(a-1)(2)(A).
D.S. argues in her first and second issues that the evidence admitted at
the hearing on Dr. Llauger-Mier’s application was legally and factually insufficient
to prove that a criminal court had ordered her to receive inpatient mental health
services. See id. § 574.106(a)(2), (a-1)(2)(A).
The trial court took judicial notice of the documents contained in the case
file, including the August 22, 2017 order from the 16th District Court committing
D.S. to an inpatient mental health facility for the purpose of attaining competency
to stand trial, titled “Order Defendant Incompetent with a Probability of
Recovery.” Although the trial court could not have judicially noticed the truth of
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any factual statements contained in the filings, it certainly could have taken
judicial notice that the file contained an order signed by a court committing D.S.
to a mental health facility to regain competency. See In re Houston Cty. ex rel.
Session, 515 S.W.3d 334, 343 n.8 (Tex. App.—Tyler 2015, orig. proceeding).
The State also elicited testimony from Dr. Llauger-Mier that D.S. was
involuntarily committed for the purpose of regaining competency pursuant to
chapter 46B of the code of criminal procedure:
Q. When you’re talking about forensic unit, what are you
referring to when you’re talking about forensics?
A. They are 46B’s. They have criminal charges, whether
it’s a misdemeanor or a major case.
Q. So on your unit you treat both individuals there under a
civil commitment as well as a 46B criminal commitment?
A. Yes.
Q. Okay. You’re familiar with the patient by the initials of
D.S.; is that correct?
A. Yes, I am, sir.
Q. And how are you familiar with the patient with the initials
of D.S.?
A. Ms. D.S. . . . was transferred to us from the geriatric
unit.
Q. Okay. A little background. Was D.S. . . . originally
committed to North Texas State Hospital for a civil commitment or a
criminal commitment under 46B?
A. Under 46B, criminal commitment.
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Q. As far as your work there on the unit, are 46B’s -- why is
somebody there on a 46B commitment?
A. When they’re deemed incompetent in jail to stand trial,
they are sent to North Texas State Hospital in this case because
they can’t be sent to any other state hospitals to regain competency.
Q. Is there -- does their treatment differ from somebody
who’s there under a civil treatment?
A. The people that are there on the civil commitment --
they’re there to treat only the mental illness. They don’t have to
become competent. They become competent because we clear the
mental status and the psychosis or the mania or both in that case.
But the ones that are on criminal, on the 46B -- they have to become
competent so they can help their lawyer in their case so they can
stand for trial and go on with their life.2
As the trial court is well aware, chapter 46B covers incompetency to stand
trial, including the procedures to be followed after a determination of
incompetency, which includes commitment to a mental health facility for
competency restoration services. See Tex. Code Crim. Proc. Ann. arts.
46B.001‒.171 (West 2006 & Supp. 2017). The trial court reasonably could have
deduced from Dr. Llauger-Mier’s testimony addressing D.S.’s criminal
commitment pursuant to chapter 46 that a court had ordered D.S. committed for
the purpose of receiving inpatient mental health services. See Lynch v. Ricketts,
314 S.W.2d 273, 276 (Tex. 1958) (explaining that factfinder may draw
reasonable inferences and deductions from evidence); In re C.S., 208 S.W.3d
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D.S.’s own testimony echoed Dr. Llauger-Mier’s to an extent; she
explained that she was committed after a jury had determined that she was
incompetent to stand trial.
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77, 81 (Tex. App.—Fort Worth 2006, pet. denied) (reasoning that to support
finding under subsection 574.106(a-1)(2)(A) or (B), evidence at trial must reflect
that criminal court ordered patient to receive inpatient mental health services).
We overrule D.S.’s first and second issues.
In her third issue, D.S. argues that the evidence is legally and factually
insufficient to support the trial court’s subsection 574.106(a-1)(2)(A) finding that
she presents a danger to herself or to others in the inpatient mental health
facility. In determining whether a patient presents a danger, we are instructed to
use the following criteria set out in health and safety code section 574.1065:
(1) an assessment of the patient’s present mental condition;
(2) whether the patient has inflicted, attempted to inflict, or
made a serious threat of inflicting substantial physical harm to the
patient’s self or to another while in the facility; and
(3) whether the patient, in the six months preceding the date
the patient was placed in the facility, has inflicted, attempted to
inflict, or made a serious threat of inflicting substantial physical harm
to another that resulted in the patient being placed in the facility.
Tex. Health & Safety Code Ann. § 574.1065 (West 2017) (emphasis added).
Dr. Llauger-Mier testified that D.S. was diagnosed with psychosis NOS
(not otherwise specified). Her symptoms include delusions, paranoia, and
grandiosity, and she disagrees that she has a mental illness that requires
treatment and medication.
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As for D.S.’s conduct, Dr. Llauger-Mier opined that D.S. presented a
danger to herself or to others because she had engaged in the following
behavior:
•D.S. used profanity, without provocation, against male staff members;
•D.S. pushed a staff member, without provocation;
•D.S. kicked a patient who had spilled Kool-Aid on her, causing the patient
“serious injuries”;
•D.S. threatened to have sex with a patient who would knock on her door
and try to enter;
•D.S. pushed a patient off of her wheelchair, causing the patient a
“fracture,” an “injury”;
•A female staff member felt threatened and asked to be transferred to
different unit because D.S. was “trying to engage her in sexual actions”;
and
•D.S. was caught massaging the legs of one patient and the gluteus of
another. Because mentally ill patients are incapable of consenting to such
acts, D.S. presented a “threat of assault” to them.
Of those seven grounds, only two objectively implicated the substantial-physical-
harm requirement contained in subsection 574.1065(2)—the Kool-Aid incident
and the wheelchair incident. And even then, when pressed on cross-examination
whether the Kool-Aid incident had caused the other patient “serious injury,”
Dr. Llauger-Mier balked, declining to categorize the injury as serious, stating, “It
was an injury.” That leaves only the wheelchair incident. Although the trial court
could have rationally inferred that D.S. had inflicted substantial physical harm
upon the other patient by causing her a “fracture,” the remainder of the evidence
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simply did not rise to the same legislatively prescribed level of seriousness that
must exist to support a finding of danger under subsection 574.106(a-1)(2)(A).
See id. (requiring substantial physical harm). Dr. Llauger-Mier confirmed as
much, acknowledging that D.S. was not a danger to the other patients during the
day, when “there’s a lot of staff watching.”3 D.S. testified and denied that she
had engaged in any assaultive conduct or behavior that could be described as
serious.
The standards by which we review the trial court’s subsection 574.106(a-
1)(2)(A) finding for legal and factual sufficiency compel the result here. Viewing
the evidence in the light most favorable to the trial court’s finding, we hold that
the evidence is legally sufficient to show that D.S. presents a danger to herself or
to others at the inpatient mental health facility where she is being treated.
However, viewing the entire record, and for the reasons detailed above, we
conclude that the disputed evidence that the trial court could not have credited in
favor of its finding of danger is so significant that the trial court could not
reasonably have formed a firm belief or conviction that D.S. presents a danger to
herself or to others at the inpatient mental health facility where she is being
treated. Thus, the evidence is factually insufficient to support the trial court’s
subsection 574.106(a-1)(2)(A) finding. See Moore v. State, No. 07-10-0507-CV,
2011 WL 3587439, at *5 (Tex. App.—Amarillo Aug. 16, 2011, no pet.) (mem. op.)
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Dr. Llauger-Mier assigned D.S. to a private room, where she sleeps at
night.
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(holding evidence insufficient to support finding that appellant was danger to
herself or to others based on evidence that appellant was “loud and verbally
intimidating” and presented an “‘indirect danger’ that could not be defined”); see
also In re C.P., No. 02-14-00246-CV, 2014 WL 5409107, at *4‒5 (Tex. App.—
Fort Worth Oct. 23, 2014, no pet.) (mem. op.) (holding evidence legally sufficient
but factually insufficient to support trial court finding that appellant lacked
capacity to make decision regarding the administration of medication); State
ex rel. D.L.S., 446 S.W.3d 506, 516‒17 (Tex. App.—El Paso 2014, no pet.)
(holding evidence legally sufficient but factually insufficient to support finding that
appellant presented danger to himself). We sustain D.S.’s third issue.
Having sustained D.S.’s third issue, we reverse the trial court’s order
authorizing psychoactive medication and remand this cause for further
proceedings.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: WALKER, MEIER, and BIRDWELL, JJ.
DELIVERED: March 8, 2018
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