in the Best Interest and Protection of K.G. ( 2021 )

Affirmed and Opinion Filed February 23, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-01053-CV
IN THE BEST INTEREST AND PROTECTION OF K.G.
On Appeal from the County Court at Law No. 2
Hunt County, Texas
Trial Court Cause No. M-11992
MEMORANDUM OPINION
Before Justices Myers, Osborne, and Carlyle
Opinion by Justice Myers
K.G. appeals the trial court’s orders that he be committed to a mental
institution for ninety days and that he be administered psychoactive medication.
Appellant brings seven points of error contending (1) the trial court erred by allowing
the State’s expert witness to testify about confidential information from appellant
without appellant’s consent to the testimony; (2) appellant’s trial attorney provided
ineffective assistance by not objecting to the State’s expert witness testifying to
confidential information from appellant without appellant’s consent; (3) the trial
court erred by holding the hearings in this case by remote video conference without
obtaining appellant’s waiver of appearance in person; (4) appellant’s trial attorney
provided ineffective assistance by not objecting to the court holding the hearing by
remote video conference; (5) and (6) the evidence is legally and factually insufficient
to uphold a verdict of commitment; and (7) the trial court erred when it ordered
administration of psychoactive drugs. We affirm the trial court’s orders.
BACKGROUND
On November 6, 2020, the State filed an application for court-ordered mental
health services for appellant. The physician’s certificate of medical examination
stated appellant was brought to the mental hospital after the police received reports
that appellant had “suicidal and homicidal ideation and bizarre, psychotic behavior.”
The doctor concluded appellant was suffering from schizophrenia and experiencing
increased paranoia and delusions. The doctor said appellant was “fixated on the fact
that everyone is going to die from the pandemic, and that he must kill himself and
everyone else.” The trial court ordered that appellant be detained at Glen Oaks
Hospital pending a probable cause hearing. On November 9, 2020, the court
concluded there was probable cause to continue appellant’s detention at Glen Oaks
Hospital. The court set the case for a hearing on November 23, 2020.
The State also filed an application for an order to administer psychoactive
medication to appellant.
On November 23, 2020, the court held a hearing on whether to commit
appellant for mental health services and whether to order treatment of appellant with
psychoactive medication. Appellant and his treating physician, Dr. Raza Sayed,
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testified at the hearing. Because the hearing occurred during the Covid-19
pandemic, the hearing was held through a videoconference pursuant to orders from
the Texas Supreme Court. At the conclusion of the hearing on commitment, the trial
court ordered that appellant be committed to Glen Oaks Hospital for a period not to
exceed ninety days for inpatient care. The court then held a hearing on whether to
order the administration of psychoactive medication to appellant. After hearing the
evidence, the court ordered that appellant be treated with psychoactive medication.
Appellant appeals the trial court’s orders of commitment and treatment with
psychoactive medication.
CONFIDENTIAL INFORMATION
In his first point of error, appellant contends the trial court erred by admitting
evidence from Dr. Sayed who testified to statements appellant made to him during
the examination. Appellant argues this evidence was inadmissible because the State
did not prove Dr. Sayed advised appellant that his statements could be used against
him in the committal hearing.
Rule of Evidence 510(b) provides a privilege for patients to prevent any
person from disclosing a confidential communication between the patient and mental
health professional. TEX. R. EVID. 510(b)(1)(A). This privilege does not apply:
To a communication the patient made to a professional during a
court-ordered examination relating to the patient’s mental or emotional
condition or disorder if:
(A) the patient made the communication after being informed that it
would not be privileged;
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(B) the communication is offered to prove an issue involving the
patient’s mental or emotional health; and
(C) the court imposes appropriate safeguards against unauthorized
disclosure.
Id. 510(d)(4).
In this case, Dr. Sayed testified he examined appellant and determined that
appellant suffered from schizophrenia. During his testimony, Dr. Sayed mentioned
statements appellant made to him during the examination, including that appellant
refused to take medication for schizophrenia. Appellant did not object to this
testimony.
Appellant argues that Dr. Sayed’s testimony concerning appellant’s
statements violated article 5561h of the Texas Revised Civil Statutes. That statute
was repealed in 1991. Act of Apr. 3, 1991, 72nd Leg., R.S., ch. 76, § 19, 1991 Tex.
Gen. Laws 515, 647–48. In his brief on appeal, appellant cites Rule 510(d)(4) and
states that communications are not privileged if made during a court-ordered
examination after the patient was informed that communications would not be
privileged. Appellant does not explain why this provision does not apply in this
case.
To preserve error for appellate review, a party must make a timely objection
and obtain a ruling on the objection. See TEX. R. APP. P. 33.1. Because appellant
did not object to Dr. Sayed’s testimony concerning appellant’s statements, no error
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from the admission of this testimony is preserved for appellate review. We overrule
appellant’s first point of error.
In his second point of error, appellant contends he lacked effective assistance
of counsel at the commitment hearing because his counsel did not object to Dr.
Sayed’s testimony about appellant’s statements. “[T]he subject of an involuntary
civil commitment proceeding has the right to effective assistance of counsel at all
significant stages of the commitment process.” Lanett v. State, 750 S.W.2d 302, 306
(Tex. App.—Dallas 1988, writ denied). In determining in a civil case whether a
party with the right to effective assistance of counsel was denied that right, we apply
the standards set forth in Strickland v. Washington. See In re M.S., 115 S.W.3d 534,
544 (Tex. 2003); see also Strickland v. Washington, 466 U.S. 668 (1984).
With respect to whether counsel’s performance in a particular case is
deficient, we must take into account all of the circumstances
surrounding the case, and must primarily focus on whether counsel
performed in a reasonably effective manner. The Court of Criminal
Appeals explained that counsel’s performance falls below acceptable
levels of performance when the representation is so grossly deficient as
to render proceedings fundamentally unfair. In this process, we must
give great deference to counsel’s performance, indulging a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance, including the possibility that
counsel’s actions are strategic. It is only when the conduct was so
outrageous that no competent attorney would have engaged in it that
the challenged conduct will constitute ineffective assistance.
In re M.S., 115 S.W.3d at 545 (footnotes and internal quotations marks omitted).
When the error complained of concerns an evidentiary ruling, the appellant also has
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the burden to show prejudice from the erroneous admission or exclusion of the
evidence. Id. at 538.
In this case appellant has not overcome the “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance, including
the possibility that counsel’s actions are strategic.” Id. Appellant’s statements to
Dr. Sayed were not privileged if Dr. Sayed’s examination of appellant was
court-ordered and if appellant was advised that his statements would not be
privileged. See TEX. R. EVID. 510(d)(4). If these requirements were met, then
appellant’s statements would not have been privileged, and appellant’s counsel
would have had no ground for objecting on the basis of privilege. The record does
not show that Rule 510(d)(4) does not apply. Furthermore, appellant testified at the
hearing that he had refused medicine for his mental condition and that he would
continue to do so. Any prejudice from counsel’s failure to object to Dr. Sayed’s
testimony was nullified by appellant’s own testimony. The record does not show
that counsel’s failure to object to Dr. Sayed’s testimony affected the outcome of the
case.
We conclude appellant has not shown his counsel was ineffective for failing
to object to Dr. Sayed’s testimony of appellant’s statements during his mental
examination. We overrule appellant’s second point of error.
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REMOTE HEARING
In his third point of error, appellant contends the trial court erred by holding
the hearing by remote video conference instead of in person in the courtroom. In his
fourth point of error, appellant contends his counsel was ineffective for failing to
object to this procedure.
Section 574.203 of the Health and Safety Code permits the hearing to be by
remote electronic means if (1) the patient and the county or district attorney consent
in writing, (2) “the secure electronic communication method provides for a
simultaneous, compressed full-motion video, and interactive communication of
image and sound among the judge or associate judge, the county or district attorney,
the attorney representing the proposed patient, and the proposed patient”; and (3) the
patient and the patient’s attorney can communicate privately without being heard by
the judge or the county or district attorney. See TEX. HEALTH & SAFETY CODE ANN.
§ 574.203(a). The reporter’s record states that the hearing was “held by Zoom
conferencing.” The record does not contain written consent to the remote hearing
by the parties. Appellant’s attorney did not object to the remote hearing.
The hearing in this case took place on November 17, 2020, during the
Covid-19 pandemic. In its First Emergency Order Regarding the Covid-19 State of
Disaster, 596 S.W.3d 265 (Tex. 2020) (misc. docket), the Texas Supreme Court
ordered:
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2. Subject only to constitutional limitations, all courts in Texas may in
any case, civil or criminal—and must to avoid risk to court staff, parties,
attorneys, jurors, and the public—without a participant’s consent:
....
b. Allow or require anyone involved in any hearing, deposition,
or other proceeding of any kind—including but not limited to a
party, attorney, witness, court reporter . . . —to participate
remotely, such as by teleconferencing, videoconferencing, or
other means.
id. at 265. The supreme court has renewed that order with substantially similar
wording up to and through its November 11, 2020 Twenty-Ninth Emergency Order
Regarding the Covid-19 State of Disaster, Misc. Docket No. 20-9135, ¶ 3.c (Tex.
Nov. 11, 2020).1 The orders contain no exception for mental health commitment
hearings. See id. Pursuant to these orders, the trial court was permitted to require,
without the parties’ consent, that the hearing be held by video conferencing.
Appellant argues he was harmed by the video conferencing hearing because:
Appellant could not confer with his attorney in private at counsel table
to discuss strategy, evidence and questions to be asked of the witnesses
in his defense against the petition for commitment and psychoactive
medication. The ability to confer with attorney cannot be done by being
put in a “breakout room” during a ZOOM conference. The Appellant
being at the mental hospital could not be assured that people were not
listening to his conversations with his attorney. This has a chilling
effect on a person’s absolute right to counsel. Additionally, the
Appellant was not able to discuss his testimony with his attorney in
private.
1
See https://www.txcourts.gov/media/1450050/209135.pdf.
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These arguments are not supported by the record. The record does not show where
appellant’s attorney was during the hearing, whether she was sitting with appellant
at the mental hospital or whether she was elsewhere. Nor does the record show the
extent of any pretrial conference or lack thereof appellant had with his attorney. Nor
does the record show appellant was concerned that persons at the hospital could be
listening to his conference with his attorney or that anyone at the hospital was
listening to appellant’s conference with his attorney. Nothing in the record shows
appellant could not discuss the case with his attorney in private.
We conclude appellant has failed to show the trial court erred by holding the
hearing by remote video conference. We overrule appellant’s third point of error.
In his fourth point of error, appellant contends his counsel was ineffective for
failing to object to the trial court’s holding the hearing by remote video conference.
As discussed above, the trial court had authority to hold the hearing by remote video
conference under the supreme court’s emergency orders. Therefore, appellant’s
counsel was not ineffective for not objecting.
Appellant argues he could not discuss his case, the evidence, or the witnesses
with his attorney in a private manner. Nothing in the record supports this statement.
Appellant also asserts he “was not able to discuss his testimony with his attorney in
private.” Nothing in the record shows appellant’s conversations with his attorney
were not private. Appellant also asserts that “not being able to see witnesses
deprives Appellant [of] his right to confront and cross-exam[ine] the witnesses.”
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Appellant states in his brief that the hearing was by “video conference.” Dr. Sayed
was the only witness at the hearing other than appellant, and nothing in the record
shows appellant could not see him testify in the video conference.
We conclude appellant has not shown his attorney was ineffective for failing
to object to the hearing being conducted by video conference. We overrule
appellant’s fourth point of error.
SUFFICIENCY OF THE EVIDENCE
In his fifth and sixth points of error, appellant contends the evidence is legally
and factually insufficient to uphold a verdict of commitment.
Section 574.034 of the Health and Safety Code provides:
(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
(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
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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.
HEALTH & SAFETY § 574.034.
The heightened burden of proof, clear and convincing evidence, requires that
we utilize a heightened standard of review. See In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). Clear and convincing evidence is “that measure or degree of proof which
will produce in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established.” State v. Addington, 588 S.W.2d 569,
570 (Tex. 1979) (per curiam). Evidence that merely exceeds a scintilla is not legally
sufficient when the burden of proof is clear and convincing. See In re J.F.C., 96
S.W.3d 256, 264–65 (Tex. 2002).
Satisfying the clear and convincing standard requires expert testimony,
HEALTH & SAFETY § 574.034(d), which includes the expert’s opinion regarding the
necessity of committing the patient, as well as the factual support for the opinion.
State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010); State ex rel. D.W., 359 S.W.3d 383,
386 (Tex. App.—Dallas 2012, no pet.). Additionally, satisfying the clear and
convincing burden requires the State to provide evidence of a recent overt act or a
continuing pattern of behavior that tends to confirm the distress and deterioration of
the proposed patient's ability to function. HEALTH & SAFETY § 574.034(d); K.E.W.,
315 S.W.3d at 20; State ex rel. E.D., 347 S.W.3d 388, 392–93 (Tex. App.—Dallas
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2011, no pet.) (evidence of a recent physical or verbal overt act that is probative of
the jury’s findings when perceived objectively, will satisfy the State’s burden).
Verbal statements as well as physical actions are “overt acts,” K.E.W., 315 S.W.3d
at 24, and such verbal statements may support a finding of mental illness and predict
future actions resulting from such mental illness. Id. at 22.
When evaluating evidence for legal sufficiency under a clear and convincing
standard, we review all the evidence in the light most favorable to the finding to
determine whether a reasonable factfinder could have formed a firm belief or
conviction that the finding was true. See In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002). We resolve disputed fact questions in favor of the finding if a reasonable
factfinder could have done so, and we disregard all contrary evidence unless a
reasonable factfinder could not have done so. City of Keller v. Wilson, 168 S.W.3d
802, 817 (Tex. 2005); In re J.F.C., 96 S.W.3d at 266.
In conducting a factual sufficiency review, we consider the evidence that the
factfinder could reasonably have found clear and convincing, and then based on the
entire record, determine whether the factfinder could reasonably have formed a firm
belief or conviction that the allegations in the application were proven. In re J.F.C.,
96 S.W.3d at 266; State ex rel. M.P., 418 S.W.3d 850, 853 (Tex. App.—Dallas 2013,
no pet.). We consider whether a reasonable factfinder could have resolved disputed
evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “If in light of the
entire record, the disputed evidence that a reasonable factfinder could not have
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credited in favor of the finding is so significant that a factfinder could not reasonably
have formed a firm belief or conviction, then the evidence is factually insufficient.”
Id.
Dr. Sayed testified that appellant suffered from schizophrenia. The doctor
stated that when appellant was admitted to the hospital, “[h]e exhibited paranoia,
primarily relating to his family members.” Dr. Sayed testified about appellant’s
severe mental and emotional distress: “He’s pacing on the unit, responding to
internal stimuli. He appears to be bothered by hallucinations that he’s experiencing
and he’s not eating and drinking and further exacerbating his health conditions. So
he appears emotionally distressed by the internal stimuli, by the hallucinations he is
experiencing.” Concerning appellant’s emotional distress, Dr. Sayed testified
appellant “has mood swings. He gets angry easily. Frustrated. Slamming doors.
At times crying. Breaking down emotionally. So he’s not stable emotionally.” The
trial court took judicial notice of the certificate of medical examination prepared by
Dr. Sayed on November 9, 2020. In the certificate, Dr. Sayed stated that appellant
“presents a substantial risk of serious of harm to self and others” as shown by his
“making threats to harm self & others, psychosis, yelling to kill everyone, violent
behavior.” Dr. Sayed also testified that appellant was not eating or drinking and that
appellant had not eaten or drunk anything in the preceding two days. The doctor
testified that not eating and drinking may lead to renal failure. “You may need to go
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to the ER for IV fluids. So it’s a state of self-neglect, due to psychosis. So that is
self harm.”
Appellant testified that he had some chicken and a biscuit that morning and
that he drinks only milk. He also testified that he ate something the previous night
and that he eats “every time except for one time they had fish and one time I gave
food to some dude for a cigarette.” He also testified, “I don’t think I have to eat,”
and “I think it’s a sin to talk about food and water.”
Appellant asserts in his brief that the testimony conflicted concerning whether
appellant was eating and drinking. Appellant states that Dr. Sayed did not provide
“any factual examples of harm caused or to be caused by the patient”; however, the
doctor’s certificate of medical examination states appellant was “making threats to
harm self & others,” “yelling to kill everyone,” and “threatening to kill himself.”
The doctor also noted “violent behavior.” Appellant also states Dr. Sayed testified
that appellant would not take medicine but did not offer a factual basis for that
conclusion; however, appellant testified that he refused to take medicine to help with
his schizophrenia. Dr. Sayed noted in the certificate of medical examination that
appellant said “I don’t have a mental illness” and “I don’t take medications from
people.”
After considering all the testimony in the light most favorable to the trial
court’s finding, we conclude the trial court could have formed a firm belief or
conviction that appellant was a person with a mental illness and, as a result of that
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mental illness, was likely to cause serious harm to himself or others. Therefore, the
evidence was legally sufficient to support the trial court’s order committing
appellant.
In arguing that the evidence was factually insufficient to support the trial
court’s order committing appellant, he asserts the State “produced no factual
evidence that the patient was a harm to himself or others, nor that he refused
medication, nor any overt act or pattern of behavior.” The record shows Dr. Sayed
testified appellant was not eating or drinking, which would lead to renal failure. Dr.
Sayed and appellant testified that appellant refused medication, and Dr. Sayed noted
in the certificate of medical examination that appellant said “I don’t take medications
from people.” Concerning whether there was evidence of an overt act or pattern of
behavior, Dr. Sayed stated in the certificate of medical examination that appellant
was “making threats to harm self & others” and “yelling to kill everyone.” He also
noted that appellant was “threatening to kill himself.” We conclude the trial court
could have found this evidence clear and convincing and have formed a firm belief
or conviction that the allegations in the petition were proven. Therefore, the
evidence was factually sufficient to support the trial court’s order committing
appellant.
We overrule appellant’s fifth and sixth points of error.
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ORDER FOR ADMINISTRATION OF PSYCHOACTIVE MEDICATION
In his seventh point of error, appellant contends the trial court erred by
ordering appellant be treated with psychoactive medication.
Under section 574.106, the trial court may issue an order authorizing the
administration of psychoactive medication to a patient who is under a court order to
receive inpatient mental health services if the court finds by clear and convincing
evidence 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.” HEALTH & SAFETY § 574.106(a),
(a-1)(1). The statute requires that the court 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 medication.
Id. § 574.106(b).
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At the hearing on the State’s application to administer psychoactive
medication, the trial court took judicial notice of the evidence at the commitment
hearing. Dr. Sayed also testified at this hearing. He told the court that appellant’s
refusal to acknowledge that he has a mental illness shows appellant has poor insight
into the severity of his illness and that appellant lacks the capacity to decide whether
to take psychoactive medication. He testified that psychoactive medication was the
proper course of treatment for appellant and was in appellant’s best interest. He told
the court that if appellant were treated and took his medications, then his prognosis
would be good. However, if appellant were not treated, then the result would be
“[c]ontinued deterioration of his condition. Increased risk of violence towards others
and self-neglect.” When asked if he had considered any alternative to psychoactive
medications, Dr. Sayed answered, “That is the gold standard of treatment for his
diagnosis. There are no alternatives.”
After hearing the evidence, the court concluded that treatment with
psychoactive medication was necessary for appellant to recover, that the treatment
was in appellant’s best interest, and that appellant lacked the capacity to make a
decision regarding the treatment. The court ordered that the hospital was authorized
to administer certain psychoactive medications to appellant.
Appellant asserts the trial court’s decision was not based on legally or
factually sufficient evidence. Appellant first argues the State did not present
evidence that appellant would suffer harm without the medication. Appellant is
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incorrect—Dr. Sayed testified appellant’s condition would worsen without
medication and there would be an “[i]ncreased risk of violence towards others and
self-neglect.” Appellant argues the trial court did not have evidence of alternative
treatments. However, Dr. Sayed testified there were no alternative treatments and
that for appellant’s condition, treatment with psychoactive medication was “the gold
standard.” Appellant asserts the State did not present evidence of appellant’s
inability to understand his situation. Dr. Sayed testified that appellant’s inability to
comprehend that he had mental illness left him incapable of determining whether to
consent to psychoactive medication.
We conclude the trial court’s order was supported by clear and convincing
evidence that was both legally and factually sufficient. We overrule appellant’s
seventh point of error.
CONCLUSION
We affirm the trial court’s order committing appellant to Glen Oaks Hospital
for a period not to exceed ninety days, and we affirm the order to administer
psychoactive medication to appellant.
/Lana Myers/
LANA MYERS
201053F.P05 JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE BEST INTEREST AND On Appeal from the County Court at
PROTECTION OF K.G. Law No. 2, Hunt County, Texas
Trial Court Cause No. M-11992.
No. 05-20-01053-CV Opinion delivered by Justice Myers.
Justices Osborne and Carlyle
participating.
In accordance with this Court’s opinion of this date, we AFFIRM the trial
court’s Writ of Commitment committing appellant to Glen Oaks Hospital for a
period not to exceed ninety days, and we AFFIRM the order to administer
psychoactive medication to appellant.
Judgment entered this 23rd day of February, 2021.
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