                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                               Nos. 04-13-00825-CV, 04-13-00827-CV

                                    IN THE INTEREST OF J.G.

                         From the Probate Court No. 1, Bexar County, Texas
                          Trial Court Nos. 2013-MH-3488, 2013-MH-3502
                             Honorable Oscar J. Kazen, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: September 17, 2014

AFFIRMED

           Appellant J.G. sought to represent himself in a hearing on the State’s applications to

temporarily commit him to a mental health care facility and to compel him to receive certain

psychoactive medications. The trial judge denied J.G.’s request, proceeded with the hearing, and

granted the State’s applications. Through court-appointed counsel, J.G. appeals the trial judge’s

orders. We conclude the trial judge did not abuse his discretion in denying J.G.’s motion to

proceed pro se, and we affirm the trial judge’s orders.

                                            BACKGROUND

           When law enforcement officers found J.G., he was initially unresponsive. They questioned

him, but he was unable to provide coherent responses. He was transferred to a mental health care

facility for examination.
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        After J.G. was examined, the nurse case manager reported J.G. was illogical, tangential,

and irritable; he exhibited grandiose delusions but refused all treatment. The State applied for J.G.

to be temporarily committed for treatment of mental illness. The trial judge ordered J.G. taken

into protective custody and set a date for a temporary commitment hearing. Five days before the

commitment hearing, J.G. was examined by Dr. Katharine Dinwiddie, a resident physician in the

psychiatry program at University Hospital. She completed a Physician’s Certification of Medical

Examination for Mental Illness. Two days before the hearing, J.G. was examined by Dr. Kelin

Ogburn, a faculty member at University Hospital, Dr. Dinwiddie’s supervising physician, and

J.G.’s attending physician. Dr. Ogburn also completed a certification.

        At the hearing, after receiving the two physician’s certifications into evidence, the trial

judge questioned J.G. about his ability to represent himself. The trial judge considered the

evidence and J.G.’s responses, and the judge denied J.G.’s request to represent himself.

        Dr. Dinwiddie was called by the State and cross-examined by defense counsel. J.G. also

testified. The trial judge proceeded with the hearings on the State’s applications for temporary

commitment and permission to compel psychoactive medications. He ordered J.G. committed for

temporary mental health services and authorized the State and its agents to administer certain

psychoactive medications to J.G. regardless of his refusal.

        Through his court-appointed counsel, J.G. appeals. J.G. contends the trial judge abused

his discretion by denying his request to represent himself, and he asks this court to reverse the

commitment and medication orders. 1

        We begin by reviewing the applicable law and standard of review.


1
  The commitment order was limited to a maximum period of ninety days; the period expired several months before
this appeal was submitted. Nevertheless, an appeal of orders for temporary commitment and to compel psychoactive
medications does not become moot on the patient’s discharge. State v. Lodge, 608 S.W.2d 910, 912 (Tex. 1980); In
re Breeden, 4 S.W.3d 782, 784 n.1 (Tex. App.—San Antonio 1999, no pet.).

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                                     RIGHT TO SELF-REPRESENTATION

         “[T]he Sixth and Fourteenth Amendments include a ‘constitutional right to proceed without

counsel when’ a criminal defendant ‘voluntarily and intelligently elects to do so.’” Indiana v.

Edwards, 554 U.S. 164, 170 (2008) (emphasis in original) (quoting Faretta v. California, 422 U.S.

806, 807 (1975)). 2 However, if a “defendant lacks the mental capacity to conduct his trial defense

unless represented,” the State may insist that the defendant is “represent[ed] by counsel at trial.”

Id. at 174; accord Chadwick v. State (Chadwick II), 309 S.W.3d 558, 561 (Tex. Crim. App.

2010).If a defendant’s mental capacity is at issue, “the trial judge is in the best position to make

the decision of whether a mentally ill defendant is competent to proceed pro se.” Chadwick II,

309 S.W.3d at 561 (citing Edwards, 554 U.S. at 177–78).

         To determine whether a defendant has the mental capacity to represent himself, the trial

judge may question the defendant “to take realistic account of the particular defendant’s mental

capacities.” Edwards, 554 U.S. at 177–78; Chadwick II, 309 S.W.3d at 561. The trial judge may

consider the defendant’s conduct in the courtroom as a measure of the defendant’s competence “to

conduct his own defense at trial.” Chadwick v. State (Chadwick I), 277 S.W.3d 99, 104 (Tex.

App.—Austin 2009), aff’d, 309 S.W.3d 558 (Tex. Crim. App. 2010). If the trial judge determines

the defendant is not competent to represent himself at trial, the trial judge may deny the defendant’s

request. Chadwick I, 277 S.W.3d at 104.




2
  A hearing on the State’s application for temporary commitment for mental health services and order to compel
administering psychoactive medications is a civil proceeding. See TEX. HEALTH & SAFETY CODE ANN. § 574.034
(West Supp. 2014); J.M. v. State, 178 S.W.3d 185, 193 (Tex. App.—Houston [1st Dist.] 2005, no pet.). In such a
proceeding, the trial judge may deprive a person of his liberty and compel him to receive medications against his will.
Lanett v. State, 750 S.W.2d 302, 304 (Tex. App.—Dallas 1988, writ denied). Because of the restrictions on the
individual’s liberties that are at stake, we apply the self-representation standard developed in criminal proceedings.
Id.; cf. Edwards, 554 U.S. at 174, 177–78 (addressing the waiver of counsel standard for a mentally ill criminal
defendant); Chadwick II, 309 S.W.3d at 561–63 (same).

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                                      STANDARD OF REVIEW

       A trial judge’s ruling on a defendant’s request to represent himself presents a mixed

question of law and fact. Chadwick II, 309 S.W.3d at 561 (citing Guzman v. State, 955 S.W.2d

85, 89 (Tex. Crim. App. 1997)). Because this mixed question “turns on an evaluation of credibility

and demeanor, we review the trial judge’s ruling for an abuse of discretion.” Id. (citing Edwards,

554 U.S. at 177). “We afford almost total deference to a trial judge’s rulings on mixed questions

of law and fact when the resolution of the issue turns on an evaluation of credibility and demeanor.”

Id. (citing Guzman, 955 S.W.2d at 89). “We view the evidence in the light most favorable to the

trial judge’s ruling.” Id. (citing Guzman, 955 S.W.2d at 89). If the trial judge makes no explicit

findings of fact, “we will imply any findings of fact supported by the evidence and necessary to

support the trial judge’s ruling.” Id. (citing Guzman, 955 S.W.2d at 89).

                                   APPELLANT’S ARGUMENTS

       In his sole issue on appeal, J.G. argues the trial judge reversibly erred by denying him the

right to represent himself. He contends the trial judge could not have properly determined his

competency to represent himself because he did not inquire into J.G.’s background, age, education,

and experience. J.G. does not assert any other basis to challenge the temporary commitment and

medication orders.

                                             ANALYSIS

       We begin our analysis by reviewing the evidence before the trial judge.

A.     Physicians’ Certifications

       At the beginning of the hearing, before he ruled on J.G.’s motion to represent himself, the

trial judge admitted two separate Physician’s Certification of Medical Examination for Mental

Illness: one from Dr. Dinwiddie, and one from Dr. Ogburn. Dr. Dinwiddie’s certification provided

results from her examination of J.G. five days before the hearing. Dr. Ogburn’s certification

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provided results of her examination of J.G. two days before the hearing. Both certifications

showed J.G. was exhibiting mania. Dr. Ogburn’s certification included, inter alia, the following

diagnosis and observations:

       •   J.G. has bipolar disorder and is manic with psychotic features;
       •   he is angry, irritable, threatening, yelling, cursing, and refusing medications; and
       •   he is “unable to report facts in a coherent way.”

B.     J.G.’s Conduct Before First Ruling

       As the State moved the court to admit Dr. Dinwiddie as an expert witness in mental

illnesses, J.G. interrupted the proceeding and announced he did not want his court-appointed

counsel to represent him. The trial judge explained he needed to question J.G. to determine

whether his request should be granted. As the trial judge attempted to question him, J.G. repeatedly

interrupted the judge. The trial judge patiently and repeatedly reminded J.G. he should not

interrupt, but J.G. continued to interrupt the judge.

       The trial judge explained to J.G. he would ask him questions to determine his competence

to represent himself. The trial judge asked J.G. about his familiarity with the Health and Safety

Code, courtroom procedures, rules of evidence, and raising objections. J.G. admitted he had not

gone to law school, but insisted “I’ve done this many times.” The trial judge overruled J.G.’s

request, and J.G. became more argumentative.

C.     J.G.’s Conduct Before Second Ruling

       After the trial judge denied his request, J.G. continued to interrupt and interject—erratically

switching from one topic to another. He insisted “I know more about the law than [others in the

courtroom do] and probably you do.” He made ad hominem attacks against the two doctors: he

accused them of lying and acting like Nazis. He opined he had previously “thought about killing

[people like them but he] realized I was a guy who couldn’t do it.” He commented on the quality


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of the food in the “nut cases house,” and then described himself as a Hillbilly and a Cherokee

Indian. He declared: “I have no fear whatsoever of anything you can do to me. Shoot me in the

head right now.” Then he returned to criticizing the trial judge as “not good enough.” During a

lull in J.G.’s outbursts, the trial judge again denied J.G.’s request to represent himself, and

proceeded to hear the merits of the applications.

D.     Trial Judge’s Rulings

       J.G. asserts his education and experience qualified him to represent himself in the hearing.

But the trial judge was free to consider the doctors’ certifications that J.G. was bipolar, was

refusing all medications, was exhibiting mania to the point of grandiose delusions, and was “unable

to report facts in a coherent way.” The trial judge personally witnessed J.G.’s behavior in the

courtroom as he attempted to raise objections and question witnesses. Cf. Chadwick I, 277 S.W.3d

at 104 (defendant with similar behavior).       The trial judge also observed J.G.’s rambling

monologues, ad hominem attacks, and unregulated outbursts. Cf. id.

       Here, the trial judge was in the best position to determine J.G.’s mental competency to

represent himself. See Chadwick II, 309 S.W.3d at 561. The record shows, through his receiving

evidence, questioning J.G., and observing his conduct in the courtroom, the trial judge was able

“to take [a] realistic account of [J.G.’s] mental capacities.” See Edwards, 554 U.S. at 177–78;

Chadwick II, 309 S.W.3d at 561.

       Viewing the evidence in the light most favorable to the rulings and affording the

appropriate deference to the rulings, Guzman, 955 S.W.2d at 89, we conclude the trial judge did

not abuse his discretion by denying J.G.’s request to represent himself, Edwards, 554 U.S. at 177–

78; Chadwick I, 277 S.W.3d at 104.




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                                          CONCLUSION

       Despite Appellant J.G.’s arguments that he was mentally competent to represent himself

in his temporary commitment and compulsory medications hearings, the trial judge denied his

request, granted the State’s applications, and ordered J.G. committed and medicated. Having

considered the evidence under the applicable standard of review, we conclude the trial judge did

not abuse his discretion in denying J.G.’s request. We affirm the trial judge’s orders.


                                                 Patricia O. Alvarez, Justice




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