                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00163-CV


IN THE MATTER OF S.S.


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            FROM THE PROBATE COURT OF DENTON COUNTY
                   TRIAL COURT NO. MH-2015-216

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                         MEMORANDUM OPINION 1

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      This is an accelerated appeal from an order for temporary court-ordered

mental health services. We reverse and render.

                               Background Facts

      The State filed an application for temporary mental health services for S.S.

on April 29, 2015. The trial court held a hearing on the application on May 13,

2015. The trial court found that S.S. was mentally ill and as a result of that

mental illness will, if not treated, continue to suffer severe and abnormal mental,


      1
       See Tex. R. App. P. 47.4.
emotional, or physical distress; will continue to experience substantial mental or

physical deterioration of his ability to function independently, which was exhibited

by his inability to provide for his basic needs, including food, clothing, health, or

safety; and is unable to make a rational and informed decision as to whether or

not to submit to treatment. The trial court committed S.S. for inpatient care not to

exceed ninety days. This appeal followed.

                                     Discussion

1. Certificates of medical examination

      In his first issue, S.S. argues that the trial court lacked jurisdiction over this

case because the State failed to file the two certificates of medical examination

as required by the health and safety code. See Tex. Health & Safety Code Ann.

§ 574.009 (West 2010). Section 574.009 states,

            (a) A hearing on an application for court-ordered mental health
      services may not be held unless there are on file with the court at
      least two certificates of medical examination for mental illness
      completed by different physicians each of whom has examined the
      proposed patient during the preceding 30 days. . . .

             ....

            (d) If the certificates required under this section are not on file
      at the time set for the hearing on the application, the judge shall
      dismiss the application and order the immediate release of the
      proposed patient if that person is not at liberty.

Id.

A certificate of medical examination must include:

      (1) the name and address of the examining physician;

      (2) the name and address of the person examined;

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      (3) the date and place of the examination;

      (4) a brief diagnosis of the examined person’s physical and mental
      condition;

      (5) the period, if any, during which the examined person has been
      under the care of the examining physician;

      (6) an accurate description of the mental health treatment, if any,
      given by or administered under the direction of the examining
      physician; and

      (7) the examining physician’s opinion that:

            (A) the examined person is a person with mental illness; and

            (B) as a result of that illness the examined person is likely to
            cause serious harm to the person or to others or 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 basic needs,
                   including food, clothing, health, or safety; and

                   (iii) not able to make a rational and informed decision as
                   to whether to submit to treatment.

Id. § 574.011(a) (West 2010).

      S.S. argues that one of the two certificates on file at the time of the hearing

was incomplete. The certificate from Dr. Diana Isachievici stated that S.S. was

experiencing substantial mental or physical deterioration of his ability to function

independently and was unable to make a rational informed decision as to

whether or not to submit to treatment, but it did not state that S.S. was likely to

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cause serious harm to himself or to others or that he was suffering severe and

abnormal mental, emotional, or physical distress.

      This court has previously held that defects in the certificates of medical

examination are not jurisdictional, and a trial court does not err by holding the

hearing on the application. In re D.T.M., 932 S.W.2d 647, 652 (Tex. App.—Fort

Worth 1996, no writ); see Campbell v. State, Nos. 14-99-00620-CV, 14-00621-

CV, 2000 WL 675142, at *9 (Tex. App.—Houston [14th Dist.] May 25, 2000, pet.

denied) (not designated for publication) (following D.T.M. and holding that trial

court did not err by refusing to dismiss case due to deficiencies in the medical

certificates). We therefore overrule S.S.’s first issue.

2. Recent overt act or continuing pattern of behavior

      In his second issue, S.S. argues that the State failed to prove by clear and

convincing evidence a recent overt act or a continuing pattern of behavior that

tends to confirm either the likelihood of serious harm to him or others or his

distress and the deterioration of his ability to function. See Tex. Health & Safety

Code Ann. § 574.034(d) (West Supp. 2014).

      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

the allegations sought to be established. Tex. Civ. Prac. & Rem. Code Ann.

§ 41.001(2) (West 2008); 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).          This intermediate standard of proof falls


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between the preponderance standard of proof applicable to most civil

proceedings and the reasonable doubt standard of proof applicable to most

criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); State v.

Addington, 588 S.W.2d 569, 570 (Tex. 1979). While the proof must be of a

heavier weight than merely the greater weight of the credible evidence, there is

no requirement that the evidence be unequivocal or undisputed.        Addington,

588 S.W.2d at 570.

      Proof of mental illness, such as evidence of psychosis, hallucinations, or

delusions, without more, does not fulfill the statutory requirement for ordering

involuntary inpatient mental health services. State ex rel. L.T., 386 S.W.3d 271,

275 (Tex. App.—Texarkana 2012, no pet.); In re State ex rel. K.D.C., 78 S.W.3d

543, 551 (Tex. App.—Amarillo 2002, no pet.). There must also be an overt act or

continuing pattern of behavior that tends to confirm the likelihood of either

serious harm or deterioration.      See Tex. Health & Safety Code Ann.

§ 574.034(d); K.E.W., 315 S.W.3d at 23; State ex rel. S.W., 356 S.W.3d 576,

580 (Tex. App.—Texarkana 2011, no pet.).

      The only testimony at the commitment hearing came from Dr. James

Shupe. Dr. Shupe testified that S.S. came into contact with the police after they

had received phone calls about bizarre behavior. S.S. told the police that he had

been fighting other people and disarming them of their weapons. The police did

not find any weapons on S.S.




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      Dr. Shupe testified that S.S. remained psychotic, had an “extremely

limited” understanding of what was going on, and did not believe that he had an

illness or a reason to seek treatment. He believed that S.S. was not likely to

cause serious harm to himself or to others. He did say that S.S. was suffering

from severe and abnormal distress that, if untreated, would continue and would

cause deterioration of his ability to function. Dr. Shupe testified that S.S. was

involved in a family violence incident, but that incident occurred on

September 28, 2014, over six months before the most recent events. Dr. Shupe

mentioned “at least two other incidences since [S.S.] was released from jail

approximately 90 days ago,” but Dr. Shupe did not explain what those instances

were or how they could be construed as a continuing pattern of behavior.

      When asked what specifically had led Dr. Shupe to the conclusion that

S.S. could not provide for his basic needs, Dr. Shupe said, “Basically, that [S.S.]

won’t even stay in his own house that’s being provided for him. He goes out in

the community, believes he’s fighting other people, and has to have the police

come multiple times over the last six months to pick him up.” Dr. Shupe said that

S.S. did not appear emaciated, that he appeared appropriately dressed, and that

he seemed to be in good health other than his psychosis. Dr. Shupe also read

Dr. Isachievici’s certificate of medical examination and stated that she had also

reported that S.S. was not likely to cause serious harm to himself or others.

      Although the evidence clearly indicates that S.S. suffers from a mental

illness, it does not demonstrate an overt act or a continuing pattern of behavior


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sufficient to support his commitment. There is no evidence of what harm would

befall S.S. or others by his leaving his house or how it was a sign of his

deterioration. See In re C.O., 65 S.W.3d 175, 182 (Tex. App.—Tyler 2001, no

pet.) (holding that testimony that did not explain the nature of the anticipated

impairment and resulting harm was insufficient to support commitment); D.J. v.

State, 59 S.W.3d 352, 355 (Tex. App.—Dallas 2001, no pet.) (holding that

evidence of poor nutrition, noncompliance with medication, and “wandering”

away from home was not sufficient to support finding that patient was likely to

harm herself or that she was distressed and deteriorating within the meaning of

the statute); In re J.S.C., 812 S.W.2d 92, 96 (Tex. App.—San Antonio 1991, no

writ) (holding doctor’s statement that patient is “not able to take care of himself

outside the hospital” was not specific enough and therefore factually insufficient

to support court-ordered treatment).     There was no evidence that S.S. was

unable to care for his basic needs. There was no testimony describing the other

“incidents” in which S.S. was involved so as to indicate to the factfinder that S.S.

was deteriorating or likely to cause harm. See Johnstone v. State, 961 S.W.2d

385, 389 (Tex. App.—Houston [1st Dist.] 1997, no writ) (holding that testimony of

patient’s repeated refusal to take medication and his ability to function

independently would continue to deteriorate are not specific enough to show an

overt act or continuing pattern of behavior); Broussard v. State, 827 S.W.2d 619,

622 (Tex. App.—Corpus Christi 1992, no writ) (holding that lack of “specific

evidence” of the facts of a disturbance caused by the patient failed to meet


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burden of establishing an overt act).       As stated by our sister court, we are

reluctant to deny court-ordered treatment to an obviously ill appellant, but “we

cannot lower the requirements imposed under section 574.034(c) of the Texas

Mental Health Code regarding proof by clear and convincing evidence.”

Broussard, 827 S.W.2d at 622.         We therefore sustain S.S.’s second issue.

Because this issue is dispositive of the appeal, we do not need to reach S.S.’s

third issue. See Tex. R. App. P. 47.1.

                                    Conclusion

      Having overruled S.S.’s first issue and sustained his second issue, we

reverse the trial court’s order for temporary inpatient mental health services and

render judgment denying the State’s application for court-ordered temporary

mental health services. See J.M. v. State, 178 S.W.3d 185, 197–98 (Tex. App.—

Houston [1st Dist.] 2005, no pet.) (rendering judgment denying court-ordered

temporary mental health services after holding evidence legally and factually

insufficient to support trial court’s ruling).   We further order S.S.’s immediate

release from involuntary commitment.          See Tex. Health & Safety Code Ann.

§ 574.033 (West 2010); State ex rel. S.W., 356 S.W.3d 576, 584 (Tex. App.—

Texarkana 2011, no pet.).

                                                     /s/ Lee Gabriel

                                                     LEE GABRIEL
                                                     JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

GARDNER, J. filed a concurring and dissenting opinion.

DELIVERED: July 28, 2015

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