                                 Fourth Court of Appeals
                                          San Antonio, Texas
                                    MEMORANDUM OPINION
                                             No. 04-13-00812-CV

    THE STATE OF TEXAS FOR THE BEST INTEREST AND PROTECTION OF S.O.

                           From the Probate Court No. 1, Bexar County, Texas
                                     Trial Court No. 2013MH3313
                           Honorable Polly Jackson Spencer, Judge Presiding 1

Opinion by:       Marialyn Barnard, Justice

Sitting:          Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 13, 2014

AFFIRMED

           This is an accelerated appeal from the trial court’s order compelling psychoactive

medications. On appeal, S.O. contends the evidence is legally and factually insufficient to show

he lacks capacity to make decisions about the proposed medication and that the proposed treatment

is in his best interest. S.O. further contends he has a constitutionally protected liberty interest in

avoiding the involuntary administration of medication, and the State failed to demonstrate an

important governmental interest sufficient to overcome that liberty interest pursuant to Sell v.

United States, 539 U.S. 166 (2003). We affirm the trial court’s judgment.



1
  David A. Berchelman Jr., former presiding judge of the 37th Judicial District Court, Bexar County, Texas, sitting as
a criminal law magistrate, signed the initial forced medication order. However, a conformed order was subsequently
signed by the Honorable Polly Jackson Spencer, presiding judge of Probate Court No. 1, Bexar County, Texas in
response to S.O.’s request for a de novo hearing. It is this order from which the appeal is taken pursuant to S.O.’s
second amended notice of appeal.
                                                                                     04-13-00812-CV


                                           BACKGROUND

        S.O. was arrested and charged with the offense of indecency with a child by exposure.

Thereafter, S.O.’s counsel filed a “Motion for Psychiatric Examination and Pre-Trial Hearing for

Defendant’s Competency to Stand Trial.” Counsel also filed a notice advising of his intent to raise

an insanity defense.

        The trial court granted the motion for psychiatric examination and after examining S.O.,

Dr. Brian P. Skop submitted a report to the court in which he opined that S.O. was incompetent to

stand trial.   After a competency hearing, the trial court rendered an agreed judgment of

incompetency, ordering S.O. committed for in-patient treatment for one hundred and twenty days.

S.O. was committed to the North Texas State Hospital (“the hospital”) for examination and

treatment “toward the specific objective of attaining competency to stand trial.”

        At the hospital, S.O. declined to take his prescribed medication. Accordingly, Dr. Sandy

Le, a psychiatrist with the hospital’s competency program, filed an application in the probate court

seeking an order to administer psychoactive medication to S.O. despite his refusal. At the hearing

on Dr. Le’s application, Dr. Le testified as an expert without objection by S.O. She was the only

witness to testify.

        At the hearing, Dr. Le testified S.O. was admitted to the hospital on October 16, 2013. Five

days later, she prepared the application to medicate S.O. Although Dr. Le did not personally meet

with S.O. until after she prepared and filed the application, she testified S.O. had been evaluated

by other providers at the hospital prior to the preparation of the application, she had spoken with

the other providers, and reviewed the treatment team’s report. She ultimately met with S.O. twice,

each time for approximately ten minutes.

        Dr. Le opined that S.O. suffers from mental illness, specifically “schizoaffective disorder

bipolar type.” According to Dr. Le, because of his mental illness, S.O. posed a danger to himself
                                                -2-
                                                                                                    04-13-00812-CV


and others. Dr. Le further testified S.O. lacked the capacity to make decisions regarding treatment

for his illness, and therefore she requested the court to order antipsychotic medication and mood

stabilizers for S.O.

         Dr. Le stated she was requesting a court order to administer antipsychotic medications and

mood stabilizers. She advised the court that the benefits of taking the antipsychotic medications

and mood stabilizers outweighed any risk from those medications. Dr. Le also testified the

recommended medication would, if taken consistently, improve S.O.’s psychotic symptoms and

stabilize his moods. She stated that with the medication it was more likely that S.O. would regain

his competency and be able to stand trial.

         Dr. Le testified S.O. refused to sign consent forms for the recommended medications when

he was first admitted to the hospital. However, on the morning of the hearing, S.O. told Dr. Le he

might be willing to take the medication.

         During cross-examination by S.O.’s counsel, Dr. Le admitted that although she had

specifically chosen Haloperidol — an antipsychotic drug — and Valproic Acid — a mood

stabilizer — for S.O., her application requested a class of medications as opposed to merely

requesting the designated medications. Dr. Le explained that she requested a class of medications

because, “I believe it would be better, in case he had adverse effects, to be able to switch to a

different medication in that class.” 2 Dr. Le admitted that if S.O. had any pre-existing medical

conditions of which she was unaware this might exacerbate side effects from the drugs. She also

noted that certain side effects are irreversible. S.O.’s counsel specifically pointed out that S.O.

suffered from hypothyroidism, and the doctor agreed the medications could have a negative impact




2
  S.O.’s counsel listed numerous possible side effects of both Haloperidol and Valproic Acid. Dr. Le agreed all of the
side effects listed by counsel were potential side effects of the drugs she requested.

                                                        -3-
                                                                                                   04-13-00812-CV


given that condition. She noted she was aware S.O. had previously received mental health

treatment.

        On redirect, Dr. Le testified that her decision to file the application for involuntary

medication was based on previous records from other doctors who had seen S.O.,

recommendations made by Dr. Skop in his report for the commitment hearing, and discussions

with S.O.’s treatment team at the hospital. She stated her intent to monitor S.O. after he is

medicated to determine if the medications cause adverse side effects or bad reactions. If so, Dr.

Le stated she would adjust the medications accordingly. With no objections from S.O.’s counsel,

the court took judicial notice of Dr. Le’s application to compel medications and all its attachments.

        After the hearing, the magistrate signed an order authorizing the administration of

psychoactive medications to S.O., and thereafter, the probate court rendered a conformed order

authorizing the administration of psychoactive medications. 3

                                                    ANALYSIS

        As noted above, on appeal S.O. contends: (1) the evidence is legally and factually

insufficient to show he lacks capacity to make decisions regarding the recommended medications

and that the proposed treatment is in his best interest; and (2) he has a constitutionally protected

liberty interest in avoiding forced medication, and the State failed to demonstrate an important

governmental interest sufficient to overcome that interest as required by Sell.

                                       Legal and Factual Sufficiency

        S.O. first contends the evidence was both legally and factually insufficient to prove he

lacks capacity to make decisions regarding the recommended medications and that the proposed



3
  The probate court’s written order was not in the original clerk’s record filed in this court. However, we contacted
the probate court and determined such an order did, in fact, exist. Accordingly, we ordered the clerk to file a
supplemental clerk’s record containing the probate court’s order.

                                                        -4-
                                                                                                          04-13-00812-CV


treatment is in his best interest. S.O. was ordered to receive inpatient mental health services by a

criminal court that had jurisdiction over him. Thus, we hold the State was not required to prove

that he lacks capacity to make decisions regarding his treatment and the treatment is in his best

interest, but that the proposed treatment is in S.O.’s best interest and S.O. presents a danger to

himself or others in the mental health facility as a result of a mental disorder or defect pursuant to

section 574.1065 of the Health & Safety Code. 4 TEX. HEALTH & SAFETY CODE ANN. § 574.106(a-

1)(2)(A) (West 2010).

                                                 Standard of Review

         When the State seeks to forcibly medicate an individual, it must prove by clear and

convincing evidence that: (1) the individual lacks capacity to make decisions regarding the

proposed medication and the treatment is in the best interest of the patient; or (2) if the individual

was ordered to receive inpatient mental health services by a criminal court with jurisdiction over

the individual, that the proposed treatment is in the best interest of the individual and either (a) the

individual presents a danger to himself or others in the mental health facility, or (b) the patient

presents a danger to himself or others in the correctional facility in which he is housed. TEX.

HEALTH & SAFETY CODE ANN. § 574.106(a-1). 5 Under either scenario, in deciding whether forced


4
  Section 574.1065 requires the trial court to consider: (1) an assessment of the individual’s present mental condition;
(2) whether the individual has inflicted or attempted to inflict, or made a serious threat of inflicting substantial physical
harm to himself or another while in the facility; and (3) whether the individual, in the prior six months, 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 mental health facility. TEX. HEALTH & SAFETY CODE ANN. § 574.1065.
5
  Accordingly, contrary to S.O.’s claim, the State need not establish he lacked capacity to make decisions regarding
the proposed medication. However, if we were required to determine, as S.O. contends, the legal and factual
sufficiency of the evidence with regard to whether S.O. lacked capacity to make decisions regarding his treatment, we
would find the evidence sufficient. “Capacity” is defined as an individual’s ability to: (1) understand the nature and
consequences of a proposed treatment, including the benefits, risks, and possible alternative treatments; and (2) make
a decision whether to undergo the proposed treatments. TEX. HEALTH & SAFETY CODE ANN. § 574.101(1). Dr. Le
specifically testified S.O. lacked the capacity to make decisions regarding treatment for his illness, which she opined
was “schizoaffective disorder bipolar type.” Her opinion was based on not only on her meetings with S.O., but records
from other doctors who had seen S.O., recommendations by Dr. Skop in his report, and conversations with the
hospital’s treatment team. The referenced documents were attached to Dr. Le’s application, the trial court took judicial
notice of the application and its attachments, and the documents are part of the appellate record.

                                                            -5-
                                                                                      04-13-00812-CV


medication is in the best interest of the individual, the trial court must consider the individual’s

preferences, the individual’s religious beliefs, the risks and benefits from the individual’s

perspective, the consequences to the individual if the medications are not administered, the

prognosis if the medications are administered, alternatives to forced medication, and less intrusive

treatments that are likely to secure the individual’s agreement to take the recommended

medications. Id. § 574.106(b). Clear and convincing evidence is a “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. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010) (quoting

State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979) (per curiam)); see In re E.T., 137 S.W.3d

698, 699 (Tex. App.—San Antonio 2004, no pet.). “This intermediate standard falls between the

preponderance standard of civil proceedings and the reasonable doubt standard of criminal

proceedings.” In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth 2006, pet. denied).

       When reviewing whether a forced medication order is supported by legally sufficient

evidence under the clear and convincing standard of proof, we must look at all the evidence in the

light most favorable to the finding to determine whether a reasonable trier of fact could have

formed a firm belief or conviction that the alleged fact is true. See In re J.F.C., 96 S.W.3d 256,

266 (Tex. 2002). “To give appropriate deference to the factfinder’s conclusions and the role of a

court conducting a legal sufficiency review,” we must assume the factfinder resolved disputed

facts in favor of its finding if a reasonable factfinder could do so. Id. Moreover, the reviewing

court should disregard all evidence that a reasonable factfinder could have disbelieved or found to

have been incredible. Id. If, after conducting a legal sufficiency review we conclude no reasonable

factfinder could form a firm belief or conviction that the matter required to be proved is true, then

we must conclude the evidence is insufficient. Id.



                                                 -6-
                                                                                      04-13-00812-CV


       In reviewing a factual sufficiency challenge of such an order, we must determine whether

the evidence is such that a factfinder could reasonably form a firm belief or conviction about the

truth of the State’s allegations. See id. (citing In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). “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, then the evidence is factually insufficient.” J.F.C., 96 S.W.3d at 266; see

C.H., 89 S.W.3d at 25. We must continue to give deference to the role of the factfinder, who is

the exclusive judge of the credibility of the witnesses and the weight to be given their testimony.

C.H., 89 S.W.3d at 27.

                                            Application

       We begin by noting there is no dispute that S.O. was ordered to receive inpatient mental

health services by a criminal court with jurisdiction over him. Thus, we need only determine if

the evidence is legally and factually sufficient to establish the proposed treatment is in S.O.’s best

interest and he presents a danger to himself or others in the mental health facility. See TEX.

HEALTH & SAFETY CODE ANN. § 574.106(a-1)(2)(A). Considering the evidence presented at the

forced medication hearing in the light most favorable to the trial court’s order, we conclude the

evidence is legally sufficient to sustain the order because a reasonable factfinder could have

determined the evidence clearly and convincingly proves that forced administration of

psychoactive medications is in S.O.’s best interest and he presents a danger to himself or others in

the mental health facility. See J.F.C., 96 S.W.3d 266; see also TEX. HEALTH & SAFETY CODE

ANN. § 574.106(a–1)(2)(A).        We also conclude the evidence is factually sufficient when

considered as a whole because the trial court could have reasonably formed a firm belief or

conviction about the truth of the State’s allegations that forced medication was in S.O.’s best

interest and he was a danger to himself or others. See J.F.C., 96 S.W.3d 266.
                                                 -7-
                                                                                      04-13-00812-CV


       As detailed above, Dr. Le testified S.O. suffered from “schizoaffective disorder bipolar

type,” experiencing mood instability and psychotic symptoms. Dr. Le admitted there were risks

in taking the medications, especially considering certain aspects of S.O.’s health. However, she

also testified the benefits S.O. would experience from taking the recommended medications

outweighed any potential risks. Dr. Le opined that if the recommended medications were taken

consistently, S.O.’s psychotic symptoms would improve and his moods would stabilize. It is

obvious Dr. Le believed that in the absence of forced medication, S.O. would not improve. Dr. Le

stated that although S.O. initially refused the recommended medications, the morning of the

hearing he told her he might be willing to take the medications, which is some evidence regarding

his preference. From this testimony it is clear Dr. Le believed forced medication was in S.O.’s

best interest. See TEX. HEALTH & SAFETY CODE ANN. § 574.106(b).

       We recognize that an expert’s bare diagnosis is insufficient to sustain a forced medication

order; the State must present evidence of the behavior of the individual, i.e., the factual bases for

the expert’s opinions. State ex rel. E.E., 224 S.W.3d 791, 794 (Tex. App.—Texarkana 2007, no

pet.). Although at first glance, it might appear Dr. Le provided nothing more than conclusions

coupled with a bare diagnosis, she specifically testified her decision to seek a forced medication

order was based not merely on her two meetings with S.O., but previous records from other doctors

who had seen S.O., recommendations from Dr. Skop as detailed in his report, and consultations

with S.O.’s treatment team. The documents she relied upon, which the lower court judicially

noticed without objection, included statements by other physicians that S.O.:

       • was disoriented;

       • was confused;

       • suffered from poor insight and judgment;



                                                -8-
                                                                                                       04-13-00812-CV


         • suffered from disorganized thought processes with loose associations,
         tangientiality, 6 and flight of ideas;

         • reported bizarre delusions and auditory hallucinations;

         • was fixated on acts of physical violence — shooting, stabbing, dead bodies, etc.;

         • had a history of violent, impulsive, and unpredictable behaviors; and

         • had prior criminal charges for, among other things, aggravated sexual assault of a
         child, assault with bodily injury and injury to an elderly person

After reviewing Dr. Le’s testimony and the information she relied upon, as well as the remaining

evidence in the record, some of which contradicted Dr. Le’s opinion, we hold the lower court could

have formed a firm belief or conviction that forcibly medicating S.O. was in his best interest and

that he was a danger to himself or others in the hospital. See J.F.C., 96 S.W.3d 266. Accordingly,

we hold the evidence was legally and factually sufficient to sustain the lower court’s order that

S.O. be forcibly medicated. See id. We therefore overrule S.O.’s sufficiency challenges.


                                      Constitutionally Protected Interest

         In his remaining issues, S.O. contends he has a constitutionally protected liberty interest in

avoiding forced medication, and the State failed to demonstrate an important governmental interest

sufficient to overcome that interest as required by the Supreme Court’s decision in Sell. See 539

U.S. at 178. We agree an individual has a constitutionally protected liberty interest in avoiding

the involuntary administration of antipsychotic drugs. See Sell, 539 U.S. at 178; State ex. rel. D.B.,

214 S.W.3d 209, 212 (Tex. App.—Tyler 2007, no pet.). However, the Constitution of the United

States permits a governmental entity to forcibly medicate a mentally ill defendant who is facing

serious criminal charges to render that defendant “competent to stand trial.” Sell, 539 U.S. at 179.


6
  “Tangentiality” is defined as “[a] disturbance in the associative thought process in which one tends to digress readily
from one topic under discussion to other topics that arise through association.” THE AMERICAN HERITAGE MEDICAL
DICTIONARY (2007).

                                                          -9-
                                                                                       04-13-00812-CV


Forced medication for purposes of competency to stand trial may only be ordered if the State

proves the recommended treatment is medically appropriate, substantially unlikely to have side

effects that may undermine the fairness of the trial, and significantly necessary to further important

governmental trial-related interests, considering the availability of less intrusive alternatives. Id.

In applying these standards, a reviewing court must conclude: (1) important governmental interests

are at stake, (2) involuntary medication will significantly further those state interests, (3)

involuntary medication is necessary to further those state interests, and (4) administration of the

drugs is medically appropriate. Id. at 180–81. It is these elements S.O. contends the lower court

was required to find and for which there is insufficient evidence.

       S.O.’s contention is based on his belief that he was forced to take the recommended

medications solely to render him competent to stand trial. Although Dr. Le admitted S.O. was

more likely to regain his competency and be able to stand trial if he were medicated, it is clear she

believed the treatment she recommended was warranted for a different purpose — because it was

in S.O.’s best interest and because he was a danger to himself and others.

       In Sell, the Supreme Court specifically held that 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. at 181–82. In other words when an

individual is forcibly medicated for a purpose other than competency to stand trial, we need not

turn to the Sell standards for forced medication. See id. The forced medication order in this case

was arguably warranted due to S.O.’s dangerousness and his own best interest. Therefore, the trial

court was not required to make conclusions under the Sell competency paradigm. Because the

sufficiency or insufficiency of the evidence as to the Sell competency factors is irrelevant, we

overrule S.O.’s remaining issues.
                                                - 10 -
                                                                                     04-13-00812-CV


                                          CONCLUSION

       Based on the foregoing, we hold the evidence was legally and factually sufficient for the

trial court to find forcible medication is in S.O.’s best interest and he is a danger to himself and

others. We further hold that the Sell factors relating to a constitutionally protected interest in

freedom from forcible medication are inapplicable here as the forced medication was sought not

merely to render S.O. competent to stand trial, but warranted due to S.O.’s dangerousness and

precarious mental health. Accordingly, we overrule S.O.’s issues and affirm the trial court’s

judgment.


                                                  Marialyn Barnard, Justice




                                               - 11 -
