                         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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   CONCURRING AND DISSENTING MEMORANDUM OPINION1

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      I concur with the majority opinion with the exception that, rather than

rendering judgment denying the State’s application and ordering S.S.’s

immediate release, I would remand this cause to the trial court for a new trial in

the interest of justice because the evidence was not fully developed. See Tex. R.

App. P. 43.3(b). Documents contained in S.S.’s file on which Dr. Shupe must

      1
       See Tex. R. App. P. 47.4.
have relied in forming his opinions refer to specific witnesses and facts reported

or recorded by those individuals, such as one or more of the police officers who

responded to calls regarding S.S.’s bizarre behavior and actually witnessed it, as

well as the clinicians who evaluated and screened S.S. upon admission to the

hospitals in Denton and Wichita Falls. Testimony is surely available through one

or two of those fact witnesses regarding overt physical acts by S.S. that caused

neighbors or concerned citizens to call the police on at least four recent

occasions preceding his arrest, as well as his behavior and any verbal

statements he made during or after his arrest about his actions in fighting and

disarming imaginary people.       See State v. K.E.W., 315 S.W.3d 16, 22 (Tex.

2010) (holding that the term “overt act” within the meaning of section 574.034(d)

of the health and safety code includes verbal statements, as well as physical

acts).

         When reversing a trial court’s judgment, a court of appeals must render the

judgment that the trial court should have rendered, except when the interests of

justice require a remand for another trial. Tex. R. App. P. 43.3(b). When a court

of appeals reverses a trial court’s judgment based on legal insufficiency of the

evidence, a remand for retrial is permitted in the interest of justice if the evidence

was not fully developed. Jackson v. Hall, 147 Tex. 245, 247, 214 S.W.2d 458,

459 (1948); Butt v. Gonzalez, 646 S.W.2d 584, 586 (Tex. App.—San Antonio




                                          2
1983, no writ).2    Here, the clerk’s record before us indicates evidence was

available—had it been developed and properly introduced into evidence at the

hearing—to establish the existence and nature of any overt acts, as well as a

continuing pattern of behavior by S.S., to support S.S.’s temporary commitment

for mental health services for his psychosis that admittedly renders him mentally

ill.

       The record reflects that the State filed its application for temporary mental

health services for not more than ninety days on April 29, 2015, supported by two

Certificates of Medical Examination for Mental Illness and a motion for interim

protective custody.    On the same date, the trial court granted the order of

protective custody, issued a writ of attachment for S.S., set a probable cause

hearing for 2:00 p.m. that day, appointed an attorney for S.S., and set a hearing

on the application for temporary mental services for May 13, 2015.

       S.S., through his attorney, waived the right to be present at the probable

cause hearing but reserved the right to contest mental illness and to present

defenses available at the hearing on the merits. On the same day, April 29,

2015, the trial court signed its order for continued detention based on probable


       2
       This is not to say that a court of appeals may reverse an errorless
judgment in the interest of justice. See Chrismon v. Brown, 246 S.W.3d 102, 116
(Tex. App.—Houston [14th Dist.] 2007, no pet.); see also Davis v. Bryan & Bryan,
Inc., 730 S.W.2d 643, 644 (Tex. 1987) (holding that a court of appeals may
remand only when there is error in the trial court’s judgment; absent such error, a
court of appeals cannot reverse the trial court’s judgment and remand in the
interest of justice).

                                         3
cause, effective to the date of the hearing on the application for mental health

services, stating that it had examined screening reports from Brandi Brooks (an

emergency clinician with MHMR) and Detective Gary Hall of the Denton County

Sheriff’s Department and the certificate of medical examination by Dr. Sabahat

Faheem and had taken judicial notice of the complete file.        However, at the

outset of the final hearing on the application for temporary mental health

services, S.S.’s attorney objected on the ground of hearsay to any documents in

the file other than the second certificate of medical examination of Dr. Diana

Isachievici; the trial court sustained the objection to “everything” except for the

certificate. Thus, as the majority points out, the only evidence before the court at

the hearing other than the Dr. Isachievici’s certificate of medical examination was

the testimony of Dr. Shupe, who had only met with S.S. shortly before the

hearing.3

      Dr. Shupe testified that trying to get a timeline from S.S. about what had

happened was very difficult, that S.S.’s understanding of what was going on and

why people were concerned about him was very limited, and that S.S. did not

believe he had an illness or a reason to seek treatment. It is therefore obvious

from his testimony that Dr. Shupe must have reviewed the entire file because he

      3
        Even if the trial court had taken judicial notice of the narrative report of
Detective Hall, the screening form completed by Ms. Brooks, and the certificates
of medical examination, it could not have taken judicial notice of the truth of any
allegations contained in those documents. See State ex rel. K.H., No. 02-02-
00301-CV, 2003 WL 21404821, at *2 (Tex. App.—Fort Worth June 19, 2003, no
pet.) (mem. op.).

                                         4
was familiar with the multiple calls to the police about S.S.’s “bizarre behavior”

and with S.S.’s explanation that he had been fighting other people and had been

disarming them of their weapons. It also appears obvious from the associate

judge’s findings at the hearing that he was well aware of the documents in the file

and the potential harm to which S.S.’s continued behavior in fighting imaginary

people would subject him and others. Reviewing the unedited transcript before

him, the associate judge stressed on the record that the police contact with S.S.

on the evening of April 27 and again early in the morning of April 28—when S.S.

told the police he had been fighting people and disarming them but could not

logically discuss with the police what he was doing—constituted evidence of

recent overt acts by S.S. and that those acts would tend to indicate a

deterioration of S.S.’s ability to satisfy his basic need for “safety.” Counsel for

S.S. disagreed that an overt act had been shown and also responded that there

was no testimony as to what affected or hurt S.S.’s “safety” or why he was no

longer safe because he was having delusions. But, absent the ability of the State

to introduce the records into evidence, there was no evidence of facts

constituting overt physical acts or even any verbal statements constituting “overt

acts” tending to confirm that S.S.’s safety or that of others was likely in jeopardy

or tending to demonstrate his distress and deterioration of his ability to function.

      S.S.’s safety and his future may hang in the balance if he does not get the

treatment he needs. Therefore, I would remand this case for a new trial in the



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interest of justice so that the evidence may be fully developed.4 See Jackson,

214 S.W.2d at 459; see also Scott v. Liebman, 404 S.W.2d 288, 294 (Tex. 1966)

(holding that when appellate court finds error in the judgment, both court of

appeals and supreme court have discretion to remand in the interest of justice),

abrogated in part on other grounds by Parker v. Highland Park, Inc., 565 S.W.2d

512, 517 (Tex. 1978); Dahlberg v. Holden, 150 Tex. 179, 187, 238 S.W.2d 699,

704 (1951) (holding that when there is error in judgment, whether to render or

remand is a question “regarding which appellate courts are given broad

discretion” (citing former Texas Rules of Civil Procedure 434 and 505)). For the

reasons stated, I join in the majority’s reversal but dissent from the majority’s

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

mental health services and ordering S.S.’s immediate release.



                                                 /s/ Anne Gardner
                                                 ANNE GARDNER
                                                 JUSTICE

DELIVERED: July 28, 2015




      4
       The likely expiration of the ninety-day period for which S.S. was ordered
to receive inpatient mental health services before the remanded case can be
reheard will not render the retrial moot. See K.E.W., 315 S.W.3d at 20 (holding
that expiration of ninety-day period for services did not require that appeal be
dismissed for mootness); see also State v. Lodge, 608 S.W.2d 910, 911 (Tex.
1980) (holding that mootness doctrine does not apply to appeals from temporary
commitment orders).

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