                                                                              ACCEPTED
                                                                          01-15-00784-CV
                                                               FIRST COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                   11/13/2015 12:10:03 PM
                                                                    CHRISTOPHER PRINE
                                                                                   CLERK

                   No. 01-15-00784-CV

       IN THE FIRST COURT OF APPEALS FOR     FILED IN
                                       1st COURT OF APPEALS
                 HOUSTON TEXAS             HOUSTON, TEXAS
                                                  11/13/2015 12:10:03 PM
                                                   CHRISTOPHER A. PRINE
              IN THE INTEREST OF E.S.R.                    Clerk




On Appeal from the Probate Court No. 4, Harris County, Texas
              Trial Court Cause No. I218340


                BRIEF FOR APPELLANT


                          Michael Scott Thomas
                          State Bar No. 19861200
                          Thomas & Williams, L.L.P.
                          2626 S. Loop West, Suite 561
                          Houston, Texas 77054
                          Telephone: (713) 665-8558
                          Facsimile: (713) 665-8562
                          Email: mstlawyer@aol.com

                          ATTORNEYS FOR APPELLANT

                          ORAL ARGUMENT WAIVED
             IDENTITY OF PARTIES AND COUNSEL
APPELLANT:   E.S.R.

COUNSEL:     Michael Scott Thomas
             State Bar No. 19861200
             THOMAS & WILLIAMS, L.L.P.
             2626 S. Loop West, Suite 561
             Houston, Texas 77054
             Telephone: (713) 665-8558
             Facsimile: (713) 665-8562
             Email: mstlawyer@aol.com

APPELLEE:    Harris County

COUNSEL:     Keith Toler
             State Bar No. 24088541
             Assistant County Attorney
             1019 Congress, 15th Floor
             Houston, Texas 7702
             Telephone: (713) 274-5265
             Facsimile: (713) 755-8924
             Email: Keith.Toler@cao.hctx.net

JUDGE:       The Honorable Christine Butts
             Probate Court No. 4, Harris County, Texas




                                 -ii-
                                          TABLE OF CONTENTS
Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

Index of Authorities ..................................................................................................iv

Statement of the Case................................................................................................. 1
Issues Presented ......................................................................................................... 2

Statement of Facts ...................................................................................................... 2-6

Summary of Argument .............................................................................................. 6-7

Argument.................................................................................................................... 7
I.       The Evidence is Legally and Factually Insufficient to Support the
         Trial Court’s Order of Involuntary Commitment ............................................ 7
         A.        Standard of Review. .............................................................................. 7-8

         B.        Involuntary Commitment. ..................................................................... 8-10

         C.        Mental Illness ................................................................................... 11
         D.        Harm to Others .................................................................................11-13

         E.        Experiencing Substantial Mental or Physical Deterioration ..............13-15
II.      The Evidence is Legally Insufficient to Support the Trial Court’s
         Order to Administer Psychoactive Medication. ............................................ 15

         A.        Standard of Review. ............................................................................ 15
         B.        Psychoactive Medication Order. .........................................................15-16

Conclusion and Prayer ............................................................................................. 16

Certificate of Compliance ........................................................................................ 16

Certificate of Service ............................................................................................... 17




                                                            -iii-
                                       INDEX OF AUTHORITIES

Cases
Armstrong v. State, 190 S.W.3d 246 (Tex. App.--Houston [1st Dist.] 2006,
     no pet.) ...........................................................................................................14
In re C.O., 65 S.W.3d 175 (Tex. App.--Tyler 2001, no pet.) ..................................13
In re F.M., 183 S.W.3d 489 (Tex.App.-- Houston [14th Dist.] 2005, no pet.) ........14
Johnstone v. State, 22 S.W.3d 408 (Tex. 2000) ........................................................9
J.M. v. The State of Texas, 178 S.W.3d 185 (Tex.App.--Houston [1st Dist.]
      2005, no pet.) .............................................................................. 7-8, 12-13, 15
K.E.W. v. State, 315 S.W.3d 16 (Tex. 2010) ...........................................................10
K.T. v. State, 68 S.W.3d 887 (Tex.App.--Houston [1st Dist.] 2002, no pet.)...........16
M.S. v. State, 137 S.W.3d 131 (Tex.App.--Houston [1st Dist.] 2004, no pet.) ........11
Mezick v. State, 920 S.W.2d 427 (Tex.App.--Houston [1st Dist.] 1996, no
     writ)................................................................................................................12
State v. Addington, 588 S.W.2d 569 (Tex. 1979) ..................................................... 7
State v. Lodge, 608 S.W.2d 910 (Tex. 1980) .............................................................8
State ex rel E.R., 287 S.W.3d 297 (Tex.App.--Texarkana 2013, no pet.) ... 12-13, 15
T. G. v. State, 7 S.W.3d 248 (Tex. App.--Dallas 1999, no pet.) ....................... 10, 13

Statutes
Tex. Health & Safety Code § 574.034(a) .......................................... 2, 7, 8, 9-11, 14
Tex. Health & Safety Code § 574.034(d) ..................................................... 8, 10, 14
Tex. Health & Safety Code § 574.106(a)(1)…………………………………2, 15




                                                           -iii-
                                No. 01-15-00784-CV

                  IN THE FIRST COURT OF APPEALS FOR
                            HOUSTON TEXAS


                         IN THE INTEREST OF E.S.R.


          On Appeal from the Probate Court No. 4, Harris County, Texas
                        Trial Court Cause No. I218340


                           BRIEF FOR APPELLANT



TO THE HONORABLE FIRST COURT OF APPEALS:

      COMES NOW Michael Scott Thomas, Attorney for Appellant E.S.R., and

files this Brief for Appellant. The Clerk’s Record will be referred to as CR, the

Supplemental Clerk’s Record will be referred to as Supp. CR, and the Reporter’s

Record will be Referred to as RR.


                         STATEMENT OF THE CASE
      This is an appeal from an involuntary mental health commitment (order for

temporary inpatient mental health services)(CR 27) and from an order to

administer psychoactive medications (CR 26). These lower court orders were

entered on September 3, 2015.




                                        -1-
                              ISSUES PRESENTED
   1. Whether the evidence is legally and factually insufficient to support the trial
      court’s order for temporary involuntary mental health services in violation of
      Texas Health & Safety Code Section 574.034 ?

   2. Whether the evidence is legally and factually insufficient to support the trial
      court’s order for psychoactive medication in violation of Texas Health &
      Safety Code Section 574.106?

                            STATEMENT OF FACTS
      Appellant is a 59 year old male (CR 8). On or about August 25, 2015,

Appellant’s father completed a sworn Application for Temporary Mental Health

Services (CR 8), an Affidavit of Applicant, wherein he alleged that Appellant had

made a verbal threat to kill his parents (CR 10), and Application for Emergency

Detention (CR 14). An Order of Emergency Apprehension and Detention was

signed on August 25, 2015 (CR 13), as well as an Emergency Apprehension and

Detention Warrant that issued on August 25, 2015, which was received, executed

and the Officer’s Return filed on that same date (CR 12).

      On August 26, 2015, E.S.R. was examined at Methodist Hospital in

Houston, Texas by a Dr. Ashley Smith, M.D. The Certificate of Medical

Examination from Dr. Smith states E.S.R. was examined on August 26, 2015, with

an Axis I diagnosis of “unspecified, psychosis” (CR 15). Dr. Smith writes that

E.S.R. was mentally ill and met all three requirements for involuntary commitment

and that he was likely to cause harm to himself, likely to cause harm to others, or is




                                         -2-
suffering from severe and abnormal mental, emotional or physical distress (CR

15).

       Finally, Dr. Smith wrote that E.S.R. committed the following overt acts:

       1.   Patient has attempted to get gun and threatened to kill his parents
       2.   Patient owns gun and threatened to use it to kill parents
       3.   Patient is uncooperative with poor insight and judgment
       4.   Patient is likely to deteriorate further w/o treatment and hospitalization

Id.

       E.S.R. was also examined by Dr. Alric D. Hawkins, M.D. on August 26,

2015. The Certificate of Medical Examination from Dr. Hawkins states E.S.R. was

examined on August 26, 2015, with an Axis I diagnosis of “schizophrenia” (CR 9).

Dr. Hawkins writes that E.S.R. was mentally ill and met two of the three

requirements for involuntary commitment and that he was likely to cause harm to

others, or is suffering from severe and abnormal mental, emotional or physical

distress. Id.

       Finally, Dr. Hawkins wrote that E.S.R. committed the following overt acts:

       1. Patient has threatened to kill parents
       2. Also, has threatened to kill his parents

Id.

       An Order for Protective Custody and Notice of Hearing (“OPC”) was

entered on Thursday, August 27, 2015, and was received, executed and the

Officer’s Return filed on the same date (CR 16). The OPC set a probable cause




                                           -3-
hearing on Monday, August 31, 2015. The probable cause hearing was held on

August 31, 2015, wherein the Hearing Officer found that there was probable cause

that E.S.R. presented a substantial risk of serious harm to himself or to others (CR

18). On August 26, 2015, Dr. Alric Hawkins filed a Petition for Order to

Administer Psychoactive Medication (CR 19-20).

      Aside from Appellant, Dr. Alric Hawkins was the only person to testify at

the involuntary commitment hearing held on September 3, 2015. At the

commitment hearing, Dr. Hawkins testified that he had been working with E.S.R.

for just over a week (RR Vol. 1, pp. 6:8-10). Dr. Hawkins further testified that

E.S.R.’s diagnosis for his present medical condition was either schizophrenia or

schizoaffective disorder (RR Vol. 1, pp. 6:16-23). Dr. Hawkins testified that

E.S.R.’s behaviors were disorganized and outside the norm; that he was suffering

from paranoid delusions; that per his family, he’s concerned that folks are shooting

from him (sic); that the family became concerned after he requested a firearm (RR

Vol. 1, pp. 7:15-25; pp. 8:1-6); that E.S.R. typically pleads the Fifth and refuses to

cooperate (RR Vol. 1, pp. 8:10-22); that E.S.R. has refused the medication and

some of the work (RR Vol. 1, pp. 9:13-16); that in the hospital, E.S.R. is pretty

irritable, agitated, very argumentative (RR Vol. 1, pp. 9:17-23); that without

further treatment or intervention, E.S.R. is likely to cause serious harm either to

himself or to others (RR Vol. 1, pp. 10:13-18); and that Dr. Hawkins’ “primary




                                         -4-
concern” was “harm to others” and “ability to care of himself” (RR Vol. 1, pp.

10:19-25).

      Dr. Hawkins also testified that E.S.R. will experience substantial mental and

physical deterioration without treatment; that E.S.R. would not be able to make

decisions regarding his health and safety; and that E.S.R. would not be able to

make rational and informed decisions as to whether to commit to treatment (RR

Vol. 1, pp. 6:6-14). The trial court found that E.S.R. was mentally ill; furthermore,

the trial court found by clear and convincing evidence that as a result of mental

illness, E.S.R. met the second and third criteria for commitment:

      is likely to cause serious harm to others;

      is suffering severe and abnormal mental, emotional or physical distress;

      is experiencing substantial mental or physical deterioration of [her] ability to
      function independently, which is exhibited by the proposed patient’s
      inability, except for reasons of indigence, to provide for [her] basic needs;
      including food, clothing, health or safety; and
      is not able to make rational and informed decisions as to whether to submit
      to treatment.

(CR 27; RR Vol. 1, pp. 23:2-10).

      The trial court then immediately started the medication hearing (RR Vol. 1,

pp. 23:11-15). At the medication hearing, Dr. Hawkins again testified that he was

still trying to “figure out” whether E.S.R.’s diagnosis was schizophrenia or

schizoaffective disorder (RR, Vol. 1, pp. 23:19-23); that E.S.R. lacked the capacity

to make decisions regarding medication (RR Vol. 1, pp. 24:16-19); that without


                                        -5-
medication, E.S.R.’s prognosis would be poor (RR Vol. 1, pp. 24:20-24); and that

there were no less restrictive alternatives (RR Vol. 1, pp. 24: 25; pp. 25:1-6).

      Dr. Hawkins admitted on cross-examination that he was not aware if E.S.R.

had been on medication in the past, or what the potential results would be based on

E.S.R.’s past history (RR Vol. 1, pp. 12:11-22). Dr. Hawkins further admitted on

cross-examination that if E.S.R. did have an untreated seizure disorder, it could

affect both his medical and psychiatric condition (RR Vol. 1, pp. 25:18-25). The

trial court found that it would be in E.S.R.’s best interest to be treated with

psychoactive medications, and that E.S.R. was incapable of making his own

medical decisions (CR 26; Vo. 1, pp. 32:10-17).

      E.S.R. filed his notice of appeal (CR 6) and affidavit of indigence and

inability to pay costs (CR 33) on September 8, 2015. On September 14, 2015, the

trial court signed an order discharging Teresa Scardino as Attorney Ad Litem for

E.S.R., and appointing Michael Scott Thomas as Attorney Ad Litem for E.S.R.

(Supp. CR 6-7).

                          SUMMARY OF ARGUMENT
      The State’s evidence at trial in support of court-ordered temporary and

involuntary mental health services is insufficient. The expert witness had little

knowledge of the facts attendant to the application for involuntary commitment.

Dr. Hawkins testimony did not state sufficient facts of an overt act or continuing




                                         -6-
pattern of behavior sufficient to support a finding of clear and convincing

evidence.

      Because the evidence is legally insufficient to support the involuntary

commitment order, the evidence is likewise insufficient to support the order to

administer psychoactive medication.

      Based on the foregoing, E.S.R. requests that the judgment of the trial court

be reversed in its entirety.

                        ARGUMENT AND AUTHORITIES
I.    The evidence is legally and factually insufficient to support the trial
      court’s order of involuntary commitment.
      A.     Standard of Review.
      Clear and convincing evidence is that “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).


      The standard of review for legal sufficiency or factual sufficiency when the

burden of proof is clear and convincing case is a heightened standard. J.M. v. The

State of Texas, 178 S.W.3d 185, 191-192 (Tex.App.--Houston [1st Dist.] 2005, no

pet.). The State of Texas is required to prove at least one of the prongs of Health

& Safety 574.034(a) by clear and convincing evidence.




                                          -7-
      In a legal sufficiency review, a court should 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 its finding was true.
      To give appropriate deference to the factfinder’s conclusions and the role of
      a court conducting a legal sufficiency review, looking at the evidence in the
      light most favorable to the judgment means that a reviewing court must
      assume that the factfider resolved disputed facts in favor of its finding if a
      reasonable factfinder could have done so. A corollary to this requirement is
      that a court should disregard all evidence that a reasonable factfinder could
      have disbelieved or found to have been incredible. This does not mean that a
      court must disregard all evidence that does not support the finding.
      Disregarding undisputed facts that do support the finding could skew the
      analysis of whether there is clear and convincing evidence. If, after
      conducting its legal sufficiency review of the record evidence, a court
      determines that no reasonable factfinder could form a firm belief or
      conviction that the matter that must be proven true, then that court must
      conclude that the evidence is legally insufficient.

Id.
      The standard of review for factual sufficiency is also a heightened one:
      In reviewing the evidence for factual sufficiency under the clear and
      convincing standard, we inquire “whether the evidence is such that a
      factfinder could reasonably form a firm belief or conviction about truth of
      the State’s allegations. In doing so, we must give due consideration to
      evidence that the factfinder reasonably could have fond to be clear and
      convincing. If, in light of the entire record, the disputed evidence that a
      reasonable factfinder could not reasonably have formed a firm belief or
      conviction, then the evidence is factually insufficient.

Id.
      B.    Involuntary Commitment.
      Appeals of orders for involuntary commitment do not violate the

mootness doctrine. Tex. Health & Safety Code § 574.034(d); State v.

Lodge, 608 S.W.2d 910, 912 (Tex. 1980). In cases such as these tried before




                                        -8-
the court, a motion for new trial is not necessary to preserve a actual

sufficiency challenge in an appeal of a temporary involuntary commitment

order. Johnstone v. State, 22 SW.3d 408, 411 (Tex. 2000)(per curiam).


      The State must establish by clear and convincing evidence the following to


support an order of temporary involuntary mental health services:


      ORDER FOR TEMPORAR MENTAL HEALTH SERVICES. (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 mentally ill; and

                (2) as a result of that mental illness the proposed patient:
                    (A)   is likely to cause serious harm to himself;

                    (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 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.




                                         -9-
Tex. Health & Safety Code § 574.034(a).

       The State’s proof must include expert testimony. Tex. Health &

Safety Code § 574.034(d). Further, unless waivd by the proposed patient, the

State must introduce evidence of a recent overt at or a continuing pattern of

behavior that tends to confirm either (1) the likelihood of a serious harm to

the proposed patient or others, or (2) the proposed patient’s distress and

deterioration of the proposed patient’s ability to function. Id. The expert

opinion must be supported by a showing of its factual basis, and the

identified overt act or continuing pattern of behavior must be related to the

criteria on which the judgment is based. T.G. v. State, 7 S.W.3d 248, 252

(Tex.App.--Dallas 1999, no pet.). “[A] proposed patient’s words are overt

acts within the meaning of Section 574.034(d).” K.E.W. v. State, 315

S.W.3d 16, 22 (Tex. 2010). The Supreme Court has summarized the State’s

burden in these cases:

       The statute requires evidence of a recent act by the proposed patient, either
       physical or verbal, that can be objectively perceived and that is to some
       degree probative of a finding that serious harm to others is probable if the
       person is not treated. The overt act itself need not be of such character that it
       alone would support a finding of probable serious harm to others.

Id. at 24.


                                         - 10 -
        C.    Mental Illness.
        The trial court found that E.R.S. was mentally ill (CR 27). E.S.R. does not

contest that finding; however, an expert diagnosis of mental illness, standing alone,

is not sufficient to confine a patient for treatment. M.S. v. State, 137 S.W.3d 131,

136 (Tex.App.--Houston [1st Dist.] 2004, no pet.).

        D.    Harm to Others.
        The trial court found that the State had shown by clear and convincing

evidence, two of three criteria of Section 574.034(a)(2)(B)-(C)(CR 27). The overt

act or continuing pattern of behavior must relate to the criterion on which the

judgment is based. Appellant maintains that those two findings are in error.

        The initial medical examination dated August 26, 2015, by Dr. Hawkins that

accompanied the application for temporary services list the following alleged overt

acts:

        1.    Patient has threatened to kill parents
        2.    Also, has threatened to kill his parents

(CR 9).

        At the commitment hearing, Dr. Hawkins testified that he had been working

with E.S.R. for just over a week (RR Vol. 1, pp. 6, 8-10). Dr. Hawkins further

testified that E.S.R.’s diagnosis for his present medical condition was either

schizophrenia or schizoaffective disorder (RR Vol. 1, pp. 6:16-23). Dr. Hawkins




                                         - 11 -
explained neither of his alternate diagnosis, and was never asked to do so by the

State, E.S.R.’s attorney, or the trial court. Expert diagnosis of mental illness alone

is not sufficient to confine a patient. Mezick v. State, 920 S.W.2d 427, 430

(Tex.App.--Houston [1st Dist.] 1996, no writ).

      Dr. Hawkins testified that per his family, E.S.R. is concerned that folks are

shooting from him (sic); that the family became concerned after he requested they

bring a firearm (RR Vol. 1, pp. 7:15-25; pp. 8:1-6); that Dr. Hawkins’ “primary

concern” was “harm to others” and “ability to care of himself” (RR Vol. 1, pp.

10:19-25); and that without further treatment or intervention, that E.S.R. is likely

to cause serious harm either to himself or to others (RR Vol. 1, pp. 10:13-18).

      “[A] threat of harm to the patient or others (emphasis ours) must be

substantial and based on actual dangerous behavior manifested by some overt act

or threats in the recent past.” J.M., 178 S.W.3d a 193. Evidence that E.S.R.

“might” cause harm to others is insufficient. State ex rel E.R., 287 S.W.3d 297,

305 (Tex.App.--Texarkana 2009, no pet). There was no testimony from Dr.

Hawkins as to the date that E.S.R. allegedly threatened his family. There was no

testimony from Dr. Hawkins that E.S.R. owned a gun or had a gun in his

possession, custody or control. In point of fact, E.S.R. denies threatening to harm

his parents (RR Vol. 1, pp. 14:12-14). In sum, there was no testimony from Dr.

Hawkins regarding overt acts sufficient to support an involuntary commitment.




                                        - 12 -
      Dr. Hawkins further testified that E.S.R. typically pleads the Fifth and

refuses to cooperate (RR Vol. 1, pp. 8:10-22); and that in the hospital, E.S.R. is

pretty irritable, agitated, very argumentative (RR Vol. 1, pp. 9:17-23).

      E.      Experiencing Substantial Mental or Physical Deterioration.
      For evidence to meet the clear and convincing standard, it must show a

recent overt act or a continuing pattern of behavior that tends to confirm E.S.R.’s

distress and deterioration of E.S.R.’s ability to function. The State of Texas for the

Best Interest and Protection of E.R., 287 S.W.3d at 305. Dr. Hawkins testified

that E.S.R. will experience substantial mental and physical deterioration without

treatment, that E.S.R. would not be able to make decisions regarding his health and

safety, and that E.S.R. would not be able to make rational and informed decisions

as to whether to commit to treatment (RR Vol. 1, pp. 11:6-14).

      Dr. Hawkins testified that E.S.R.’s behaviors were disorganized and outside

the norm; and that he was suffering from paranoid delusions (RR Vol. 1, pp. 7:15-

25; pp. 8: 7-9). Evidence of psychosis or delusions merely confirms that a patient

is mentally ill. It does not rise to the level of an overt act or continuing pattern of

behavior necessary to support a commitment order. J.M., 178 S.W.3d at 196, citing

In re C.O., 65 S.W.3d 175, 181-182 (Tex.App.--Tyler 2001, no pet.); T.G., 7

S.W.3d at 250-252.




                                        - 13 -
      Dr. Hawkins testified that E.S.R has refused medication and some of the

work (RR Vol. 1, pp.9:13-16; however, Dr. Hawkins admitted on cross-

examination that he was not aware if E.S.R. had be on medication in the past, or

what the potential results would be based on E.S.R.’s past history (RR Vol. 1, pp.

12:11-22). Appellant argues that Dr. Hawkins’ testimony is not legally or factually

sufficient to establish that E.S.R.’s refusal of     medication is an overt act or

continuing pattern of behavior tending to confirm E.S.R.’s distress or a

deterioration of the ability to function. Armstrong v. State, 190 S.W.3d 246, 252-

254 (Tex.App.--Houston [1st Dist.] 2006, no pet.)(refusal to take medications for

medical condition); In re F.M., 183 S.W.3d at 499(a preponderance of Texas

authority holding a patient’s refusal to take medication is insufficient evidence of a

recent overt act or continuing pattern of behavior). Appellant argues that evidence

of deterioration in the future does not establish an overt act or a continuing pattern

of behavior. Armstrong, 190 S.W.3d at 252-253 (evidence showed only that

patient was beginning to deteriorate, not that she was currently experiencing

substantial deterioration of her ability to function independently). Expert opinions

must be supported by a showing of the factual bases on which they are grounded

and not simply recite the statutory criteria. In re F.M., 183 S.W.3d at 499. Dr.

Hawkins’ opinion did little more that testify to the conclusions required by

Sections 574.034(a) and (d).




                                        - 14 -
       In sum, there was no testimony from Dr. Hawkins regarding any overt act or

a continuing pattern of behavior that E.S.R.’s ability to function independently

would continue to deteriorate or any evidence of E.S.R.’s ability to function on a

day-to-day basis. E.R., 287 S.W.3d at 306; J.M., 178 S.W.3d at 193.

II.    The evidence is legally insufficient to support the trial court’s order to
       administer psychoactive medication.

       A.     Standard of Review.
       Appellant incorporates by reference all authorities cited in Paragraph II.A of

this Brief.

       B.     Psychoactive Medication Order.


       The trial court found by clear and convincing evidence that E.S.R. lacked

capacity to make a decision regarding administration of medication and that it was

in E.S.R.’s best interest that medication be ordered (CR 26). A trial court may

issue an order authorizing the administration of psychoactive medication only if

the proposed patient is under a valid order for temporary or involuntary mental

health services. Tex. Health & Safety Code Ann. Section 574.106(a)(1).

       Appellant incorporates by reference all averment of facts and authorities

cited in Paragraph II.B-E of this Brief. Based on the above and foregoing,

Appellant argues that because the evidence is legally insufficient to support the

trial court’s order of temporary commitment, the evidence is also legally




                                        - 15 -
insufficient to support the order to administer psychoactive medication. K.T. v.

State, 68 S.W.3d 887, 894 (Tex.App.--Houston [1st Dist.] 2002, no pet.).

                         CONCLUSION AND PRAYER
      WHEREFORE,         PREMISES       CONSIDERED,           Appellant   respectfully

requests that the order of the Probate Court No. 4 for temporary mental health

services, and the dependent order for the administration of psychoactive

medication, be reversed, rendered, and set aside, and for such other and further

relief to which Appellant may show himself justly entitled.

                                       Respectfully submitted,

                                       /s/ Michael Scott Thomas
                                       MICHAEL SCOTT THOMAS
                                       State Bar No. 19861200
                                       THOMAS & WILLIAMS, L.L.P.
                                       2626 S. Loop West, Suite 561
                                       Houston, Texas 77054
                                       Telephone: (713) 665-8558
                                       Facsimile: (713) 665-8562
                                       Email: mstlawyer@aol.com

                                       ATTORNEYS FOR APPELLANT


                      CERTIFICATE OF COMPLIANCE
      I certify that pursuant to Tex.R.App.P. 9.4(i)(3), this document contains
4,080 words.

                                       /s/ Michael Scott Thomas
                                       MICHAEL SCOTT THOMAS




                                       - 16 -
                        CERTIFICATE OF SERVICE
      I certify that a true and correct copy of Appellant’s Brief was served via
email at Keith.Toler@cao.hctx.net to Mr. Keith A. Toler, Assistant County
Attorney, 1019 Congress, 15th Floor, Houston, Texas 77002 on the 16th day of
November, 2016.


                                    /s/ Michael Scott Thomas
                                    MICHAEL SCOTT THOMAS




                                     - 17 -
