Reversed and Rendered and Opinion Filed July 30, 2015




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-15-00043-CV

                                IN THE MATTER OF L.A.T.

                      On Appeal from the 401st Judicial District Court
                                   Collin County, Texas
                           Trial Court Cause No. 401-82467-03

                            MEMORANDUM OPINION
               Before Chief Justice Wright and Justices Lang-Miers and Stoddart
                               Opinion by Chief Justice Wright
       Appellant was tried for capital murder and acquitted by reason of insanity. Thereafter,

the trial court ordered that appellant be placed in a maximum security mental health facility

where she stayed for approximately two years until, at the request of the state hospital’s

superintendent, appellant was released into an outpatient treatment program.          Each year

thereafter, pursuant to section 574.066 of the Texas Health and Safety Code, the State filed a

motion to renew appellant’s outpatient treatment.

       In 2013, the trial court modified appellant’s level of outpatient supervision by reducing

her level of treatment from an intensive level of care to contact with her psychiatrist, Dr. John

Bennett, once every six weeks and contact with a caseworker once a month. In 2014, the State

filed a motion to renew the trial court’s 2013 outpatient treatment order. At the hearing on the

motion, Bennett was the sole witness.      Bennett testified that appellant has schizoaffective

disorder but she is now asymptomatic. He testified that ten to fifteen percent of those diagnosed
with this disorder go into remission and no longer need treatment. Bennett testified that he

anticipated appellant would be a part of the ten to fifteen percent. According to Bennett,

appellant has not been on medication since 2008 and she has not experienced any deterioration in

her condition since that time. She is also able to function independently. Furthermore, Bennett

testified that appellant is not a danger to herself or others and she no longer meets the criteria for

inpatient or outpatient treatment. However, when asked if he could guarantee that appellant

would not relapse, Bennett stated that he could not. After considering this and other evidence,

the trial court granted the State’s motion to renew appellant’s outpatient treatment. Appellant

now appeals, contending the evidence is legally insufficient to support the order renewing her

outpatient treatment.

          The offense with which appellant was charged occurred before September 1, 2005.

Accordingly, former article 46.03 of the Texas Code of Criminal Procedure provides the

procedure by which hearings seeking to continue appellant’s outpatient treatment must be

conducted. Specifically, former article 46.03 requires that recommitment hearings be conducted

pursuant to the Texas Mental Health Code.1 See Act of May 25, 1983, 68th Leg., R.S., ch. 454,

§ 3, sec. 4(d)(5), 1983 Tex. Gen. Laws 2640, 2644–46, repealed by Act of May 27, 2005, 79th

Leg., R.S., ch. 831, § 1, 2005 Tex. Gen. Laws 2841, 2841; see also House v. State, 222 S.W.3d

497, 507 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). Under the mental health code,

the State must prove by clear and convincing evidence that (1) the proposed patient is mentally

ill; (2) the mental illness is severe and persistent; (3) as a result, the proposed patient will suffer

severe and abnormal emotional, physical, or mental distress if not treated; and (4) the proposed

patient will continue to experience deterioration in her ability to function independently to the

1
 The requirements for renewal of inpatient and outpatient treatment changed for all offenses committed after September 1, 2005. See Act of May
27, 2005, 79th Leg., R.S., ch. 831, § 5, 2005 Tex. Gen. Laws 2841, 2853–54 (current version at TEX. CODE CRIM. PROC. art. 46C.261 (West
Supp. 2014)) (court shall renew order if party who requested renewal establishes by clear and convincing evidence that mandatory supervision
and treatment are appropriate).



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extent she will be unable to live safely in the community without court-ordered outpatient

treatment. TEX. HEALTH & SAFETY CODE ANN. § 574.035(b) (West Supp. 2014). The evidence

is clear and convincing only if the State shows that appellant committed a recent overt act or a

continuing pattern of behavior that demonstrates the patient’s distress, deterioration of ability to

function independently to the extent that the proposed patient will be unable to live safely in the

community, and inability to participate in outpatient treatment effectively or voluntarily. See

TEX. HEALTH & SAFETY CODE ANN. § 574.035(f).

       Here, the State concedes the evidence before the trial court is legally insufficient to

support the order granting the State’s motion to renew appellant’s outpatient treatment. After

reviewing the evidence, we agree that there is no evidence to support the order. Bennett testified

that appellant has schizoaffective disorder, but his testimony that appellant is asymptomatic

counters the contention that her mental illness is severe and persistent. Also, Bennett testified

that appellant functions independently, perfectly complies with treatment, and has not

deteriorated in her condition, which is also evidence contrary to the requirements under the

mental health code. See TEX. HEALTH & SAFETY CODE ANN. § 574.035(b)–(f).

       Although the State concedes the evidence is legally insufficient, it asks the Court to

reverse and remand this case to the trial court for further proceedings. In support of its argument

to remand, the State relies on several cases, each of which remands based on a procedural or trial

error. See State v. Roland, 973 S.W.2d 665, 666–67 (Tex. 1998) (untimely hearing); Harrison v.

State, 239 S.W.3d 368, 374 (Tex. App.—Beaumont 2007, no pet.) (denial of right to jury trial);

Campbell v. State, 118 S.W.3d 788, 804–05 (Tex. App.—Houston [14th Dist.] 2003, no pet.)

(improper jury question).

       The State also relies on former article 46.03, section 4(d)(5) of the Texas Code of

Criminal Procedure in arguing that remand is the appropriate disposition of this case.           In

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particular, it contends that former article 46.03 provides that appellant “may only be discharged

by order of the committing court.” See Act of May 25, 1983, 68th Leg., R.S., ch. 454, § 3, sec.

4(d)(5), 1983 Tex. Gen. Laws 2640, 2644–46 (repealed 2005); Harrison, 239 S.W.3d at 374.

However, in making this argument the State fails to address rule 43.3 of the rules of appellate

procedure, which generally requires this Court to render the judgment the trial court should have

rendered. TEX. R. APP. P. 43.3; see also In the Interest of J.F.C., 96 S.W.3d 256, 259 (Tex.

2002) (rendition of judgment generally required if evidence is legally insufficient); State ex rel.

D.L.S., 446 S.W.3d 506, 520 (Tex. App.—El Paso 2014, no pet.) (reversal and rendition proper

remedy where issue sustained on legal sufficiency grounds). Because this Court has authority to

render the judgment the trial court should have rendered, remand is unnecessary. See In re

D.F.R., 945 S.W.2d 210, 215 (Tex. App.—San Antonio 1997, no pet.) (reversing and rendering

because no evidence was presented during hearing and as a result acquitee was not afforded

“mandatory statutory safeguards”); Khateeb v. State, 712 S.W.2d 881, 885 (Tex. App.—Houston

[1st Dist.] 1986, no writ) (reversing and rendering because State did not show by clear and

convincing evidence that acquitee met involuntary commitment or court-ordered mental health

services criteria).

        Accordingly, we sustain appellant’s issue. We reverse the trial court’s order renewing

outpatient supervision and treatment. We render judgment that appellant be released effective

immediately from any court-ordered mental health services.




150043F.P05

                                                     /Carolyn Wright/
                                                     CAROLYN WRIGHT
                                                     CHIEF JUSTICE



                                               –4–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

IN THE MATTER OF L.A.T.                               On Appeal from the 401st Judicial District
                                                      Court, Collin County, Texas
No. 05-15-00043-CV                                    Trial Court Cause No. 401-82467-03.
                                                      Opinion delivered by Chief Justice Wright,
                                                      Justices Lang-Miers and Stoddart
                                                      participating.

        In accordance with this Court’s opinion of this date, the order of the trial court renewing
outpatient supervision and treatment is REVERSED and judgment is RENDERED that
appellant Lisa Ann Trevino be released effective immediately from any court-ordered mental
health services.


Judgment entered July 30, 2015.




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