                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-14-00099-CV
                             ____________________

                     MILLET HARRISON JR., Appellant

                                        V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 252nd District Court
                       Jefferson County, Texas
                        Trial Cause No. 66306
__________________________________________________________________

                          MEMORANDUM OPINION

      In 1994, Millet Harrison Jr. was found not guilty by reason of insanity for

the murder of his mother and was committed to a mental health facility. Harrison

v. State, 179 S.W.3d 629, 631 (Tex. App.—Beaumont 2005, pet. denied). The trial

court has renewed Harrison’s involuntary inpatient mental health commitment each

year. Id. On January 22, 2014, the trial court again entered an order of commitment

continuing Harrison’s inpatient mental health services. In two appellate issues,

Harrison challenges the legal and factual sufficiency of the evidence to support the

                                         1
trial court’s order extending his inpatient mental health treatment. We reverse the

trial court’s judgment and remand the cause for further proceedings consistent with

this opinion.

       Under a legal sufficiency review when the burden of proof is “clear and

convincing” evidence, we consider 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. Id. at 634. We assume the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder

could. Id. Under a factual sufficiency review, we consider all the evidence, both in

support of and contrary to the trial court’s findings, and we give due consideration

to evidence that the factfinder could reasonably have found to be clear and

convincing. Id. at 634-35. We must determine whether the evidence is such that a

factfinder could reasonably form a firm belief or conviction about the truth of the

allegations. Id. at 635. We consider whether disputed evidence is such that a

reasonable trier of fact could not have reconciled that disputed evidence in favor of

its finding. Id.

       The report by psychiatrist Dr. Edward Gripon, which described his

psychiatric evaluation of Harrison, was before the trial court. In his report, Gripon

explained that he has “had significant and ongoing contact” with Harrison since

                                          2
1994 and has “evaluated him on numerous occasions.” Gripon stated in the report

Harrison’s records from Rusk State Hospital “reveal complete compliance with

treatment recommendations and unit rules in the State Hospital for the past 12

months.” Gripon noted that Harrison’s psychoactive medication, Risperdal, was

“currently provided on the unit in a ‘self-medication fashion’, in that, he signs for

medicine, takes it and this is done independently under nursing supervision.” In

addition, Gripon noted that Harrison works on the unit and is “on what is

essentially an open unit . . . .” According to Gripon’s report, Harrison is able to

move about the grounds “without significant supervision and has shown no

tendency to violate this, or any other, extended privilege[,]” and Harrison’s level of

function “represents essentially the highest level obtainable, while still

hospitalized . . . .”

       Gripon stated in his report that Harrison’s records from Rusk “reveal[] only

positive comments about his performance/level of function[.]” Gripon’s report

further indicated that Harrison “explained his suspicions/paranoia, in certain areas,

of his continued confinement and the process in which he’s been involved for a

number of years in attempting to achieve a [] less restrictive environment. His

explanation appeared clearly reasonable under his[] somewhat difficult, but

obvious[,] circumstances.” Gripon’s report indicated that he found no evidence of

                                          3
any thought disorder and opined that Harrison’s “thought process is free of

hallucinations, both auditory and visual, delusions[,] and illusions.” Gripon

diagnosed Harrison with schizophrenia, paranoid type, “in complete remission.”

Gripon noted that if Harrison were released, Rusk had arranged for Harrison to

enter a group home in Houston, the Modest Family Care Facility “where he would

be under continued supervision and medication monitoring.” In the report, Gripon

opined that Harrison has “achieved optimal response from inpatient psychiatric

treatment intervention over these many years” and that Harrison “is not going to

improve from his current state with further inpatient treatment.” Gripon noted in

the report that Harrison “is, and has been for many months, compliant with taking

antipsychotic medication. . . .” Gripon’s report concluded that “the presiding Court

should consider Millet Harrison at this time, to be in optimal inpatient treatment

status/condition and, at least, consider a release to a step down/less restrictive

treatment setting.”

      Dr. George Howland, a psychiatrist at Rusk, testified that he has been

Harrison’s physician for approximately two years. Howland explained that

Harrison suffers from paranoid schizophrenia and takes a daily medication,

Risperdal, for his illness. According to Howland, Harrison’s condition would

deteriorate if he were not treated, and Harrison’s mental illness will persist for the

                                          4
rest of Harrison’s life. During cross-examination, Howland testified that

schizophrenia is a neurochemical, physiological disorder that may cause patients to

have disorganized thoughts, hear voices, become paranoid or delusional, and have

“fixed false beliefs.” According to Howland, paranoid schizophrenia is treatable

with medications that alter the person’s neurochemistry. Howland explained that

Harrison has “done well” and is “currently not having any psychotic symptoms.”

Howland testified that Harrison takes his medication, signs in and out of his

unlocked unit, and has a job at the hospital.

      According to Howland, a social worker has formulated a plan for Harrison

“to go to a personal care home in the Houston area” if the trial court were to order

that Harrison no longer required inpatient care. Howland explained that Harrison

has been self-administering his medication at Rusk with a nurse’s supervision.

Howland testified, “I don’t know that they have a nurse there at the personal care

home; but Millet knows his meds and when he needs to take [th]em. So, I feel

confident he could take his meds fine.” Howland explained that someone from the

personal care home, Modest Family Care Facility, would notice if Harrison were

“not acting right” or refusing to take his medication. Howland testified that

Harrison has “always told me that he needed to stay on his meds and that he had a

mental illness.” Howland also admitted that Harrison’s statements to the trial court

                                          5
at previous hearings, when Harrison indicated he was not mentally ill and did not

need medication, showed a lack of insight. Howland’s report was also before the

trial court. In the report, Howland opined that “Harrison is stable psychiatrically,

and is not a danger to himself or others[,]” and he “recommended that Mr.

Harrison be discharged to the community to a transitional living placement.”

      At the hearing, Harrison’s counsel argued that Harrison’s ingestion of

Ambien, combined with his schizophrenia, “caused the mental instability that

resulted in the death of his mother.” According to Howland, Ambien can cause

psychosis, but in Howland’s experience, when patients stopped taking the drug,

their psychosis cleared. Howland testified that Ambien may have exacerbated

Harrison’s schizophrenic psychosis, and “Ambien is one part of [Harrison’s]

issue.” Howland explained that “the other issue that came up was [Harrison’s]

psychiatrists had recommended him, back at that time in ’94, to get off all of his

meds . . . and that was also leading up to this incident when he murdered his

mother.” Howland opined, “We don’t have an issue with [Harrison] taking his

meds now. In fact, . . . he didn’t get his meds . . . the first day he was in the jail

here; and he asked the captain to get him the meds.” According to Howland, if

Harrison stopped taking his medication, he would be a danger to the community.

Howland stated that he was unconcerned about patients’ refusal to take other

                                          6
medications “if they take their psychotropic meds.” Howland opined that Harrison

is “fine to go [in]to the community” and has “good insight.” According to

Howland, it is incongruous that someone convicted of murder may receive parole,

yet Harrison cannot be released to outpatient care.

      Clinical psychologist Dr. Dan Roberts testified that, for several years, he has

been asked to review and evaluate Harrison’s records. Roberts testified that

Harrison suffers from paranoid schizophrenia, and Harrison’s condition would

continue to deteriorate and he would suffer severe mental or emotional distress if

untreated. According to Roberts, Harrison’s condition will last more than ninety

days, and Harrison should remain in a court-ordered inpatient mental health

treatment program.

      Roberts testified that he believed Harrison might be hallucinating because in

August 2013, Harrison had complained of being unable to sleep because patients

were “up all night playing Ping-Pong[,]” but a staff member said “that was never

true, that didn’t happen[.]” According to Roberts, Harrison had also complained

about a nurse tampering with his medicines because the pills had gotten wet and

“argued with a staff member about a lunch tray.” Roberts testified that Harrison

had an argument with another patient about a news report concerning the Trayvon

Martin case and “displayed aggressive behavior” by arguing with another patient

                                         7
and a staff member. In addition, Roberts explained that Harrison refused to take

vaccines for flu and pneumonia and refused to take an antibiotic for an infection.

      According to Roberts, Harrison “thinks that Ambien . . . caused him to

become psychotic and kill his mother. He has often tried to influence his doctors to

stop his medicine, to let him have trials without it to see how he would do . . . .”

Roberts further testified that when Harrison’s medicine “is changed or adjusted or

when he’s transitioning from one medicine to another, he often has become more

psychotic.” Roberts explained, “The fact that he’s continuing to question his

medicine this year, recently, suggests to me that he’s still delusional about that.”

According to Roberts, one of Harrison’s psychiatrists noted in 1995 or 1996 that

although Harrison has “a very persistent underlying delusional system, which was

untouched by the medicine apparently, . . . [Harrison] does have the ability when

he is medicated to tone it down and not talk about it much.”

      Roberts explained that although Harrison has blamed the killing of his

mother on his ingestion of Ambien, Harrison had a long history of mental health

issues prior to that time, and that Harrison’s first hospitalization for mental health

problems occurred in 1975. Roberts testified, “I think that [Harrison] blames the

schizophrenic outbreak on the Ambien[,]” although Harrison had been hospitalized

“about five or six times previously.” According to Roberts, Harrison stated in 2011

                                          8
that he did not think he is mentally ill and does not need medication. Roberts

opined that Harrison lacks insight into his condition, and he explained that lack of

insight is one of the “hallmarks” of Harrison’s condition. A week before trial,

Roberts attempted to visit Harrison at the jail, but Harrison refused to permit the

visit. Roberts testified that he disagreed with the conclusions of both Howland and

Gripon concerning Harrison.

      Theresa Allen, a social worker from the Hope Unit at Rusk, testified that she

manages Harrison’s case. Allen explained that she serves on a recovery team that

assists Harrison “with different things he needs[,]” and she also serves as “a liaison

between the hospital itself and the Mental Health Authority and his family.”

According to Allen, if Harrison were released, “the Mental Health Authority would

take over the case management services for him.” Allen testified that she deals

with Harrison on a daily basis, and Harrison “is very compliant in every area.”

When asked about testimony from previous witnesses concerning alleged incidents

of belligerence by Harrison with other patients, Allen testified, “I’m not aware of

those[,]” and she explained that Harrison has had no problems in the last year.

Allen explained that Harrison had requested that people not play ping pong after a

certain time of night, and she explained that there was a ping pong table in the




                                          9
room next to Harrison’s, and Harrison’s room and the game room share a wall, so

Harrison was not experiencing a delusion.

      Jim Larue, the director of social services as well as the director of Rusk’s

Hope Unit, where Harrison is housed, testified that if Harrison were released to an

outpatient treatment setting, he would be transported to the Mental Health

Authority for an intake appointment and interview, and he would then be taken to a

group home. According to Larue, the purpose of the interview would be to

establish Harrison’s care plan and “get him into their system so that they can make

sure he has a doctor’s appointment and everything that he needs for follow-up.”

Larue explained that the group home is a residence where Harrison would receive

assistance with his daily living needs, such as access to medication and

transportation to appointments, and the Mental Health Authority would provide

Harrison mental health services at a different location. Larue testified that if

Harrison began to manifest schizophrenic symptoms, the group home would notify

the appropriate mental health authorities. Larue testified that, as unit director, he

receives notice when a patient is having behavioral problems, but he has received

no complaint about Harrison in the past year, and he described Harrison as “a

model patient[.]” According to Larue, Harrison has “been very stable and




                                         10
maintained our highest privileges[.]” Larue explained that homes such as Modest

Family Care Facility do not typically have a nurse on staff.

      Licensed professional counselor Cliff Hubel of Spindletop MHMR testified

that he is familiar with Harrison and served as a liaison between MHMR and Rusk

regarding a contingency discharge plan for Harrison. Hubel explained that the plan

is to discharge Harrison to Modest Family Care home, a group home in Houston.

Hubel testified that he has previously discharged five or six patients to the Modest

Family Care home, but all of those individuals had been subject to civil

commitment rather than forensic commitment. Hubel stated that he has never

visited the home personally, but he testified that his supervisor personally visited

the home before Hubel placed anyone there, and his supervisor reported that the

home was “satisfactory for placement.”

      Hubel explained that the facility is a house owned by an individual, and it is

funded through its residents. In addition, Hubel explained that the primary purpose

of the home is to provide a residence, and mental health services are not provided

there. According to Hubel, the owner of the home told him that the property “is

next to a partial hospitalization program, which is like a day -- almost an outpatient

thing during the day to where they have access to doctors, counselors, things of

that sort.” Hubel explained that Harris County MHMR would provide mental

                                         11
health services for Harrison if he were released. Hubel believed the owner of the

group home would provide transportation to Harrison for his trips to MHMR, and

he noted that public transportation is also available. Hubel noted that the owner of

the group home “can be difficult to get in touch with sometimes.” In addition,

Hubel testified that sometimes people in the mental health system stop appearing

for their medication and treatment and disappear into society. Hubel testified that

dangerous criminals “are paroled every year[.]”

      According to Hubel, a representative of MHMR told him that MHMR

“didn’t care much for that home.” Hubel testified, “[b]ut for us it’s been a big help

because [the owner has] taken folks that I couldn’t find placement for anywhere

else in the state.” Hubel explained that the home may be rundown, the facility may

not be a licensed group home, and “it wouldn’t be one of the top choices . . . .”

According to Hubel, Harrison is a difficult client to place due to the nature of the

offense for which he was found not guilty by reason of insanity.

      Harrison testified that he acknowledges he has a mental illness, but in 2011,

he contended that he was in complete remission based upon advice from his

attorney. Harrison also explained that Roberts became involved in the case after

Harrison won an appeal of his inpatient commitment in 2004, and the trial court

subsequently retained Roberts to testify regarding new evidence of noncompliance

                                         12
with medication. 1 Harrison testified that the medications he had refused were

Metamucil, an antibiotic, and Benadryl. According to Harrison, Roberts has been

the “D.A.’s mouthpiece ever since” and has misrepresented things Harrison told

him, and that is why Harrison refused to see Roberts. In addition, Harrison testified

that his bedroom was next to the ping pong room, and after he told the staff that the

ping pong games were disturbing his sleep, the staff closed the room after a certain

hour.

        Harrison explained that when he killed his mother, his doctor had taken him

off his psychiatric medications and had prescribed Ambien for insomnia. Harrison

testified that he had never heard voices until he began taking Ambien. According

to Harrison, the voices became louder and more demanding, and around that time,

his uncle asked him to come to Beaumont because his mother had been injured at

work. Harrison testified that he reported the voices to his psychiatrist, but his

doctor instructed him to continue taking only Ambien and told Harrison he would

decide whether to put him back on psychiatric medications when Harrison returned

from Beaumont in two weeks. Harrison explained, “[t]he voices were telling me all

sorts of things, that my mother was of the devil; . . . [t]hey tried to tell me my son

was an evil person.” According to Harrison, the voices then changed and began


        1
            Harrison v. State, 148 S.W.3d 678 (Tex. App. –Beaumont 2004, no pet.).
                                           13
telling him that he loved his mother and if he ended her suffering, she would go to

heaven. Harrison explained, “I didn’t say the Ambien caused the mental illness. I

said the Ambien caused the voices.”

      Harrison testified that on his current medication, five milligrams of

Risperdal, his thinking is clear and he does not have delusional thoughts or

paranoia. Harrison also explained that he began refusing to take a flu shot after the

swine flu outbreak. According to Harrison, he spoke with the owner of Modest

Family Care facility, and she told him that the house where she would place him

has about five beds, a bed is available for Harrison, and the house is “right

next to . . . Harris County Psychiatric Facility, a major psychiatric facility . . . .

So, it’s close to all the doctors and . . . nurses or whatever you need; and she said

that she’d be glad to have me if the Court ordered me sent there.” Harrison testified

that if the court released him to outpatient treatment, he planned to continue to take

his medication because it “works fine” and he has “no problem with taking

Risperdal.” Harrison explained that when he encountered problems with not

receiving his medication while he was at the county jail, he addressed it with the

authorities and they began giving him his medication in the proper amount.

Harrison testified that if he is released to outpatient treatment, he will be in

Houston, where his son also resides.

                                          14
      Harrison admitted that when he was confined at Vernon State Hospital, he

asked the doctors to stop his medications under controlled conditions to see what

effect the medications had, and he explained that after eight or nine months

without medication, he began having delusional thoughts and reported those

thoughts to the doctor. Harrison denied hearing voices while off medication, and

he testified that Ambien, not his mental illness, caused the voices. Harrison

claimed that the transcripts of prior hearings, in which he had said he was not

mentally ill and did not need medication, were inaccurate.

      Investigative reporter Jerry Jordan testified that he covered Harrison’s

hearing the previous year, and after the hearing, he went to Houston, looked at the

Modest Family Care Facility, and photographed the facility for a news story.

Jordan explained that he spoke with the owner of the facility, and the owner told

him she was unwilling to take a patient like Harrison. In addition, Jordan testified

that the psychiatric facility is ten blocks away, not next door. According to Jordan,

the owner of the facility told him no sex offenders resided at the home, but Jordan

found sex offenders present during the course of his research.

      A trial court may order extended inpatient mental health services only if it

finds, from clear and convincing evidence, that the proposed patient is mentally ill,

the condition is expected to continue for more than ninety days, and the patient has

                                         15
received court-ordered inpatient mental health services for at least sixty consecutive days

during the preceding twelve months. Act of April 29, 1991, 72nd Leg., R.S., ch.

76, §1, 1991 Tex. Gen. Laws 515, 589 (amended 1995, 1997, 1999, 2003, 2011,

2013) (current version at Tex. Health & Safety Code Ann. § 574.035(a) (West

Supp. 2014)). The patient must (1) be likely to cause serious harm to himself or

others; or (2) if not treated, continue to suffer severe and abnormal mental,

emotional, or physical distress, continue to experience deterioration of his ability to

function independently, and be unable to make a rational and informed decision as

to whether or not to submit to treatment. Id. To be clear and convincing, the State

must present expert testimony and evidence of a recent overt act or a continuing

pattern of behavior that tends to confirm: (1) the likelihood of serious harm to the

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

deterioration of his ability to function. See id. (current version at Tex. Health &

Safety Code Ann. § 574.035(e) (West Supp. 2014)).

      The trial court found that (1) Harrison is mentally ill and is likely to cause

serious harm to himself or others or, (2) if not treated, he will continue to suffer

severe and abnormal mental, emotional, or physical distress, to experience

deterioration of his ability to function independently, and be unable to make a

rational and informed decision as to whether to submit to treatment. Additionally,

                                            16
the trial court determined that “no sufficient settings for care on an out[]patient

basis exist[] at the present time, or in the foreseeable future.”

      It is undisputed that Harrison suffers from chronic paranoid schizophrenia

and his condition requires medication, and the record demonstrates that Harrison’s

illness is expected to continue for at least ninety days and Harrison has received

court-ordered inpatient mental health services for at least sixty consecutive days

during the preceding twelve months. The court heard testimony that, if untreated,

Harrison will likely cause harm to himself or others, continue suffering from

abnormal mental, emotional, or physical distress, and experience deterioration of

his ability to function independently. Additionally, the record demonstrates that

Harrison has a history of stable periods followed by unstable periods and believes

that his mental illness originated from causes other than natural progression.

However, Howland testified that Harrison was completely compliant with his

psychiatric treatment regimen and had not been aggressive, paranoid, or delusional,

and he believed Harrison would continue taking his psychiatric medication in an

outpatient setting and recommended outpatient treatment. In addition, Gripon’s

report stated that Harrison had been compliant with taking his antipsychotic

medication and recommended a less restrictive treatment setting.




                                           17
      Roberts did not believe that Harrison has sufficient insight into his illness,

and Howland testified that Harrison’s testimony at previous hearings concerning

his belief that he is not mentally ill and does not need medication showed a lack of

insight. The trial court heard evidence that when Harrison’s medication is adjusted

or he is transitioning from one medication to another, he becomes more psychotic,

and Roberts testified that one of Harrison’s treating psychiatrists noted in 1995 or

1996 that Harrison has a persistent underlying delusional belief system that is

unaffected by his medication. However, there was no testimony that changes to the

amount or type of Harrison’s psychoactive medication are anticipated. Roberts

testified that within the last twelve months, Harrison had arguments with other

patients and staff members and behaved aggressively, but other witnesses testified

that Roberts’s suggestion that Harrison hallucinated noises from a ping pong game

was inaccurate because Harrison’s room was located next to the ping pong room.

Larue and Allen denied knowledge of the arguments and behavioral issues about

which Roberts testified. Roberts also testified that Harrison had previously sought

to have his medication decreased or discontinued, and Harrison testified similarly

concerning a period when he was confined at Vernon. However, there was no

evidence indicating that Harrison currently believes he is not mentally ill and does

not need psychoactive medication.

                                         18
      There was no evidence that, during the preceding year, Harrison had been

non-compliant with respect to taking his psychiatric medication. Rather, the

evidence indicated that Harrison had fully complied with his psychiatric

medication regimen, and the only evidence of any non-compliance with medical

treatment involved non-psychiatric medications and treatments. Howland testified

that he is unconcerned about refusal of other types of medication if patients such as

Harrison continue to take their psychotropic medications.

      The trial court also heard testimony that the Modest Family Care facility is

not a licensed group home, its owner was unwilling to accept Harrison as a

resident, and the facility is located ten blocks away from a psychiatric facility. The

trial court heard conflicting evidence about the suitability of the Modest Family

Care facility as an outpatient facility for Harrison, as well as the difficulty of

finding a placement for Harrison, but the trial court’s finding that no suitable

outpatient settings exist for Harrison is unsupported by the record. Although the

trial court, as factfinder, was required to determine which testimony to accept as

credible, on this record, the trial court could not reasonably have formed a firm

belief or conviction that Harrison continues to meet the criteria for involuntary

inpatient commitment. See Harrison, 179 S.W.3d at 635, 638. The disputed




                                         19
evidence is such that a reasonable trier of fact could not have reconciled the

disputed evidence in favor of its finding. See id. at 635.

      We conclude that the evidence is legally and factually insufficient to support

the trial court’s finding that outpatient supervision is not appropriate for Harrison.

Accordingly, we sustain Harrison’s issues, reverse the trial court’s judgment, and

remand this cause for further proceedings consistent with this opinion. 2

      REVERSED AND REMANDED.


                                               ______________________________
                                                     STEVE McKEITHEN
                                                         Chief Justice

Submitted on August 13, 2014
Opinion Delivered October 30, 2014

Before McKeithen, C.J., Kreger and Johnson, JJ.




      2
       Pursuant to article 46C.263(c), the trial court has discretion to determine the
appropriate regimen of medical, psychiatric, or psychological care or treatment,
and the regimen may include psychoactive medication. Tex. Code Crim. Proc.
Ann. art. 46C.263(c) (West 2006). Article 46C.263(d) provides that “[t]he court
may order that supervision of the acquitted person be provided by the appropriate
community supervision and corrections department or the facility administrator of
a community center that provides mental health or mental retardation services.” Id.
art. 46C.263(d). In addition, article 46C.263(e) permits the trial court to order
Harrison “to participate in a supervision program funded by the Texas Correctional
Office on Offenders with Medical or Mental Impairments.” Id. art. 46C.263(e).
                                          20
                              DISSENTING OPINION

      The majority concludes that “the trial court could not reasonably have

formed a firm belief or conviction that Harrison continues to meet the inpatient

criteria for involuntary commitment,” and that the evidence was “legally and

factually insufficient to support the trial court’s finding that outpatient supervision

is not appropriate for Harrison.” I respectfully disagree.

      It is uncontested that Harrison is mentally ill, and due to his mental illness if

he is not treated he poses a danger to himself or others; and, he still suffers from a

severe and abnormal mental, emotional or physical distress, and without continued

treatment he will experience substantial mental or physical deterioration to

function.3 All parties and experts agree that Harrison should be under court ordered

extended mental health services. The only question raised by Harrison is whether

there is legally or factually sufficient evidence to continue his inpatient

commitment. Under former Texas Code of Criminal Procedure article 46.03 and

the applicable Health Code provisions, the trial court is granted authority to order

      3
       See Act of April 29, 1991, 72nd Leg., R.S., ch. 76, § 1, 1991 Tex. Gen.
Laws 515, 589 (amended 1995, 1997, 1999, 2003, 2011) (current version at Tex.
Health & Safety Code Ann. § 574.035 (West Supp. 2014)); Act of April 29, 1991,
72nd Leg., R.S., ch. 76, § 1, Sec. 574.036 (a)-(e), 1991 Tex. Gen. Laws 515, 590
(amended 1997) (current version at Tex. Health & Safety Code Ann. § 574.036
(West 2010)). The trial court’s findings in the present case were expressly
“pursuant to the provisions of Article 46.03, Texas Code of Criminal Procedure”
and the Texas Mental Health Code.
                                           1
Harrison to be committed for another year to inpatient care. See Act of May 25,

1983, 68th Leg., R.S., ch. 454, § 4(d)(5), 1983 Tex. Gen. Laws 2640, 2645

(repealed 2005) (current version at Tex. Code Crim. Proc. Ann. art. 46C.261(h)

(West 2006)); Act of April 29, 1991, 72nd Leg., R.S., ch. 76, § 1, 1991 Tex. Gen.

Laws 515, 589 (amended 1995, 1997, 1999, 2003, 2011) (current version at Tex.

Health & Safety Code Ann. § 574.035 (West Supp. 2014)); Act of April 29, 1991,

72nd Leg., R.S., ch. 76, § 1, Sec. 574.036 (a)-(e), 1991 Tex. Gen. Laws 515, 590

(amended 1997) (current version at Tex. Health & Safety Code Ann. § 574.036

(West 2010)).4

             THE TRIAL COURT PROPERLY EXERCISED ITS AUTHORITY

      Harrison’s challenge on appeal goes directly to the decision of the trial court

to order inpatient as compared to outpatient care, and not to whether Harrison

meets the criteria for continued court ordered extended mental health services. The

trial court’s decision to return Harrison to inpatient care and its finding regarding

the inappropriateness of Modest Family Care or other outpatient care was within

the trial court’s sound discretion. See Act of April 29, 1991, 72nd Leg., R.S., ch.


      4
        Based on Harrison’s offense date of February 1, 1994, this Court has
previously held that Mental Health Code sections 574.035(a) and 574.036(a)-(e), in
effect at the time of Harrison’s offense, are applicable to his recommitment hearing
under former article 46.03 of the Code of Criminal Procedure. See Harrison v.
State, 259 S.W.3d 314, 315-17 (Tex. App.—Beaumont 2008, no pet.).
                                          2
76, § 1, Sec. 574.036 (a)-(e), 1991 Tex. Gen. Laws 515, 590 (amended 1997)

(current version at Tex. Health & Safety Code Ann. § 574.036 (West 2010));

Campbell v. State, 118 S.W.3d 788, 803-04 (Tex. App.—Houston [14th Dist.]

2003, pet. denied) (trial court has discretion to choose between either inpatient or

outpatient treatment); Harrison v. State, No. 07-99-0259-CR, 1999 Tex. App.

LEXIS 8332, *18-19 (Tex. App.—Amarillo Nov. 2, 1999, no pet.) (not designated

for publication); Niswanger v. State, 875 S.W.2d 796, 802 (Tex. App.—Waco

1994, no pet.) (reviewing under abuse of discretion standard the trial court’s

conclusion that the least restrictive appropriate setting for patient was the state

hospital); Sims v. State, 816 S.W.2d 502, 508 (Tex. App.—Houston [1st Dist.]

1991, writ denied) (trial court ordered extended mental health commitment of

patient found incompetent to stand trial for attempted murder and the court of

appeals applied abuse of discretion standard in reviewing the trial court’s decision

on the most appropriate treatment alternative); see also Harrison v. State, 148

S.W.3d 678, 689-92 (Tex. App.—Beaumont 2004, no pet.) (Gaultney, J.,

dissenting) (“committing court charged with the statutory responsibility for the

supervision is entitled to deference in making that discretionary judgment [whether

inpatient or outpatient supervision is appropriate].”).




                                           3
      To determine that the trial court abused its discretion requires more than an

error in judgment; it must amount to an arbitrary and unreasonable action by the

trial court. Sims, 816 S.W.2d at 508. We must view the evidence in a light that is

most favorable to the action of the trial court. Id.

      After reviewing the record and the testimony of Dr. Roberts, as summarized

below, and viewing the evidence in a light most favorable to the findings of the

trial court, and applying an abuse of discretion standard of review, I conclude that

the trial court did not err in returning him to inpatient supervision. Harrison v.

State, 259 S.W.3d 314 (Tex. App.—Beaumont 2008, no pet.).

      Under former article 46.03, § 4(d)(5) of the Texas Code of Criminal

Procedure, which is applicable to this case by virtue of the date of the underlying

offense, 5 the trial court is granted the task and authority to decide whether the

patient continues to meet the criteria for “involuntary commitment” and whether

“care or treatment on an out-patient basis as provided in Subdivision (4)” is

appropriate. Furthermore, “[i]f the court determines that the acquitted person

continues to meet the criteria for involuntary commitment and that out-patient

supervision is not appropriate, the court shall order that the person be returned to a


      5
       Under the current version of the Code of Criminal Procedure, the language
referencing the Texas Mental Health Code has been deleted from the statute which
governs recommitment hearings of persons found not guilty by reason of insanity.
                                            4
mental hospital or other appropriate in-patient or residential facility.” See Act of

May 25, 1983, 68th Leg., R.S., ch. 454, § 4(d)(5), 1983 Tex. Gen. Laws 2640,

2645 (repealed 2005) (current version at Tex. Code Crim. Proc. Ann. art.

46C.261(h) (West 2006)) (emphasis added). Accordingly, we should affirm the

trial court’s ruling returning Harrison to court-ordered inpatient care and finding

outpatient supervision is not appropriate unless it was an abuse of discretion for the

trial court to order Harrison to be returned to inpatient care. 6

      None of the experts who testified at the hearing recommend releasing

Harrison from court ordered extended mental health supervision and services;

rather, they simply disagree on whether he should receive services in an outpatient

setting as compared to an inpatient setting. All of the experts argue that Harrison

continues to need court ordered involuntary supervision and care. The trial court

could reasonably have concluded based upon the testimony from Dr. Roberts, the

records from the other proceedings, Harrison’s own testimony, as well as the

      6
        Furthermore, under section 574.036 of the Texas Health and Safety Code,
as currently worded or as worded at the time of the underlying offense, the trial
court is granted authority to decide whether inpatient or outpatient care is
appropriate. See Act of April 29, 1991, 72nd Leg., R.S., ch. 76, § 1, Sec. 574.036
(a)-(e), 1991 Tex. Gen. Laws 515, 590 (amended 1997) (current version at Tex.
Health & Safety Code Ann. § 574.036 (West 2010)); see also Campbell v. State,
118 S.W.3d 788, 803-04 (Tex. App.—Houston [14th Dist.] 2003, pet. denied);
Sims v. State, 816 S.W.2d 502, 508 (Tex. App.—Houston [1st Dist.] 1991, writ
denied).
                                            5
testimony regarding the deficiencies with outpatient care, that Harrison should be

returned to an inpatient care facility. Therefore, the trial court did not abuse its

discretion in finding outpatient supervision is not appropriate and in returning

Harrison to inpatient care.

 LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE SUPPORTS THE TRIAL COURT’S
                               ORDER

      In addition to the foregoing, even under a legal and factual sufficiency

review, and pursuant to the statutory authority cited in the majority, I would

conclude that the evidence in the record before us is sufficient to support the

findings made by the trial court. The record before the trial court contains

testimony from a “battle of experts,” 7 and as the trier of fact in the recommitment

hearing, the trial court could reasonably resolve the disputed evidence and the

different expert opinions in favor of its findings. See In re J.F.C., 96 S.W.3d 256,

266 (Tex. 2002). A reviewing court should avoid supplanting its own judgment for

that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).

      When evaluating the evidence for legal sufficiency, the reviewing court must

determine whether the evidence is such that a factfinder could reasonably form a

firm belief or conviction that its finding was true. State v. K.E.W., 315 S.W.3d 16,

      7
       This phrase is used to represent a reference to the differences of opinions
offered by the parties’ experts. See, e.g., House v. State, 261 S.W.3d 244, 247
(Tex. App.—Houston [14th Dist.] 2008, no pet.).
                                         6
20 (Tex. 2010). There is no requirement that the evidence must be undisputed or

unequivocal. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). We consider

evidence favorable to the finding if a reasonable factfinder could, and we disregard

contrary evidence unless a reasonable factfinder could not. K.E.W., 315 S.W.2d at

20. The factfinder, not this Court, is the sole judge of the credibility and demeanor

of the witnesses. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

      In a factual sufficiency review, a court of appeals must give due

consideration to evidence that the factfinder could reasonably have found to be

clear and convincing. In re J.F.C., 96 S.W.3d at 266. The proper inquiry is whether

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

conviction about the truth of the State’s allegations and whether disputed evidence

is such that a reasonable factfinder could not have resolved that disputed evidence

in favor of its finding; the reviewing court must detail in its opinion why it has

concluded that a reasonable factfinder could not have credited the disputed

evidence in favor of the finding. Id.

      In reaching its conclusion, the majority appears to be focusing upon the

snapshot of a single year in Harrison’s life and with his compliance in taking his

psychiatric medication during that time frame (i.e., while he has been in a

controlled inpatient setting), rather than considering the broader scope of evidence

                                          7
that was in the record before the trial court at the time it made its findings. The trial

court had before it the contradictory testimony from competing experts, one of

whom testified that Harrison should not be released into outpatient care and that he

should remain in the inpatient setting, as well as records regarding the history of

Harrison’s underlying mental illness and the consequences of his failure to take his

medication, 8 the testimony from the prior hearings,9 and the testimony from


      8
        While he was off his medications, Harrison killed his mother, strangling
her, and mutilating her body by cutting off her head, cutting out her heart, and
cutting out her eyes. See Harrison v. State, 09-98-134-CR, 1999 Tex. App. LEXIS
2027, **3-4 (Tex. App.—Beaumont March 24, 1999, no pet.) (not designated for
publication). In 1994, a jury found Harrison “not guilty by reason of insanity.”
Harrison v. State, 148 S.W.3d 678, 679, 685 (Tex. App.—Beaumont 2004, no
pet.). The jury also determined that Harrison is “mentally ill, and . . . likely to
cause serious harm to himself; is likely to cause harm to others; or will, if not
treated, continue to suffer severe and abnormal mental, emotional, or physical
distress and will continue to experience deterioration of his ability to function
independently and is unable to make a rational and informed decision as to whether
or not to submit to treatment[.]”
      9
       Harrison waived his right to a jury trial in the recommitment proceeding. At
the hearing, the trial court took judicial notice of all of the prior commitment
proceedings and the records relating thereto. The prior proceedings include the
following: Harrison v. State, No. 09-13-00069-CV, 2013 Tex. App. LEXIS 11406
(Tex. App.—Beaumont Sept. 5, 2013, pet. denied); Harrison v. State, No. 09-10-
00017-CV, 2010 Tex. App. LEXIS 5343 (Tex. App.—Beaumont July 8, 2010, pet.
denied); Harrison v. State, 259 S.W.3d 314 (Tex. App.—Beaumont 2008, no pet.);
Harrison v. State, 239 S.W.3d 368 (Tex. App.—Beaumont 2007, no pet.);
Harrison v. State, 179 S.W.3d 629 (Tex. App.—Beaumont 2005, pet. denied);
Harrison, 148 S.W.3d 678; Harrison v. State, No. 07-99-0259-CR, 1999 Tex. App.
LEXIS 8332 (Tex. App.—Amarillo Nov. 2, 1999, no pet.) (not designated for
publication); Harrison, 1999 Tex. App. LEXIS 2027.
                                           8
Harrison. When viewed in the light most favorable to the trial court’s findings, as

required, the evidence is legally and factually sufficient to support the findings of

the trial court. See id. That is, there is legally and factually sufficient evidence on

which a reasonable trier of fact could have formed a firm belief or conviction that

as a result of his mental illness, without continued court ordered care, there is a

likelihood and continued risk that Harrison will cause serious harm to others.

Furthermore, recent objectively observable actions of Harrison, as acknowledged

in Dr. Roberts’s testimony, tend to confirm such a finding. See K.E.W., 315 S.W.3d

at 25-26.

      The trial court was entitled to consider all of the evidence before it in

determining whether Harrison, a person acquitted by reason of insanity and

committed to a mental facility, continues to meet the criteria for continued

inpatient commitment. When making a decision at the annual review for

recommitment, the reviewing court and experts are not limited to consideration of

only those events or evidence from the prior year. “The state of an individual’s

emotional and psychological well-being--or lack thereof--and whether the person

should remain committed because of a mental illness, requires more than a

snapshot of a single year in a person’s life; it is a broad inquiry.” Campbell, 118

S.W.3d at 796.

                                          9
      Dr. Roberts testified that Harrison has a history of stable periods followed by

unstable periods and that Harrison requires inpatient rather than outpatient

treatment for his illness. Dr. Roberts’s opinion regarding the need for inpatient care

differed from the opinions voiced by Dr. Howland and from the contents of the

report of Dr. Gripon. Dr. Roberts’s opinions regarding Harrison have not changed

from the prior year. 10 According to Dr. Roberts, Harrison does not have sufficient

insight into his mental illness,11 has a history of wanting to control his treatment

plan, and “has shown the ability to mask or cover his delusions [as] noted by his

psychiatrists at Vernon and at Rusk over the years.” Dr. Roberts testified that

although Harrison has regularly taken his psychiatric medication over the past

year, according to Harrison’s records, Harrison had recently exhibited aggressive

behavior toward other inmates and the nursing staff, 12 recently refused to take

other medications, still shows symptoms that he suffers from delusional thoughts

and that he is trying to control his treatment plan, and in the past has shown periods

      10
           See Harrison, 2013 Tex. App. LEXIS 11406, at **5-9.
      11
       Harrison’s continued belief that his mental illness originated from
something other than natural progression was an example of a lack of insight into
his mental illness.
      12
         In the prior year, Harrison complained about a nurse tampering with his
medications, he had arguments with staff and another patient, and Roberts testified
Harrison “displayed aggressive behavior,” and he refused to take his prescribed
medications for the flu and pneumonia, as well as questioned taking a prescribed
antibiotic.
                                         10
of good behavior followed by bad behavior. Furthermore, Dr. Roberts noted that it

is the “staff members in the hospital, training programs, and classes” that allow

Harrison to recognize his psychosis, and when he “is getting this information

consistently and persistently from the staff at the hospital, he’s able to control it

better[.]” Dr. Roberts concluded that Harrison should continue inpatient treatment

at Rusk State Hospital for the next twelve months, and that an outpatient setting is

not sufficient to provide the level of input, care, and treatment that Harrison needs.

      The majority notes that Harrison’s recent refusal to take his medications did

not involve his refusal to take his psychiatric medication but involved other

medications prescribed by a physician for other conditions. However, it is not

necessarily “what medication he refused” but the fact he refused to take prescribed

medications that Dr. Roberts found to be significant. See generally House v. State,

261 S.W.3d 244, 252 n.4 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)

(patient’s refusal to take prescribed medication and not “what medication he

refused” can be an important factor). The trial court, as the factfinder, had the

benefit of observing and evaluating the credibility of the witnesses, and

determining how much weight to give their testimony. See City of Keller v. Wilson,

168 S.W.3d 802, 819 (Tex. 2005). The trial court could believe one witness over

another, and we may not substitute our judgment for that of the trial court. Golden

                                          11
Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). 13 Accordingly,

the trial court could have accepted the testimony of Dr. Roberts.

      The trial court also heard Harrison’s testimony and could have reasonably

concluded that his testimony was consistent with the testimony voiced by Dr.

Roberts that Harrison lacked insight into his condition, that he continued to exhibit

recent overt acts or a continuing pattern of behavior that tends to confirm the

likelihood of serious harm to others, and further that he should not be placed in the

proposed outpatient setting. For example, Harrison testified that Ambien caused

him to hear voices telling him to kill his mother because she “was of the devil.” He

testified that prior to taking the Ambien he never heard voices. Harrison also

testified that his illness was possibly caused by his coworkers who he believes

poisoned his coffee. When questioned about the answers he gave in his 2011

recommitment hearing, Harrison denied that the transcript was accurate. Harrison

also testified that he did not allow Dr. Roberts to interview him for this hearing and

that Roberts lied about what Harrison told Dr. Roberts in the 2013 interview.

      13
        Although Dr. Roberts last interviewed Harrison prior to the previous
annual review in 2013, the trial court could also have considered the fact that
Harrison would not submit to another pre-hearing exam as significant. For
example, a reasonable inference from his refusal to submit to an examination by
Dr. Roberts might be that Harrison still believed that he was attempting to control
or manipulate his treatment, or that his refusal hampered Dr. Roberts’s ability to
obtain additional information by interviewing Harrison prior to the hearing.
                                         12
      In addition to the foregoing, there was evidence in the record indicating that

the proposed outpatient facility, Modest Family Care, is not equipped to provide

the mental health services that Harrison needs. The evidence presented at the

hearing established that he would be living with other residents in the home, and

that the home is located in a residential neighborhood. Harrison’s counselor

indicated Modest Family Care is not a highly sought-after facility and not at the

top of his list of places to send people. According to the counselor, Modest Family

Care may not even be a licensed group home. Modest Family Care has no

psychiatric nurse on staff to ensure Harrison takes his medications or to monitor

his daily behavior for signs or symptoms that his mental illness or condition has

diminished, that his medication is not working, or other symptoms that may

indicate he is in need of further intervention.

      On the record before it, the trial court could have formed a firm belief or

conviction that the Modest Family Care facility would not provide adequate

supervision for Harrison, that outpatient supervision is not appropriate, that “no

sufficient settings for care on an out-patient basis exists at the present time,” 14 that

Harrison “continues to meet the criteria for involuntary inpatient commitment,”


      14
        “Texas law does not require that the committing court allow inadequate
outpatient supervision of a violently insane acquittee.” Harrison, 148 S.W.3d at
692 (Gaultney, J., dissenting).
                                           13
and that he should be returned to a mental hospital or other appropriate inpatient

facility.

       Therefore, I would overrule both of Harrison’s issues and affirm the order of

the trial court.


                                              _________________________________
                                                    LEANNE JOHNSON
                                                        Justice

Dissent Delivered
October 30, 2014




                                         14
