                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00129-CV


IN THE MATTER OF A.S.K.




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         FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY

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                       MEMORANDUM OPINION 1

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     Appellant A.S.K. appeals from the trial court’s order authorizing

psychoactive medication. We affirm.

     On February 25, 2013, Appellant was committed to a mental-health facility

for evaluation and treatment toward the specific objective of attaining

competency to stand trial for burglary of a habitation and possession of

marijuana in a drug-free zone. See Tex. Code Crim. Proc. Ann. art. 46B.073(b)
     1
      See Tex. R. App. P. 47.4.
(West Supp. 2012). On March 21, Appellant’s treating psychiatrist at the facility,

Nadeem H. Bhatti, filed an application for an order to authorize psychoactive

medication—specifically, antipsychotics, anxiolytics, and mood stabilizers—

because Appellant was diagnosed with severe bipolar disorder with psychosis

and refused to take the medication voluntarily. See Tex. Health & Safety Code

Ann. § 574.104 (West 2010). The trial court appointed counsel for Appellant and

set a hearing on Bhatti’s application. See id. § 574.105.

      At the April 8 hearing, Angela Wood, Appellant’s psychiatrist, 2 testified that

Appellant did not have the capacity to make a decision regarding whether or not

to take the recommended medications. When Appellant arrived at the facility, he

refused to take any medication. Once Appellant was told that Bhatti had filed an

application seeking an order requiring Appellant to take the medications,

Appellant voluntarily began to take the medications and had been taking them

consistently for over two weeks at the time of the hearing. Appellant had not

complained of any side effects of the medications. Even so, Wood testified that

Appellant continued to have delusions, was not competent to stand trial, and

could not completely understand why the medications were necessary. Wood

believed that more time on the medications and adjustments to the dosages

would render Appellant competent.         Although Appellant began taking the

medications consistently, Wood stated that she continued to pursue Bhatti’s

      2
       Wood replaced Bhatti as Appellant’s treating psychiatrist the week before
the hearing.

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application because “if we did not go through with the application, . . . [Appellant]

would know that then they weren’t being sought and might refuse to take them.”

Wood believed a court order was “necessary to have him continue taking

medication.” If Appellant did not take his medication, Wood stated he would not

be competent and he would not be able to function in society. Wood believed

Appellant was not a danger to himself “other than not being able to function and

the ramifications of that.”   She was concerned about his danger to others

because “when people do not believe his [delusions] about himself, . . . he can

become very irritable, upset, angry.” 3 Wood stated there was no alternative to

court-ordered medication that would render Appellant competent.

      At the conclusion of the hearing, the trial court granted the application,

finding that Appellant “does not have the capacity to consent to such treatment

even though the treatment may be in his best interest and improve his quality of

life with the benefits exceeding the known risks.” In its subsequent written order,

the trial court found that Appellant “lacks the capacity to make a decision

regarding the administration of the proposed medication and treatment with the

proposed medication is in the best interest of [Appellant].” Appellant filed this

accelerated appeal and now argues that the evidence was legally and factually


      3
       Specifically, Appellant believed he was French, his name was Francois,
and his identity had been stolen. This delusion persisted up to the week before
the hearing and after Appellant had started taking the medications.




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insufficient to justify granting the application. See id. §§ 574.070, 574.108; Tex.

R. App. P. 28.1(a).

       A trial court may enter an order authorizing psychoactive medication if the

clear and convincing evidence admitted at a hearing shows either:

            (1) that the patient lacks the capacity to make a decision
      regarding the administration of the proposed medication and
      treatment with the proposed medication is in the best interest of the
      patient; or

            (2) if the patient was ordered to receive inpatient mental health
      services by a criminal court with jurisdiction over the patient, that
      treatment with the proposed medication is in the best interest of the
      patient and either:

             (A) the patient presents a danger to the patient or others in the
      inpatient mental health facility in which the patient is being treated as
      a result of a mental disorder or mental defect as determined under
      Section 574.1065; or

            (B) the patient:

            (i) has remained confined in a correctional facility, as defined
      by Section 1.07, Penal Code, for a period exceeding 72 hours while
      awaiting transfer for competency restoration treatment; and

            (ii) presents a danger to the patient or others in the
      correctional facility as a result of a mental disorder or mental defect
      as determined under Section 574.1065.

Tex. Health & Safety Code Ann. § 574.106(a-1) (West 2010). A patient lacks

capacity under section 574.106(a-1)(1) if he is unable to “understand the nature

and consequences of a proposed treatment, including the benefits, risks, and

alternatives to the proposed treatment” and cannot “make a decision whether to

undergo the proposed treatment.” Id. § 574.101(1). The trial court did not solely


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rely on section 574.106(a-1)(1) or section 574.106(a-1)(2), including both findings

in its order.

       Clear and convincing evidence, as referenced in section 574.106(a-1), is

that measure or degree of proof that 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 ex rel. E.G., 249 S.W.3d 728, 730–31 (Tex. App.—Tyler 2008, no pet.); see

also U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). While the

proof must be of a heavier weight than merely the greater weight of the credible

evidence, there is no requirement that the evidence be unequivocal or

undisputed. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). The fact-

finder, 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 evaluating the evidence for legal sufficiency, we must determine

whether the evidence is such that a fact-finder could reasonably form a firm belief

or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex.

2002). We review all the evidence in the light most favorable to the finding. Id.

In a factual-sufficiency review, we determine whether, on the entire record, a

fact-finder could reasonably form a firm conviction or belief that its finding was

true. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). If the entire record reveals that

the disputed evidence is so significant that a reasonable fact-finder could not

have reasonably formed a firm belief or conviction, then the evidence is factually

insufficient. J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 27–29.

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      Appellant argues that the evidence was insufficient because he was

voluntarily taking the medications and because he had the capacity to make a

decision regarding whether to take the medications. Appellant does not dispute

that the medications are in his best interest. See Tex. Health & Safety Code

Ann. § 574.106(a-1), (b).

      A patient’s refusal to take medication is not a prerequisite to a trial court’s

order authorizing psychoactive medication; a patient’s refusal only is part of the

application. Cf. In re P.R.G., No. 02-12-00375-CV, 2012 WL 5439015, at *3, 6

(Tex. App.—Fort Worth Nov. 8, 2012, no pet.) (mem. op.) (holding evidence

sufficient to find lack of capacity under section 574.106(a-1)(1) even though

patient “very polite and compliant at times”). Compare Tex. Health & Safety

Code Ann. § 574.104(a) (listing requirements for physician application for order

to authorize psychoactive medication), with id. § 574.106(a-1) (authorizing trial

court to enter order authorizing psychoactive medication if patient lacks capacity

or presents a danger to himself or others). Further, Wood testified she was

concerned that if the specter of a court order were removed, Appellant would

stop taking the medications. She based this on the fact that he refused to take

the medications for the first thirteen days of his hospitalization and only became

compliant when he was informed of the application filed with the court. The

evidence is legally and factually sufficient to support the trial court’s implicit

conclusion that the order was necessary to ensure Appellant continued taking the

medications in order to attain competency.

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         The evidence is also legally and factually sufficient to support the trial

court’s conclusion that the clear and convincing evidence supported entering an

order authorizing psychoactive medication. Although the trial court authorized

the medication under both section 574.106(a-1)(1) and section 574.106(a-1)(2),

sufficient evidence of either would support the trial court’s order. Cf. In re C.S.,

208 S.W.3d 77, 83–84 (Tex. App.—Fort Worth 2006, pet. denied) (finding legally

sufficient evidence to support trial court’s order authorizing psychoactive

medication under section 574.106(a-1)(1)). The clear and convincing evidence

supported the trial court’s order to the extent it was based on section 574.106(a-

1)(1).    As recited above, the evidence showed that (1) Appellant, who was

diagnosed with bipolar disorder with psychosis, would not take medication

consistently without a court order or the possibility of a court order; (2) there were

no alternatives to the administration of the medications; (3) Appellant did not

have the capacity to make a decision regarding the administration of medication

because he did not fully appreciate the nature of his illness or the necessity of

the medications; (4) Appellant’s condition would not improve without the

medications; and (5) the medications were in Appellant’s best interest.          This

evidence is legally and factually sufficient to support the trial court’s order. See

A.S. v. State, 286 S.W.3d 69, 73 (Tex. App.—Dallas 2009, no pet.) (finding

evidence sufficient to support lack-of-capacity conclusion).           We overrule

Appellant’s sole issue and affirm the trial court’s order.



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                                     LEE GABRIEL
                                     JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: July 18, 2013




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