                                   NO. 12-18-00201-CV

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

 THE STATE OF TEXAS FOR THE                        §      APPEAL FROM THE

 BEST INTEREST AND PROTECTION                      §      COUNTY COURT AT LAW

 OF G.L.                                           §      CHEROKEE COUNTY, TEXAS

                                   MEMORANDUM OPINION
       G.L., a patient committed to a mental health facility pursuant to Chapter 46B of the Texas
Code of Criminal Procedure, appeals from an order authorizing the administration of psychoactive
medication. G.L. contends that the evidence is legally and factually insufficient to support the trial
court’s finding that the administration of psychoactive medication is in the best interest of the
patient. We reverse and render.


                                           BACKGROUND
       G.L. was found incompetent to stand trial for a criminal charge and was committed to Rusk
State Hospital for the purposes of regaining competency pursuant to Chapter 46 of the Texas Code
of Criminal Procedure. G.L. refused to take the medications prescribed for his illness. The State
petitioned the court for an order to administer psychoactive medications to G.L. At the hearing,
G.L.’s treating physician, Dr. Robert Lee, was unavailable. However, Dr. Satyajeet Lahiri, who has
interacted with G.L. in the past, testified that G.L. suffered from Schizoaffective disorder. After
the hearing, the trial court granted the order to administer the psychoactive medication. This appeal
followed.


                                  SUFFICIENCY OF THE EVIDENCE
       In his sole issue, G.L. challenges the legal and factual sufficiency of the evidence to support
the trial court’s order authorizing the administration of psychoactive medication. Specifically, G.L.
argues that the evidence is legally and factually insufficient to support the trial court’s finding that
the administration of psychoactive medication is in G.L.’s best interest.
Standard of Review
        Texas law requires that orders authorizing administration of psychoactive medication be
supported by clear and convincing evidence. See TEX. HEALTH & SAFETY CODE ANN. § 574.106(a–
1) (West 2017). 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 to be established.
State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979) (per curiam). This intermediate standard falls
between the preponderance standard of civil proceedings and the reasonable doubt standard of
criminal proceedings. Id.; In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). While the proof must
weigh heavier than merely the greater weight of the credible evidence, there is no requirement that
the evidence be unequivocal or undisputed. Addington, 588 S.W.2d at 570. This higher burden of
proof elevates the appellate standard of legal sufficiency review. Diamond Shamrock Ref. Co.,
L.P. v. Hall, 168 S.W.3d 164, 170 (Tex. 2005); Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 622,
625 (Tex. 2004)
        In reviewing a legal sufficiency claim, we 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. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). When reviewing
factual sufficiency, we must give due consideration to evidence that the fact finder could reasonably
have found to be clear and convincing and then determine whether, based on the entire record, a
fact finder could reasonably form a firm conviction or belief that the allegations in the application
were proven. Id. The reviewing court must consider whether the disputed evidence is such that a
reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. Id.
If the disputed evidence is so significant that a fact finder could not reasonably have formed a firm
belief in the finding, the evidence is factually insufficient. Id.
Applicable Law
        A trial court may issue an order authorizing the administration of one or more classes of
psychoactive medications to a patient who is under a court order to receive inpatient mental health
services. TEX. HEALTH & SAFETY CODE ANN. § 574.106(a)(1). The court may issue an order under
this section only if, after a hearing, it finds by clear and convincing evidence that (1) the patient
lacks the capacity to make a decision regarding the administration of the proposed medication, and



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(2) treatment with the proposed medication is in the best interest of the patient. Id. § 574.106(a–
1)(1).
         “Capacity” refers to a patient’s ability to (1) understand the nature and consequences of a
proposed treatment, including the benefits, risks, and alternatives to the proposed treatment, and (2)
make a decision whether to undergo the proposed treatment. Id. § 574.101(1) (West 2017). A
patient does not have the capacity to make a decision regarding the administration of medications
if the patient does not understand the nature of his mental illness or the necessity of the medications.
See A.S. v. State, 286 S.W.3d 69, 73 (Tex. App.–Dallas 2009, no pet.). In making its finding that
treatment with the proposed medication is in the best interest of the patient, the trial court shall
consider (1) the patient’s expressed preferences regarding treatment with psychoactive medication,
(2) the patient’s religious beliefs, (3) the risks and benefits, from the perspective of the patient, of
taking psychoactive medication, (4) the consequences to the patient if the psychoactive medication
is not administered, (5) the prognosis for the patient if treated with psychoactive medication, (6)
alternative, less intrusive treatments that are likely to produce the same results as treatment with
psychoactive medication, and (7) less intrusive treatments likely to secure the patient’s agreement
to take the psychoactive medication. TEX. HEALTH & SAFETY CODE ANN. § 574.106(b).
Analysis
         In G.L.’s brief, he argues that the trial court erred in entering the order to administer
psychoactive medication because Dr. Lahiri provided conclusory testimony that treatment with the
medication was in G.L.’s best interest. For his contention, he directs our attention to our decision
in State ex. rel. E.G., 249 S.W.3d 728 (Tex. App.–Tyler 2008, no pet.).
         In E.G., the only evidence regarding the appellant’s best interest was a conclusory statement
in the application by the treating physician that the medications sought to be administered were in
the appellant’s best interest. Id. at 731. We held that the trial court erred in entering its order to
administer psychoactive medication, in part, because the treating physician offered no testimony on
the subject of whether the administration of the proposed medications was in the best interest of the
appellant.1 See id. at 731–32. We explained that a conclusory statement in the application, absent

         1
           In E.G., we held that the trial court erred in entering its order to administer psychoactive medication because
the evidence failed to establish both that the patient lacked the capacity to make a decision regarding the administration
of the proposed medication, and that the treatment with the proposed medication is in the best interest of the patient.
E.G., 249 S.W.3d at 731–32; see also TEX. HEALTH & SAFETY CODE ANN. § 574.106(a–1)(1). In concluding that the
evidence was insufficient with regard to appellant’s capacity, we noted the treating physician failed to describe what
mental illness the appellant suffered from or why he lacked the capacity to make a decision regarding the administration
of psychoactive medications. E.G., 249 S.W.3d at 731.


                                                            3
testimony from the physician at the hearing, cannot 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. Id. We also noted
that the Texas Health and Safety Code does not authorize the trial court to base its findings solely
on the treating physician’s application, because pleadings, such as the physician’s application, are
not evidence that the statutory standard has been met. Id.; see TEX. HEALTH & SAFETY CODE ANN.
§§ 574.031(e) (West 2017) (stating that the Texas Rules of Evidence apply to the hearing for court
ordered mental health services unless the rules are inconsistent with this subtitle), 574.101–.110
(West 2017); In re E.T., 137 S.W.3d 698, 700 (Tex. App.–San Antonio 2004, no pet.); see also
Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (noting that,
generally, pleadings are not competent evidence, even if sworn and verified). Thus, because the
record contained nothing more than the physician’s conclusory statement in the application, the
evidence that the administration of the medications would be in the appellant’s best interest was
insufficient. E.G., 249 S.W.3d at 731–32.
       In this case, G.L. argues that the evidence adduced at the hearing is tantamount to the
evidence found to be insufficient in E.G., because the only evidence regarding G.L.’s best interest
came in the form of a conclusory statement from Dr. Lahiri. A review of the record from the hearing
reveals that Dr. Lahiri testified that G.L. suffers from “schizoaffective disorder, bipolar type.” Dr.
Lahiri further indicated that G.L. suffers from psychosis, becomes irrational, and suffers from
“general paranoid ideations.” Dr. Lahiri testified G.L. refused to take the prescribed medication
both verbally and non-verbally. Dr. Lahiri affirmed that all of the statements made in Dr. Lee’s
application were true, and the application was entered into evidence.
       When asked whether he believed G.L. lacked capacity to decide whether to take his
medication, Dr. Lahiri said “yes, he does.” When asked if Appellant was unable to weigh the risks
and benefits of medication, he answered, “He’s not able to weight the risks versus benefits.” In
response to whether the benefits of the medication outweigh the risks, Dr. Lahiri answered, “Yes,
benefits will outweigh the risks if he takes them.” Dr. Lahiri also testified that the medications are
“in the proper course of treatment and in – in his best interest.” When asked if G.L. would regain
competency faster if the medications were used, Dr. Lahiri stated, “He’s very much likely to regain
competency faster if the medications are used and if he takes them, yes.” The State asked if any of
the medications would interfere with G.L.’s ability to confer with his attorney in the underlying
criminal charge, to which Dr. Lahiri replied, “They will not interfere with his ability to consult with



                                                  4
an attorney, and they will also facilitate communication – and lead to better understanding of the
charges.”
        G.L.’s counsel asked Dr. Lahiri if G.L. complained of any side effects. Dr. Lahiri answered
that G.L. has not complained of side effects but that G.L. believes the medications are changed too
quickly and he does not have an opportunity to understand. G.L.’s counsel also asked if G.L. had
any religious or constitutional objections to his medication, to which Dr. Lahiri answered that G.L.
has objections to some of the medications but he did not ask G.L. which ones are objectionable. Dr.
Lahiri did not opine on G.L.’s prognosis at the hearing nor did he give any opinion regarding the
consequences of not administering the medication to G.L.2
        G.L. expressed concern about taking psychoactive medications because of their potential
side effects. He testified that the proposed medications have affected him physically. G.L. stated
that before the medications, “I could do 41 pushups . . . and now I can barely do four because I’m
just – every week it’s, ‘Oh, I want you to sign this. It’s a new medication. It’s going to help you.’”
G.L. further testified that he “feels like [he] smell[s], like, arsenic everywhere [he] go[es]” because
of the medication. G.L. claimed to have a religious belief against taking psychoactive drugs but did
not elaborate on the extent of that objection other than stating that he does not drink alcohol.
Furthermore, the record is devoid of any outbursts or other evidence indicating that G.L. lacked
control at the hearing.
        Based on the evidence at the hearing, we conclude the trial court erred in granting the order
to administer psychoactive medication to G.L. See id. Dr. Lahiri’s testimony at the hearing
regarding G.L.’s best interests was merely a perfunctory recitation of the conclusory statements
made in Dr. Lee’s application. He offered no testimony as to the consequences to G.L. of not
administering the medications, his prognosis if the medication is administered, or the alternatives
to treatment with psychoactive medication. See E.T., 137 S.W.3d at 700 (evidence insufficient to
support order to administer psychoactive medication where State offered no evidence regarding
patient’s lack of capacity and physician did not testify that proposed treatment was in patient’s best
interest, i.e., the consequences of not administering the medications, the patient’s prognosis with
the medications, and the alternatives to the medication); compare State ex. rel. D.W., 359 S.W.3d
383, 387 (Tex. App.–Dallas 2012, no pet.) (evidence was sufficient to establish administration of

        2
           Only in Dr. Lee’s written application did he indicate that G.L.’s prognosis with medication was “fair” and
that the consequences if medications were not administered included “mental deterioration.”



                                                         5
medication was in patient’s best interest where treating physician testified that medications would
decrease patient’s delusions, but without them, she would remain too psychotic to be discharged
from the hospital; physician further opined on the benefits and side effects of the antipsychotics and
anxiolytics and indicated the benefits outweighed the risks, and the only alternative to medication
would be electric convulsive therapy, a more intrusive intervention). Nor could the trial court rely
solely on the State’s application. See E.G., 249 S.W.3d at 731–32. Accordingly, we hold that the
evidence presented at the hearing could not have produced in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations to be established. See J.F.C., 96 S.W.3d at
266; see also E.G., 249 S.W.3d at 731–32; E.T., 137 S.W.3d at 700; D.W., 359 S.W.3d at 387;
State for Best Interest & Prot. of B.D., No. 12-17-00174-CV, 2017 WL 4161297, at *4 (Tex.
App.—Tyler Sept. 20, 2017, no pet.) (mem. op.); TEX. HEALTH & SAFETY CODE ANN. § 574.106(a–
1)(1),(b). Because the evidence is legally insufficient, we need not address G.L.’s contention that
the evidence is factually insufficient to support the trial court’s order. See TEX. R. APP. P. 47.1. We
sustain G.L.’s sole issue.


                                                   DISPOSITION
         Based upon our review of the record, we conclude that the evidence is legally insufficient
to support the trial court’s order authorizing the administration of psychoactive medication.
Therefore, we reverse the trial court’s order authorizing the administration of psychoactive
medication and render judgment denying the State’s application for an order to administer
psychoactive medication.



                                                                  JAMES T. WORTHEN
                                                                     Chief Justice


Opinion delivered November 28, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                    (PUBLISH)




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                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                       NOVEMBER 28, 2018


                                        NO. 12-18-00201-CV


                          THE STATE OF TEXAS FOR THE BEST
                          INTEREST AND PROTECTION OF G.L.


                               Appeal from the County Court at Law
                          of Cherokee County, Texas (Tr.Ct.No. 42,437)

                      THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the order of the court below, it is ORDERED, ADJUDGED and DECREED by this Court that
the trial court’s order authorizing the administration of psychoactive medication be reversed and
judgment rendered denying the State’s application for an order to administer psychoactive
medication; and that this decision be certified to the court below for observance.
                   James T. Worthen, Chief Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
