                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-14-00246-CV


IN THE MATTER OF C.P.

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          FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY
                     TRIAL COURT NO. 38693-LR-D

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      Appellant C.P. appeals from the trial court’s order authorizing the Texas

Department of Mental Health and Mental Retardation (MHMR), by and through

its agents, to administer psychoactive medication to him, regardless of his

refusal. In a single issue, C.P. challenges whether the evidence is legally and

factually sufficient to support the trial court’s order. Because we hold that the

evidence is factually insufficient, we will reverse and remand.



      1
       See Tex. R. App. P. 47.4.
                                 II. BACKGROUND

      C.P. was committed to the North Texas State Hospital, Vernon Campus

after he was found not guilty by reason of insanity for committing the offense of

aggravated assault of a family member that occurred on or about December 29,

2011. See generally Tex. Code Crim. Proc. Ann. arts. 46C.001–.270 (West 2006

& Supp. 2014). In February 2014, the trial court conducted a hearing regarding

the renewal of C.P.’s inpatient treatment and ordered him recommitted to

inpatient treatment for one year. See id. art. 46C.261(a) (West 2006).

      Six months later, C.P.’s treating doctor, Dr. James Boger, filed an

application to administer psychoactive medications–forensic because C.P. was

diagnosed with schizoaffective affective disorder, depressed type; was having

delusional thoughts; and was refusing an increased dose or alternative

medications. After hearing testimony from Dr. Boger and from C.P., the trial

court found by clear and convincing evidence that C.P. was under a court order

to receive inpatient mental health services, that he lacked the capacity to make a

decision regarding the administration of the proposed medications and treatment,

and that treatment with the proposed medications was in C.P.’s best interest.

The trial court thereafter ordered the administration of psychoactive medication to

C.P., regardless of C.P.’s refusal of the medication.2 C.P. then perfected this




      2
       The order states that it expires “upon the expiration of termination of the
court ordered temporary or extended mental health commitment.”

                                    2
accelerated appeal. See Tex. Health & Safety Code Ann. § 574.070(b) (West

2010).

                         III. SUFFICIENCY OF THE EVIDENCE

      In his sole issue, C.P. argues that the evidence is legally and factually

insufficient to support the trial court’s order authorizing MHMR to administer

psychoactive medication to C.P., regardless of his refusal.

                 A. Burden of Proof and Standards of Review

      Clear    and   convincing    evidence     must   support    orders    authorizing

administration of psychoactive medication regardless of the patient’s refusal.

Tex. Health & Safety Code Ann. § 574.106(a–1) (West 2010).                  Clear and

convincing evidence 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 v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010).

      In evaluating the evidence for legal sufficiency under the clear and

convincing standard, we review all of the evidence in the light most favorable to

the finding to determine whether a reasonable factfinder could have formed a

firm belief or conviction that the finding was true. Id. We resolve any disputed

facts in favor of the finding if a reasonable factfinder could have done so, and we

disregard all contrary evidence unless a reasonable factfinder could not have

done so. Id. 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).



                                      3
      In reviewing the evidence for factual sufficiency under the clear and

convincing standard, we must determine whether, on the entire record, a

reasonable factfinder could reasonably form a firm conviction or belief that its

finding was true. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). If, in light of

the entire record, the disputed evidence that a reasonable factfinder could not

have credited in favor of the finding is so significant that a factfinder could not

reasonably have formed a firm belief or conviction in the truth of its finding, then

the evidence is factually insufficient. Id. We must not supplant the trial court’s

judgment with our own.      Id. at 109.   The factfinder is the sole judge of the

credibility of witnesses and the weight to be given their testimony. Id. An opinion

reversing for factual insufficiency must detail the evidence relevant to the issue or

point in consideration and clearly state why the finding is factually insufficient (in

other words, why the evidence supporting the finding is so weak or is so against

the great weight and preponderance of the evidence as to be manifestly unjust,

why it shocks the conscience, or why it clearly demonstrates bias). Pool v. Ford

Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

   B. Requisite Findings for Order Authorizing Psychoactive Medication

      A trial court may issue an order authorizing the administration of

psychoactive medications, regardless of the patient’s refusal of the medication, if

(1) a patient is under a court order to receive inpatient mental health services, (2)

the trial court finds by clear and convincing evidence that the patient lacks the



                                      4
capacity to make a decision regarding the administration of the proposed

medications, and (3) the trial court finds by clear and convincing evidence that

treatment with the proposed medications is in the best interest of the patient.

Tex. Health & Safety Code Ann. § 574.106(a)(1), (a–1)(1) (West 2010).

      On appeal, C.P. challenges only the second required finding relating to

capacity; we therefore review the record to determine whether legally and

factually sufficient evidence supports the trial court’s capacity finding.3

                           C. Testimony at the Hearing

      Two witnesses—Dr. Boger and C.P.—gave brief testimony at the hearing

on Dr. Boger’s application for psychoactive medication.4

                          1. Doctor Boger’s Testimony

      Dr. Boger testified that C.P. had been his patient since “the beginning of

his program” and that C.P. had been in treatment for almost two years. Dr.

Boger was treating C.P. for schizoaffective disorder, which is characterized by

fixed false beliefs, mood components, and depression.

      Prior to C.P.’s admission to the state hospital, he had “persecutory

delusions,” and after admission to the state hospital, he exhibited “limited insight”

into his criminal background and his need for medication. C.P. believed that the

      3
        Although C.P. briefly mentions one best-interest factor within the context
of his capacity argument, his brief contains no argument challenging the
sufficiency of the evidence to support the trial court’s best-interest finding.
      4
       The reporter’s record in this appeal comprises eighteen pages, and only
fourteen of those pages include testimony from the witnesses.


                                      5
Black Masons5 were present at the hospital, were conspiring with the hospital,

and were controlling the hospital.

      According to Dr. Boger, C.P. poses a danger to others because if a person

becomes woven into C.P.’s delusions about the Black Masons, that person could

become C.P.’s target.      Dr. Boger opined that C.P.’s history of dangerous

behavior makes him more prone to dangerous behavior in the future.

Nonetheless, Dr. Boger testified that C.P. had not acted out toward anyone in the

hospital.

      Dr. Boger said that he wanted to change C.P.’s medication because C.P.

was still having delusional thoughts and because “there’s also the deterioration

aspect or the fact that he’s not moving forward. So we need to get him on the

proper meds so he can move forward in his treatment.” Dr. Boger testified that

the only alternative to court-ordered medication that could produce the same

result would be shock therapy and that he had tried everything that he could think

of that would be less intrusive, but C.P. had reached a plateau.

      Dr. Boger said that he had explained the benefits and the side effects of

the proposed medications to C.P; the side effects of the proposed medications

include a movement disorder or stiffness and metabolic syndrome. Dr. Boger

believed that the benefits outweighed the possible side effects. Dr. Boger said

that C.P. understood the possible risks and benefits of the proposed medications



      5
       The record does not contain information about this group.

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but explained, “When we wanna change his medications, he’s refusing to change

them.”

      Dr. Boger testified that C.P. was currently taking a moderate dose of

Risperdal and that C.P. wanted the dosage lowered. Dr. Boger said that C.P.

had mentioned having a headache when he was placed on Risperdal. Dr. Boger

said that headaches are not a common side effect of Risperdal, that C.P. was

observed over a long period, and that none of the nursing staff witnessed C.P.

with a headache. Dr. Boger opined that C.P.’s delusional beliefs could extend to

beliefs that his medications were causing side effects.

      Dr. Boger concluded that C.P. lacked the capacity to make a decision

regarding the administration of the proposed medications because C.P. did not

have “very good insight into his crime and the circumstances with regard[] to his

hospitalization” and because he continued to experience delusions about the

Black Masons while on his current medication.

      Finally, Dr. Boger testified that he believed that the proposed medications

were in C.P.’s best interest and that treatment with the proposed medications

would improve C.P.’s quality of life. Dr. Boger said that if he could get C.P. on

the right medications, C.P. would “move on.”

                              2. C.P.’s Testimony

      C.P. told his treatment team that he felt his life was in danger from the

Black Masons and said he still feels that way, “but that don’t mean I’m crazy or



                                    7
psychotic . . . [o]r would go off the deep end.” C.P. explained that he felt like he

was in danger because he had been told by a Black Mason that he needed to

“watch out.”

      C.P. did not think his mental health was getting worse. C.P. said that he

was not antisocial; that he played games; that he interacted with the staff “all the

time, everyday”; that he had not encountered any problems with other patients or

with the staff; and that he was socializing very well.

      C.P. felt that his current medications were working. He complained that he

suffered from headaches when he took Abilify, not Risperdal. C.P. said that Dr.

Boger did not have a conversation with him about increasing the dosage before

increasing it and that he did not like his medications being changed by Dr. Boger

without talking to him first. C.P. testified that he took the higher dosage of Abilify

two or three times before he asked Dr. Boger to lower the dosage. C.P. said that

Dr. Boger lowered the dosage and that he felt okay at the dosage he was

currently taking.   C.P. felt that increasing the dosage would cause him to

experience headaches.

      When asked whether he felt capable of making decisions regarding what

dosage of medications he should take or whether he thought he could make

those decisions, C.P. admitted that he was not an expert and does not know

what kind of medications are available.       C.P. said that he was not informed

enough to say whether he wanted to take a medication; he had not had any



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discussions with Dr. Boger about his medications and wanted the opportunity to

visit with the doctor. C.P. described Dr. Boger as a “drive-by doctor,” who just

came and said hello and then left.

                                     D. Analysis

      In his sole issue, C.P. argues that the evidence is legally and factually

insufficient to support a finding that he lacks the capacity to make a decision

regarding the administration of the proposed medications.

      “Capacity” means a patient’s ability to understand the nature and

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

alternatives to the proposed treatment and to make a decision whether to

undergo the proposed treatment. Id. § 574.101(1) (West 2010).

      In evaluating the legal sufficiency of the evidence of the trial court’s

capacity finding, we will disregard all contrary evidence, unless a reasonable

factfinder could not have done so. See K.E.W., 315 S.W.3d at 20. As set forth

above, Dr. Boger testified that C.P. lacked capacity to make a decision regarding

the administration of psychoactive medications because C.P. exhibited limited

insight into his criminal background and his need for medication.      Dr. Boger

explained that C.P. was being treated for schizoaffective disorder and that one of

the characteristics of the disorder was fixed false beliefs. Dr. Boger said that

C.P. had previously had, and continued to have, delusions about the Black

Masons and could have delusions about the side effects of his medications. Dr.



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Boger testified that C.P. had refused an increased in dosage, claiming that

Risperdal caused him headaches.

      Viewing the evidence in the light most favorable to the trial court’s capacity

finding, while also giving deference to the trial court’s determination of the

witnesses’ credibility and demeanor, we hold that the trial court could have

formed a firm belief or conviction that C.P. lacked the capacity to make a

decision regarding administration of psychoactive medications to treat his mental

illness. See id. § 574.106(a-1)(1); K.E.W., 315 S.W.3d at 20; J.O.A., 283 S.W.3d

at 346; In re W.W., No. 12-13-00045-CV, 2013 WL 3156312, at *6 (Tex. App.—

Tyler June 19, 2013, no pet.) (holding evidence legally sufficient to support trial

court’s capacity finding). We overrule the portion of C.P.’s sole issue challenging

the legal sufficiency of the evidence to support the capacity finding in the trial

court’s order authorizing the administration of psychoactive medications–forensic

to C.P.

      Having determined that the evidence is legally sufficient to support the trial

court’s capacity finding, we address factual sufficiency and consider all the

evidence, both that in support of and contrary to the trial court’s capacity finding.

See H.R.M., 209 S.W.3d at 108. Although Dr. Boger provided testimony that

C.P. lacked capacity because he had poor insight into the crime he had

committed and the circumstances of his hospitalization, had continued to have

delusions about the Black Masons, and could have delusions about the side



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effects of his medications, Dr. Boger did not articulate how these poor insights or

delusions related to or impacted an ability by C.P. to understand the nature and

consequences of his proposed treatment—including the benefits, risks, and

alternatives to the proposed treatment—or his ability to make a decision whether

to undergo the proposed treatment.        See Tex. Health & Safety Code Ann.

§ 574.101(1) (defining capacity).        Instead, Dr. Boger testified that C.P.

understood the possible risks and benefits of the proposed modifications but had

refused changes to medications.       Likewise, in the application for order to

administer psychoactive medication–forensic, Dr. Boger alleged that C.P. lacked

capacity only because he was “refusing increased dose or alternative

medi[c]ations.” But the section of the application in which the physician is to

check whether the patient verbally or otherwise indicated his refusal to take the

medication voluntarily is not completed. See id. § 574.104(a)(4) (West 2010).6

      C.P. testified that he was taking his prescribed medications.           C.P.

explained that he had tried the higher dosage of one drug prescribed by Dr.

Boger and had experienced headaches. C.P.’s testimony stated that his main

reason for noncompliance with a higher dosage was that he wanted to discuss

medication changes with Dr. Boger before they were made. He testified that Dr.

Boger did not talk with him prior to medication changes.        Dr. Boger offered

contrary testimony––that he did speak with C.P. prior to medication changes––
      6
       While facts alleged in the application are not evidence that the statutory
standard has been met, see In re E.T., 137 S.W.3d 698, 700 (Tex. App.—San
Antonio 2004, no pet.), here such facts were not even alleged in the application.

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and also testified that C.P. understood the possible risks and benefits of the

proposed medications.

      In summary, the evidence that C.P. is taking medications, is not refusing

all medications, is expressing a desire to be involved in the decision-making

process regarding his medications, and is able—according to Dr. Boger’s

testimony—to understand the risks and benefits of proposed medications

constitutes evidence so significant that the trial court could not reasonably have

formed a firm belief or conviction that C.P. lacked the capacity to make a

decision regarding administration of psychoactive medications to treat his mental

illness. See Tex. Health & Safety Code Ann. § 574.106(a-1)(1); H.R.M., 209

S.W.3d at 108; W.W., 2013 WL 3156312, at *6 (holding evidence factually

insufficient to support trial court’s capacity finding). We therefore hold that the

evidence is factually insufficient to support the trial court’s capacity finding. We

sustain the portion of C.P.’s sole issue challenging the sufficiency of the evidence

to support the capacity finding in the trial court’s order authorizing the

administration of psychoactive medications–forensic to C.P.

                                  IV. CONCLUSION

      Having concluded that the evidence is legally sufficient but factually

insufficient to support the capacity finding in the trial court’s order authorizing the

administration of psychoactive medications–forensic to C.P., we reverse the trial




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court’s order and remand the case for further proceedings.7 See Tex. R. App. P.

43.2(d); W.W., 2013 WL 3156312, at *6.

                                                  PER CURIAM

PANEL: WALKER, J.; LIVINGSTON, C.J.; and MCCOY, J.

DELIVERED: October 23, 2014




      7
        Because the trial court may issue an order authorizing the administration
of psychoactive medication by making either of the findings required by section
574.106(a-1)(1), which includes a lack of capacity finding, or by section
574.106(a-1)(2), which includes a danger-to-self-or-others finding, and because
the trial court did not make a danger-to-self-or-others finding, we need not
address C.P.’s arguments concerning section 574.106(a-1)(2). See Tex. Health
& Safety Code Ann. § 574.106(a-1); State ex rel. A.S., No. 12-13-00300-CV,
2013 WL 6798153, at *2 (Tex. App.—Tyler Dec. 20, 2013, no pet.) (mem. op.)
(holding trial court was not required to make a danger-to-self-or-others finding
because it made lack of capacity finding); In re A.S.K, No. 02-13-00129-CV, 2013
WL 3771348, at *3 (Tex. App.—Fort Worth July 18, 2013, no pet.) (explaining
that sufficient evidence of either lack of capacity or of dangerousness to self or
others would support order); see also Tex. R. App. P. 47.1 (requiring appellate
court to address only issues necessary to final disposition of appeal).

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