




02-12-376-CV





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-12-00376-CV
 
 



In
  the Matter of T.O.R.
 
 
 
 
 
 


§
 
§
 
§
 
§


From County Court at Law
  No. 1
 
of
  Wichita County (37219-L-D)
 
January
  31, 2013
 
Per
  Curiam



 
JUDGMENT
 
          This
court has considered the record on appeal in this case and holds that there was
no error in the trial court’s order.  It is ordered that the order of the trial
court is affirmed.
 
SECOND DISTRICT COURT OF APPEALS 
 
 
PER CURIAM
 
 
 
 
 














COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-12-00376-CV
 
 



In the Matter of T.O.R.


 


 



 
 
----------
FROM County
Court at Law No. 1 OF Wichita COUNTY
----------
MEMORANDUM
OPINION[1]
----------
I.  Introduction
In
one issue in this accelerated appeal, Appellant T.O.R. appeals the trial
court’s order authorizing psychoactive medication under health and safety code
section 574.106.  See Tex. Health & Safety Code Ann. §§ 574.070,
574.106, 574.108 (West 2010).  We will affirm.
II.  Background
T.O.R. is currently under medical supervision
in the North Texas State Hospital after having been found incompetent to stand
trial for charges related to the possession of a controlled substance.  On
August 17, 2012, one of T.O.R.’s doctors, Zahida X. Syed, MD, filed
an application for an order to administer psychoactive medication to T.O.R.  In
the application, Syed states that she has diagnosed T.O.R. with “Schizophrenia,
Paranoid type.”  Syed stated that she had determined that the administration of
multiple classes of psychoactive medications is the proper and customary
treatment for and in the best interest of T.O.R.  Syed further stated that
T.O.R. verbally refuses to take the medications voluntarily and that she
believes that T.O.R. lacks the capacity to make a decision regarding the
administration of these medications.
According
to Syed, T.O.R. “is very paranoid [and] delusional.”  By Syed’s account, T.O.R.
refuses to eat at times, believing the food has been poisoned, and he often
will not fall asleep out of fear that someone will hurt him.  Furthermore,
T.O.R. believes that he has been chosen by God and hears the voices of God and
Jesus.  Syed also said that T.O.R.’s “insight and judgment are poor, refusing
to take any type of treatment.”  Syed proposed that if T.O.R. were treated with
the proper medications, T.O.R.’s prognosis would be fair, and he could regain
his competency.  Syed further averred that T.O.R. is dangerous, stating that he
was “placed in restraint” and “received emergency medication” after starting a delusion-driven
fight with hospital staff.
The
trial court held a hearing on the application on August 27, 2012.  At the
hearing, the State called Dr. Emory J. Sobiesk to testify, and
T.O.R.’s attorney stipulated to Sobiesk’s qualifications to testify as an
expert.[2]  Sobiesk averred that he
is T.O.R.’s attending physician.  According to Sobiesk, T.O.R. suffers from
paranoid schizophrenia.  Sobiesk testified that T.O.R. is “quite suspicious and
feels the entire staff is against him.”  T.O.R. has been observed closing
shades or blinds in the day room, expressing fear that outsiders might see him.
 He also often refuses to eat, believing his food has been poisoned.  By
Sobiesk’s account, T.O.R. will only eat if the food is “canned and can be opened
in his presence.”  He refuses to attend competency classes and other activities
that have been prescribed for him.  T.O.R. also refuses to take medications.
Sobiesk
testified to the possible side effects of the prescribed medications but stated
that there were no medical alternatives to court-ordered medications that are
likely to produce the desired result of T.O.R.’s becoming “more reasonable, []
less terrified of being in danger, [and] generally being more comfortable.” 
Sobiesk also averred that without medications, T.O.R. “would remain incompetent
[to stand trial] and quite probably deteriorate still further.”  Sobiesk
testified that the benefits and potential side effects of the proposed
medications had been explained to T.O.R.  Sobiesk stated that T.O.R. lacks the
capacity to make a decision regarding the administration of medications “on the
basis of his illness,” that the benefits of the medications outweigh the
possible side effects, and that the proposed medications are in the patient’s
best interest.
          On
cross-examination, Sobiesk testified that there is the potential for serious
side effects but that their occurrence is “extraordinarily rare.”  When asked
what he thought of the potential of T.O.R.’s being against taking medications
based on his religious faith, Sobiesk replied, “[P]art of his symptoms are
auditory hallucinations[;] . . . he literally claims to
hear God talking to him and other similarly extreme, rather extreme religious
views.”  According to Sobiesk, T.O.R. also believes that the police are “in
some sort of collusion or movement against him.”
          T.O.R.
testified[3] that he did not want to
take medicine because it was against his faith to do so.  He also said that the
side effects of the drugs were “worse than the intended results.”  T.O.R.
further testified that it is “absolutely preposterous” that his “train of
thought” could be changed by medication.  He also said that the notion that
medication could change “a man’s train of thought . . . is
an insult and a slap in the face to education and the knowledge of human
beings.”  He stated that he was not paranoid, explaining that “the reason for
my so-called paranoia is that I’ve had threats from the cops; I’ve had threats
that they’ve tried to pay off people to try to eliminate me or rub me out.”  He
also averred that the proposed medications (and their side effects) were also a
plot “to possibly [try] to eliminate” him.  By T.O.R.’s account, the
medications could cause deadly muscle spasms:  “[I]t could make my heart spasm
muscle.  I mean, you know, it could stop working.”  On cross-examination,
T.O.R. was asked whether he had heard the voices of God and Jesus.  T.O.R.
responded, “That’s not the first time God’s talking to man.  He’s talked to
Abraham, Isaac, Jacob, Moses.  I mean I can go on down the list of God talking
to people.  What makes me any different?”  When asked whether he had started a
fight with hospital staff, he responded that such an allegation was “a lie from
the pit of Hell.”
          At
the conclusion of the hearing, the trial court granted the application for court-ordered
psychoactive medications.  The trial court found that T.O.R. lacked the capacity
to make a decision regarding the administration of medicine, that T.O.R.
presents a danger to himself or others, and that the proposed treatment of psychoactive
medications was in T.O.R.’s best interest.  This appeal followed.
III.  Discussion
In one issue, T.O.R. complains that the
evidence is legally and factually insufficient to support the trial court’s
findings under health and safety code section 574.106.  Tex. Health &
Safety Code Ann. § 574.106.  We disagree.
A.      Standards of Review
An applicant’s burden of proof under health
and safety code section 574.106(a-1) is clear and convincing evidence.  Tex.
Health & Safety Code Ann. § 574.106(a–1).  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 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
disputed fact questions 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).
In
reviewing the evidence for factual sufficiency under the clear and convincing
standard, we must determine whether, on the entire record, a 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.  The factfinder is the
sole judge of the credibility of witnesses and the weight to be given their
testimony.  Id. at 109.
B.      Health
and Safety Code Section 574.106(a–1)
The
trial court may issue an order authorizing psychoactive medication only if it
finds that one of the two grounds in section 574.106(a–1) has been established
by clear and convincing evidence after a hearing.  Tex. Health & Safety
Code Ann. § 574.106(a–1).  Pertinent to this case, the first ground that
supports such an order has two parts:  (1) the patient lacks the capacity
to make a decision regarding the administration of the proposed medication and
(2) treatment with the proposed medication is in the patient’s best
interest.  Id. § 574.106(a–1)(1).
1.       Capacity
In
part of his sole issue, T.O.R. contends that the evidence is legally and
factually insufficient to support the trial court’s finding that he lacked the
capacity to make a decision regarding the administration of the proposed
medications.  “Capacity” under section 574.106(a–1)(1) means a patient’s
ability to understand the nature and consequences of the 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), § 574.106(a–1)(1); State ex rel.
E.G., 249 S.W.3d 728, 731 (Tex. App.—Tyler 2008, no pet.).
Here,
the record demonstrates that T.O.R. had been ordered into inpatient mental health
treatment by the district court to attain competency to stand trial for a
possession charge.  Furthermore, Sobiesk testified that T.O.R. suffers from
paranoid schizophrenia.  He also testified to T.O.R.’s symptoms.  T.O.R.’s symptoms
include that he hears the voice of God and that he believes that people outside
of the hospital are trying to harm him.  Sobiesk further stated that T.O.R. is
paranoid that his food has been poisoned and that the hospital staff members
are attempting to poison him.  Sobiesk stated that due to his mental illness,
T.O.R. lacks the capacity to make decisions regarding the administration of the
proposed medications and that he refuses to take the medications or to otherwise
participate in any competency classes or activities that have been prescribed
to him.
Rather
than contradict this testimony, T.O.R. testified that he, much like many of the
Biblical patriarchs, does in fact hear the voices of God and Jesus.  And rather
than demonstrate an understanding of the consequences of the proposed
medications, T.O.R. testified that the possible side effects of the medications
were another manner in which people were attempting to “eliminate” him.  He
also conveyed that it was “preposterous” to believe that medicine could change his
“train of thought.”
Given
the evidence presented at the hearing and 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 conclude and hold that the trial court could have formed a firm
belief or conclusion that T.O.R. lacked the capacity to make a decision
regarding the administration of psychoactive medications to treat his paranoid
schizophrenia.  See D.P. v. State, Nos. 01–09–00097–CV, 01–10–00002–CV,
2010 WL 376007, at *8 (Tex. App.—Houston [1st Dist.] Feb. 4, 2010, no
pet.) (mem. op.) (holding evidence legally sufficient to support capacity
finding when physician testified that appellant lacked capacity because he was
delusional and did not think he was sick).  Further, because T.O.R. believes
that it is “absolutely preposterous” that his “train of thought” could be
changed by medication, his ability to understand the benefits of the medication
are irrelevant due to the fact that he simply cannot weigh the benefits against
the potential adverse effects.  In short, T.O.R. incorrectly believes that the
benefits of the proposed medications have no application to him.  See id.
at *8–9 (concluding that “[w]hile [patient] may be able to describe the
benefits of the medication, [he] cannot weigh the benefits against the adverse
effects if he incorrectly believes that the benefits have no application to
him”).  Therefore, we conclude that the evidence is also factually sufficient
to support the trial court’s capacity finding.  See H.R.M., 209 S.W.3d
at 108.  We overrule this portion of T.O.R.’s sole issue.
2.       Best Interest Finding
In
part of his sole issue, T.O.R. challenges the legal and factual sufficiency of
the evidence to support the trial court’s best interest finding.  In making its
best interest findings under either ground of section 574.106(a–1), 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 patient’s perspective, of
taking psychoactive medication; (4) the consequences to the patient if the
psychoactive medication is not administered; (5) the patient’s prognosis
if he is 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).
The
record reveals that T.O.R. expressly prefers not to take psychoactive
medications.  But that is in large part because T.O.R. believes that it is
“preposterous” that medication could change his “train of thought.”  On the
other hand, Sobiesk testified that the proposed medications would allow T.O.R.
to become “more reasonable, [] less terrified of being in danger, [and]
generally be[] more comfortable.”  He also said that the proposed medications
could assist in T.O.R.’s gaining competency to stand trial.
Regarding
T.O.R.’s religious beliefs, even though T.O.R. said that he did not want to
take the medications because of his faith, the trial court was free to believe
that T.O.R.’s admission that he actively heard the voices of God and Jesus
were, as Sobiesk testified, more about his mental illness than his faith.  Furthermore,
as discussed above, T.O.R. does not understand the benefits of the proposed
medications because he believes it is impossible for the mind to be changed
through medication.
Sobiesk
testified about the consequences if T.O.R. does not receive medications.  To
that, Sobiesk stated that without medication, T.O.R. would remain incompetent
to stand trial and that his mental condition could deteriorate.  On the other
hand, Sobiesk testified that if T.O.R. received the proposed medications, it
would benefit him greatly.  Regarding less intrusive alternative means, Sobiesk
stated that there were no medical alternatives to court-ordered medications
that are likely to produce the desired results.  Moreover, Sobiesk testified
that T.O.R. refuses to attend competency classes and other treatment activities. 
T.O.R. did not present any evidence to dispute Sobiesk’s testimony about the medications’
benefits and the ineffectiveness of alternative treatments.
Viewing
the evidence in the light most favorable to the best interest finding, we hold
that the trial court could have reasonably formed a firm belief or conviction
that treatment with psychoactive medications was in T.O.R.’s best interest.  See
M.H. v. State, No. 01–09–00205–CV, 2009 WL 2050988, at *4–5 (Tex. App.—Houston
[1st Dist.] July 16, 2009, no pet.) (mem. op.) (concluding that the
evidence was sufficient to support the trial court’s best interest finding when
patient did not present any evidence to dispute physician’s testimony about the
benefits of treatment with psychoactive medications and lack of alternative
treatments for patient’s bipolar disorder with manic and psychotic features).  Likewise,
based on the entire record, we hold that the trial court could have reasonably
formed the same firm conviction or belief based on its determination of the
witnesses’ credibility and the weight to be given their testimonies.  See
H.R.M., 209 S.W.3d at 108–09.  We conclude that the evidence is legally and
factually sufficient to support the trial court’s best interest finding and therefore
overrule this portion of T.O.R.’s sole issue.
IV.  Conclusion
Because
we have overruled the portions of T.O.R.’s sole issue regarding the trial
court’s capacity and best interest findings, we need not address the remainder
of his sole issue regarding the trial court’s danger-to-self-and-others finding. 
Thus, we affirm the trial court’s order.
 
 
 
PER CURIAM
 
PANEL: 
MEIER, GARDNER,
and MCCOY, JJ.
 
DELIVERED:  January 31, 2013




[1]See Tex. R. App. P. 47.4.


[2]Sobiesk testified that Syed’s
application was filed “prior to [T.O.R.’s] transfer to [Sobiesk’s] care” but
that the medical need expressed in the application, “persists.”


[3]Twice during Sobiesk’s
testimony, T.O.R. communicated to the trial court.  Once, T.O.R. simply burst
out, “So to damage me and then . . . .”  The trial court
explained to T.O.R. that he would “get a chance.”  Later during Sobiesk’s
testimony, T.O.R. raised his hand, attempting to interject something, stating,
“Can I speak?”  The trial court disallowed T.O.R.’s question and told him to
speak through his attorney.  T.O.R. responded, “I wanted to question him.”  The
trial court told him, “That’s your attorney’s job, sir.”  The hearing then
continued.


