                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-15-00028-CV
                             NO. 02-15-00029-CV


IN THE MATTER OF A.J.W.



                                    ----------

          FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY
                 TRIAL COURT NOS. 38979-LR, 38993-LR-D

                                    ----------

                        MEMORANDUM OPINION1

                                    ----------

                                  I. Introduction

      In these accelerated appeals, Appellant A.J.W. raises legal and factual

sufficiency challenges to the evidence to support her court-ordered commitment

for temporary inpatient mental health services and court-ordered administration

of psychoactive medication and other medication. Finding the evidence legally

insufficient to support involuntary commitment, we reverse both orders. See Tex.

      1
      See Tex. R. App. P. 47.4.
Health & Safety Code Ann. § 574.106(a)(1) (West 2010) (requiring a court order

for inpatient mental health services before an order to administer psychoactive

medications can be issued).

                  II.   Factual and Procedural Background

      A.J.W. is an eighty-two-year-old widow who, at the time of the hearing, had

lived alone since her husband of sixty years passed away six years earlier. Prior

to his death, the couple had experienced several thefts of building materials from

their home. Police reports were made and inventories of the goods stolen were

provided, but no one was apprehended for the crimes.

      On January 9, 2015, A.J.W.’s nephew executed a sworn application for an

emergency mental health detention, alleging that A.J.W. was suffering from

“dillusions [sic] that there are people living in her attic that steal her guns and

water.” He stated that these delusions had escalated to a point where “she [was]

shooting in her house,” and he was concerned “for her safety and others in

surrounding houses that they could be hit by gunfire.”       The application was

presented to a magistrate who issued a warrant and ordered A.J.W.’s immediate

apprehension and transport to Red River Hospital for a preliminary examination

pursuant to section 573.021(c) of the Texas Health and Safety Code.

      Following the final hearing on January 26, the trial court signed an order of

involuntary commitment, finding A.J.W. to be

      mentally ill and that as a result of that mental illness the Patient is
      likely to cause serious harm to others and will if not treated continue
      to suffer severe and abnormal mental[,] emotional[,] or physical

                                        2
      distress and will continue to experience deterioration of the
      proposed patient’s ability to function independently which is
      exhibited by the proposed patient’s inability except for reasons of
      indigence to provide for the proposed patient’s basic needs including
      food[,] clothing[,] health[,] or safety; and is unable to make a rational
      and informed decision as to whether or not to submit to treatment.

The trial judge committed A.J.W. to inpatient mental health services for a period

not to exceed ninety days. The trial court also authorized the administration of

medications, including antipsychotics, anxiolytics, hypnotics, sedatives, and

mood stabilizers to A.J.W. over her refusal.

                                III.   Discussion

A. Involuntary Commitment and Court-Ordered Psychoactive Medication

      A trial court may order an individual involuntarily confined to receive

temporary inpatient mental health services only if the judge finds, from clear and

convincing evidence, that

      (1) the proposed patient is mentally ill; and

      (2) as a result of that mental illness the proposed patient:

                (A) is likely to cause serious harm to himself;
                (B) is likely to cause serious harm to others; or
                (C) is:

                        (i)   suffering severe and abnormal mental,
                        emotional, or physical distress;

                        (ii) experiencing substantial mental or physical
                        deterioration of the proposed patient’s ability to
                        function independently, which is exhibited by the
                        proposed patient’s inability, except for reasons of
                        indigence, to provide for the proposed patient’s
                        basic needs, including food, clothing, health, or
                        safety; and

                                         3
                         (iii) unable to make a rational and informed
                         decision as to whether or not to submit to
                         treatment.

Tex. Health & Safety Code Ann. § 574.034(a) (West 2010 & Supp. 2014). If the

court finds that the proposed patient meets the above commitment criteria, the

court must specify which criterion forms the basis for the decision.               Id.

§ 574.034(c).

      Because an involuntary commitment is a drastic measure, the statutory

requirements and evidentiary standards for involuntary commitment for treatment

of mental illness are high. State ex rel. S.W., 356 S.W.3d 576, 579 (Tex. App.—

Texarkana 2011, no pet.) (citing In re Breedon, 4 S.W.3d 782, 789 (Tex. App.—

San Antonio 1999, no pet.); State ex rel. E.E., 224 S.W.3d 791, 794 (Tex. App.—

Texarkana 2007, no pet.); Harris v. State, 615 S.W.2d 330, 333 (Tex. Civ. App.—

Fort Worth 1981, writ ref’d n.r.e.)). The State has the burden to establish by

clear and convincing evidence that the proposed patient meets the criteria set

forth in section 574.034. Mezick v. State, 920 S.W.2d 427, 430 (Tex. App.—

Houston [1st Dist.] 1996, no writ). To be clear and convincing under section

574.034(a), the evidence must include “expert testimony and, unless waived,

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 the proposed patient’s

ability to function.”   Tex. Health & Safety Code Ann. § 574.034(d).           Expert

testimony is essential, id., but expert diagnosis alone is not sufficient to confine a

                                          4
patient for compulsory treatment. Mezick, 920 S.W.2d at 430. The State cannot

meet its burden of proof without expert opinions and recommendations

“supported by a showing of the factual bases on which they are grounded.” Id.

Mere evidence that an individual is mentally ill and in need of hospitalization is no

evidence that the statutory standard has been met. In re P.W., 801 S.W.2d 1, 2

(Tex. App.—Fort Worth 1990, writ denied).

      A trial court may issue an order authorizing the administration of

psychoactive medications to a patient who is under court order to receive

inpatient mental health services.                Tex. Health & Safety Code Ann.

§ 574.106(a)(1). Before the court may issue such an order, however, the court

must find by clear and convincing evidence that treatment with the proposed

medication is in the best interest of the patient and that the patient lacks the

capacity to make a decision regarding the administration of the proposed

medication.   Id. § 574.106(a-1)(1).    In making the finding that treatment with

psychoactive medication is in the best interest of the patient, the 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
      (5) the prognosis for the patient if the patient 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.

Id. § 574.106(b)(1)–(7).

B. Standard of Review

      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. Tex. Civ. Prac. & Rem. Code Ann.

§ 41.001(2) (West 2015); U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex.

2012); State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010).             This intermediate

standard of proof falls between the preponderance standard of proof applicable

to most civil proceedings and the reasonable doubt standard of proof applicable

to most criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980);

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

588 S.W.2d at 570.

      In evaluating the evidence for legal sufficiency, we must determine

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

or conviction that its finding was true. K.E.W., 315 S.W.3d at 20; Columbia Med.


                                          6
Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008). We review

all the evidence in the light most favorable to the finding. Waldrip, 380 S.W.3d at

138; Hogue, 271 S.W.3d at 248. We resolve any disputed facts in favor of the

finding if a reasonable factfinder could have done so. K.E.W., 315 S.W.3d at 20;

Hogue, 271 S.W.3d at 248.        We disregard all evidence that a reasonable

factfinder could have disbelieved. Hogue, 271 S.W.3d at 248. We consider

undisputed evidence even if it is contrary to the finding. Id.; City of Keller v.

Wilson, 168 S.W.3d 802, 817 (Tex. 2005).          That is, we consider evidence

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

contrary evidence unless a reasonable factfinder could not. See K.E.W., 315

S.W.3d at 20; Hogue, 271 S.W.3d at 248. The factfinder, not this court, is the

sole judge of the credibility and demeanor of the witnesses and the weight to be

given their testimony. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009); In re

H.R.M., 209 S.W.3d 105, 109 (Tex. 2006); Golden Eagle Archery, Inc. v.

Jackson, 116 S.W.3d 757, 761 (Tex. 2003). We must not supplant the trial

court’s judgment with our own. J.O.A., 283 S.W.3d at 346; see also Barker v.

Eckman, 213 S.W.3d 306, 314 (Tex. 2006).

C. Evidence

      1. Certificates of Medical Examination and Other Documents

      At the outset of the hearing, the trial court took judicial notice of two sworn

certificates of medical examination for mental illness, as well as “the alternative

treatment recommendation on file in 38979-LR and the application in 38993-LR-

                                         7
D.” While the trial court could take judicial notice that these documents were part

of the court’s file, because A.J.W. did not file a written waiver under section

574.034(f), the trial court could not properly take judicial notice of the truth of any

allegations contained in the certificates. Compare Tex. R. Evid. 201 (requiring

that facts not be subject to reasonable dispute in that they are either generally

known within the trial court’s territorial jurisdiction or capable of accurate and

ready determination by resort to sources whose accuracy cannot reasonably be

questioned), and Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex. App.—

Austin 1994, no writ) (stating that while a trial court may take judicial notice that a

pleading has been filed, it may not take judicial notice of the truth of the

allegations in its records), with Tex. Health & Safety Code Ann. § 574.034(f)

(stating that if the proposed patient and her attorney, by written document filed

with the court, waive the right to cross-examine witnesses, the court may admit

the certificates of medical examination for mental illness as evidence and make

its findings solely from the certificates). Because none of these documents were

admitted as evidence at trial, they cannot be considered in the determination of

whether temporary mental health services or the administration of psychoactive

medications should be ordered.          See Tex. Health & Safety Code Ann.

§ 574.034(f).




                                          8
      2. Dr. Anderson’s Testimony

             a. Delusional Disorder

      Dr. Michael Allen Anderson2 testified at the January 26 hearing that he was

treating A.J.W. for a delusional disorder,3 the defining characteristic of which was

that she had “impaired reality testing where she essentially believe[d] that people

[were] living in her ceiling and stealing her electricity and water.”4 On cross-

examination, Dr. Anderson admitted that he did not know if there was anybody in

her attic, but he based his conclusion that A.J.W. was delusional on statements

made by A.J.W.’s nephew that “there never was.”5           As further evidence of

A.J.W.’s delusional disorder, Dr. Anderson testified that A.J.W. claimed to suffer

from “a skin condition that has something to do with rays that are beamed down

from the people that live up in the ceiling as well.”

      Dr. Anderson expressed his opinion that based on these delusions, A.J.W.

was substantially likely to cause serious harm to others because “she’s already

discharged a firearm in the house at least on one occasion, shooting into the


      2
         The parties stipulated to Dr. Anderson’s qualifications as an expert in the
field of psychiatry.
      3
       Dr. Anderson defined a delusion as “a fixed false belief.”
      4
        When speaking of A.J.W.’s delusions, Dr. Anderson claimed that A.J.W.
believed someone was “living in her ceiling,” while A.J.W. characterized her
belief to be that intruders had gained access into her attic.
      5
       Dr. Anderson testified that “[A.J.W.] says that that is true, and the nephew
says that it’s not true.”

                                           9
ceiling because she thinks people are up there.” Based upon his understanding

of the facts, Dr. Anderson expressed fear that A.J.W. would “misinterpret

whatever is happening as a potential threat to herself and could hurt someone.”

      To further support his opinion that A.J.W. was likely to cause substantial

harm to others, Dr. Anderson pointed to the fact that A.J.W. “continues to believe

that she has . . . a [concealed handgun license] and has access to weapons and

believes that she should be able to protect herself against any intruder.” Dr.

Anderson testified that he did not know whether she held a concealed handgun

license or not.

             b. Psychoactive and Other Medications

      Dr. Anderson testified that A.J.W. refused to take antipsychotic medication,

which, in his opinion, would substantially improve her quality of life. In addition to

seeking authority to prescribe antipsychotic medications, Dr. Anderson also

sought authorization to prescribe sedatives, hypnotics, mood stabilizers, and

antidepressants to A.J.W.       When asked why he included these additional

medications, Dr. Anderson admitted that he had no medical reason at the time to

request them. Nevertheless, he sought—and obtained—authority to administer

them “just in case there is a depressive episode” as a part of the illness and

treatment.

      Dr. Anderson testified that he needed the authority to administer these

medications because despite numerous attempts to explain to A.J.W. the



                                         10
benefits and side effects6 of the proposed medications, she continued to refuse

them. In these circumstances, according to Dr. Anderson, A.J.W.’s continuous

refusal to take the recommended medication indicated that she lacked the

capacity to understand the risks and benefits of the medications and to make a

decision regarding the administration of the medications.

      As further evidence of A.J.W.’s lack of capacity to understand and make a

decision regarding medications, Dr. Anderson pointed to A.J.W.’s stated reasons

for refusing. A.J.W. refused medication because “she says she doesn’t have any

delusions and that there’s nothing wrong with her and [she] doesn’t need

medication.” In Dr. Anderson’s opinion, A.J.W.’s insistence that she did not need

any medications because there actually was someone in her attic was further

proof that she lacked capacity to make a decision.

      Dr. Anderson testified that he was concerned that without these

medications, she would “continue to be a danger to herself or others due to

discharging firearms in the home.”

      3. A.J.W.’s Testimony

            a. Delusional Disorder

      A.J.W. not only freely admitted that she had discharged a weapon into her

ceiling but also testified that she had called the police after she did it. However,

she testified that she had fired her weapon only once and only because on that

      6
      Dr. Anderson described the potential side effects of psychoactive
medications to include movement disorders and metabolic toxicity.

                                        11
night she had heard a loud noise, believed there was an intruder in the attic, and

needed to protect herself.

      Contrary to Dr. Anderson’s characterization of A.J.W.’s beliefs, A.J.W. did

not demonstrate that she had a “fixed false belief” that there were people in her

attic at the time she discharged her weapon. When the State’s attorney asked,

“Was there anyone in your attic?,” A.J.W. responded that she did not know and

that she had wanted someone to look in the attic and find out but that the police

refused to investigate it.7

      Throughout her testimony it was clear that A.J.W. was concerned about

the possibility of thieves and intruders in her home. She testified about the thefts

she and her husband had experienced in and around her home over the years

prior to the incident in question. A.J.W. described two places in her house where

someone had either broken into or could very easily break into.          First, she

described a “mechanical room,” where the water heater and an HVAC unit were

located, with a door that opened to the outside. A.J.W. testified that at some

point in time, someone had “got[ten] in through [that door].” She also testified

that there was an opening in the garage ceiling that provided access into the attic

of her house.



      7
         A.J.W. testified, “I don’t know. They were – they refused. They never
have been in my attic, not even look in it, the police. They refuse to go in the
attic. I said, I need somebody to check it out.”


                                        12
       A.J.W. testified that she had started having her groceries delivered

because of recent and recurring thefts from her home. She said, “[I]t seems like

every time I’d go and leave the house for just a short while, someone would get

in.”   She described the thieves as “fast” and noted that they “always [took]

something off my table.” She said she called the police on many occasions to

report the thefts.

       A.J.W. testified that as an elderly person who lives alone, she felt that she

would be an “easy target” for someone who wanted to break into her home. A

conversation with her daughter reinforced this belief. According to A.J.W., her

daughter said to her, “Mother, you’ve got three things against you: you’re older[,]

you live alone[,] and you’re a woman.”

       Even though the police refused to search the attic on her behalf, A.J.W.

testified that at some point in time she shared her concerns with her grandson

and he offered to investigate the attic for her. When he got up there, he found

“some bottles, you know, glass, empty water bottles and some wrappers of food,

which, you know, they weren’t there before.”

       According to A.J.W., she obtained a concealed handgun license sometime

after her husband died. It was issued after she passed her test at a gun range in

Quanah, Texas. A.J.W. testified that she got the license because she believed

that she should be able to use force to protect herself against someone who




                                         13
intrudes into her house.8 And, according to A.J.W., that is exactly what she did

on the occasion in question.

      A.J.W. testified that on that night, she heard a very loud noise and believed

that there was someone or something in her attic. She testified that she didn’t

“want to shoot it at all,” but in order to protect herself against perceived

intruders—which she believed she had a right to do—she fired her weapon into

the attic. The gun she fired was a .22 pistol, which had originally belonged to her

husband. She testified that it is the only gun she owns. According to A.J.W., this

was the one and only time she had ever fired a gun into her ceiling.

            b. Psychoactive and Other Medications

      With regard to medications, A.J.W.’s testimony demonstrated her long-

standing reluctance to take prescription medication and medical treatment. In

fact, with the exception of annual physical exams, A.J.W. testified that the last

time she received medical treatment or took any prescription medicine was more

than thirty years ago when she had a hysterectomy.

      A.J.W.’s testimony, however, did not demonstrate that her reluctance to

accept medication or medical treatments was irrational or uninformed. To the

contrary, she demonstrated that, after consultation with her doctor, she

considered both risks and benefits and made a rational decision to decline

recommended treatment.         For example, when she was diagnosed with a

      8
      A.J.W. said she never carried a gun prior to obtaining her concealed
handgun license.

                                        14
prolapsed pelvis, A.J.W. declined the recommended surgery after her doctor

confirmed that there was some truth to the claims she had heard on television

about problems associated with vaginal mesh.9

      A.J.W. demonstrated the same approach when presented with the

recommendation for psychoactive medications. When she was asked to take

medications at the Red River Hospital, A.J.W. testified that she asked the nurse,

“How does this make me react?” According to A.J.W., the nurse replied, “Well,

it’s for mood, and it’ll make you sleep,” to which A.J.W. responded, “I don’t have

any trouble sleeping if I don’t have the noises.” A.J.W. testified that if it were

proven to her that she needed to take medication, she would do so, but she did

not agree that she was suffering from delusions.

D. Analysis

      We begin with the fundamental premise that a government cannot lock up

a person against her will in order to avoid public unease or because a person is

different or socially eccentric. O’Connor v. Donaldson, 422 U.S. 563, 575, 95 S.

Ct. 2486, 2494 (1975). Not even a finding of actual mental illness, without more,

can justify involuntary deprivation of a person’s physical liberty. Id. at 575–76, 95

S. Ct. at 2493–94. The United States Constitution simply prohibits such over-

reaching on the part of the state. Id. at 576, 95 S.Ct. at 2494.

      9
       A.J.W. testified that she told her doctor at that time, “Can you see me
going through a major operation like that at my age and no better outlet of
thinking that it will work?”


                                         15
      For this reason, the evidentiary standards for involuntary commitment are

high, E.E., 224 S.W.3d at 794; Harris, 615 S.W.2d at 333, and the burden is on

the State to prove not only mental illness but also some act or acts on the

proposed patient’s part that tend to confirm the likelihood of serious harm

occurring to herself or others or the existence of distress and deterioration of the

proposed patient’s ability to function.        Tex. Health & Safety Code Ann.

§ 574.034(d).    The State must meet this burden of proof to a clear and

convincing standard. Id.; State ex rel. L.H., 183 S.W.3d 905, 909 (Tex. App.—

Texarkana 2006, no pet.).

      The trial court in this case found that A.J.W. was mentally ill, that there was

a likelihood that she would cause serious harm to others, and that she had

distress and deterioration in her ability to function. Although the court did not

make a specific finding regarding any overt act or pattern of behavior, the only

overt act that finds support in the record of this case is A.J.W.’s discharge of her

.22 pistol into her ceiling. A.J.W. challenges the factual and legal sufficiency to

support these findings.

      1. Delusional Disorder

      Dr. Anderson testified that A.J.W. had a delusional disorder manifesting

itself in a fixed false belief that there were people in her attic, but he did not know

whether there were actually intruders in A.J.W.’s attic on the occasion in

question. If there were, and that is why A.J.W. fired the gun into the ceiling, then

A.J.W.’s belief was not a delusion.

                                          16
      Dr. Anderson assumed that no one was in the attic, and he based that

assumption upon A.J.W.’s nephew’s contention that “there never was” anyone in

the attic. Dr. Anderson did not explain how he obtained the nephew’s version of

the events or whether he had spoken to him personally.

      There is no evidence in the record establishing that the nephew was

present in A.J.W.’s home at the time she claimed there was someone in her attic.

There is nothing in the record even establishing the nature and degree of

relationship or contact that existed between A.J.W. and her nephew such that the

nephew would be knowledgeable about any of the facts in this case. All that is

known about the nephew from this record is that he did not live with A.J.W.

      A.J.W. testified that a person could gain access to her attic through an

opening in the ceiling of her garage and that she heard a loud noise from the

attic. She also testified that her grandson had investigated the attic on an earlier

occasion and had found empty water bottles and food wrappers up there. She

further testified that although she asked the police officers to check her attic on

that evening, they refused to do so.

      When questioned about that evidence, Dr. Anderson said that there had

been multiple people in the attic who could have left the water bottles and food

wrappers, including an electrician, but he provided no basis for his knowledge on

that point.

      The State argues that “no individuals have been found living in her attic,”

but this argument misplaces the burden of proof. The burden is not on A.J.W. to

                                        17
prove that there were intruders in her attic that evening. The burden is upon on

the State to prove that A.J.W. suffered from a delusional disorder, i.e., that she

had a fixed false belief that someone was in her attic, when, in fact, no one was

there. If anyone investigated A.J.W.’s claims that evening and came up empty-

handed, that evidence does not appear in this record.

        While Dr. Anderson’s opinion that A.J.W.’s expressed belief that there

were people in her attic was a delusion may constitute some evidence that she

suffered from a delusional disorder, such evidence is meager at best and

certainly does not rise to the level of clear and convincing proof.

        Dr. Anderson also expressed disbelief with regard to A.J.W.’s claim that

she had a concealed handgun license,10 although it is difficult to determine from

the record the significance Dr. Anderson placed on this claim. The record is

unclear as to whether Dr. Anderson thought this evidenced a delusion or a

likelihood to cause serious harm to a third person.11 Either way, he admitted that

he did not know whether she actually had a concealed handgun license.

Because there is no evidence in the record that A.J.W. did not, in fact, possess a




        10
         Dr. Anderson testified that she “continues to believe that she has . . . a
CHL.”
        11
        Although Dr. Anderson’s phrasing seemed to imply that A.J.W.’s belief
that she had a concealed handgun license was a delusion, his mention of
A.J.W.’s claim was in response to questioning about whether she was likely to
cause serious harm to others.

                                         18
concealed handgun license, Dr. Anderson’s testimony on this point cannot

support a finding of delusional disorder.

      Finally, Dr. Anderson testified that A.J.W. believed she was suffering from

a skin condition caused by rays beaming down from the people in the attic.

A.J.W. was not questioned about this, nor did she testify that this was her belief.

Nevertheless, as the sole judge of the credibility of the witnesses, the trial court

could have reasonably formed a firm conviction or belief that the allegation of

mental illness, specifically, a delusional disorder, was true based on Dr.

Anderson’s testimony on this point alone. H.R.M., 209 S.W.3d at 108; J.O.A.,

283 S.W.3d at 346.

      2. Likelihood that A.J.W. Will Seriously Harm Others

      Mental illness, without more, cannot justify compulsory confinement

against an individual’s will. O’Connor, 422 U.S. at 573–76, 95 S. Ct. at 2492–94.

To deprive A.J.W. of her liberty, the State must offer evidence showing a recent

overt act or a continuing pattern of behavior which tends to confirm (a) the

likelihood that A.J.W. will seriously harm herself or others or (b) A.J.W.’s distress

and the deterioration of her ability to function. See Tex. Health & Safety Code

Ann. § 574.034(d).

      Just as A.J.W. had no burden to prove that she was not delusional, she

was not required to prove that she posed no danger to herself or others.

Likewise, A.J.W. had no burden to prove that she was not distressed or had no

deterioration in her ability to function. The State alone carries the entire burden

                                         19
and must carry such burden to the degree that the fact-finder could form a firm

belief or conviction in the truth of the allegations. K.E.W., 315 S.W.3d at 20.

       There is no evidence in the record of any “continuing pattern of behavior”

that is likely to cause harm to A.J.W. or others.12 There is nothing in this record

that A.J.W. was distressed and that her ability to function had deteriorated.13 The

court made no finding of a likelihood that A.J.W. will seriously harm herself. That

leaves only one remaining ground on which the State could rely to meet the

statutory requirements to obtain court-ordered confinement: a recent overt act

which tends to confirm the likelihood that A.J.W. will seriously harm others. See

Tex. Health & Safety Code Ann. § 574.034(d)(1).

       The overt act is, of course, A.J.W.’s act in firing her .22 pistol into her

ceiling.

       With regard to proving that one act of firing a gun into a ceiling tended to

confirm the likelihood that A.J.W. would seriously harm others, Dr. Anderson’s

testimony tracked the language of section 574.034. However, in order to support

the forced confinement of a person against her will, both constitutional and


       12
       The record contains evidence of only one instance when A.J.W.
discharged her firearm.
       13
        When asked whether A.J.W. has experienced deterioration of her ability
to function, Dr. Anderson replied, “She also says that she has a skin condition
that has something to do with rays that are beamed down from the people that
live up in the ceiling as well.” While A.J.W.’s belief may very well constitute a
delusion, Dr. Anderson failed to explain how this delusion constituted an act or
pattern of behavior tending to confirm a deterioration in her ability to function.

                                        20
statutory considerations require that expert testimony do more than simply recite

the criteria. S.W., 356 S.W.3d at 580. In these cases, expert opinion must be

supported by the factual bases on which it was grounded. Id.

      This record demonstrates that the entire basis for Dr. Anderson’s opinion

that A.J.W. was likely to seriously harm others is the fact that she had discharged

a weapon in her own home. In explaining the basis for his opinion, Dr. Anderson

harkened back to that one bare fact, stating, “I’m afraid that she’s going to

continue to be a danger to . . . others due to discharging firearms in the home,”

and, “[S]he’s already discharged a firearm in the house at least on one

occasion . . . and believes that she should be able to protect herself against any

intruder.”

      The State argues that guns are inherently dangerous, see Int’l Armament

Corp. v. King, 674 S.W.2d 413, 422 (Tex. App.—Corpus Christi 1984), aff’d, 686

S.W.2d 595 (Tex. 1985), and because he offers no other reason for his opinion,

Dr. Anderson’s opinion appears to hinge on this principle. While the law does

treat guns as inherently dangerous, see, e.g., Tex. Penal Code Ann.

§ 1.07(a)(17)(A) (West 2011 & Supp. 2014) (defining a firearm as a “deadly

weapon”), that general principle is no substitute for evidence that “tends to

confirm the likelihood that [A.J.W. will] seriously harm others.” See Tex. Health &

Safety Code Ann. § 574.034(d)(1). Bare psychiatric expert opinion of a potential

danger to others is insufficient to support a commitment. In re C.O., 65 S.W.3d

175, 182 (Tex. App.—Tyler 2001, no pet.).

                                        21
      Only twice in the record did Dr. Anderson offer any further elucidation for

his opinion, stating, “I’m fearful that she’s gonna misinterpret whatever is

happening as a potential threat to herself and could hurt someone,” and, “If there

were a person above you, you could potentially shoot them, I suppose, and then I

- - I would also worry about ricochets or neighbors or stuff like that.”14     His

testimony is less than definite in both of those instances.         Dr. Anderson

expressed these opinions in terms of being “fearful” that A.J.W. would hurt

someone, that she “could potentially” shoot someone, and a “worry” on his part

about ricochets or neighbors. These opinions fall short of the requirement that

evidence “tends to confirm the likelihood [that A.J.W. will] serious[ly] harm . . .

others.” See Tex. Health & Safety Code Ann. § 574.034(d) (emphasis added).

Testimony regarding fears, worries, and potentialities do not rise to the level of

probability, which is required by the statute. S.W., 356 S.W.3d at 582 (stating

that evidence that an individual’s aggressive behavior might invite injury falls

short of evidence that serious harm is probable); see also K.E.W., 315 S.W.3d at

24 (stating that the standard requires that the overt act be probative that serious

harm to others is probable); C.O., 65 S.W.3d at 181–82 (stating that expert

testimony that an individual may cause serious harm to others is insufficient and

that the testimony must show that individual is likely to do so); Broussard v.

      14
        When asked why he believed it was dangerous for a person living alone
to fire a weapon into her own ceiling, Dr. Anderson replied, “I think it is
dangerous . . . [i]n case there is somebody up there.” Ironically, according to Dr.
Anderson, A.W.J.’s belief that somebody was up there was a delusion.

                                        22
State, 827 S.W.2d 619, 622 (Tex. App.—Corpus Christi 1992, no writ) (“Bare

psychiatric expert opinion of a potential danger to others is insufficient to support

a commitment.”); P.W., 801 S.W.2d at 2 (stating that evidence that merely

reflects that an individual is mentally ill and in need of hospitalization is no

evidence that the statutory standard has been met when it shows only “potential”

harm).

      We find the evidence legally insufficient to support the trial court’s finding

that A.J.W. is likely to cause serious harm to others. Since the evidence is not

sufficiently clear and convincing, there is no legal basis to support the

commitment order.      We sustain A.J.W.’s legal sufficiency challenge to the

commitment order and do not reach her factual sufficiency challenge. See Tex.

R. App. P. 47.1.

      Because we find the evidence legally insufficient to support the

commitment order, we likewise sustain A.J.W.’s legal sufficiency challenge to the

court-ordered psychoactive and other medicines.         See Tex. Health & Safety

Code Ann. § 574.106(a)(1).15

                                 IV. Conclusion

      Having sustained A.J.W.’s legal sufficiency challenge, we reverse and

vacate the trial court’s orders—the “Judgment-Temporary Mental Health” and

“Order to Authorize Psychoactive Medication”—both signed on January 26, 2015.

      15
        Because we have reversed the trial court’s commitment order, the order
authorizing psychoactive medication cannot stand. See Tex. Health & Safety
Code Ann. § 574.106(a)(1).
                                         23
                                          /s/ Bonnie Sudderth
                                          BONNIE SUDDERTH
                                          JUSTICE

PANEL: WALKER, MEIER, and SUDDERTH, JJ.

DELIVERED: March 26, 2015




                               24
