Opinion issued August 30, 2012.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                         ————————————
                            NOS. 01-12-00096-CV
                                 01-12-00097-CV
                          ———————————
                                J.S., Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the Probate Court
                          Galveston County, Texas
                   Trial Court Case Nos. MH 4044, 4044A



                        MEMORANDUM OPINION

      J.S. appeals the trial court’s order for temporary inpatient mental health

services and order for administration of psychoactive medication. J.S. contends
that the evidence is legally and factually insufficient to support the order for

temporary inpatient mental health services. We affirm.

                                   Background

      J.S. has been diagnosed with bipolar disorder. On December 8, 2011, the

Galveston County Sheriff’s Office, believing J.S. was mentally ill, apprehended

him, and transported him to a hospital for emergency detention. 1 The officer wrote

in the application for detention that J.S. had been diagnosed with bipolar disorder

and schizophrenia, was not taking his medications correctly, and was exhibiting

“bizarre” behavior, such as sleeping in parks in Houston rather than at home. It

also noted J.S. had assaulted his mother. On the intake form, a physician wrote

that J.S. showed a substantial risk of serious harm to himself or to others because

of “violence/aggression toward mom, homicidal ideation toward [mom].” The

next day, a doctor at the hospital applied for court-ordered temporary mental health

services. The State moved for protective custody. The court ordered J.S. placed in

protective custody and set the matter for hearing.

      On January 4, 2012, the trial court held an evidentiary hearing on the

application and motion. Dr. Waheedul Haque, J.S.’s attending physician, was the

primary witness for the State. Dr. Haque testified that J.S. had bipolar disorder


1
      See TEX. HEALTH & SAFETY CODE ANN. §§ 573.001–.026 (West 2010 & Supp.
      2011) (providing procedures for emergency detention for cases of suspected metal
      illness).
                                          2
with psychotic features. According to Haque, J.S. admitted to hitting his mother

many times in the past, but could give no rational explanation for these assaults.

Haque testified that J.S. said he hit his mother to call attention to the plight of his

family and that “she deserves to be hit” and “she needs to be treated like a dog.”

Dr. Haque and J.S.’s medical records described J.S. as agitated, angry, aggressive,

and abusive. J.S. was verbally abusive towards Dr. Haque on a daily basis,

threatening Dr. Haque that J.S. would see to it that he would lose his license to

practice medicine.    Phone calls or visits from his mother would cause J.S.’s

abusive, aggressive, and angry behavior to escalate. Dr. Haque also testified that

while J.S. had refused to take his medications for some time, J.S. began taking all

of his medications a few days before the hearing, and had begun to show

improvement.

      Dr. Aaron Alaniz, the admitting physician, also testified. According to

Alaniz, J.S. approached Alaniz’s cubicle in the hospitaland stated that if Alaniz did

not discharge J.S. within twenty-four to forty-eight hours, J.S. would be the last

patient Alaniz ever saw. Alaniz perceived this to be a physical threat.

      The trial court found that the evidence satisfied the statutory requirements

for court-ordered inpatient mental health services and for the administration of

psychoactive medicine. The court ordered J.S. committed to the Austin State




                                          3
Hospital for inpatient care for a period not to exceed 90 days. The court also

signed an order to administer psychoactive medications.

                                    Discussion

A.       Jurisdiction

         The ninety-day period for which the trial court ordered J.S. to receive

inpatient services has expired. The expiration of that period, however, does not

render this appeal moot. State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010) (K.E.W.

I); J.M. v. State, 178 S.W.3d 185, 189 (Tex. App.—Houston [1st Dist.] 2005, no

pet.).

B.       Standard of Review

         An order for temporary mental health services must be supported by clear

and convincing evidence. TEX. HEALTH & SAFETY CODE ANN. § 574.034(d) (West

2010). When reviewing the legal sufficiency of the evidence in a case requiring

proof by clear and convincing evidence, we determine whether the evidence is

such that a factfinder could reasonably form a “firm belief or conviction as to the

truth of the allegations sought to be established.” K.E.W. I, 315 S.W.3d at 20

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

evidence in the light most favorable to the finding, assuming that the “factfinder

resolved disputed facts in favor of its finding if a reasonable factfinder could do

so.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We disregard all contrary

                                         4
evidence unless a reasonable factfinder could not have done so.         K.E.W. I, 315

S.W.3d at 20 (citing In re J.F.C., 96 S.W.3d at 266).

      When conducting a factual sufficiency review of clear and convincing

evidence, we examine the entire record to determine whether “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”; if it is, the evidence is factually insufficient. In re J.F.C., 96 S.W.3d

at 266; K.E.W. v. State, 333 S.W.3d 850, 855 (Tex. App.—Houston [1st Dist.]

2010, no pet.) (on remand from the Supreme Court) (K.E.W. II). We must give

“due consideration to evidence that the factfinder could reasonably have found to

be clear and convincing.” In re J.F.C., 96 S.W.3d at 266. We must also consider

“whether disputed evidence is such that a reasonable factfinder could not have

resolved that disputed evidence in favor of its finding.” Id.

C.    Law Applicable to Court-Ordered Mental Health Services

      Under the Health and Safety Code a trial court may order temporary

inpatient mental health services for a patient only if the factfinder 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;

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             (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

                       (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). In this case, J.S.

does not contest that he is mentally ill; he contends that the evidence is insufficient

to show one of the three conditions in subsection (a)(2). The trial court found all

three conditions to exist. On appeal, the State concedes the inadequacy of the

evidence to support the trial court’s finding under section 574.034(a)(2)(C). Thus,

the only issue before this court is whether there is clear and convincing evidence

that J.S. is likely to cause serious harm to himself or to others.             See id.

§ 574.034(a)(2)(A), (B).

      Section 574.034 provides, “To be clear and convincing evidence under

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

                                             6
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 . . . .”

TEX. HEALTH & SAFETY CODE ANN. § 574.034(d). The Texas Supreme Court has

interpreted this statutory provision to require a recent act, either verbal or physical,

that can be “objectively perceived.” K.E.W. I, 315 S.W.3d at 24. The act must be

“probative of a finding” that serious harm to the proposed patient or others is

probable if the proposed patient does not receive treatment. See id. “The overt act

itself need not be of such character that it alone” would support the required

finding of probable serious harm. Id.

D.    Sufficiency of the Evidence

      1.     Order for Inpatient Mental Health Services

      Dr. Haque, J.S.’s attending physician, testified that J.S. admitted to hitting

his mother. J.S. told Dr. Haque that he had hit his mother several times before and

he did it because it “needed to be done” and “she deserved to be hit.” J.S.

explained that his mother was crazy and his hitting her would call attention to the

fact that she was crazy. Dr. Haque also testified that J.S. said his mother deserved

to be treated like a dog. Dr. Haque testified, “His thinking was so confused, he

couldn’t give any rational, logical explanation of why he was doing that [hitting his

mother]. But he continued to say that he would.”




                                           7
      Medical records from the period immediately before the hearing show that

J.S. was “fixated” on his mother and her “lying.” During his stay, he often became

angry after speaking to his mother on the phone. One entry in the medical records

characterizes this behavior as “volatile.” When on the phone with his mother, he

would scream and yell. When his parents came to visit, lashed out at them and

would try to get staff to agree that his anger toward his mother was warranted.

When the staff told him he should not show aggression towards his mother, he

became abusive towards the staff.

      J.S. was verbally abusive to the staff on other occasions as well. Dr. Haque

testified that J.S. would yell at him and call him a fraud and threaten that he would

see to it that Dr. Haque “never practice[d] medicine again.”         This happened

virtually every day when Dr. Haque made his rounds. J.S. behaved similarly

towards other doctors. On his arrival at the hospital, J.S. threatened Dr. Alaniz,

stating that J.S. would be the last patient he would ever see.

      Dr. Haque also testified about J.S.’s general behavior.         J.S. exhibited

“constant agitation, pacing, anger, anger outbursts, refusing to take medicine, not

having any insight into his sickness, not having any plans.” Dr. Haque described

J.S. as “very agitated, very delusional, psychotic, threatening, loud” from the time

he was admitted until the last couple of days before the hearing. Dr. Haque

attributed J.S.’s recent improvement in behavior to the fact that J.S. had stopped

                                          8
refusing his prescribed medications. Dr. Haque also testified that because of J.S.’s

frequent refusal to take his medication, J.S.’s progress was slow and he needed a

longer period of supervised treatment. Dr. Haque concluded as follows:

      Q. As a result of his mental illness, is the patient likely to cause
      serious harm to others?

      A. Yes.

      Q. Is there a recent, overt act or continuing pattern of behavior that
      tends to confirm that likelihood?

      A. Again, the history that I obtained from coming here that violent
      behavior was hitting his mother was what brought him here. And he
      had threatened our admitting doctor and then he has been threatening
      me on my rounds.

      Viewing this evidence in the light most favorable to the trial court’s finding,

we conclude that the evidence is legally sufficient to support the trial court’s order

that J.S. undergo inpatient metal health services based on the finding that J.S. was

likely to cause serious harm to others. See TEX. HEALTH & SAFETY CODE ANN.

§ 574.034(a)(2)(B). The evidence that J.S assaulted his mother is evidence of an

overt act that is probative of a finding that serious harm to others is probable if he

is not treated. See K.E.W. I, 315 S.W.3d at 26; see also In re J.L., No. 14-05-

00360-CV, 2006 WL 56821, at *5 (Tex. App.—Houston [14th Dist.] Jan. 12,

2006, no pet.) (evidence legally sufficient to show likelihood of serious harm to

others where proposed patient’s overt acts included: behavior since stopping

medication was becoming increasingly aggressive; shortly before emergency
                                          9
detention patient had to be removed from store for aggression for fear she would

harm herself or others; she became so aggressive in treatment that she had to be

restrained to protect herself and others, and her record indicated she had been

aggressive and violent during bouts of mania, including assaulting police officer);

In re C.C.S., 113 S.W.3d 459, 461 (Tex. App.—Amarillo 2003, no pet.) (evidence

legally sufficient to show likelihood of serious harm to others where proposed

patient said she had to prepare her family for journey to Heaven, sold all children’s

clothes and family’s possessions, kept children out of school for year, and denied

them medical care); In re H.W., 85 S.W.3d 348, 353–54 (Tex. App.—Tyler 2002,

no pet.) (evidence legally sufficient where proposed patient had started fire in his

family’s home, although patient claimed it was an accident, and because he had

started other fires in the past); D.K. v. State, No. 05-01-00376-CV, 2001 WL

1151220, at *2 (Tex. App.—Dallas Oct. 1, 2001, no pet.) (evidence legally

sufficient where proposed patient had been “assaultive” towards hospital staff,

which doctor defined as “usually it’s physical confrontation so there’s some type

of grasping, touching, biting, kicking”).

      J.S. argues that there is no evidence that he is likely to cause “serious” harm

to others. Specifically, J.S. contends that the record does not indicate that he

caused his mother “serious” harm insofar as it does not indicate “whether the hit

was a slap, that his mother was ever hurt, or what the nature of the personal contact

                                            10
was.” This argument is foreclosed by the Supreme Court’s opinion in K.E.W. The

Supreme Court specifically held that “the overt act itself need not be of such

character that it alone would support a finding of probable serious harm to others.”

K.E.W. I, 315 S.W.3d at 24. In K.E.W., the overt acts that were sufficient to

support the trial court’s findings included: K.E.W.’s statements and written plans

concerning his belief that he had an assignment to impregnate specific women, his

verbal insistence on searching for the women, and his inquiries concerning a

specific woman who worked at the mental health center. Id. at 26. There was no

evidence that K.E.W. had assaulted, actually attempted to impregnate the women,

or expressed an intention to impregnate a woman against her will. Similarly, the

evidence of J.S.’s prior assault and threats is sufficient even without evidence that

J.S. actually caused serious harm to his mother or another. See id. We conclude

that the evidence is legally sufficient for a reasonable factfinder to have formed a

firm belief or conviction that, as a result of his mental illness, J.S. would likely

cause serious harm to others and that J.S.’s recent, objectively observable acts are

probative of and tend to confirm such a finding. See id.; see also J.L., 2006 WL

56821, at *5 (evidence of increasingly aggressive behavior sufficient; no evidence

patient had actually caused serious harm); In re C.C.S., 113 S.W.3d at 461

(statements concerning children journeying to Heaven coupled with sale of clothes

and denial of medical care sufficient; no evidence children had already suffered

                                         11
serious harm); H.W., 85 S.W.3d at 353–54 (Tex. App.—Tyler 2002, no pet.)

(evidence that patient started fire in family home sufficient; no evidence anyone

had been harmed by fire); D.K., 2001 WL 1151220, at *2 (evidence patient had

been “assaultive”; no evidence anyone had been seriously harmed by behavior).

      We also conclude that the evidence is factually sufficient to support the trial

court’s order for inpatient mental health services. Although J.S. testified that he

was not refusing to take his medication and denied hitting his mother, this self-

serving testimony is not so significant that a factfinder could not have reasonably

have resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d

at 266. In other words, although there is some disputed evidence, this evidence is

not so significant that a reasonable trier of fact could not have reconciled this

evidence in favor of its finding and formed a firm belief or conviction that J.S. was

likely to cause serious harm to others. See id.; K.E.W. II, 333 S.W.3d at 855.

Having concluded that the evidence is sufficient to support the trial court’s finding

that J.S., as a result of his mental illness, is likely to cause serious harm to others,

we affirm the trial court’s order requiring temporary inpatient mental health

services for J.S on that basis.    Because we affirm the trial court’s order on this

basis, we do not address the sufficiency of the evidence concerning J.S.’s

likelihood of causing serious harm to himself. See In re C.C.S., 113 S.W.3d at

461–62 (noting all three statutory requirements need not be satisfied and affirming

                                          12
order for inpatient mental health services where evidence was sufficient to support

finding that proposed patient was likely to cause serious harm to others).

      2.     Order to Administer Psychoactive Medication

      J.S. contends that the trial court erred in ordering the administration of

psychoactive medication because the court could order the administration of

psychoactive medication only if J.S. was under a valid order for temporary or

extended mental health services under Section 574.034. See TEX. HEALTH &

SAFETY CODE ANN. § 574.106(a)(1) (West 2010). J.S.’s success on this issue thus

depends upon whether he prevails on his challenge to the order for temporary

inpatient mental health services. Because we overruled J.S.’s issue concerning that

order, his challenge to the order to administer psychoactive medication also fails.

Accordingly, we affirm that order as well. See K.E.W. II, 333 S.W.3d at 858–59;

J.L., 2006 WL 56821, at *6.




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                                   Conclusion

      We affirm the trial court’s orders for providing inpatient mental health

services and for the administration of psychoactive medicine.




                                             Rebeca Huddle
                                             Justice

Panel consists of Justices Higley, Sharp, and Huddle.

Justice Sharp, dissenting. Dissenting opinion to follow.




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