                          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.


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          FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY

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                        MEMORANDUM OPINION1

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                                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.




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


                                        2
                                   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.


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      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


      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.”


                                        4
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. testified3 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


      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.


                                          5
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.




                                          6
      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


                                          7
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.).


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      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


                                         9
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


                                           10
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




                                         11
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


                                        12
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




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