AFFIRM: and Opinion Filed August 20, 2013.




                                               In The
                                         (otirt of Appealt
                                3Fifit! 1i1ritt of Lcxau at Oa11ai

                                        No. 05-12-01633-CV

                                         G.M., Appellant
                                               V.
                                rj
                                      STATE OF TEXAS. Appellee

                            On Appeal from the County Court at Law
                                      Hunt County, Texas
                                Trial Court Cause No, M- 10451

                                  MEMORANDUM OPINION
                           Before Justices O’Neill. Francis, and Fillmore
                                    Opinion by Justice O’Neill
        G.M. appeals an order requiring him to undergo in-patient mental health services for a

period of time not to exceed ninety days. In his sole point of error, G.M. contends the evidence

is legally and factually insufficient to support the commitment order. Because we conclude the

evidence is both legally and factually sufficient to support the trial court’s finding that G.M. was

mentally ill and, that as a result of that mental illness, he was likely to cause serious harm to

others, we affirm the trial court’s order.

        A judge may order a proposed patient to receive court-ordered temporary inpatient

mental health services if the judge or jury 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 is

likely to cause serious harm to himself or others.     See TEx.   HEALTH & SAFETY CoDE ANN.


§ 574.034(a) (West 2010).       To be clear and convincing, the evidence must include expert
testimony and. unless vaivcd, e idence ol a recent overt act           or   continuing pattern ot behavior

that “tends to contirm the I ikel ihood ot serious harm to the proposed               patient or others.   TEx.

1 IEALTh & SAI:I;ry CODE ANN, * 574,034(d) (West 2010).

         Clear and convincing evidence is “that measure or degree of proof which will produce in

the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to

he estab1shed.      State    i.   KE. W..3 15 S.W.3d 16. 20 (Tex. 2010): State i’.Addinç’ion, 588 S.W.2d

569. 570    (Fex.   1979) per curiam).          In evaluating evidence for legal sufficiency under this

standard, we review all 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. See K.E.W,, 315 S.W.3d at 20; In re J.F,C,, 96 S.W.3d 256, 266 (Tex. 2002). 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.

K.E.W. 315 S.W.3d           at    20; City 01 Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005); In re

J.FC., 96 S.W.3d at 266.               In conducting a factual sufficiency review, we must give due

deference to any evidence the fact-finder could reasonably have found to he clear and

convincing, In re J.F.C., 96 S.W.3d at 266; In re A.T.,             S.W.3d        ,   2013 WL 3461684,      *    3

(Tex. App.—DaIlas 2013, no pet.). We consider whether the disputed evidence is such that a

reasonable fact-fiider could not have resolved the disputed evidence in favor of its finding.                   In

re M.V., 343 S.W.3d 543. 546 (Tex. App.—Dallas 2011, no pet.). If the disputed evidence is so

significant that a fact-finder could not reasonably have formed a firm belief or conviction, then

the evidence is factually insufficient. Id.

         G.M. first asserts the evidence is insufficient because the State failed to present evidence

of a recent overt act that tended to confirm G.M. was likely to cause serious harm to others.

According to G.M., the State was required to present evidence of “actual harmful conduct.” He


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Cites Slate   i.   KJ W, to support this proposition. However, the Texas Supreme Court expressly

rejected this proposition in K.E. W. The Court held that words constituted overt acts under the

stat tiw and spccitical ly that words foreshadowing violence             can   be suhicient to meet the

requirements of the statute.      Ii.     Further, the “overt act” need not itself prove the proposed

patient is likely to harm himself or others, but must only “tend to confirm” such likelihood.

“Tends” means ‘to have leaning.’ ‘to contribute to’ or ‘have a more or less direct bearing or

effect.’      K.E.W.. 315 S.W.3d    at   23   (citing   Hlack’s Law Dictionary 1507 .Sth ed. 2004) and

Webster’s New Universal Unabridged Dictionary 1507 (8th ed. 2004)); E.D.. 392 S.W.3d at 392.

A recent overt act by a proposed patient “tends to confirm” the patient poses a likelihood of

serious harm to others if the overt act is to some degree probative of a finding that serious harm

is probable, even if the overt act is not itself dangerous. KE. W., 315 S.W.3d at 24.

           With these standards in mind, we turn to the evidence presented at the commitment

hearing. At that time, G.M. was being held at Glen Oaks Hospital pursuant to a temporary order

of protective custody. Dr. Raza Sayed testified he is a psychiatrist and a member of G.M. s

“treatment team.”        Sayed said G.M. had previously been a patient at the hospital. but was

released to live in a group home. A couple of months later, G.M. committed an assault at the

home. After being jailed for three clays, police took G.M. to the hospital.

           Sayed stated that he has evaluated G.M. and reviewed all of his medical records.           In

Sayed’s opinion, G.M. is mentally ill and suffers from schizoaffective disorder. According to

Sayed, G.M.’s diagnosis has been well documented over many years.                  People suffering from

this disorder experience paranoid thoughts, hallucinations, and are at an increased risk of acting

out, mood swings, and violent behavior.                    Sayed testified G.M. is experiencing “active

hallucinations” and paranoid thoughts that others are trying to hurt him. In particular, G.M. told

Sayed that he was “under attack.” In Sayed’s opinion, G.M.’s belief was part of his paranoia.


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          Sayed said that because of this paranoia, GM. was likely to cause serious harm to others.

He said G.M. has committed overt acts that cause him to believe G.M. poses such a danger.

Specifically, G.M. is pacing in the middle of the night, gotng into other peoples’ rooms, and

responding to “internal stimuli.” Sayed said G.M. has acted in threatening manner to both staff

and patients.         Hospital staff has had to redirect G.M. several times before he could get to the

point of being “assaultive to others.”                     He said the most recent occurrence of this behavior was

two days previously.

          Sayed also testified that G.M.’s medical history shows he suffered a traumatic brain

injury in his past. Sayed said the brain injury has made G.M. more at risk of aggression and

impulsivity. Sayed also testified that people with brain injuries can suffer “mood symptoms,”

but said they do not predominately exhibit psychotic symptoms, such as hallucinations,                                                      He

acknowledged that it was “possible” for a person with a brain injury to suffer hallucinations, but

that it was “quite rare.” Sayed said he was not aware of any neurological testing done on G.M.

to determine whether G.M.’s hallucinations were caused by a brain injury rather than his mental

illness. Regardless, in Sayed’s opinion, mental illness is the overriding factor causing G.M.’s

psychosis.

           According to G.M., the State failed to present evidence of an “overt act” tending to

confirm that as a result of his mental illness, he was likely to harm others. He acknowledges

there is some evidence he assaulted a member of the group home,                                             but contends this is not

sufficient because the record is devoid of any facts or circumstances surrounding the assault. He

further contends the State failed to present any other evidence of “actual dangerous behavior.”

As noted above, G.M. misstates the applicable requirement.                                       Specifically, the State was not


        Appellant also claims there was evidence presented at the hearing that he did not “actually assault” anyone, but only exhibited “body
posturing.” Appellant misstates the record. Sayed testified appellant did not actually assault anyone at the hospital, not that appellant did not
commit the assault at the group home.



                                                                     -4-
required to prove actual hanniul conduct, hut only an overt act that is to some degree probative

of a finding that serious harm to others is probable.

           Regardless, we conclude evidence appellant assaulted another patient at the group home

is evidence of an overt act that was “to some degree probative” of a finding that serious harm to

others was probable. Appellant was jailed Following the assault, and banned from returning to

the roup home. When he was asked about the assault at the hospital, appellant explained he

was “under attack.” According to Sayed. G.M.’s belief was part of his psychosis and has caused

him to act aggressively toward others. We disagree with appellant the assault could not satisfy

the overt act requirement because appellant might have been appropriately responding to an

attack. Rather, given the nature of appellant’s mental illness, the assault was to “some degree”

probative of a Finding that serious harm to others was probable because of his illness.

           But even if we agreed with G.M. that the assault did not satisfy the   Overt   act requirement,

G,M.’s statements and conduct at the hospital following the assault are sufficient. Specifically,

appellant’s verbal statements that he was “under attack,” and evidence appellant was pacing in

the middle of the night, mumbling, responding to outside stimuli, and entering other peoples’

rooms were probative of a finding that that serious harm to others was probable if he was not

treated.

           Appellant further contends the evidence is legally insufficient because there was evidence

that he had suffered a brain injury in the past and his behavior could have been the result of the

brain injury, not his mental illness. However, according to Sayed, G.M.’s predominant condition

was psychosis, and that it was his mental illness that caused his hallucinations and paranoia.

Although Sayed acknowledged that a brain injury can cause hallucinations, he said that was rare.

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




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evidence is leally sufficient to allow the trial court to lorm the firm belief that (iM’s behavior

was the result of his mental illness,

        We have also reviewed the evidence in a neutral light.       Having done so, we cannot

conclude the disputed evidence, including evidence that G.M. had a brain injury and brain

injuries can cause hallucinations, is so significant that the trial court could not have reasonably

lormed the lrm conviction or belief (i.M.’s danger to others was the result of his mental illness.

We resolve the sole issue against G.M. We affirm the trial courts order.




                                                    /Michael J. ONeill/
                                                    MICHAEL J. O’NEILL
                                                    JUSTICE


 12 1633F.P05




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                        JFiftI! 1itrict uf ixa at afta
                                        JUDGMENT

G.M., Appellant                                       On Appeal from the County Court at Law,
                                                      Hunt County, Texas
No. 0512-01633-CV            V.                       Trial Court Cause No. M40451.
                                                      Opinion delivered by Justice O’Neill,
THE STATE OF TEXAS, Appellee                          Justices Francis and Fillmore participating.

     In accordance with this Court’s opinion of this date, the trial court’s order is
AFFIRMED.



                        th
                        20
Judgment entered this        day of August, 2013.




                                                      /Michael J. O’Neill?
                                                      MICHAEL J. O’NEILL
                                                      JUSTICE




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