             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________
          No. 02-19-00262-CV
     ___________________________

        IN THE MATTER OF N.S.



 On Appeal from County Court at Law No. 1
          Wichita County, Texas
       Trial Court No. 50576-LR-D


 Before Sudderth, C.J.; Kerr and Birdwell, JJ.
 Memorandum Opinion by Justice Birdwell
                          MEMORANDUM OPINION

      Appellant N.S. appeals from the trial court’s order authorizing the

administration of psychoactive medications. See Tex. Health & Safety Code Ann.

§ 574.106(a)(2). We affirm.

                                     Background

      On July 13, 2019, while awaiting trial on a charge of misdemeanor assault, N.S.

was found incompetent to stand trial. The trial court ordered her committed to a

mental-health facility for inpatient mental-health treatment under code of criminal

procedure chapter 46B with the specific objective of achieving competency. See Tex.

Code Crim. Proc. Ann. art. 46B.073.

      On July 12, 2019, Dr. Charlene Shero, N.S.’s attending physician at the facility,

filed an application under health and safety code section 574.104 for an order to

authorize the involuntary administration of psychoactive medication to N.S. In the

application, Dr. Shero stated that if N.S. were treated with the psychoactive medicine

specified in the application, N.S.’s prognosis would be “[m]uch improved,” the “[r]isk

of further aggression w[ould] decline,” “[c]ompetency m[ight] be restored, [and N.S.

would] no longer suffer paranoia.”

      The trial court held a hearing on the application on July 15, 2019. Dr. Shero

testified that N.S. has schizophrenia, paranoid type. The doctor stated that a team at

the facility had met with N.S. that morning and the previous week, and “[o]n each

occasion, she [was] very disorganized. She denie[d] mental illness. She ha[d] odd and

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illogical speech. . . . [S]he[ was] quite guarded to the point of paranoia.” Dr. Shero

characterized N.S. as “quite disorganized” and stated that N.S. had expressed that she

wanted to “visit various places in the world and get ‘chava,’” which N.S. said was “a

psychostimulant of some importance.” Dr. Shero further explained,

             Initially, [N.S.] would not speak to us for a protracted period of
      time, stating she was busy with Homeland Security business. She was,
      prior to admission here, arrested for assault on a security officer and
      when they became aware of her mental status, they dropped that down
      to a misdemeanor, realizing at that time that it may be due to other
      reasons. But she was originally assaultive on a security officer.

      Dr. Shero testified that N.S. was a danger to others, as evidenced by the fact

that she had assaulted a security officer. N.S. had not, however, acted aggressively

toward any staff or other patients at the hospital. Dr. Shero did not know if N.S. was

aggressive while at the jail, although she was “blanketly uncooperative and defensive.”

Dr. Shero further “argue[d] very strongly that [N.S.’s] pattern of traveling about the

country without any means of support or other people and then breaking into cars for

shelter place[d] her at a tremendous risk of assault by others, of unsafe housing, [and

demonstrated] just very, very poor judgment.”

      Dr. Shero stated that N.S. had refused medications other than agreeing to “a

completely ineffective dose of Haldol that . . . would not even be enough for a

pediatric case, to help organize her thoughts.” The basis of N.S.’s refusal was that she

“d[id]n’t do meds.” Dr. Shero stated that N.S. needed antipsychotics and possibly a

mood stabilizer and anxiolytics. Dr. Shero believed that on the proper medications,


                                           3
N.S. would improve; “she is natively quite intelligent, and . . . with even a week of

treatment, . . . she would be found competent.” Without the medications, on the

other hand, Dr. Shero “could not at any time call [N.S.] competent with her delusions

and her inability to cooperate with people that disagree with her.”

      Asked about N.S.’s capacity to make a decision about taking medication, Dr.

Shero stated that N.S. “[was] crippled by her paranoia to allow that intrusion” and

“[was] hyper-aware of every possible [medication] side effect that could possibly

happen, but not in a realistic perspective.” Dr. Shero testified that taking medication

was “absolutely” in N.S.’s best interest. The alternative to medications for N.S.’s

condition is electroconvulsive therapy, which Dr. Shero characterized as “impractical,

nonsustainable[,] and frightening.”

      N.S. testified about why she wanted to negotiate her own treatment. She

explained, “I’m an individual human being and that’s my right to be able to do that,

the right to refuse, to negotiate, to not agree with the course of care.” When asked if

she wanted the trial court to deny the application, she initially responded that she was

“not necessarily asking for that” and that she “feel[s] anxious sometimes due to large

amounts of work and burnout, uh, tons of work.” But she testified that it would upset

her if she were administered medication that she had not consented to take.

      N.S. disputed Dr. Shero’s diagnosis of her. Asked if she understood that she

had been diagnosed with schizophrenia, paranoid type, N.S. explained that her

understanding was that

                                           4
      that diagnosis was put on there in question because of all the different
      medications from before and it had never been substantiated and it still
      [wasn’t] to [her] knowledge. So that would be one of the problematic—
      the diagnosis was depression and that was due to severe psychological
      abuse and not understanding the medications during that time and side
      effects and any and all of that and working way too much.

Asked if she heard Dr. Shero testify about her diagnosis, N.S. stated,

             Yeah, and then that’s where then that separate piece, you can
      provide me medicine for that, and as you do so, then I’ll take that further
      to state and federal court, because that was not my diagnosis.

             ....

             I’ll accept that you’re going to provide me medicine for something
      that I do not have. But, unfortunately, large amounts of different people
      were provided medicine for different diagnoses that were not present
      and can be created by different abuse.

      In closing arguments, N.S.’s attorney stated that for an order for the

administration of medication under health and safety code section 574.106, the State

was required to show that N.S. presented a danger to herself or to others in the

inpatient mental-health facility or that she had remained confined in a correctional

facility for seventy-two hours and presented a danger there, but it had failed to do so.

In response, the State’s attorney argued that section 574.106 “give[s] an either/or

option”; the trial court may also issue an order under the section if the patient “lacks

the capacity to make a decision regarding the administration of the proposed

medication and . . . the treatment with the proposed medication is in the best interest

of the patient.”




                                           5
       The trial court signed a “Notification of Court’s Determination—Forensic”

stating that it had determined that N.S. did not have the capacity to make a proper

determination regarding the administration of the proposed medications and that

treatment with antipsychotics, mood stabilizers, and anxiolytics was in her best

interest. The notice stated that “[t]he reasons for the court’s determination are that the

Court believes the benefits to be obtained by treatment are greater than any risks that

may be encountered by treatment with the proposed medication(s), and there is no

suitable alternative at this time.”

       In a separate order, the trial court granted the application for medication

administration. In this order, the trial court found by clear and convincing evidence

that

       1. [N.S.] lack[ed] the capacity to make a decision regarding the
       administration of the proposed medication;

       2. treatment with the proposed medication [would be] in the best interest
       of [N.S.]; and

       3. either:

         A. [N.S.] present[ed] a danger to [herself] or others in the inpatient
            mental health facility in which [she] [was] being treated as a result
            of a mental disorder or mental defe[ct] as determined under
            [s]ection 574.1065 of the Texas Mental Health Code; or

         B. [N.S.]:

             i.       ha[d] remained confined in a correctional facility, as defined
                      by Section 1.07, Texas Penal Code, for a period exceeding
                      72 hours while awaiting transfer for competency
                      restoration treatment; and


                                             6
             ii.    present[ed] a danger to [herself or] others in the
                    correctional facility as a result of a mental disorder or
                    mental defect as determined under [s]ection 574.1065 of
                    the Texas Mental Health Code.

N.S. now appeals.

                                       Discussion

       In her sole issue, N.S. argues that evidence was legally and factually insufficient

to support authorizing the administration of psychoactive medications over her

refusal.

I. Psychoactive-medication orders

       Trial courts may authorize the administration of one or more classes of

psychoactive medication to a patient who is in custody awaiting trial in a criminal

proceeding and was ordered to receive inpatient mental-health services preceding a

hearing. Tex. Health & Safety Code Ann. § 574.106(a)(2). In order to do so, the trial

court must find by clear and convincing evidence

       (1) that the patient lacks the capacity to make a decision regarding the
       administration of the proposed medication and treatment with the
       proposed medication is in the best interest of the patient; or

       (2) if the patient was ordered to receive inpatient mental health services
       by a criminal court with jurisdiction over the patient, that treatment with
       the proposed medication is in the best interest of the patient and . . . :

       (A) the patient presents a danger to the patient or others in the inpatient
       mental health facility in which the patient is being treated as a result of a
       mental disorder or mental defect as determined under Section
       574.1065. . . .




                                            7
Id. § 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. In re S.P., 444 S.W.3d 299, 302 (Tex.

App.—Fort Worth 2014, no pet.). 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. Id.

      In weighing the evidence, the trial court is required to 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) 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.

Tex. Health & Safety Code Ann. § 574.106(b).

II. Standard of review

      When evaluating the legal sufficiency of the evidence, we determine whether

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


                                             8
conviction that its finding was true. S.P., 444 S.W.3d at 302. We review all of the

evidence in the light most favorable to the finding, resolve any disputed facts in favor

of the finding if a reasonable factfinder could have done so, disregard all evidence that

a factfinder could have disbelieved, and consider undisputed evidence even if it is

contrary to the finding. Id. The factfinder, not this court, is the sole judge of the

credibility and demeanor of the witnesses. Id.

      When evaluating the factual sufficiency of the evidence, we determine whether,

on the entire record, a factfinder could reasonably form a firm conviction or belief

that its finding was true. Id. at 303. If the disputed evidence that a reasonable

factfinder could not have credited in favor of the finding is so significant that a

factfinder could not have reasonably 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.

III. Application

      N.S.’s single issue comprises two parts, both relying on the United States

Supreme Court’s opinion in Sell v. United States: a constitutional challenge to section

574.106 and a sufficiency challenge to the evidence supporting the trial court’s

findings of lack of capacity and best interest. See 539 U.S. 166, 180–81, 123 S. Ct.

2174, 2184–85 (2003).




                                           9
       A.     N.S.’s constitutional challenge to section 574.106

       “[A]n individual has a ‘significant’ constitutionally protected ‘liberty interest’ in

‘avoiding the unwanted administration of antipsychotic drugs.’” Id. at 178, 123 S. Ct.

at 2183 (quoting Washington v. Harper, 494 U.S. 210, 221, 110 S. Ct. 1028, 1036 (1990)).

A court may order the involuntary administration of medication to a criminal

defendant to render the defendant competent to stand trial, “but only if the treatment

is medically appropriate, is substantially unlikely to have side effects that may

undermine the fairness of the trial, and, taking account of less intrusive alternatives, is

necessary significantly to further important governmental trial-related interests.” Id. at

179, 123 S. Ct. at 2184.

       Sell sets out a four-part test for involuntary administration of drugs solely for

trial competence purposes. 1 Id. at 180–81, 123 S. Ct. at 2184–85. N.S. argues that

section 574.106 “wholly fails to meet this four[-]part test” and that applying that

section to “a non-dangerous 46B patient is an [u]nconstitutional violation of that

patient’s due process rights.” In response, the State asserts that “N.S. wholly failed to



       1
          The four parts are that (1) “a court must find that important governmental
interests are at stake”; (2) “the court must conclude that involuntary medication will
significantly further those concomitant state interests”; (3) “the court must conclude that
involuntary medication is necessary to further those interests”; and (4) “the court must
conclude that administration of the drugs is medically appropriate, i.e., in the patient’s
best medical interest in light of his [or her] medical condition.” Id. at 180–81, 123 S.
Ct. at 2184–85 (emphasis in original).



                                            10
raise this complaint in the trial court, and she therefore did not preserve the complaint

for this court’s review.”

       Challenges to the constitutionality of a statute may be waived. In re R.B.,

225 S.W.3d 798, 801 (Tex. App.—Fort Worth 2007, no pet.). We presume that

statutes enacted by our legislature are constitutional, and attacks on that presumption

should generally be raised as an affirmative defense to enforcement of the statute. Id.

In the absence of such a complaint in the trial court, we are without authority to

consider it. Id.

       In her reply brief, N.S. contends that in her closing argument in the trial court,

“counsel for N.S. directly addressed . . . that the statute relied upon by the State was

unsatisfactory to force medications upon [her] without a showing of dangerous

conduct, and this squarely placed the [trial court] on notice that the due process

afforded by the statute was challenged.” We disagree. Counsel’s argument was that the

matter “falls squarely under [s]ection 574.106 (a-1)(B)” and that the State had failed to

meet its burden under that section. This argument did not put the trial court on notice

of a constitutional challenge. By neglecting to raise her constitutional complaint in the

trial court, N.S. failed to preserve it for our review. See Tex. R. App. P. 33.1(a)(1)(A);

see also Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).

       We overrule this portion of N.S.’s issue.




                                            11
      B.     Capacity and best interest

             1.     Sufficiency of evidence to support finding

      Capacity is defined in the health and safety code as an ability to “understand

the nature and consequences of a proposed treatment, including the benefits, risks,

and alternatives to the proposed treatment” and to “make a decision whether to

undergo the proposed treatment.” Tex. Health & Safety Code Ann. § 574.101(1).

      N.S. challenges the trial court’s finding of lack of capacity by first arguing that a

physician “would invariably say” that a patient lacks capacity to make a decision about

proposed treatment “if that patient disagrees with the physician’s professional

opinion.” N.S. likewise challenges the best-interest finding by arguing that “[l]ogic

would also lead one to believe that a physician, charged with taking care of a patient,

would believe that their decision was in the best interest of the patient.” But N.S. does

not discuss the evidence supporting the trial court’s finding.

      N.S.’s testimony showed that she did not understand her diagnosis. Dr. Shero

also testified that N.S. did not acknowledge her mental illness. Dr. Shero further

testified that as far as N.S.’s capacity to make a decision about her medication, she was

“crippled by her paranoia” in that regard, was unrealistic about possible side effects of

the medication, and wanted to travel the world to get supposedly “natural”

psychostimulants. The testimony was sufficient for the trial court to reasonably form

a firm belief that N.S. did not have the ability to understand the nature and



                                           12
consequences of the proposed medications or to make a decision whether to take

them.

        As far as N.S.’s best interest, the trial court had evidence that she did not want

to take the proposed medications because she disagreed that they fit her diagnosis;

that if she took the medications, she would improve; that without them, N.S. showed

poor judgment and her lifestyle placed her “at a tremendous risk of assault by others”;

and that the alternative treatment was “impractical, nonsustainable[,] and frightening”

electroconvulsive therapy. Dr. Shero testified that medication was “absolutely” in

N.S.’s best interest. This testimony was sufficient for the trial court to have reasonably

formed a firm belief or conviction that administration of the proposed medications

was in N.S.’s best interest.

        In sum, examining the entire record, the evidence is legally and factually

sufficient to support the trial court’s findings that N.S. lacked the capacity to make a

decision regarding the proposed medication and that medication was in her best

interest. See In re K.S., No. 11-19-00064-CV, 2019 WL 1841894, at *2 (Tex. App.—

Eastland Apr. 25, 2019, no pet.) (mem. op.) (holding evidence sufficient to support

lack-of-capacity and best-interest findings when patient with delusional disorder

denied her illness and did not understand the necessity of the medications); In re C.S.,

208 S.W.3d 77, 84–85 (Tex. App.—Fort Worth 2006, pet. denied) (holding evidence

legally sufficient to support lack-of-capacity finding when patient’s physician testified



                                            13
that medication could improve patient’s quality of life by alleviating delusions and that

patient’s condition had previously improved while taking medication).

              2.     Whether the evidence must satisfy Sell

       The main focus of N.S.’s challenge to the lack-of-capacity and best-interest

findings is her contention that before a trial court may order medications administered

to her, the State must satisfy not only section 574.106(a-1)(1) but also Sell’s four-part

test. See Sell, 539 U.S. at 180–81, 123 S. Ct. at 2184–85.

       The State responds that Sell applies only when (1) the sole purpose for which

the State seeks involuntarily administration of medication of a person is to render the

person competent to stand trial and (2) the person is charged with a nonviolent

offense. Because N.S. is charged with assaulting a security officer, and because the

trial court authorized her medication on the basis that medicating her was in her best

interest and that she did not have the capacity to make decisions about her

medication, the State contends that Sell’s four-part test is inapplicable.

       We agree that Sell does not apply when the State seeks involuntary medication

administration for some purpose other than restoring competency. See id. at 181–82,

123 S. Ct. at 2185; State ex rel. S.O., No. 04-13-00812-CV, 2014 WL 3928665, at

*6 (Tex. App.—San Antonio Aug. 13, 2014, no pet.) (mem. op.). Sell states that its test

applies when a court “is seeking to determine whether involuntary administration of

drugs is necessary significantly to further a particular governmental interest, namely,

the interest in rendering the defendant competent to stand trial,” but “[a] court need not

                                            14
consider whether to allow forced medication for that kind of purpose, if forced

medication is warranted for a different purpose,” such as the person’s dangerousness or

when the person’s refusal to take drugs puts the person’s health at risk. Sell, 539 U.S.

at 181–82, 123 S. Ct. at 2185 (emphasis in original). As Sell recognizes, “There are

often strong reasons for a court to determine whether forced administration of drugs

can be justified on these alternative grounds before turning to the trial competence

question.” Id. (emphasis in original).

       Here, Dr. Shero testified about the effect medication would have on N.S.’s

competency. But Dr. Shero’s testimony also reflects her belief that it was “absolutely”

in N.S.’s best interest to administer medication to her. See S.O., 2014 WL 3928665, at

*6. Dr. Shero explained that she felt strongly that N.S.’s untreated mental illness

presented a danger to N.S. because of her “pattern of traveling about the country

without any means of support or other people and then breaking into cars for shelter[,

which] place[d] her at a tremendous risk of assault by others.” And the trial court

specifically found that medicating N.S. was in her best interest. Thus, because

involuntary administration of the proposed medications is justified on an alternative

ground aside from restoring competency, Sell does not apply. See id.

       We overrule the remainder of N.S.’s issue.

                                         Conclusion

       Having overruled N.S.’s sole issue, we affirm the trial court’s order.



                                             15
                                  /s/ Wade Birdwell
                                  Wade Birdwell
                                  Justice

Delivered: August 29, 2019




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