

NO. 12-11-00009-CV
 
IN THE COURT OF APPEALS          
 
TWELFTH COURT OF APPEALS DISTRICT
 
TYLER, TEXAS
THE STATE OF TEXAS FOR THE             
§                   APPEAL FROM THE
            
BEST INTEREST AND
PROTECTION       §                   COUNTY COURT AT LAW
            
OF P.H.                                                            
§                   CHEROKEE COUNTY, TEXAS



MEMORANDUM
OPINION
            This
is an appeal from an order granting the State’s application for court-ordered
temporary inpatient mental health services.  P.H., Appellant, maintains the
evidence is legally and factually insufficient to support the trial court’s
order.  We affirm.
 
Background
            P.H.
was arrested and jailed in Liberty, Texas, for interfering with traffic by
dancing in the street.  She was sent from Liberty County to Rusk State Hospital
under an order of protective custody.  At Rusk State Hospital, Jan Guidry,
M.D., examined P.H. on December 21, 2010.  Robert Bouchat, M.D., examined her on
December 22, 2010.  Both completed a Physician’s Certificate of Medical
Examination.  In the opinion of both physicians, P.H. was suffering from severe
bipolar disorder.
            Dr.
Bouchat testified at the hearing on the State’s application on December 28,
2010.  Before the hearing, P.H. had refused treatment.  Dr. Bouchat told the
court that P.H. had admitted dancing in the street and had insisted she was a
choreographer engaged in a Broadway production.  She admitted keeping two dead
cats in her house since sometime in November, because it was too difficult to
dig a grave while the ground was so hard.
            Dr.
Bouchat testified that P.H.’s mental illness required treatment, and that she
was unable at that time to make a rational decision about whether or not to
submit to treatment.  In Dr. Bouchat’s opinion, she was suffering from severe
and abnormal mental, emotional, or physical distress, and that, outside a
hospital setting, she was unable to provide for her basic needs such as food,
clothing, health, and safety.  He also testified that her condition was likely
to deteriorate if she did not remain at the hospital for treatment.
            In
her testimony, P.H. denied dancing in the street, but acknowledged that the two
cats had died in her arms.  She described her mental and emotional condition as
“very healthy.”  She denied she would harm herself if released, because “I love
life too much.”  She said she would not take any medicines prescribed for her
“other than what was prescribed to me at St. Joseph’s Hospital on December 16th
through 19th.”
            The
trial court found that clear and convincing evidence established that P.H. is
mentally ill and as a result of that illness she is
 
(1) likely to cause serious harm to herself;
 
(2) suffering severe abnormal mental, emotional, or
physical distress;
 
(3) 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
 
(4) unable to make a rational and informed decision as
to whether or not to submit to treatment.
 
 
 
Sufficiency of the Evidence
 
            In
her first issue, P.H. asserts the evidence is neither legally nor factually
sufficient to support the trial court’s order of commitment.
Applicable
Law and Standard of Review
            The
judge may order a proposed patient to receive court-ordered temporary inpatient
mental health services only 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:
 
   (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 
 
      (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) (Vernon 2010).
            To
be clear and convincing, 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 at least one of the statutory criteria.  Id. §
574.034(d)(1),(2).  Expert opinions and recommendations must be supported by a
showing of the factual bases on which they are grounded.  Mezick v. State,
920 S.W.2d 427, 430 (Tex. App.–Houston [1st Dist.] 1996, no pet.).  A bald
diagnosis alone is insufficient.  Id.; see also State
ex rel. E.E., 224 S.W.3d 791, 794 (Tex. App.–Texarkana 2007, no pet.). 

            In
reviewing the legal sufficiency of the evidence where the burden of proof is
clear and convincing evidence, the appellate court must consider all of the
evidence in the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction that its
findings were true.  In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002).  The reviewing court must assume that the trier of fact resolved
disputed facts in favor of its finding if a reasonable trier of fact could do
so, and we must disregard all contrary evidence that a reasonable trier of fact
could have found incredible.  Id.
            In
reviewing a factual sufficiency challenge, the appellate court reviews all the
evidence in the record, both supporting and conflicting with the trial court’s
findings.  In re C.H., 89 S.W.3d 17, 27-29 (Tex. 2002).  Under
the clear and convincing standard, the reviewing court determines whether the
evidence is sufficient for the trier of fact to reasonably form “a firm belief
or conviction” as to the truth of the allegations sought to be established by
the State.  Id.  The court must consider whether disputed
evidence is such that a reasonable trier of fact could not have reconciled that
disputed evidence in favor of its finding.  In re J.F.C.,
96 S.W.3d at 266.
Discussion
            Dr.
Bouchat diagnosed P.H. as suffering from bipolar disorder.  It was his opinion
that her mental illness was so severe that two of three statutory criteria for
court-ordered inpatient health care were applicable to her condition.
            She
kept two dead cats in the house with her for a month or more because the ground
was too hard to dig their graves.  Living with the dead cats for an extended
period is both an overt act and a continuing pattern of behavior indicating
P.H.’s mental and emotional distress and the deterioration of her ability to
function. Her own testimony illustrates her inability to make a rational
decision about her need for treatment.  Her belief that she is a choreographer
involved in a Broadway production may be a harmless fantasy.  But her
obstruction of traffic by dancing in the street is an overt act that
demonstrates her delusions sometimes incited behavior dangerous to herself.
            We
conclude that, under the clear and convincing standard, the evidence is both
legally and factually sufficient to support the trial court’s findings that
P.H. is mentally ill; that as a result of that illness, she is likely to cause
serious harm to herself; that she is suffering severe and abnormal mental
distress, experiencing substantial mental deterioration of her ability to
function independently; and that she is unable to make a rational and informed
decision as to whether or not to submit to treatment.  P.H.’s first issue is
overruled.
 
Constitutional Claims
            In
her second, third, fourth, and fifth issues, P.H. contends the trial court
erred in rendering judgment in violation of state and federal guarantees of due
process and in violation of her right to equal protection under the federal and
state constitutions.  However, P.H. did not raise these issues in the trial
court.  “As a rule, a claim, including a constitutional claim, must have been
asserted in the trial court in order to be raised on appeal.”  Dreyer v.
Greene, 871 S.W.2d 697, 698 (Tex. 1993).  Therefore, P.H. has not
preserved these complaints for review.  P.H.’s  second, third, fourth, and
fifth issues are overruled.
 
Disposition
            The trial
court’s order of commitment is affirmed.
 
 
                                                                             Bill
Bass
                                                                                                   
 Justice
 
 
 
Opinion delivered June
22, 2011.
Panel consisted of Griffith, J., Hoyle, J., and Bass,
Retired Justice, Twelfth Court of Appeals
sitting by assignment.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(PUBLISH)
 

