                                  NO. 12-13-00045-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 W.W.                                        §         CHEROKEE COUNTY, TEXAS

                                 MEMORANDUM OPINION
       W.W. appeals from an order authorizing the Texas Department of State Health Services (the
Department) to administer psychoactive medication-forensic.     In one issue, W.W. asserts the
evidence is legally and factually insufficient to support the trial court’s order. We reverse and
remand.


                                         BACKGROUND
       On January 29, 2013, George Howland, M.D. signed an application for an order to
administer psychoactive medication-forensic to W.W. In the application, Howland stated that
W.W. was subject to an order for inpatient mental health services issued under Chapter 46C (not
guilty by reason of insanity) of the Texas Code of Criminal Procedure. He testified that W.W. had
been diagnosed with schizoaffective disorder, bipolar type, and alcohol abuse, and requested the
trial court to compel W.W. to take psychoactive medications including antidepressants,
anxoilytics/sedatives/hypnotics, antipsychotics, and mood stabilizers.   According to Howland,
W.W. refused to take the medications voluntarily and, in his opinion, W.W. lacked the capacity to
make a decision regarding administration of psychoactive medications because he was disorganized
in his thought process.
       Howland concluded that these medications were the proper course of treatment for W.W.
and that, if he were treated with the medications, his prognosis would be improved with less
disorganization and rigidity in his thought process. Howland believed that, if W.W. were not
administered these medications, the consequences would be continued disorganized thought
process, inability to follow rules at the hospital, and weight loss. Howland considered other
medical alternatives to psychoactive medications, but determined that those alternatives would not
be as effective. He believed the benefits of the psychoactive medications outweighed the risks in
relation to present medical treatment and W.W.’s best interest. Howland also considered less
intrusive treatments likely to secure W.W.’s agreement to take psychoactive medications.
        On February 5, 2013, the trial court held a hearing on the application. At the close of the
evidence, the trial court granted the application. On February 5, 2013, after considering all the
evidence, including the application and the expert testimony, the trial court found that the
allegations in the application were true and correct and supported by clear and convincing evidence.
Further, the trial court found that treatment with the proposed medications was in W.W.’s best
interest and that W.W. lacked the capacity to make a decision regarding administration of the
medications. The trial court authorized the Department to administer psychoactive medications to
W.W.,       including      antidepressants,      antipsychotics,      mood        stabilizers,     and
anxiolytics/sedatives/hypnotics. This appeal followed.


                                  SUFFICIENCY OF THE EVIDENCE
        In his sole issue, W.W. argues that the evidence is legally and factually insufficient to
support the trial court’s order to administer psychoactive medication-forensics. More specifically,
W.W. contends that the State failed to prove, by clear and convincing evidence, that he lacked the
capacity to make a decision regarding administration of medication, and that treatment with the
proposed medications was in his best interest.
Standard of Review
        In a legal sufficiency review where the burden of proof is clear and convincing evidence, we
must look at all 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). We must assume that the fact finder settled disputed
facts in favor of its finding if a reasonable fact finder could do so and disregard all evidence that a
reasonable fact finder could have disbelieved or found incredible. Id. This does not mean that we
are required to ignore all evidence not supporting the finding because that might bias a clear and
convincing analysis. Id.




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       The appropriate standard for reviewing a factual sufficiency challenge is whether the
evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth
of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). In determining whether
the fact finder has met this standard, we consider all the evidence in the record, both that in support
of and contrary to the trial court’s findings. Id. at 27-29. Further, we must consider whether
disputed evidence is such that a reasonable fact finder could not have reconciled that disputed
evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. If the disputed evidence is so
significant that a fact finder could not reasonably have formed a firm belief or conviction, the
evidence is factually insufficient. Id. If the court of appeals sustains an issue because the evidence
is factually insufficient, it must reverse the judgment of the trial court and remand for a new trial.
In re C.S., 208 S.W.3d 77, 81 (Tex. App.–Fort Worth 2006, pet. denied) (citing Glover v. Tex. Gen.
Indem. Co., 619 S.W.2d 400, 401-02 (Tex. 1981)). A court of appeals has no jurisdiction to render
judgment based upon an insufficient evidence issue. Id.
Order to Administer Psychoactive Medication
       A trial court may issue an order authorizing the administration of one or more classes of
psychoactive medications to a patient who is under a court order to receive inpatient mental health
services. TEX. HEALTH & SAFETY CODE ANN. § 574.106(a) (West 2010). The court may issue an
order if it finds by clear and convincing evidence after the hearing that (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 best interest of the patient. Id. § 574.106(a-1)
(West 2010). ―Clear and convincing evidence‖ means the 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. Addington, 588 S.W.2d 569, 570 (Tex. 1979). ―Capacity‖ means
a patient’s ability to (1) understand the nature and consequence of a proposed treatment, including
the benefits, risks, and alternatives to the proposed treatment, and (2) make a decision whether to
undergo the proposed treatment. TEX. HEALTH & SAFETY CODE ANN. § 574.101(1) (West 2010). In
making its findings, the trial court shall 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


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treatments likely to secure the patient’s agreement to take the psychoactive medication.           Id.
§ 574.106(b) (West 2010).
Hearing on Application
       At the hearing on the application, Howland testified that he was W.W.’s treating physician
and that W.W. was currently under a court order for inpatient mental health services. He also stated
that he completed the application for an order to administer psychoactive medication-forensic and
swore that all the statements in the application were true and correct. Howland stated that W.W. was
suffering from schizoaffective disorder, bipolar type, and alcohol abuse, and that he had verbally, or
otherwise, refused to accept medication voluntarily. According to Howland, he believed that W.W.
lacked the capacity to make a decision regarding the administration of psychoactive medication.
       Howland testified that W.W. lacked capacity because he had been on Latuda to help with his
psychosis, and had disorganized thoughts. He also testified that W.W. may have had paranoid
thoughts about eating because he has lost twenty pounds since September 2012 and has a history of
believing his food was poisoned. Although Howland admitted that it was possible for individuals
with W.W.’s illness to have insight into, and control, their illness with medication, he did not
believe that W.W. could make a rational decision because his dose of medication was too low.
Howland testified that he had never seen anyone on such a low dose. He did not believe that W.W.
had enough familiarity with the effect of his medication to determine if he felt better because he was
not taking care of his room or following the rules of his unit.
       Howland stated that W.W. was transferred to a locked unit the week before trial because the
treatment team was concerned about his condition, weight loss, reclusiveness, and guardedness. He
stated that W.W. refused to take an increase in his medication, Latuda, even after the treatment team
talked with and encouraged him. Howland stated that W.W. had a very rigid thought process and
refused to ―consider the possibility‖ of increasing his medication. He admitted it was possible that
W.W. did not believe he needed that drug or an increased dose, or that he could be paranoid,
thinking that the drug was going to poison him, since he also had not been eating. However, he
admitted that W.W.’s believing that the drug was poisoning him was speculation on his part.
Howland stated that W.W. initially told the treatment team that he had never taken medication, but
later stated that he had taken medication and suffered side effects. He attempted to reassure W.W.
that he could try an increased dosage and that if he had issues, he could talk to the nursing staff
about any side effects. But, he testified, W.W. ―absolutely refused.‖ Thus, according to Howland,




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the treatment team had to make a decision to move W.W. to a locked unit because he was not
following treatment recommendations.
         Howland testified that the treatment team’s decision to move W.W. into a locked unit
included the fact that his room was ―disheveled,‖ he had trash in his locker, he was not displaying
his badge properly on the grounds, he was not signing in and out of the unit, and he was on the
internet at times when he was not supposed to be. He talked to W.W. about disobeying the rules
and described W.W. as being very quiet and saying, at one point, that he did follow the rules.
However, Howland testified that W.W. did not want to go to the dining room at all and that the
treatment team explained that it was another rule to follow. He stated that W.W. told them he did
not want to eat the food, but instead, wanted to obtain food from the canteen. Howland testified that
after their discussion of the rules, W.W. kept his room better, but that his greater concern was that
W.W. was not taking his medication as prescribed and had lost twenty pounds.
         Howland testified that treatment with the medications set forth in the exhibit attached to the
application was the proper course of treatment for W.W. and was in his best interest. He stated that
if these medications were used, the benefit to W.W. would outweigh the risks. He also stated that
W.W.’s stay at the hospital would be shorter if these medications are used. Howland was aware that
in August 2011, W.W. attacked a man who subsequently died. At the time, he stated, W.W. was
psychotic, heard voices, and had disorganized thoughts and paranoia.
         W.W. testified that he disagreed with Howland’s assessment of his ability to make a
decision regarding administration of psychoactive medications. He remembered the treatment team
talking to him regarding the rules that they believed he was not following. He testified that he
―immediately‖ changed his behavior. W.W. stated that there was no trash in his locker, just a
couple of brown bags that he subsequently removed. His ―messy‖ room was two papers on the
floor that he put in a sack. He stated that he wore his badge at all times after that conversation.
W.W. testified that he had taken this medication before but initially forgot when he talked to
Howland. He said he took an increased dose of Latuda while in jail and it ―didn’t agree with [him]
at all.‖ He informed Howland that an increased dose of Latuda made him hallucinate and gave him
bad akathisia.1 Moreover, W.W. testified that medications have never helped with his disorganized
thinking, just hallucinations.         At the time of trial, he stated that his thinking was good and


         1
           ―Akathisia‖ is defined as motor restlessness characterized by muscular quivering and the inability to sit still,
often a result of chronic ingestion of neuroleptic drugs; intense anxiety at the thought of sitting down; and the inability
to sit down. THE AMERICAN HERITAGE® STEDMAN’S MEDICAL DICTIONARY 26 (Houghton Mifflin Co. 1995).


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organized. Thus, W.W. did not want to take an increased dose of this medication and attempted to
tell Howland on several occasions.
       W.W. stated that four other physicians determined he did not need an increased dose of
Latuda, and that he would like to be evaluated by an independent physician. He stated that if an
independent physician determined that he needed an increased dose of Latuda, he would agree
because he believed Howland blew his issues ―out of proportion.‖
Analysis
       W.W. does not dispute that the evidence is legally and factually sufficient to show that he is
under a court order to receive inpatient mental health services. Thus, we will consider whether the
evidence is legally and factually sufficient to support a finding that he lacked the capacity to make a
decision regarding the administration of psychoactive medications, and that treatment with the
proposed medications was in his best interest. In the application, Howland stated that he believed
W.W. lacked the capacity to make a decision regarding administration of psychoactive medications
because he was disorganized in his thought process. Further, Howland determined that, if W.W.
were not administered these medications, the consequences would be continued disorganized
thought process, inability to follow rules at the hospital, and weight loss. At the hearing, Howland
testified that W.W. had disorganized thoughts, had possible paranoid thoughts about food, initially
refused to follow the rules, continued to disobey the rules regarding eating, and had lost twenty
pounds since September 2012. He also testified that W.W. was moved into a locked unit because
the treatment team was concerned about his condition, weight loss, reclusiveness, and guardedness.
       Considering all the evidence in the light most favorable to the findings, we conclude a
reasonable trier of fact could have formed a firm belief or conviction that W.W. lacked the capacity
to make a decision regarding administration of the proposed medications and that treatment with the
proposed medications were in his best interest.         See TEX. HEALTH & SAFETY CODE ANN.
§ 574.106(a-1); In re J.F.C., 96 S.W.3d at 266. Therefore, the evidence is legally sufficient to
support the trial court’s order. See In re J.F.C., 96 S.W.3d at 266.
       Having determined that the evidence is legally sufficient to support the finding, we address
factual sufficiency and consider all the evidence, both that in support of and contrary to the trial
court’s findings. See In re C.H., 89 S.W.3d at 27-29. At the hearing, Howland admitted that W.W.
kept his room better, but was still refusing to eat at the dining hall. Instead, he testified, W.W.
wanted to eat from the canteen and had lost twenty pounds, necessitating his removal into a locked
unit. However, Howland did not provide further information regarding W.W.’s weight loss and


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eating habits. He admitted that W.W. ―may‖ have had paranoid thoughts about eating because he
had lost twenty pounds in approximately five months. The information regarding W.W.’s weight
loss is not placed in any type of meaningful context so that we can determine whether W.W.’s
weight loss did, in fact, result in ill health consequences. See In re E.R., No. 06-10-00124-CV,
2011 WL 61878, at *5 (Tex. App.—Texarkana Jan. 7, 2011, no pet.) (mem. op.). For example,
Howland did not testify that W.W.’s weight loss and desire to eat only in the canteen resulted in
medical care for dehydration or malnutrition, or that it was detrimental to his health. Further,
Howland did not testify how W.W.’s decision to eat only in the canteen and a twenty pound weight
loss resulted in a lack of capacity to make a decision regarding administration of the proposed
medications. See TEX. HEALTH & SAFETY CODE ANN. § 574.106(a-1).
       Regarding W.W.’s best interest, Howland also stated his belief that the medications listed in
the exhibit attached to the application were in W.W.’s best interest, that he would likely benefit
from the medications, and that the benefits of the psychoactive medications outweighed the risks in
relation to present medical treatment and W.W.’s best interest. At the hearing, Howland admitted
that W.W. informed him that he had suffered side effects from Latuda. W.W. testified that he had
been given an increased dose of Latuda while in jail and stated that it ―didn’t agree with [him],‖ nor
did it help with his disorganized thoughts. Further, W.W. stated that the increased dose of Latuda
made him hallucinate and gave him bad akathisia. However, Howland still recommended that
W.W. should be treated with an increased dose of that medication. From Howland’s testimony, it is
not apparent that he took into account W.W.’s past experiences when he prescribed an increased
dose of Latuda. See In re E.K., No. 12-06-00407-CV, 2007 WL 1492104, at *4 (Tex. App.—Tyler
May 23, 2007, no pet.) (mem. op.); In re D.H., No. 12-04-00181-CV, 2004 WL 2820896, at *4
(Tex. App.—Tyler Dec. 8, 2004, no pet.) (mem. op.).
       W.W. stated his objections to taking medications or, more particularly, an increased dose of
Latuda. The trial court is not required to defer to W.W.’s preferences, but must consider them. See
TEX. HEALTH & SAFETY CODE ANN. § 574.106(b). Because W.W. presented evidence to the trial
court of his preference to avoid an increased dose of Latuda based upon its side effects and
ineffectiveness, it is presumed that the trial court gave his preferences due consideration. As noted
above, W.W. preferred to be treated with a low dose of Latuda. See id. From his perspective, the
risks of these medications and an increased dose of Latuda outweighed the benefits.           See id.
Further, the consequences of taking these medications, or more particularly, an increased dose of
Latuda, could be severe, resulting in hallucinations and severe akathisia. See id.


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         Based upon W.W.’s reasoned refusal to take the proposed medications and increased dose of
Latuda because of his history of hallucinations and akathisia, we conclude that the State failed to
introduce clear and convincing evidence of W.W.’s lack of capacity to make a decision regarding
administration of these medications or that these medications were in his best interest. The disputed
evidence is so significant that the trial court could not reasonably have formed a firm belief or
conviction that W.W. lacked the capacity to make a decision regarding administration of the
proposed medications or that treatment with the proposed medications was in his best interest. See
id. § 574.106(a-1); In re J.F.C., 96 S.W.3d at 266. Thus, in considering all the evidence, the
evidence is factually insufficient to support the trial court's finding based upon Section 574.106(a-1)
of the Texas Health and Safety Code. Accordingly, we sustain W.W.’s sole issue as to factual
sufficiency.


                                                     DISPOSITION
         Based upon our review of the record, we conclude that the evidence is factually insufficient
to support the trial court’s order to administer psychoactive medication-forensic. Therefore, we
reverse the trial court’s order and remand the case for further proceedings.


                                                                    JAMES T. WORTHEN
                                                                       Chief Justice


Opinion delivered June 19, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                      (PUBLISH)




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                               COURT OF APPEALS
            TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                         JUDGMENT

                                            JUNE 19, 2013


                                        NO. 12-13-00045-CV


                          THE STATE OF TEXAS FOR THE BEST
                         INTEREST AND PROTECTION OF W.W.

_____________________________________________________________________________
                        Appeal from the County Court at Law
                    of Cherokee County, Texas. (Tr.Ct.No. 40,191)
_____________________________________________________________________________
                 THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that there was error in the
order as entered by the trial court below and that the same should be reversed and judgment
remanded.
                      It is therefore ORDERED, ADJUDGED and DECREED by this court that
the trial court’s order to administer psychoactive medication-forensic be, and the same is, hereby
reversed and the case remanded for further proceedings; and that this decision be certified to
the court below for observance.
                      James T. Worthen, Chief Justice.
                      Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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