                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-15-00221-CV


IN THE MATTER OF M.R.




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            FROM THE PROBATE COURT OF DENTON COUNTY
                   TRIAL COURT NO. MH-2015-160

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                       MEMORANDUM OPINION1

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      Appellant M.R. appeals from a judgment for court-ordered extended

inpatient mental health services.     See Tex. Health & Safety Code Ann.

§ 574.035(a) (West Supp. 2014). In three issues, M.R. argues that the rules of

evidence conflict with the statutory requirements for court-ordered extended

inpatient mental health services, denying M.R. due process, due course of law,

      1
      See Tex. R. App. P. 47.4.
and effective assistance of counsel; that the trial court abused its discretion by

improperly admitting M.R.’s medical records into evidence; and that the evidence

was legally insufficient to support the jury’s findings that M.R. (1) was suffering

severe and abnormal mental, emotional, or physical distress, (2) was

experiencing substantial mental or physical deterioration of his ability to function

independently as exhibited by his inability, except for reasons of indigence, to

provide for his basic needs, including food, clothing, health, or safety, and (3)

was unable to make a rational and informed decision as to whether or not to

submit to treatment. We affirm.

                                   Background

The application for temporary mental health services

      M.R. is twenty years old and suffers from schizoaffective disorder. On

March 26, 2015, a peace officer with the Denton County Sheriff’s Office,

believing M.R. was mentally ill, took him into custody without a warrant and

transported him to Mayhill Hospital in Denton, Texas. See id. §§ 573.001–.026

(West 2010 & Supp. 2014) (providing procedures for emergency detention for

cases of suspected mental illness). In his notification of detention, the officer

stated that he believed that M.R. was mentally ill and that M.R. evidenced a

substantial risk of serious harm to himself or others because he was disoriented;

was responding to visual and auditory hallucinations; responded to the officer’s

questions with grunting noises; and reportedly had not been bathing, had been

soiling himself regularly, had been walking around making growling noises and

                                         2
talking to people who were not there, and had not taken his medication in two

weeks. See id. § 573.002.

      On March 27, 2015, Tiffany Castro, LPC, a mental health professional at

Mayhill Hospital, filed a sworn application for temporary mental health services,

which was approved for filing by the State, alleging that M.R. was mentally ill and

that as a result of that mental illness, he (1) was likely to cause serious harm to

himself, (2) was likely to cause serious harm to others, and (3) was suffering from

severe and abnormal mental, emotional, or physical distress; was experiencing

substantial   mental   or   physical   deterioration   of   his   ability   to   function

independently, which was exhibited by M.R.’s inability, except for reasons of

indigence, to provide for his basic needs, including food, clothing, health, or

safety; and was unable to make a rational and informed decision as to whether or

not to submit to treatment. See id. §§ 574.001, .002, .034(a) (West Supp. 2014).

According to Castro’s affidavit filed in support of the application, M.R. had

received psychiatric care at Mayhill Hospital in 2014 and at a state hospital in

2015 and was a substantial risk of serious harm to himself or others because he

was paranoid, psychotic, disoriented, and not taking care of his daily needs. She

also stated that M.R. went “from not responding to yelling and jumping around

and responding to internal stimuli.”

      Also on March 27, 2015, Dr. Asad Islam, M.D. filed a sworn certificate of

medical examination for mental illness. See id. §§ 574.009, .011 (West 2010).

Dr. Islam averred that he examined M.R. on March 26, 2015, at Mayhill Hospital

                                          3
and diagnosed him with schizophrenia. Dr. Islam believed that as a result of his

illness, M.R. (1) was likely to cause serious harm to himself, (2) was likely to

cause serious harm to others, and (3) was suffering from severe and abnormal

mental, emotional, or physical distress; was experiencing substantial mental or

physical deterioration of his ability to function independently, which was exhibited

by M.R.’s inability, except for reasons of indigence, to provide for his basic

needs, including food, clothing, health, or safety; and was unable to make a

rational and informed decision as to whether or not to submit to treatment. See

id. § 574.011(a)(7). Dr. Islam provided the following as the basis for his opinion:

“The patient is responding to visual and auditory hallucinations and has been

regularly soiling himself.   The patient is disoriented and psychotic.”      In the

physician’s affidavit attached to the certificate of medical examination for mental

illness, Dr. Islam elaborated on the basis for his opinions expressed in the

certificate. In addition to regularly soiling himself and experiencing visual and

auditory hallucinations, M.R. refused to answer questions, had reportedly not

taken his medication in two weeks, had been walking around making growling

noises and talking to people who were not present, had been yelling and jumping

up and down, had been aggressive and saying sexually inappropriate things to

people, was unable to make a rational and informed decision to submit for

treatment, and was unable to effectively and voluntarily participate in outpatient

treatment. Dr. Islam recommended inpatient hospitalization.



                                         4
      The State filed a motion for an order of protective custody of M.R. pending

resolution of the case, and the trial court granted it. See id. § 574.021 (West

2010).   The trial court appointed counsel to represent M.R., set dates for a

probable cause hearing and the hearing on the application for temporary mental

health services, and issued notice to M.R. See id. §§ 574.003, .005–.006, .025

(West 2010).    M.R. waived his right to appear and present evidence at the

probable cause hearing.       At the probable cause hearing, the trial court

determined that there was probable cause to believe that M.R. presented a

substantial risk of serious harm to himself such that he could not be at liberty

pending the final hearing on the application and ordered that he be transported to

and detained at the North Texas State Hospital (NTSH). See id. § 574.025.

      M.R. executed and filed a waiver of his right to be present at the hearing

on the application that also authorized the trial court to make findings based upon

the certificates of medical examination for mental illness on file.        See id.

§§ 574.031(c) (West 2010), 574.034(f) (West Supp. 2014). M.R. and his attorney

executed and filed a waiver of M.R.’s right to cross-examine witnesses at the

hearing and of evidence of a recent overt act or continuing pattern of behavior

tending to confirm the likelihood of serious harm to others or to M.R. or his

distress and deterioration of his ability to function. See id. § 574.034(d) (West

Supp. 2014), (f).




                                        5
      On April 9, 2015, based on Dr. Islam’s and Dr. Diana Isachievici’s

certificates of medical examination for mental illness,2 the trial court found that

M.R. was mentally ill and that as a result of his mental illness, M.R. (1) was likely

to cause serious harm to himself, (2) was likely to cause serious harm to others,

and (3) was suffering from severe and abnormal mental, emotional, or physical

distress; was experiencing substantial mental or physical deterioration of his

ability to function independently, which was exhibited by his inability, except for

reasons of indigence, to provide for his basic needs, including food, clothing,

health, or safety; and was unable to make a rational and informed decision as to

whether or not to submit to treatment. See id. § 574.034(a). The trial court

granted the application and ordered M.R. committed to NTSH for a period not to

exceed ninety days. See id. § 574.034(g) (West Supp. 2014).

The application for extended mental health services

      On June 11, 2015, Kimeshia Lloyd, a social worker at NTSH, filed a sworn

application for extended mental health services, which was approved for filing by

the State, alleging that M.R. was mentally ill and that as a result of his mental

illness, he (1) was likely to cause serious harm to himself and (2) was suffering

from severe and abnormal mental, emotional, or physical distress; was

experiencing substantial mental or physical deterioration of his ability to function

independently, which was exhibited by M.R.’s inability, except for reasons of


      2
       Dr. Isachievici’s certificate is not in the appellate record.

                                           6
indigence, to provide for his basic needs, including food, clothing, health, or

safety; and was unable to make a rational and informed decision as to whether or

not to submit to treatment. See id. §§ 574.001, .002, 574.035(a). Lloyd also

alleged that M.R.’s condition was expected to continue for more than ninety days

and that M.R. had received court-ordered inpatient mental health services under

health and safety code section 574.034 for at least sixty days during the

preceding twelve months. See id. § 574.035(a).

      Also on June 11, 2015, Dr. Zahida Syed, M.D. filed a sworn certificate of

medical examination for mental illness.      See id. §§ 574.009, .011. Dr. Syed

averred that she examined M.R. on June 5, 2015, at NTSH and diagnosed him

with schizoaffective disorder. She also noted that he was not complying with his

treatment. Dr. Syed believed that as a result of his illness, M.R. (1) was likely to

cause serious harm to himself and (2) was suffering from severe and abnormal

mental, emotional, or physical distress; was experiencing substantial mental or

physical deterioration of his ability to function independently, which was exhibited

by M.R.’s inability, except for reasons of indigence, to provide for his basic

needs, including food, clothing, health, or safety; and was unable to make a

rational and informed decision as to whether or not to submit to treatment. See

id. § 574.011(a)(7).   It was also her opinion that M.R. had an inability to

participate in outpatient treatment services effectively and voluntarily and that his

condition was expected to continue for more than ninety days.               See id.

§ 574.011(c).   Dr. Syed based her opinion on M.R.’s severe psychosis and

                                         7
bizarre behavior with increased agitation and his yelling, chanting, and howling in

response to internal stimuli. She noted that he suffered from severe distress

during these episodes. She also noted that M.R. refused to take showers; wore

layers of clothing in hot weather; was socially isolated and restless; had a history

of not complying with his treatment; had limited insight and judgment; and was

not able to take care of himself. She recommended extended commitment to

NTSH “[a]s he was hospitalized within a few weeks after previous discharge and

still has not improved significantly after three months of inpatient treatment.”

      On June 15, 2015, the trial court appointed M.R.’s current counsel to

represent him. See id. § 574.003. The order appointing counsel ordered that

M.R.’s counsel be furnished with all records and papers in the case and have

access to all of M.R.’s records from TDMHMR and Denton County MHMR

concerning prior and present treatment, recommendations, and services

provided to M.R. See id. § 574.003(c). M.R. requested a jury trial.

      On June 22, 2015, Dr. James G. Shupe, M.D. filed a sworn certificate of

medical examination for mental illness. See id. §§ 574.009, .011. Dr. Shupe

stated that he examined M.R. on June 22, 2015, at the Denton County Probate

Court and diagnosed him with schizoaffective disorder. Dr. Shupe believed that

as a result of his illness, M.R. was suffering from severe and abnormal mental,

emotional, or physical distress; was experiencing substantial mental or physical

deterioration of his ability to function independently, which was exhibited by

M.R’s inability, except for reasons of indigence, to provide for his basic needs,

                                          8
including food, clothing, health, or safety; and was unable to make a rational and

informed decision as to whether or not to submit to treatment.              See id.

§ 574.011(a)(7). It was also his opinion that M.R. had an inability to participate in

outpatient treatment services effectively and voluntarily and that his condition

was expected to continue for more than ninety days. See id. § 574.011(c). His

opinion was based on the fact that M.R. remained “very psychotic” despite three

months of treatment at NTSH, appeared to be having hallucinations, and still

believed he was not mentally ill and did not need medication. Dr. Shupe also

recommended court-ordered inpatient treatment.

The trial and judgment

      The application for extended mental health services was tried to a jury on

July 6, 2015. When the State offered 549 pages of M.R.’s medical records, M.R.

objected to them as hearsay and on the grounds that the State failed to comply

with rule of evidence 902(10)(A) because it did not serve the medical records on

M.R. fourteen days before the trial.         See Tex. R. Evid. 801, 802, 803(6),

902(10)(A). The trial court overruled M.R.’s objections and admitted the records

into evidence.

      Dr. Syed, an expert in forensic psychiatry and a staff psychiatrist at NTSH,

testified that M.R. was admitted to NTSH on March 27, 2015, and that she had

been his treating physician for the last month.         She diagnosed M.R. with

schizoaffective disorder and stated that M.R. suffered from schizophrenia and a

mood disorder. Dr. Syed further testified that M.R.’s schizophrenia presented

                                         9
with hallucinations, delusions, and thought disorder; M.R. also had disorganized

thought processes and a history of becoming aggressive when responding to

internal stimuli.

       Dr. Syed last met with M.R. the morning of trial.          While he was

“dramatically more goal directed,” he was mumbling and responding to internal

stimuli. M.R. had improved after he was transferred into Dr. Syed’s care in June

2015 and after she changed his medications. Even though M.R. was more goal

directed and his thoughts were more organized, he still suffered from

hallucinations, to which he would respond. M.R.’s insight and judgment were still

impaired, and he believed that he had killed himself. M.R. did not believe that he

had any mental illness and was ambivalent about whether he needed

medication. M.R. required prompts to shower because he would go three or four

days without showering.

       Dr. Syed testified that M.R. had no insight into his mental illness and did

not think he needed medication. She was concerned that M.R. would stop taking

his medication—which he needed to function—if he were released from

treatment. Approximately two weeks after M.R. was discharged from inpatient

treatment into his parents’ care in March 2015, he stopped taking his medication.

He wandered away from his parents’ house and was found two days later in a

park, psychotic, exhibiting bizarre behavior, and responding to internal stimuli.

M.R. had also defecated on himself. According to Dr. Syed, M.R.’s poor insight

into his illness caused him to stop taking his medication, which caused his

                                        10
condition to deteriorate. M.R. was readmitted to inpatient treatment after this

incident.

      Dr. Syed testified M.R. was an indirect danger to himself because he was

unable to take care of himself; he did not, however, have suicidal thoughts. But

he did have a history of physical aggression towards others. Dr. Syed stated that

M.R. recently had a verbal altercation with another patient, and on two occasions

in April 2015, M.R. had to be physically restrained because he was physically

aggressive towards NTSH staff and was unable to be verbally redirected. Based

on M.R.’s history of physical aggression towards others, Dr. Syed was concerned

that he could be a danger to others.

      Dr. Syed testified that M.R. had a continuing pattern of behavior of not

dealing with his mental illness, was suffering severe and abnormal distress, and

was experiencing a deterioration of his ability to function independently. She

further opined that he could not provide for his basic needs and was unable to

make a rational decision as to whether to submit to treatment. She stated that he

had received court-ordered inpatient mental health services for at least sixty days

in the last twelve months. In her opinion, outpatient treatment was not an option

for M.R. at the time of trial because he had poor insight into his mental illness

and his need for medication.

      Dr. Syed recommended inpatient treatment for M.R. She changed M.R.’s

medication the week prior to trial.     M.R.’s condition improved on the new

medication, but the medication would take four to six weeks to show full benefit.

                                        11
Inpatient treatment was the least restrictive treatment that she expected to be

effective.

      On cross-examination, Dr. Syed conceded that even though she testified

that M.R. was suffering substantial mental or physical deterioration of his ability

to function independently because he was not able to take care of himself, his

overall health was fine. M.R. required prompting to change his clothes and to

eat, but he was able to clothe and feed himself without assistance. M.R. was not

emaciated.

      Dr. Shupe, who is also an expert in forensic psychiatry, testified that he

first saw M.R. two weeks prior to trial and last saw him the morning of trial. Dr.

Shupe further testified that M.R. continued to walk, pace, talk, and laugh for no

apparent reason, which was consistent behavior for a person who is psychotic.

M.R. admitted to Dr. Shupe that he heard voices. Dr. Shupe did not observe

M.R. talking to people who were not there, but he believed M.R. was having

hallucinations because M.R. told him he was hearing voices of people he could

not see.

      Dr. Shupe diagnosed M.R. with schizoaffective disorder. Dr. Shupe based

his diagnosis on M.R.’s psychosis, mood swings, and mood instability.

According to Dr. Shupe, schizoaffective disorder is “kind of a combination of

bipolar disorder and schizophrenia.” M.R. displayed the same symptoms during

his previous admission to NTSH earlier in 2015.



                                        12
      Like Dr. Syed, Dr. Shupe recommended inpatient treatment for M.R. and

did not believe that a less restrictive treatment would be effective. He also did

not think that outpatient treatment was an option at the time of trial because M.R.

continued to exhibit symptoms and he had a recent change in his medication that

he was getting used to. The side effects of the new medication made it “quite

likely” that M.R. would not continue to take the medication when released. After

M.R. was released from treatment in March 2015, he had stopped taking his

medications and became severely ill after two weeks and had been readmitted to

the hospital. Dr. Shupe believed that M.R. would quickly relapse if released and

would have to be readmitted. Each relapse decreases a patient’s chances of

getting well. It was also Dr. Shupe’s opinion that M.R. was unable to make a

rational decision as to whether to submit to treatment.

      Dr. Shupe also testified that M.R. had a history of using K2, a type of

synthetic marijuana, which exacerbated M.R.’s psychosis. Dr. Shupe believed

M.R. used K2 after his release from treatment in March 2015. According to Dr.

Shupe, a person whose illness is not well controlled is more likely to use drugs in

an attempt to escape the anxiety and agitation caused by the illness’s symptoms.

      Dr. Shupe did not believe that M.R. was likely to cause serious harm to

himself or to others.   He believed that M.R. was suffering from severe and

abnormal distress and was experiencing a deterioration of his ability to function

independently. Dr. Shupe also thought M.R. was unable to provide for his basic

needs because he would go several days without showering and would only

                                        13
shower when he was “strongly encouraged” to do so. Furthermore, M.R. did not

have the wherewithal to provide for himself. On cross-examination, however, Dr.

Shupe stated that M.R. had not had any issues with eating while at NTSH. Dr.

Shupe further testified that the treatment for M.R.’s illness was likely to continue

for more than ninety days, and M.R. had received court-ordered inpatient mental

health services for at least sixty consecutive days in the preceding twelve

months.

      M.R.’s father, O.R., testified that he had a bachelor’s degree in psychology

and had worked as a director at a mental health facility and at a juvenile facility

supervising counselors and administering medications to patients who were

involuntarily committed. M.R. lived with him, M.R’s mother, and M.R.’s siblings.

      O.R. testified that M.R. only used K2 twice.        The first time, he was

“jumped” by some children who made him take it. M.R. had a seizure and was

hospitalized. The second time, M.R. did not have a seizure but had a “very bad

experience.”

      O.R. further testified that when M.R. was discharged from treatment in

March 2015, M.R. was sent home with medication in a brown paper bag, but

O.R. was not informed that M.R. had medication. O.R. thought the bag only

contained clothes. Had O.R. known that M.R. had medication, he would have

ensured that M.R. took it. O.R. testified that M.R. had the capability to provide

food, clothing, shelter, and safety for himself at O.R.’s house and that O.R. and



                                        14
M.R.’s mother could provide twenty-four-hour supervision of M.R. if he were to

return home.

      The jury found by clear and convincing evidence that M.R. had a mental

illness and as a result of his mental illness, M.R. suffered from severe and

abnormal mental, emotional, or physical distress; was experiencing substantial

mental or physical deterioration of his ability to function independently, which was

exhibited by his inability, except for reasons of indigence, to provide for his basic

needs, including food, clothing, health, or safety; and was unable to make a

rational and informed decision as to whether or not to submit to treatment. The

jury further found by clear and convincing evidence that M.R.’s condition was

expected to continue for more than ninety days and that M.R. had received court-

ordered inpatient mental health services under title 7, subtitle C of the health and

safety code or chapter 46B of the code of criminal procedure for at least sixty

consecutive days during the preceding twelve months.           Based on the jury’s

findings, on July 6, 2015, the trial court ordered M.R. committed to NTSH for a

period not to exceed twelve months.        See Tex. Health & Safety Code Ann.

§ 574.035(a), (h) (West Supp. 2014). M.R. appealed. See id. § 574.070 (West

2010).

Post-commitment proceedings

      On September 3, 2015, upon a motion filed by Dr. Syed, the trial court

modified the judgment to require M.R. to participate in outpatient mental health

services.   See id. § 574.061 (West Supp. 2014).          M.R was released from

                                         15
inpatient treatment but was required to participate in extended outpatient mental

health services until July 6, 2016.

                      Admission of M.R.’s Medical Records

         In his first issue, M.R. argues that the Texas Rules of Evidence are in

conflict with the statutory requirements of court-ordered mental health services

pursuant to chapter 574 of the Texas Health and Safety Code, denying him due

process, due course of law, and effective assistance of counsel. Specifically,

M.R. complains that the statutory requirement that the hearing on an application

for mental health must be held within fourteen days of the filing of the application

conflicts with rule of evidence 902(10)(A) because the rule requires that business

records be on file and notice served on the opposing party fourteen days prior to

trial.    See Tex. Health & Safety Code Ann. § 574.005(a); Tex. R. Evid.

902(10)(A). M.R. argues that this court’s guidance is necessary to harmonize the

statutory requirements of extended court-ordered mental health services with the

fundamental requirements of due process, due course of law, and the right to

effective assistance of counsel.       But M.R. did not raise his constitutional

complaints in the trial court; therefore, he did not preserve this issue for appellate

review. See Tex. R. App. P. 33.1(a); In re D.T.M., 932 S.W.2d 647, 652 (Tex.

App.—Fort Worth 1996, no writ) (“Even constitutional arguments are waived at

the appellate level if issues were not before the trial court.”). Accordingly, we

overrule M.R.’s first issue.



                                         16
      In his second issue, M.R. complains that the trial court improperly admitted

his medical records into evidence because the State failed to lay the proper

predicate under either rule of evidence 803(6) or 902(10). See Tex. R. Evid.

803(6), 902(10). We review a trial court’s decision to admit or exclude evidence

for an abuse of discretion. Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 235 (Tex.

2011); In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its

discretion if the court acts without reference to any guiding rules or principles,

that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609,

614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). We

must uphold the trial court’s evidentiary ruling if there is any legitimate basis in

the record for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d

35, 43 (Tex. 1998). “To obtain reversal of a judgment based on error in the

admission or exclusion of evidence, an appellant must show that the trial court’s

ruling was erroneous and that the error was calculated to cause, and probably

did cause, ‘rendition of an improper judgment.’” Benavides v. Cushman, Inc.,

189 S.W.3d 875, 879 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (quoting

Tex. R. App. P. 44.1(a)(1); Malone, 972 S.W.2d at 43). In conducting this harm

analysis, we review the entire record. Tex. Dep’t of Transp. v. Able, 35 S.W.3d

608, 617 (Tex. 2000); Benavides, 189 S.W.3d at 879. Evidentiary rulings do not

usually cause reversible error unless an appellant can demonstrate that the

judgment turns on the particular evidence that was admitted or excluded. City of



                                        17
Brownsville v. Alvarado, 897 S.W.2d 750, 753–54 (Tex. 1995); Benavides, 189

S.W.3d at 879.

      Properly authenticated records of a regularly conducted business activity

can be admitted into evidence as an exception to the hearsay rule. Tex. R. Evid.

803(6). The foundation for admission may be established by the testimony of the

custodian or other qualified witness or by an affidavit that complies with rule of

evidence 902(10).    Id.   If an affidavit is used, a business record is self-

authenticated, provided that the record to be introduced and the affidavit are

served on the other party at least fourteen days before trial.     Tex. R. Evid.

902(10)(A).

      M.R. was committed pursuant to chapter 574 of the health and safety

code. See Tex. Health & Safety Code Ann. §§ 574.001–.203 (West 2010 &

Supp. 2014). Health and safety code section 574.031(e) provides that the rules

of evidence apply to a hearing on an application for court-ordered mental health

services unless the rules are inconsistent with the mental health code.3 See id.

§ 574.031(e). M.R. and the State both assert that rule of evidence 902(10)(A) is

inconsistent with the mental health code because the statutory deadlines for




      3
      The mental health code includes chapters 571 through 579 of the health
and safety code. See Tex. Health & Safety Code Ann. § 571.001 (West 2010).

                                       18
holding a hearing on an application for mental health services conflicts with the

fourteen-day deadline in rule 902(10)(A).4

      We need not decide, however, whether rule 902(10)(A) is inconsistent with

the mental health code or whether the trial court improperly admitted M.R.’s

medical records because we conclude that any error in their admission was

harmless. M.R. argues that he was harmed because the medical records, which

included psychiatric evaluations, intervention notes, physician progress notes,

nursing observation notes, and patient daily functioning checklists, went well

beyond Dr. Syed’s testimony.5 M.R. specifically points to intervention progress

notes dated April 17, 2015, which detailed a physical altercation between M.R.

and a NTSH staff member during which M.R. had to be placed in a “vertical hold”

and then into a “restraint chair.”   These notes list Dr. Syed as the attending


      4
        Section 574.005 requires the judge or a designated magistrate to set the
application for a hearing to be held within fourteen days after the date the
application was filed. See Tex. Health & Safety Code Ann. § 574.005(a). The
hearing may not be held during the first three days after the application was filed
if the proposed patient or his attorney objects. Id. § 574.005(b). The court may
grant one or more continuances of the hearing on a motion by a party and for
good cause shown or on agreement of the parties, but the hearing cannot be
held later than the thirtieth day after the date the application was filed. Id.
§ 574.005(c). However, the trial court may, by written order made each day,
postpone the hearing for twenty-four hours if “extremely hazardous weather
conditions exist or a disaster occurs that threatens the safety of the proposed
patient or other essential parties to the hearing.” Id.
      5
       Citing Washington National Insurance Co. v. Reed, 462 S.W.2d 633 (Tex.
Civ. App.—Waco 1971, no writ), M.R. alternatively contends that the harm
analysis is unnecessary because the State failed to comply with the rules of
evidence. Reed does not support this proposition. See id. at 634.

                                        19
physician, which M.R. argues is contradictory to her trial testimony that she had

been his treating physician for the past month. M.R. contends that a reasonably

minded juror would have looked at the April 17, 2015 notes alone and concluded

that the State had met its burden.

      The April 17, 2015 notes were consistent with Dr. Syed’s testimony that on

two occasions in April 2015, M.R. had to be physically restrained because he had

been physically aggressive towards NTSH staff. Moreover, the jury did not find

that M.R. was likely to cause serious harm to others. Finally, as explained in our

analysis below, even absent M.R.’s medical records, the evidence was legally

sufficient to support the jury’s findings challenged by M.R. on appeal. Thus, we

find that admission of M.R.’s medical records was harmless, and we overrule

M.R.’s second issue.

                       Legal Sufficiency of the Evidence

      In this third issue, M.R. argues that the State failed to establish by clear

and convincing evidence that he was (1) suffering from severe and abnormal

mental, emotional, or physical distress; (2) experiencing substantial mental or

physical deterioration of his ability to function independently, which was exhibited

by his inability to provide for his basic needs, including food, clothing, health, or

safety; and (3) was unable to make a rational and informed decision as to

whether or not to submit to treatment because the State failed to present

evidence of a recent overt act or continuing pattern of behavior by M.R. that



                                         20
tended to confirm his distress and the deterioration of his ability to function. See

id. § 574.035(a)(2)(C)(i)–(iii), (e)(2) (West Supp. 2014).

Extended Inpatient Mental Health Order

      A trial court may order a proposed patient to receive extended inpatient

mental health services only if the factfinder finds from clear and convincing

evidence that (1) the proposed patient is mentally ill; (2) as a result of that mental

illness, he (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 his ability to function independently, which is exhibited by his

inability, except for reasons of indigence, to provide for his 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; (3) his condition is expected

to continue for more than ninety days; and (4) he has received court-ordered

inpatient mental health services under title 7, subtitle C of the health and safety

code or chapter 46B of the code of criminal procedure for at least sixty

consecutive days during the preceding twelve months. Id. § 574.035(a). Clear

and convincing evidence is that “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 be established.” State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979).

       When court-ordered extended mental health services are sought under

subsection (a), specific requirements for clear and convincing evidence are

                                          21
imposed:    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: (1) the likelihood of serious harm to the proposed patient or others or

(2) the proposed patient’s distress and the deterioration of the proposed patient’s

ability to function. Tex. Health & Safety Code Ann. § 574.035(e). An expert

diagnosis of mental illness, without more, is not sufficient to confine a patient for

compulsory treatment.     Mezick v. State, 920 S.W.2d 427, 430 (Tex. App.—

Houston [1st Dist.] 1996, no pet.). The State cannot meet its burden of proof

without presenting evidence of the behavior of the proposed patient that provides

the factual basis for the expert opinion. See id. Moreover, the recent overt act or

continuing pattern of behavior shown by the State must also relate to the criterion

on which the judgment is based.       J.M. v. State, 178 S.W.3d 185, 193 (Tex.

App.—Houston [1st Dist.] 2005, no pet.).

Standard of Review

      To review the legal sufficiency of the evidence where the burden of proof is

clear and convincing evidence, we consider 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 its findings were true. In re J.F.C., 96

S.W.3d 256, 266 (Tex. 2002). We must assume that the factfinder resolved

disputed facts in favor of its finding if a reasonable factfinder could do so, and we

must disregard all evidence that a reasonable factfinder could have disbelieved

or found to be incredible. Id.

                                         22
Analysis

      M.R. only challenges the jury’s findings that as a result of his mental

illness, he was (1) suffering from severe and abnormal mental, emotional, or

physical distress; (2) experiencing substantial mental or physical deterioration of

his ability to function independently, which was exhibited by his inability to

provide for his basic needs, including food, clothing, health, or safety; and (3)

was unable to make a rational and informed decision as to whether or not to

submit to treatment. See Tex. Health & Safety Code Ann. § 574.035(a)(2)(C)(i)–

(iii). M.R. contends the State failed to present evidence of a recent overt act or

continuing pattern of behavior by M.R. that tended to confirm his distress and the

deterioration of his ability to function. See id. § 574.035(e)(2).

      It is undisputed that M.R. suffers from schizoaffective disorder, a mental

illness for which he requires medication. He suffers from hallucinations and has

a history of responding aggressively to internal stimuli. Both Dr. Syed and Dr.

Shupe testified that shortly after M.R. was released from inpatient treatment in

March 2015, he stopped taking his medication and quickly relapsed. According

to Dr. Syed, M.R. wandered away from his parents’ house and was found two

days later in a park, psychotic, responding to internal stimuli, and having

defecated on himself.     Even though M.R.’s condition had improved since his

commitment, Dr. Syed and Dr. Shupe both testified that he still continued to

exhibit symptoms of his disease and needed more time to adjust to medications.

M.R.’s poor insight into his mental illness, his belief that he does not need

                                          23
medication, and the side effects of his new medication made it likely that he

would not continue his medication if released. Both Dr. Syed and Dr. Shupe

testified that M.R. was unable to make a rational decision as to whether to submit

to treatment. Even though M.R. had the capability to provide food, clothing,

shelter, and safety for himself at his parents’ house, he voluntarily left his

parents’ house and disappeared for two days.          We conclude the testimony

adduced at trial was some evidence of a continuing pattern of behavior by M.R.

that tended to confirm his distress and the deterioration of his ability to function.

See id. § 574.035(e)(2). Thus, the evidence was sufficient to produce in the

mind of the jury a firm belief or conviction that as a result of his mental illness,

that M.R. (1) was suffering from severe and abnormal mental, emotional, or

physical distress; (2) was experiencing substantial mental or physical

deterioration of his ability to function independently—which was exhibited by his

inability to provide for his basic needs, including food, clothing, health, or

safety—and (3) was unable to make a rational and informed decision as to

whether or not to submit to treatment.          See id. § 574.035(a)(2)(C)(i)–(iii).

Accordingly, we overrule M.R.’s third issue.




                                         24
                                  Conclusion

      Having overruled each of M.R.’s three issues, we affirm the trial court’s

judgment for court-ordered extended inpatient mental health services.



                                                 /s/ Anne Gardner
                                                 ANNE GARDNER
                                                 JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DELIVERED: November 3, 2015




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