                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-17-00446-CV


IN THE MATTER D.S.

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             FROM THE PROBATE COURT OF DENTON COUNTY
                    TRIAL COURT NO. MH-2017-493

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                         MEMORANDUM OPINION1

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      In three issues, Appellant D.S. challenges the legal and factual sufficiency

of the evidence to support an order authorizing the administration of

psychoactive medication. We will reverse and remand.

      By an order signed on August 22, 2017, and pursuant to code of criminal

procedure article 46B.073, the trial court ordered D.S. committed to an inpatient

mental health facility for the purpose of attaining competency to stand trial for the

felony offense of stalking. See Tex. Code Crim. Proc. Ann. art. 46B.073(b) (West


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       See Tex. R. App. P. 47.4.
Supp. 2017).     On November 21, 2017, Carmen Llauger-Mier, M.D. filed an

application seeking an order to authorize the administration of psychoactive

medication to D.S. See Tex. Health & Safety Code Ann. § 574.104(a) (West

2017). Among other things, Dr. Llauger-Mier indicated in the application that

D.S. “has poor insight,” “does not believe she is mentally ill,” “suffer[s] grandiose

and paranoid delusions,” and had recently exhibited aggressive and assaultive

behavior.

      The trial court appointed D.S. counsel and signed an order on November

27, 2017, authorizing the mental health facility to administer psychoactive

medication to her. However, at D.S.’s requests, the trial court stayed its order

and granted D.S. a de novo hearing on Dr. Llauger-Mier’s application. At the

conclusion of a hearing on December 11, 2017, at which both Dr. Llauger-Mier

and D.S. testified, the trial court rendered judgment in favor of the State,

expressly finding that a criminal court had ordered D.S. to receive inpatient

mental health services for the purpose of restoring her competency, that D.S.

presented a danger to herself or to others at the inpatient mental health facility

where she was being treated, and that the treatment is in D.S.’s best interest.

      D.S.’s three issues raise evidentiary-sufficiency complaints. The State’s

burden of proof under health and safety code section 574.106 is clear and

convincing evidence. See Tex. Health & Safety Code Ann. § 574.106(a-1) (West

2017). 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

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the allegations sought to be established. Tex. Civ. Prac. & Rem. Code Ann.

§ 41.001(2) (West Supp. 2017); Tex. Fam. Code Ann. § 101.007 (West 2014); U-

Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012); State v. K.E.W., 315

S.W.3d 16, 20 (Tex. 2010).

      In evaluating the evidence for legal sufficiency, we must determine

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

or conviction that its finding was true. K.E.W., 315 S.W.3d at 20; Columbia Med.

Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008), cert.

denied, 290 S.W.3d 873 (2009). We review all the evidence in the light most

favorable to the finding. Waldrip, 380 S.W.3d at 138; Hogue, 271 S.W.3d at 248.

We resolve any disputed facts in favor of the finding if a reasonable factfinder

could have done so. K.E.W., 315 S.W.3d at 20; Hogue, 271 S.W.3d at 248. We

disregard all evidence that a reasonable factfinder could have disbelieved.

Hogue, 271 S.W.3d at 248.

      In evaluating the evidence for factual sufficiency, we determine whether,

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

that its finding was true. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). If, in

light of the entire record, the disputed evidence that a reasonable factfinder could

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

reasonably have formed a firm belief or conviction in the truth of its finding, then

the evidence is factually insufficient. Id.


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      The findings made by the trial court at the conclusion of the hearing on

December 11, 2017, align with health and safety code subsections 574.106(a)(2)

and (a-1)(2)(A). Under subsection (a)(2), a court may issue an order authorizing

the administration 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 in the six months preceding a hearing under this section.”

Tex. Health & Safety Code Ann. § 574.106(a)(2). Under subsection (a-1)(2)(A), if

a criminal court ordered the patient to receive inpatient mental health services to

restore her competency, then to issue an order authorizing psychoactive

medication, a court must find by clear and convincing evidence, after a hearing,

(1) that treatment with the proposed medication is in the patient’s best interest

and (2) that the patient presents a danger to herself or to others in the inpatient

mental health facility where she is being treated. Id. § 574.106(a-1)(2)(A).

      D.S. argues in her first and second issues that the evidence admitted at

the hearing on Dr. Llauger-Mier’s application was legally and factually insufficient

to prove that a criminal court had ordered her to receive inpatient mental health

services. See id. § 574.106(a)(2), (a-1)(2)(A).

      The trial court took judicial notice of the documents contained in the case

file, including the August 22, 2017 order from the 16th District Court committing

D.S. to an inpatient mental health facility for the purpose of attaining competency

to stand trial, titled “Order Defendant Incompetent with a Probability of

Recovery.” Although the trial court could not have judicially noticed the truth of

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any factual statements contained in the filings, it certainly could have taken

judicial notice that the file contained an order signed by a court committing D.S.

to a mental health facility to regain competency. See In re Houston Cty. ex rel.

Session, 515 S.W.3d 334, 343 n.8 (Tex. App.—Tyler 2015, orig. proceeding).

      The State also elicited testimony from Dr. Llauger-Mier that D.S. was

involuntarily committed for the purpose of regaining competency pursuant to

chapter 46B of the code of criminal procedure:

             Q.     When you’re talking about forensic unit, what are you
      referring to when you’re talking about forensics?

              A.   They are 46B’s. They have criminal charges, whether
      it’s a misdemeanor or a major case.

              Q.  So on your unit you treat both individuals there under a
      civil commitment as well as a 46B criminal commitment?

              A.   Yes.

             Q.     Okay. You’re familiar with the patient by the initials of
      D.S.; is that correct?

              A.   Yes, I am, sir.

            Q.     And how are you familiar with the patient with the initials
      of D.S.?

              A.   Ms. D.S. . . . was transferred to us from the geriatric
      unit.

            Q.    Okay. A little background. Was D.S. . . . originally
      committed to North Texas State Hospital for a civil commitment or a
      criminal commitment under 46B?

              A.   Under 46B, criminal commitment.



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           Q.    As far as your work there on the unit, are 46B’s -- why is
      somebody there on a 46B commitment?

            A.     When they’re deemed incompetent in jail to stand trial,
      they are sent to North Texas State Hospital in this case because
      they can’t be sent to any other state hospitals to regain competency.

            Q.    Is there -- does their treatment differ from somebody
      who’s there under a civil treatment?

             A.     The people that are there on the civil commitment --
      they’re there to treat only the mental illness. They don’t have to
      become competent. They become competent because we clear the
      mental status and the psychosis or the mania or both in that case.
      But the ones that are on criminal, on the 46B -- they have to become
      competent so they can help their lawyer in their case so they can
      stand for trial and go on with their life.2

      As the trial court is well aware, chapter 46B covers incompetency to stand

trial, including the procedures to be followed after a determination of

incompetency, which includes commitment to a mental health facility for

competency restoration services.        See Tex. Code Crim. Proc. Ann. arts.

46B.001‒.171 (West 2006 & Supp. 2017). The trial court reasonably could have

deduced   from   Dr.   Llauger-Mier’s    testimony   addressing   D.S.’s   criminal

commitment pursuant to chapter 46 that a court had ordered D.S. committed for

the purpose of receiving inpatient mental health services. See Lynch v. Ricketts,

314 S.W.2d 273, 276 (Tex. 1958) (explaining that factfinder may draw

reasonable inferences and deductions from evidence); In re C.S., 208 S.W.3d


      2
       D.S.’s own testimony echoed Dr. Llauger-Mier’s to an extent; she
explained that she was committed after a jury had determined that she was
incompetent to stand trial.

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77, 81 (Tex. App.—Fort Worth 2006, pet. denied) (reasoning that to support

finding under subsection 574.106(a-1)(2)(A) or (B), evidence at trial must reflect

that criminal court ordered patient to receive inpatient mental health services).

We overrule D.S.’s first and second issues.

      In her third issue, D.S. argues that the evidence is legally and factually

insufficient to support the trial court’s subsection 574.106(a-1)(2)(A) finding that

she presents a danger to herself or to others in the inpatient mental health

facility. In determining whether a patient presents a danger, we are instructed to

use the following criteria set out in health and safety code section 574.1065:

            (1) an assessment of the patient’s present mental condition;

            (2) whether the patient has inflicted, attempted to inflict, or
      made a serious threat of inflicting substantial physical harm to the
      patient’s self or to another while in the facility; and

               (3) whether the patient, in the six months preceding the date
      the patient was placed in the facility, has inflicted, attempted to
      inflict, or made a serious threat of inflicting substantial physical harm
      to another that resulted in the patient being placed in the facility.

Tex. Health & Safety Code Ann. § 574.1065 (West 2017) (emphasis added).

      Dr. Llauger-Mier testified that D.S. was diagnosed with psychosis NOS

(not otherwise specified).    Her symptoms include delusions, paranoia, and

grandiosity, and she disagrees that she has a mental illness that requires

treatment and medication.




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      As for D.S.’s conduct, Dr. Llauger-Mier opined that D.S. presented a

danger to herself or to others because she had engaged in the following

behavior:

      •D.S. used profanity, without provocation, against male staff members;

      •D.S. pushed a staff member, without provocation;

      •D.S. kicked a patient who had spilled Kool-Aid on her, causing the patient
      “serious injuries”;

      •D.S. threatened to have sex with a patient who would knock on her door
      and try to enter;

      •D.S. pushed a patient off of her wheelchair, causing the patient a
      “fracture,” an “injury”;

      •A female staff member felt threatened and asked to be transferred to
      different unit because D.S. was “trying to engage her in sexual actions”;
      and

      •D.S. was caught massaging the legs of one patient and the gluteus of
      another. Because mentally ill patients are incapable of consenting to such
      acts, D.S. presented a “threat of assault” to them.

Of those seven grounds, only two objectively implicated the substantial-physical-

harm requirement contained in subsection 574.1065(2)—the Kool-Aid incident

and the wheelchair incident. And even then, when pressed on cross-examination

whether the Kool-Aid incident had caused the other patient “serious injury,”

Dr. Llauger-Mier balked, declining to categorize the injury as serious, stating, “It

was an injury.” That leaves only the wheelchair incident. Although the trial court

could have rationally inferred that D.S. had inflicted substantial physical harm

upon the other patient by causing her a “fracture,” the remainder of the evidence

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simply did not rise to the same legislatively prescribed level of seriousness that

must exist to support a finding of danger under subsection 574.106(a-1)(2)(A).

See id. (requiring substantial physical harm).     Dr. Llauger-Mier confirmed as

much, acknowledging that D.S. was not a danger to the other patients during the

day, when “there’s a lot of staff watching.”3 D.S. testified and denied that she

had engaged in any assaultive conduct or behavior that could be described as

serious.

         The standards by which we review the trial court’s subsection 574.106(a-

1)(2)(A) finding for legal and factual sufficiency compel the result here. Viewing

the evidence in the light most favorable to the trial court’s finding, we hold that

the evidence is legally sufficient to show that D.S. presents a danger to herself or

to others at the inpatient mental health facility where she is being treated.

However, viewing the entire record, and for the reasons detailed above, we

conclude that the disputed evidence that the trial court could not have credited in

favor of its finding of danger is so significant that the trial court could not

reasonably have formed a firm belief or conviction that D.S. presents a danger to

herself or to others at the inpatient mental health facility where she is being

treated. Thus, the evidence is factually insufficient to support the trial court’s

subsection 574.106(a-1)(2)(A) finding. See Moore v. State, No. 07-10-0507-CV,

2011 WL 3587439, at *5 (Tex. App.—Amarillo Aug. 16, 2011, no pet.) (mem. op.)

         3
         Dr. Llauger-Mier assigned D.S. to a private room, where she sleeps at
night.

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(holding evidence insufficient to support finding that appellant was danger to

herself or to others based on evidence that appellant was “loud and verbally

intimidating” and presented an “‘indirect danger’ that could not be defined”); see

also In re C.P., No. 02-14-00246-CV, 2014 WL 5409107, at *4‒5 (Tex. App.—

Fort Worth Oct. 23, 2014, no pet.) (mem. op.) (holding evidence legally sufficient

but factually insufficient to support trial court finding that appellant lacked

capacity to make decision regarding the administration of medication); State

ex rel. D.L.S., 446 S.W.3d 506, 516‒17 (Tex. App.—El Paso 2014, no pet.)

(holding evidence legally sufficient but factually insufficient to support finding that

appellant presented danger to himself). We sustain D.S.’s third issue.

      Having sustained D.S.’s third issue, we reverse the trial court’s order

authorizing psychoactive medication and remand this cause for further

proceedings.




                                                     /s/ Bill Meier
                                                     BILL MEIER
                                                     JUSTICE

PANEL: WALKER, MEIER, and BIRDWELL, JJ.

DELIVERED: March 8, 2018




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