Opinion issued March 12, 2020




                                       In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                               NO. 01-19-00037-CV
                             ———————————
                           IN THE INTEREST OF J.B.


                    On Appeal from the Probate Court No. 3
                            Harris County, Texas
                         Trial Court Case No. 262843


                                   OPINION

      Appellant, J.B., challenges the trial court’s order to administer psychoactive

medications entered after appellee, the State of Texas, petitioned for an order to

administer psychoactive medications to J.B. In his sole issue, J.B. contends that the

trial court erred in waiving his appearance at the hearing on the State’s petition.

      We affirm.
                                    Background

      A Harris County Grand Jury issued a true bill of indictment, alleging that J.B.,

on or about May 5, 2018, “did then and there unlawfully, intentionally impersonate

a public servant, namely, a peace officer, of the City of Houston Police Department,

with intent to induce [the complainant, Tiffany Durandetto,] to submit to his

pretended official authority and to rely on his pretended official acts, by threatening

to arrest the complainant.”1 The district court then found J.B. incompetent to stand

trial because of mental illness and ordered him committed to a state hospital.2

      On December 27, 2018, J.B.’s treating physician filed, on the State’s behalf,

a petition for an order to administer psychoactive medications: antidepressants,

antipsychotics, anxiolytics/sedatives/hypnotics, and mood stabilizers,3 because J.B.

had been diagnosed with bipolar disorder with psychosis, was psychotic and

delusional, and had a history of using and abusing alcohol, cannabis, cocaine,

“[h]ash [o]il,” “B2D,” inhalants, formaldehyde, “[s]yrup,” and synthetic marijuana.4

And J.B. had refused to take any medication other than “Seroquel,” which appeared



1
      See TEX. PENAL CODE ANN. § 37.11 (“Impersonating Public Servant”).
2
      See TEX. CODE OF CRIM. PROC. ANN. art. 46B.073 (“Commitment for Restoration
      to Competency”).
3
      See TEX. HEALTH & SAFETY CODE ANN. § 574.101(3) (defining “[p]sychoactive
      medication” (internal quotations omitted)).
4
      See id. § 574.104 (“Physician’s Application for Order to Authorize Psychoactive
      Medication; Date of Hearing”).

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to be ineffective in treating J.B.’s mental illness. In the petition, J.B.’s physician

asserted that J.B. “[c]laims he is a police officer, claims [he is] involved with the

[d]rug cartels,” and “claims he has killed people,” but “refus[es] to specify [who he

has killed].” J.B.’s physician concluded that J.B.’s prognosis, if he were to be treated

with the proposed psychoactive medications, would be “[f]air” and “[g]ood,” and if

J.B. did not receive the proposed psychoactive medications, he would continue to

deteriorate, which “could result in [J.B.] being a danger to [him]self and[] others.”

The trial court appointed counsel to represent J.B. and set a hearing on the State’s

petition.5

       At the beginning of the hearing on the State’s petition for an order to

administer psychoactive medications, J.B.’s counsel requested that J.B. be present

in the courtroom “based on his right to confront the witnesses against him” “under

the [f]ederal and [s]tate constitutions.”6 Dr. Douglas Samuels, the State’s witness,

then explained that J.B., both the day before the hearing and the day before that,

required “intramuscular injection[s]” and told others that he was “going to harm

them.” And Dr. Samuels could not approach J.B. unless staff members were with

him. When asked by the trial court if J.B. would “pose a safety risk if he were to

come to court” that day, Dr. Samuels stated: “I believe he would be. He is


5
       See id. § 574.105 (“Rights of Patient”).
6
       See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10.

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considered a safety risk at the present time on the locked inpatient unit, surrounded

by numerous staff. I think in a less secure room like th[e] courtroom, he w[ill]

continue to be the same and even more of a safety risk.” The trial court then waived

J.B.’s appearance at the hearing. At the end of the hearing, J.B.’s counsel requested

an “opportunity to call [J.B.] as a witness,” based on his “Article I, [s]ection

10[] . . . right to be heard.”7 The trial court denied J.B.’s counsel’s request because

it had determined before that it was not “going to be safe to have” J.B. present at the

hearing and “nothing ha[d] changed.”

      Following the hearing, the trial court entered an order to administer

psychoactive medications to J.B., which granted the State’s petition and found that

the allegations in the State’s petition were supported by clear and convincing

evidence.8 The order states that it relied on the oral testimony of Dr. Samuels and

included a finding that “treatment with the proposed medication[s] [was] in the best

interest of [J.B.] and [J.B.] lack[ed] the capacity to make a decision regarding [the]

administration of [psychoactive] medication[s].” The trial court authorized the

administration of antidepressants, antipsychotics, anxiolytics/sedatives/hypnotics,

and mood stabilizers to treat J.B.


7
      See TEX. CONST. art. I, § 10.
8
      See TEX. HEALTH & SAFETY CODE ANN. § 574.106 (“Hearing and Order
      Authorizing Psychoactive Medication”); see also id. § 574.1065 (“Finding That
      Patient Presents a Danger”).

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                                Standard of Review

      We review questions raising constitutional concerns de novo.             State v.

Hodges, 92 S.W.3d 489, 494 (Tex. 2002); In re K.C., 563 S.W.3d 391, 396 (Tex.

App.—Houston [1st Dist.] 2018, no pet.). An abuse-of-discretion standard of review

applies when the trial court may grant or deny relief based on its factual

determinations. In re Doe, 19 S.W.3d 249, 253 (Tex. 2000); In re K.C., 563 S.W.3d

at 396. “This standard is especially appropriate when the trial court must weigh

competing policy considerations and balance interests in determining whether to

grant relief.” In re Doe, 19 S.W.3d at 253; see also In re K.C., 562 S.W.3d at 396.

As a result, we typically apply an abuse-of-discretion standard of review to

procedural rulings or “other trial management determinations.” In re Doe, 19

S.W.3d at 253; see also In re K.C., 562 S.W.3d at 396–97.

      Non-structural errors are “trial errors” subject to harmless error analysis. In

re K.R., 63 S.W.3d 796, 799-800 (Tex. 2001) (internal quotations omitted). Even

constitutional errors can be waived if a party fails properly to object to the errors at

trial. Little v. State, 758 S.W.2d 551, 564 (Tex. Crim. App. 1988); 1986 Dodge 150

Pickup VIN No. 1B7FD14T1GS006316 v. State, 129 S.W.3d 180, 183 (Tex. App.—

Texarkana 2004, no pet.); Segovia v. Tex. Dep’t of Protective & Regulatory Servs.,

979 S.W.2d 785, 788 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). An




                                           5
objection stating one legal basis may not be used to support a different legal theory

on appeal. 1986 Dodge, 129 S.W.3d at 183.

                                  Presence at Hearing

       In his sole issue, J.B. argues that the trial court erred in waiving his appearance

at the hearing on the State’s petition for an order to administer psychoactive

medications because, by doing so, the trial court violated his constitutional right to

confrontation and his constitutional right to be heard. See U.S. CONST. amend. VI;

TEX. CONST. art. I, § 10.

       The Sixth Amendment to the United States Constitution provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him . . . .”      U.S. CONST. amend. VI (emphasis added).

Similarly, Article I, section 10 of the Texas Constitution provides that “[i]n all

criminal prosecutions[,] the accused . . . shall be confronted by the witnesses against

him . . . .” TEX. CONST. art. I, § 10 (emphasis added). The right of confrontation

includes the right to “face-to-face confrontation.” Coronado v. State, 351 S.W.3d

315, 325 (Tex. Crim. App. 2011) (internal quotations omitted); see also

Pennsylvania v. Ritchie, 480 U.S. 39, 51, (1987); California v. Green, 399 U.S. 149,

157, (1970) (“[I]t is this literal right to ‘confront’ [a] witness at the time of trial that

forms the core of the values furthered by the Confrontation Clause[.]”).




                                             6
      The right of confrontation applies only to criminal prosecutions. See Austin

v. United States, 509 U.S. 602, 608 (1993) (“The protections provided by the Sixth

Amendment are explicitly confined to criminal prosecutions.” (internal quotations

omitted)); In re K.C., 563 S.W.3d at 397; Cheng v. Wang, 315 S.W.3d 668, 671

(Tex. App.—Dallas 2010, no pet.). Texas courts have repeatedly held, in several

contexts, that there is no constitutional right to confrontation in civil proceedings.

See In re K.C., 563 S.W.3d at 397; see also In re Commitment of Winkle, 434 S.W.3d

300, 305 (Tex. App.—Beaumont 2014, pet. denied) (confrontation clause applies to

criminal cases but is not generally applicable to civil commitment proceedings under

Sexually Violent Predator Act); In re S.A.G., 403 S.W.3d 907, 912 (Tex. App.—

Texarkana 2013, pet. denied) (confrontation clause did not apply in suit affecting

parent-child relationship); Cheng, 315 S.W.3d at 669–72 (confrontation clause did

not apply in partnership dispute).

      Involuntary mental health commitment proceedings are civil, rather than

criminal, in nature. Campbell v. State, 85 S.W.3d 176, 180 (Tex. 2002); In re K.C.,

563 S.W.3d at 397; In re G.D., 10 S.W.3d 419, 422 (Tex. App.—Waco 2000, no

pet.) (“Such a proceeding is a civil matter, notwithstanding the underlying criminal

prosecution.”); Taylor v. State, 671 S.W.2d 535, 539 (Tex. App.—Houston [1st

Dist.] 1983, no writ); see also Addington v. Texas, 441 U.S. 418, 428 (1979) (“In a

civil commitment[,] state power is not exercised in a punitive sense. . . . [A] civil


                                          7
commitment proceeding can in no sense be equated to a criminal prosecution.”

(internal footnote omitted)). And this Court has held that the type of proceeding

against J.B. in this case—one involving a petition for an order to administer

psychoactive medications—is civil, not criminal, in nature. In re K.C., 563 S.W.3d

at 397. Thus, J.B. did not have a constitutional right to confrontation under the Sixth

Amendment or Article I, section 10 of the Texas Constitution which required that he

be present at the hearing on the State’s petition.9 See id.

      Although J.B. in his brief states that this Court’s opinion in In re K.C. was

incorrect and must be overruled, J.B. provides no argument, explanation, or authority

to support his statement. See TEX. R. APP. P. 38.1(i). There is also a “strong

presumption” against overruling precedent, and we decline to do so here. See

Gutierrez v. Collins, 583 S.W.2d 312, 317 (Tex. 1979); see also Weiner v. Wasson,

900 S.W.2d 316, 320 (Tex. 1995); In re Expunction, 465 S.W.3d 283, 288–89 (Tex.


9
      In his brief, J.B. relies on three cases to support his assertion that the trial court erred
      in waiving his appearance at the hearing on the State’s petition. See Baltierra v.
      State, 586 S.W.2d 553 (Tex. Crim. App. 1979); Carmona v. State, 880 S.W.2d 227
      (Tex. App.—Austin 1994), vacated, 941 S.W.2d 949 (Tex. Crim. App. 1997);
      Fazzino v. Guido, 836 S.W.2d 271 (Tex. App.—Houston [1st Dist.] 1992, writ
      denied). J.B.’s counsel in the instant appeal also represented the appellant in another
      appeal before this Court. See In re K.C., 563 S.W.3d 391 (Tex. App.—Houston [1st
      Dist.] 2018, no pet.). There, the appellant relied on the same authorities that J.B.
      does in the instant case. See id. at 397–98. And we determined that the reliance on
      such cases was misplaced. Id. Once again, we conclude that J.B.’s reliance on these
      cases is inappropriate. See In re Commitment of McKinney, 153 S.W.3d 265, 265–
      66 (Tex. App.—Beaumont 2004, no pet.) (appellate court had already rejected
      identical argument appellant raised on appeal).

                                               8
App.—Houston [1st Dist.] 2015, no pet.) (“The doctrine of stare decisis requires us

to treat as binding the precedents of higher courts, as well as our own precedents

unless overruled by a higher court or abrogated by statute.”); Chase Home Fin.,

L.L.C. v. Cal W. Reconveyance Corp., 309 S.W.3d 619, 630 (Tex. App.—Houston

[14th Dist.] 2010, no pet.) (“[T]his court is bound by the prior holding of another

panel of this court.”).

      J.B. further argues that this case is distinguishable from In re K.C. because,

unlike J.B., the appellant in that case did not assert that the trial court’s waiver of his

appearance at the hearing on the State’s petition violated his constitutional right to

be heard. See TEX. CONST. art. I, § 10; see also In re K.C., 563 S.W.3d at 396–98.

      Article I, section 10 of the Texas Constitution provides that “[i]n all criminal

prosecutions[,] the accused . . . shall have the right of being heard by himself or

counsel, or both . . . .” TEX. CONST. art. I, § 10 (emphasis added). So, by its own

terms, Article I, section 10 applies only to “criminal prosecutions.” See id.; City of

Richardson v. Bowman, 555 S.W.3d 670, 690 (Tex. App.—Dallas 2018, pet. denied)

(procedural rights in Article I, section 10 do not apply in civil proceeding); In re

A.H.L., III, 214 S.W.3d 45, 51 (Tex. App.—El Paso 2006, pet. denied); see also In

re K.C., 563 S.W.3d at 396–98. And, as previously stated, the type of proceeding

against J.B. in this case—one involving a petition for an order to administer

psychoactive medications—is civil, not criminal, in nature. In re K.C., 563 S.W.3d


                                            9
at 397. Thus, J.B. did not have a constitutional right to be heard under Article I,

section 10 of the Texas Constitution which required that he be present at the hearing

on the State’s petition.10

      Finally, even though J.B. argues that the trial court erred in waiving his

appearance at the hearing on the State’s petition because Texas Rule of Civil

Procedure 267 provides that “in a civil trial, a party is entitled to be present during

the presentation of evidence,” we note that J.B.’s counsel did not assert in the trial

court that J.B.’s presence in the courtroom was required under the Texas Rules of

Civil Procedure. See TEX. R. CIV. P. 267 (upon request of either party, witnesses

must be sworn and removed from courtroom to place where they cannot hear

testimony of any other witness, but party, “who is a natural person,” may not be

excluded). Instead, J.B.’s counsel requested that J.B. be present during the hearing



10
      We note that the State, in its brief, asserts that J.B., on appeal, did not challenge the
      trial court’s denial of his counsel’s request for “the opportunity to call J.B. as a
      witness,” based on his “Article I, [section] 10 . . . right to be heard.” Thus, the State
      asserts that we need not address J.B.’s “right to be heard” argument as it has been
      waived on appeal. However, because Article I, section 10 only applies to “criminal
      prosecutions” and the type of proceeding against J.B. in the instant case is civil in
      nature, whether waived or not, any argument that the trial court erred in denying
      J.B.’s counsel’s request for “the opportunity to call J.B. as a witness,” based on his
      “Article I, [section] 10 . . . right to be heard” must fail. Accordingly, we need not
      address whether J.B. waived his “right to be heard” argument. See TEX. R. APP. P.
      47.1; cf. Sanders v. State, No. 01-17-00113-CR, 2018 WL 4129895, at *4 n.3 (Tex.
      App.—Houston [1st Dist.] Aug. 30, 2018, pet. ref’d) (mem. op., not designated for
      publication) (declining to address whether appellant preserved his complaint for
      appellate review); Cruz-Escalante v. State, 491 S.W.3d 857, 860 n.3 (Tex. App—
      Houston [1st Dist.] 2016, no pet.) (same).

                                             10
on the State’s petition “based on his right to confront the witnesses against him”

“under the [f]ederal and [s]tate constitutions.” And J.B.’s counsel requested an

“opportunity to call [J.B.] as a witness” based on his “Article I, [s]ection

10[] . . . right to be heard.” See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10.

      To preserve error, a complaining party must make a timely objection in the

trial court which specifically states the legal basis for the objection. See TEX. R.

APP. P. 33.1(a); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990);

Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977); 1986 Dodge, 129

S.W.3d at 183. An objection stating one legal basis may not be used to support a

different legal theory on appeal.     Rezac, 782 S.W.2d at 870; 1986 Dodge, 129

S.W.3d at 183. A failure to object can waive even an error involving constitutional

rights, and the rule that an error presented on appeal must be the same objection

raised in the trial court applies with equal force to constitutional violations. Little,

758 S.W.2d at 564–65; Gauldin v. State, 683 S.W.2d 411, 413 (Tex. Crim. App.

1984), overruled on other grounds by, State v. Guzman, 959 S.W.2d 631 (Tex. Crim.

App. 1998); Russell v. State, 665 S.W.2d 771, 777–78 (Tex. Crim. App. 1983); 1986

Dodge, 129 S.W.3d at 183. When a complaint on appeal does not match with the

objection made in the trial court, no error is preserved. See Benson v. Chalk, 536

S.W.3d 886, 895–96 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); Nguyen v.

Zhang, No. 01-12-01162-CV, 2014 WL 4112927, at *3 (Tex. App.—Houston [1st


                                          11
Dist.] Aug. 21, 2014, no pet.) (mem. op.); Hous. R.E. Income Props. XV, Ltd. v.

Waller Cty. Appraisal Dist., 123 S.W.3d 859, 862–63 (Tex. App.—Houston [1st

Dist.] 2003, no pet.). Because J.B.’s counsel did not assert in the trial court that

J.B.’s presence in the courtroom was required under Texas Rule of Civil Procedure

267, we hold that he has not preserved his argument for appellate review. See TEX.

R. APP. P. 33.1(a); cf. In re K.C., 563 S.W.3d at 398 (rejecting appellant’s argument

based on Texas Rule of Civil Procedure 267 on merits).

      For these reasons, we hold that the trial court did not err in waiving J.B.’s

appearance at the hearing on the State’s petition for an order to administer

psychoactive medications.

      We overrule J.B.’s sole issue.

                                    Conclusion

      We affirm the order of the trial court.




                                                Julie Countiss
                                                Justice

Panel consists of Justices Kelly, Hightower, and Countiss.




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