                                  NO. 12-08-00081-CV

                        IN THE COURT OF APPEALS

           TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

THE STATE OF TEXAS FOR                             §            APPEAL FROM THE

THE BEST INTEREST AND                              §            COUNTY COURT AT LAW

PROTECTION OF B.L.                                 §            CHEROKEE COUNTY, TEXAS


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


                                            BACKGROUND
        On January 29, 2008, Dr. Satyajeet Lahiri signed an application for an order to administer
psychoactive medication-forensic to B.L. In the application, Lahiri stated that B.L. was subject to
an order for inpatient mental health services issued under Chapter 46B (incompetency to stand trial)
of the Texas Code of Criminal Procedure. Lahiri stated that B.L. had been diagnosed with
schizoaffective disorder and requested the trial court to compel B.L. to take five psychoactive
medications: an antidepressant, an anxoilytic/sedative/hypnotic, two antipsychotics, and a mood
stabilizer. According to Lahiri, B.L. refused to take the medications voluntarily and, in his opinion,
B.L. lacked the capacity to make a decision regarding administration of psychoactive medications
because he was acutely psychotic.


        Lahiri concluded that these medications were the proper course of treatment for B.L. and that,
if he were treated with the medications, his prognosis would be fair with “chances of competency
being restored.”    Lahiri believed that, if B.L. were not administered the medications, the
consequences would be poor. Lahiri considered other medical alternatives to psychoactive
medication, 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 B.L.’s best interest. Lahiri also considered less intrusive treatments likely to secure
B.L.’s agreement to take psychoactive medication.
        On February 1, the trial court held a hearing on the application. Dr. Larry Hawkins testified
that he was B.L.’s treating physician and that B.L. was currently under a Chapter 46B order,
incompetency to stand trial, for inpatient mental health services. He stated that B.L. had verbally,
or otherwise, refused to accept medication voluntarily. According to Hawkins, he believed that B.L.
lacked the capacity to make a decision regarding the administration of psychoactive medication. He
also stated that he reviewed the application for an order to administer psychoactive medication-
forensic completed by Lahiri and agreed with all the statements contained in the application.
Hawkins also agreed with Lahiri’s diagnosis of schizoaffective disorder, and reviewed the
attachment to the application setting forth the classifications of medications that Lahiri wished to
access. He testified that treatment with these medications was the proper course of treatment for
B.L. and was in his best interest. Hawkins stated that if these medications were used, B.L. would
benefit and that these benefits outweighed the risks. Further, he stated that B.L.’s hospitalization
would likely be shortened if these medications were used. He believed that the underlying charge
against B.L. was burglary of a habitation, a felony.
        Hawkins testified that B.L. refused to take psychoactive medications, stating that he would
not take any medications and did not believe he needed medications. According to Hawkins, B.L.
had been on medications during a prior hospitalization, became competent to stand trial, was
returned to jail, stopped taking his medications, was found incompetent to stand trial, and returned
to the hospital. He stated that if B.L. was administered these medications, he would improve.
However, Hawkins stated that if B.L. did not take these medications, he would be incompetent to
stand trial.
        B.L. testified that he was a veteran, having served in the United States Army from 1963 to


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1970 in Vietnam and South Korea. He stated that he did not have schizophrenia because he did not
suffer from flashbacks. In the past, according to B.L., he told a Dr. Brown in the psychiatric ward
of a hospital that he was tired of being constipated and blacking out. He stated that, at that time, he
was buying pickup trucks for other people, driving the pickups, and “blacking out” when he was
taking psychotropic medicines. He stated that there was nothing wrong with him, but he was
“forced” to take Thorazine in a state hospital in Vernon, Texas. B.L. agreed that the Hospital was
trying to help him, but that he was not taking psychotropic drugs. He testified that he was
competent, did not need help, and was “all right.” According to B.L., he could sleep without drugs,
and had not been in any fights. He stated that when he was “at Nueces,” he did not take any
medications except for Rinodyne for his hiatal hernia. B.L. testified that he took Zantac, was given
Protonix, was in “good shape,” and that “that’s all it takes.”
       At the close of the evidence, the trial court granted the application. On February 1, 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 medication was in B.L.’s
best interest and that B.L. lacked the capacity to make a decision regarding administration of the
medication.    The trial court authorized the Department to administer to B.L. psychoactive
medications,     including     antidepressants,       antipsychotics,     mood     stabilizers,    and
anxiolytics/sedatives/hypnotics. This appeal followed.

                                 SUFFICIENCY OF THE EVIDENCE
       In his sole issue, B.L. argues that the evidence is legally and factually insufficient to support
the trial court’s order to administer psychoactive medication-forensics. More specifically, B.L.
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


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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.
       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, then the
evidence is factually insufficient. 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) (Vernon Supp. 2008). The court may
issue an order if it finds, by clear and convincing evidence, 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). “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) (Vernon 2003). In making its findings, the trial court
shall consider (1) the patient’s expressed preferences regarding treatment with psychoactive


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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, and (6) alternatives to treatment with psychoactive medication. TEX .
HEALTH & SAFETY CODE ANN . § 574.106(b) (Vernon Supp. 2008).
Analysis
        In the application, Lahiri stated that he believed B.L. lacked the capacity to make a decision
regarding administration of psychoactive medications because he was acutely psychotic. He
determined that if B.L. were not administered these medications, the consequences would be poor.
He also believed the benefits of the psychoactive medications were in B.L.’s best interest. At the
hearing, Hawkins stated that B.L. refused to accept medication voluntarily. According to Hawkins,
B.L. refused to take psychoactive medications because he did not believe he needed these
medications. B.L. testified that he refused to take psychotropic drugs because he suffered from
constipation and “black outs.” Hawkins testified that treatment with the medications listed in the
exhibit attached to the application was the proper course of treatment for B.L. and in his best interest.
Further, he stated that if these medications were used, B.L. would benefit and that these benefits
outweighed the risks. Hawkins testified that if B.L. did not take these medications, he would be
incompetent to stand trial. Although Hawkins stated that B.L. lacked the capacity to make a decision
regarding the administration of psychoactive medication, he did not explain why B.L. lacked such
capacity.
        We note that nothing in the Texas Health and Safety Code regarding court ordered
administration of psychoactive medication authorizes a trial court to base its findings solely on the
physician’s application. See TEX . HEALTH & SAFETY CODE ANN . § 574.101-.110 (Vernon 2003 &
Supp. 2008). Pleadings, such as the physician’s application here, are not evidence that the statutory
standard has been met. See id. § 574.031 (Vernon 2003) (stating that the Texas Rules of Evidence
apply to the hearing for court ordered mental health services unless the rules are inconsistent with
the subtitle); In re E.T., 137 S.W.3d 698, 700 (Tex. App.–San Antonio 2004, no pet.); see also
Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (noting that,
generally, pleadings are not competent evidence, even if sworn or verified). Here, there was no


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evidence from Hawkins at the hearing regarding why B.L. lacked the capacity to make a decision
regarding administration of psychoactive medications. See In re E.G., 249 S.W.3d 728, 731-32
(Tex. App.–Tyler 2008, no pet.). A conclusory statement by Lahiri in the application, without any
testimony or explanation from Hawkins at the hearing, cannot 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. See Addington,
588 S.W.2d at 570.
         Thus, considering all the evidence in the light most favorable to the findings, we conclude
a reasonable trier of fact could not have formed a firm belief or conviction that B.L. 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. Consequently, the evidence is legally insufficient
to support the trial court’s findings based upon section 574.106 of the Texas Health & Safety Code.
Having determined that the evidence is legally insufficient, it is unnecessary for us to address B.L.’s
argument that the evidence is factually insufficient to support the trial court’s findings. See TEX . R.
APP . P. 47.1. We sustain B.L.’s sole issue.

                                                    CONCLUSION
         Based upon our review of the record, we conclude that the evidence is legally insufficient to
support the trial court’s order authorizing the administration of psychoactive medication-forensic.
Therefore, we reverse the trial court’s order authorizing the administration of psychoactive
medication-forensic and render judgment denying the State’s application for an order to administer
psychoactive medication-forensic.

                                                                   JAMES T. WORTHEN
                                                                       Chief Justice


Opinion delivered September 3, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.,



                                                     (PUBLISH)



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