Affirmed and Memorandum Opinion filed June 25, 2019.




                                           In The

                       Fourteenth Court of Appeals

                                   NO. 14-18-00394-CV

             THE STATE OF TEXAS FOR THE BEST INTEREST
                      AND PROTECTION OF K.S.

                         On Appeal from Probate Court No. 3
                               Harris County, Texas
                           Trial Court Cause No. I253315

                              MEMORANDUM OPINION


       Appellant, K.S., appeals an order for temporary inpatient mental health
services and an order authorizing administration of psychoactive medication. See
Tex. Health & Safety Code §§ 574.034; 574.106(a)(1). Appellant contends the
evidence is legally and factually insufficient to support both orders.1 We affirm.



       1
         Although the period for which appellant was ordered to receive services has expired, we
have jurisdiction and are not required to dismiss the appeal for mootness. State v. Lodge, 608
S.W.2d 910, 912 (Tex. 1980); see also State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010).
                       FACTUAL AND PROCEDURAL BACKGROUND

      Appellant’s records reflect this proceeding arises from appellant’s second
admission to Harris County Psychiatric Center (“HCPC”). Following appellant’s
release after his first admission to HCPC, appellant was not compliant with his
aftercare treatment.

      Appellant’s is a 30-year-old male from Nepal. He attended college in the
United States and graduated with a degree in engineering. Appellant was working as
a design engineer until the company told him “to take time off.” Prior to that,
appellant had been continuously and successfully employed. Appellant is indigent,
with no income or savings or insurance benefits. Appellant has a past psychiatric
history of bipolar disorder with psychotic features. He has a previous diagnosis of
anxiety disorder and depression. Appellant has made grandiose statements.
Appellant approached a security guard at a Walmart store and asked him to call the
police. At that time, appellant was non-compliant with his medication and was noted
to be internally preoccupied. Appellant’s delusions consisted of being harassed by
others and making nonsensical remarks.

      After the Walmart guard called the police, an officer arrived and spoke to
appellant. Appellant told the HPD officer he was hearing voices and had not been
taking his medication. Appellant was taken to the Neuropsychiatric Center (“NPC”)
in Houston, Texas. The State sought court orders to commit appellant for temporary
inpatient mental health services and to administer psychoactive medication. See Tex.
Health & Safety Code §§ 574.034; 574.106(a)(1). Angela Williams, on behalf of the
State, filed an application for temporary or extended mental health services for
appellant. According to her affidavit, appellant was off his medication and hearing
voices. Williams averred that appellant was “psychotic with internal stimuli” and
“unable to care for himself at this time.”

                                             2
      The HPD officer who took appellant to NPC filed a Notification of Emergency
Detention in the probate court. In his notification of emergency detention for
appellant, the officer stated that he had reason to believe appellant evidenced a
substantial risk of serious harm to himself or others based upon the fact that appellant
told the officer “that he was hearing voices to hurt himself. He stated has not been
taking his medication. He stated he has been in and out of mental hospital.” The
officer had reason to believe the risk of harm was imminent unless appellant was
immediately restrained and stated his belief was based upon the fact that appellant
“appears to be danger to self/others.” The officer reported that appellant asked a
Walmart security guard for help calling the police.

      Appellant was assessed by Dr. Chris Johnson. Johnson’s diagnosis of
appellant was “psychosis” and he stated that as a result of appellant’s mental illness,
he (1) is likely to cause serious harm to himself; or (2) is suffering severe and
abnormal mental, emotional, or physical distress; (3) is experiencing substantial
mental or physical deterioration of his ability to function independently, except for
reasons of indigence, to provide for his basic needs, including food, clothing, health
or safety; and (4) is not able to make a rational and informed decision as to whether
to submit to treatment. As the factual basis of his opinion, Dr. Johnson stated,
“[appellant] has been off treatment. He approached a guard at Wal-Mart reporting
suicidal thoughts. He appears grossly psychotic at PES/actively responding to
internal stimuli.” Dr. Johnson’s opinion was that, based on these same facts,
appellant presented a substantial risk of serious harm to himself or others if not
immediately restrained. According to Dr. Johnson, emergency detention was the
least restrictive means to affect the necessary restraint because of the risk of injury.

      Appellant was transferred to HCPC. Dr. Tyler Kimm examined appellant on
May 1, 2018. Dr. Kimm diagnosed appellant with bipolar disorder and opined that

                                           3
appellant was likely to cause serious harm to himself. The factual basis of Dr.
Kimm’s opinion was that appellant was brought in “after allegedly making suicidal
statements at a Walmart.” Dr. Kimm was of the opinion that because of appellant’s
mental illness, he presented a substantial risk of serious harm to himself, as
evidenced by the following:

      “At HCPC [appellant] has been lewd, intrusive, hypersexual, [with]
      poor boundaries. [Appellant] has low sleep hours with only partial
      medication adherence. [Appellant] remains grandiose & accelerated in
      thought, speech.”
      Dr. Kimm stated that emergency detention was the least restrictive means to
effect necessary restraint. He further stated in his report that the basis for his opinion
of appellant’s imminent risk of harm to himself, unless restrained, was the need for
patient stabilization.

      In his petition for an order to administer psychoactive medication, Dr. Kimm
stated that he diagnosed appellant with bipolar disorder and determined that the
proper course of treatment, in the best interest of the appellant, was the
administration of certain classes of psychoactive medications. Further, Dr. Kimm
believed appellant lacked capacity to make a decision regarding administration of
psychoactive medication because appellant was refusing all medications but
lurasidone, which despite several days of treatment failed to alleviate the symptoms
of appellant’s mental illness as evidenced by appellant’s “continued poor
boundaries, intrusiveness, grandiosity.” Dr. Kimm also stated that appellant’s past
outpatient treatment with lurasidone failed, as evidenced by his recent re-admission.2
Dr. Kimm’s prognosis for appellant, if treated with the recommended psychoactive
medications, was guarded but optimistic. Dr. Kimm opined that if the recommended
psychoactive medications were not administered, the consequences to appellant

      2
          As indicated below, appellant had been admitted three months prior to this admission.

                                                4
would be a further decline in his ability to function. Dr. Kimm stated that he had
considered prolonged hospitalization in a therapeutic environment as an alternative,
but determined it would be unlikely to fully resolve appellant’s current symptoms.

      At the hearing, Dr. Douglas Samuels, a licensed psychiatrist at HCPC, and
Michael Helminiak, a psychiatric core nurse who treated appellant at HCPC,
testified for the State. Appellant stipulated to Dr. Samuels’s qualifications as an
expert in the field of psychiatry.

      The probate court first heard testimony on the issue of commitment. Dr.
Samuels, testified that he had the opportunity to observe appellant and appellant was
cooperative. Dr. Samuels believed appellant understood the proceeding. He testified
that appellant was diagnosed with bipolar disorder and agreed with the diagnosis.
Dr. Samuels recognized that Dr. Kimm was operating under a diagnosis of psychotic
disorder NOS, but stated appellant “has a standing diagnosis here of bipolar.”

      Dr. Samuels testified that in the past appellant benefitted from medications
for the symptoms of bipolar disorder. He stated that when appellant “has taken the
medicine episodically here, he has benefited also,” and noted that appellant was
offered several medications during his current stay, but was reluctant to take them.

      Dr. Samuels testified appellant’s behavior before his current treatment was
“one of self-reported disorganization and hallucinations while essentially living at
Wal-Mart.” Although appellant had an apartment in the Galleria area, “he had really
taken up residence in Wal-Mart.” It was reported that appellant was using Walmart’s
wi-fi and facilities. Appellant felt he was being harassed by people and asked for
help from security, which led to his being taken to NPC.

      Dr. Samuels testified that he checks with the staff on a daily basis and the
consistent feedback is, “quote, he is awful, he is terrible.” Dr. Samuels explained:


                                          5
      He [ appellant] has engaged in sexually provocative behavior, sexually
      aggressive behavior, towards females, female staff, racist behavior,
      very provocative behavior; a clear, consistent picture of agitation,
      irritation, provocative confrontation which is very consistent with the
      diagnosis of bipolar.
      Dr. Samuels agreed that those types of behaviors are the basis of Dr. Kimm’s
opinion that appellant has very poor or no boundaries with regard to staff and
patients. Dr. Samuels noted that appellant “has received intramuscular injections
associated with a significant show of force by both female staff members, and the
use of restraints on — roughly in every other day basis in this facility.” Dr. Samuels
further agreed that appellant’s response to the intramuscular medications indicated
“they are on the right track with medication.”

      Dr. Samuels’ recommendation for appellant was to remain at that hospital
under the care of Dr. Kimm and the treatment team, and further, if a commitment
was granted, for appellant to receive a forced-medication hearing. Without further
treatment and intervention, Dr. Samuels believed appellant would be likely to cause
serious harm to himself or to others, either directly or indirectly as a result of his
illness, “as demonstrated by the need for restraints and intramuscular medication.
He believed that if appellant were released without intervention, appellant would
suffer severe and abnormal mental, emotional, or physical distress; experience
substantial mental or physical deterioration of his ability to function independently;
would not be able to make the necessary decisions for daily living, (in particular,
health and safety decisions); and would not be able to make a rational informed
decision about whether to submit to outpatient care.

      On cross-examination, Dr. Samuels testified that he was under the impression
appellant was eating while at the hospital. Dr. Samuels was asked whether appellant
was tending to his personal hygiene. He stated:


                                          6
      This is the neatest and cleanest he has looked. I’ve seen him on the unit
      where he has a towel wrapped around his waist and he’s wearing his
      jeans outside of that. It looks a little bizarre, but there’s nothing that
      looks like he’s unable to take care of himself. I have not seen that.

      Dr. Samuels testified that to his knowledge, appellant has not indicated having
any thoughts of harming himself since he has been in the hospital. Appellant
voluntarily took medications other than intramuscular injections. Appellant took
Lithium on occasion, but stopped for approximately the three days before the
hearing. Appellant took a medication that was not very helpful, and the staff wanted
to change it, and appellant indicated that he wanted to take it, “but he wants to
negotiate when to take it.” Appellant wanted to take it at night because appellant said
it made him sleepy. Dr. Samuels told appellant he “needs to follow the doctor’s
orders to take it when the doctor wishes for him to do that.” Dr. Samuels observed
appellant “at the nurse’s station with the medicine, and there was a lot of bargaining
and negotiating going on that was being reported.” Dr. Samuels testified that “if you
look at the overall picture from start to finish today, that he has taken some doses
and he hasn’t — if you just look at the total of all the doses, we would say it’s slanted
more heavily towards non-compliance.”

      Michael Helminiak testified that during the past weekend appellant required
emergency intramuscular injections both days, because appellant was consistently
testing limits, pushing boundaries with staff, not following staff attempts at
redirection, and punching and kicking at the empty air in the day area. Further,
Helminiak testified:

             I’ve also caught him a couple of times in the seclusion room
      where he was sleeping because he refused to sleep in the room with
      someone else. And he was self-talking and swinging a towel around in
      the air, brandishing it as a weapon like he was trying to strike something
      that wasn’t there.


                                           7
            When we tried to get him to deescalate, he tried to bargain with
      medications, tried to put them off. And then when we told him he
      couldn’t take them out of his scheduled times, he refused them outright.
             He has a tendency to become antagonistic with the staff, making
      racially inappropriate remarks towards me specifically. He called me
      an idiot cowboy, white trash, a few other names. And becoming -- using
      a lot of profanity when he gets agitated and worked up as well.
             He also threatened to get me fired a few times, claiming he had
      the ability to do that.
      Helminiak stated that appellant intermittently participated in the groups or
sessions offered to him and “sometimes has been inappropriate for it.” Helminiak
explained:

             And you have to watch him when he’s in these groups because
      of the sexually inappropriate behavior towards the females.
           He will do things like try to inappropriately touch them in their
      midsections when they are walking by him.
      Helminiak said that he would be concerned for appellant’s safety and those
around him if appellant were released without further treatment.

      Appellant testified as an adverse witness. Appellant gave an address in the
Galleria area as his residential address and said he had lived there a little more than
one year. Appellant said he works as an engineer and obtained a general engineering
degree. He testified he was relieved of his job in February—three months earlier.
When asked how he was supporting himself, appellant said he had approximately
$400 in the bank, and “also qualified for credit cards. I can get ID from the hospital.”

      According to appellant, the police brought him to the hospital because he
asked a security guard at Walmart to call them. Appellant said he did not feel that
he should “hang around there for too long” and “the staff there doesn’t know how to
do customer service well.” He had been at the Walmart since approximately 10:00


                                           8
or 11:00 p.m. Appellant denied telling the officer that he was hearing voices that told
him to hurt himself.

      When asked for a reason as to why he did not want to take his medication,
appellant said, “I can take my medication when I get out of here when I see my
primary care physician.” Appellant could not remember the name of his doctor.

      Appellant was asked what medication he ordinarily takes as an outpatient and
said that he used to take Latuda 20. He then stated, “I didn’t really discontinue it. I
was just following dictation to different scam artists in Houston.” When asked to
explain his answer, appellant said he was living at the Victoria Park Apartments
“unofficially as a guest.” When asked if this was during the same time that he was
paying rent at the Yorktown Apartments, appellant said, “I didn’t pay rent. My rent
was due on the first week.” Appellant then said, “Yorktown Apartments kicked me
out when I was sick. Somebody must have reported me there. That place is full of
Indians, that’s when we — they saw Indians.” Appellant was asked if he still lived
at the Yorktown Apartments and replied, “Well, I can go there and apply for living
there.” He then testified, “really what I plan to do is live at a hotel for a few days
and call my dad . . ..”

      Appellant admitted to spending the night at the Wal-Mart. He stated his father
is in Europe and the rest of his family is in Nepal. Appellant said his father knew he
was in the hospital.

      Appellant claimed to understand why people were worried about him and
hoped that he would get back on his medication. He said, “I would like to. I don’t
mind — once I get out of here, I’m not taking medication and living here for free
anymore.” Appellant was asked for a reason for not working with the doctors and
getting back on his medication, to get released sooner. He was asked if something


                                          9
happened to make him distrustful of his physician, to which appellant responded,
“No, he’s okay.” The following exchange then occurred:

      Q. So once again, why won’t you take the medication?
      A. I can, once I get out of here. Or, well, I can take it tonight or
      tomorrow, but I need to get out of here today. I just can’t handle this
      crazy hospital anymore.
      Q. Do you realize that if you had begun working with the doctor and
      taking your medication when you first came in, that you would have
      been gone from here several days ago?
      A. Yes, but I felt like it was something wrong, allegations like it was
      my fault. They were saying things that he believes is true, but it’s not
      true. If they ask all the staff or any other people that said my fault, they
      might say something else, but that’s my perception.
      Q. So you think if we brought down someone else from the unit, they
      would have a different story?
      A. No, I wouldn’t really bring anybody else. Just stop it right here. If
      you want to bring them over, maybe they will, I don’t --
      Q. Do you understand that your -- do you understand that your behavior
      on the unit has been inappropriate?
      A. Uh-huh.
      Q. Then why do you do it? Why do you behave in that way if you know
      it’s going to bring on seclusion and forced medication?
      A. Well, for some questions, there’s no answers because everything --
      Q. Well, do you think it’s possible that it’s the illness that is making
      you behave this way?
      A. No.
      Appellant then testified on direct examination that he knew the hearing was
to determine whether he would be involuntarily committed to a hospital. He also
said that he understood that if the judge found he needed mental health treatment,
the judge would sign an order committing him.



                                          10
      Appellant admitted that he had been in the same hospital in February. He also
admitted that he no longer lives at the Yorktown Apartments. When asked where he
would live if released, appellant again said he had $400 in a bank somewhere, and
stated, “if I get an ID and bus pass, I can go straight to Galleria and fix everything
up fast speed today.” Appellant denied that he had not been taking his medication,
saying, “I have taken every medication that was given to me, except Zyprexa. . . I
don’t like that one.” Appellant said he had taken Latuda but did not recall how
frequently, maybe two to four times.

      Appellant indicated that he understood a forced medication hearing would be
held immediately following any decision to commit him into the hospital. Appellant
also understood that he probably would have been released sooner if he had taken
his medication, “But the problem was on day one, somebody thought I was
inappropriate with the ladies.” When asked about the testimony that he was sexually
inappropriate with women on the unit, he acknowledged it was inappropriate but
said, “it was okayed with all the ladies.”

      Appellant denied having any thoughts of harming himself or anyone else. He
also said he would be able to live on his own and take care of himself, including
clothing himself, properly feeding himself, and taking care of his personal hygiene.

      The probate court asked appellant about his chances of being hired since he
had been in the hospital twice, first in February and now in May. Appellant said, “A
hundred percent” and claimed to “now have enough connections that they don’t even
ask me any questions. I have following two job offers, 6, 7, 8, 9, 10 job offers.”

      The probate court signed a judgment finding appellant was mentally ill and as
a result was likely to cause serious harm to himself, or likely to cause serious harm
to others. The judgment further stated if not treated, that appellant will continue to
suffer mental distress and deteriorate, and was unable to make a rational and
                                             11
informed decision as to whether or not to submit to treatment. The probate court
granted the State’s application for court-ordered mental health services and
committed appellant for a period of not more than forty-five days.

      The probate court then heard testimony on the question of whether to order
administration of psychoactive medication. Dr. Samuels reviewed the forced
medication petition filed by Dr. Kimm. Dr. Samuels testified that Dr. Kimm
indicated a diagnosis of bipolar one, manic with psychotic features, and agreed with
that diagnosis. The recommendation was that appellant be treated with anti-
depressants, anti-psychotics, anxiolytics and mood stabilizers, and would start with
Zyprexa, an anti-psychotic medication. Dr. Samuels believed appellant lacked
capacity to make a decision with regard to psychoactive medication.

      Dr. Samuels testified that treatment could be limited if appellant responded
positively. He testified appellant’s prognosis would be poor without the medication.
When the State asked Dr. Samuels if he was aware of any alternatives that would be
less invasive but equally effective, he replied “I am not,” then added, “And his
current course of hospitalizations does not give us any alternative.”

      Appellant then testified. According to appellant, he refused to take the
prescribed medication because “[t]hey’re not giving the right medications.”
Appellant said he did not want “forced medication. . . That’s demeaning.”

      The probate court granted the petition to administer psychoactive medication.

      On May 11, 2018, appellant filed this appeal and on May 18, 2018, he was
discharged. According to Dr. Kimm, appellant was discharged to outpatient
voluntary services because he no longer met the criteria for court-ordered in-patient
mental health services.



                                         12
                                   BURDEN OF PROOF

                         Order for Temporary Civil Commitment

      The trial court may order a mentally ill patient to receive court-ordered
temporary inpatient mental health services only if the State proves by clear and
convincing evidence the following:

      (1) the proposed patient is mentally ill; and
      (2) as a result of that mental illness the proposed patient:
      (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
                the proposed patient’s ability to function independently, which is
                exhibited by the proposed patient’s inability, except for reasons
                of indigence, to provide for the proposed patient’s 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.
Tex. Health & Safety Code § 574.034(a). A trial court must specify the criteria
forming the basis for its decision to grant the State’s application. Id. § 574.034(c).

      To constitute clear and convincing evidence under § 574.034(a), 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. Id. § 574.034(d).




                                            13
                   Order to Administer Psychoactive Medication

      The trial court may order the administration of one or more classes of
psychoactive medication to a patient who is under a court order to receive inpatient
mental health services under certain circumstances. Tex. Health & Safety Code
§ 574.106. As applicable to this case, those circumstances exist only if the State
proved by clear and convincing evidence that the patient lacked the capacity to make
a decision regarding the administration of the proposed medication, and treatment
with the proposed medication was in the patient’s best interest. Tex. Health & Safety
Code § 574.106 (a-1)(1). In making the best-interest finding, the 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 treatments likely to secure the patient’s agreement to
      take the psychoactive medication.
Tex. Health & Safety Code § 574.106(b).

                               STANDARD OF REVIEW

      Clear and convincing evidence is “that measure or 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. K.E.W., 315 S.W.3d 16, 20 (Tex.
2010) (quoting State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979) (per curiam)).

                                             14
In a legal sufficiency review, we consider 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 finding was 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 should disregard all evidence
that a reasonable factfinder could have disbelieved or found to have been incredible.
Id. If no reasonable factfinder could form a firm belief or conviction that the matter
that must be proven is true, the evidence is legally insufficient. Id.

       In a factual sufficiency review, we must give due consideration to evidence
that the factfinder could reasonably have found to be clear and convincing. Id. We
determine whether the evidence is such that a factfinder could reasonably form a
firm belief or conviction that the State’s allegations are true. Id. We should consider
“whether disputed evidence is such that a reasonable factfinder could not have
resolved that disputed evidence in favor of its finding.” Id. “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, the evidence is factually insufficient.” Id.

                                       ANALYSIS

      Appellant does not challenge the probate court’s finding that he is mentally
ill. See Tex. Health & Safety Code § 574.034(a)(1). Appellant argues the evidence
does not support the probate court’s finding that he was likely to cause serious harm
to himself. See id. § 574.034(a)(2). Specifically, appellant makes two complaints.
First, appellant contends Dr. Samuels failed to support his conclusions with facts,
thus, according to appellant, the requisite expert testimony is lacking. See id. §
574.034(d). Second, appellant asserts the evidence does not show an overt act or



                                           15
continuing pattern of behavior that tends to confirm the likelihood of distress and
the deterioration of appellant’s ability to function. See id. § 574.034(d)(2).

                        Order for Temporary Civil Commitment

      The judgment reflects the probate court specified the basis for its decision was
its finding that appellant was likely to cause serious harm to himself or a likelihood
of causing serious harm to others. See Tex. Health & Safety Code §§ 574.034(a),
(c). The probate court heard evidence that appellant was hearing voices telling him
to hurt himself. After he was hospitalized and medicated, there was no further
evidence that appellant was hearing those voices.

      Appellant denied that he told the guard at Walmart that he was hearing voices
telling him to hurt himself. However, the probate court, as the factfinder, was not
required to believe that testimony. See House v. State, 261 S.W.3d 244, 254 (Tex.
App.—Houston [14th Dist.] 2008, no pet.) (stating that trial court, as factfinder and
sole judge of the credibility of the witnesses, was within its discretion in finding the
expert’s testimony in support of extending appellant’s involuntary inpatient mental
health treatment was more credible than that of two experts who testified in favor of
appellant’s release).

      An overt act includes verbal statements. See K.E.W., 315 S.W.3d at 22.
“[W]hen the words expressed by a person that has a mental illness foreshadows
violence, the Legislature has permitted the law’s intervention to prevent serious
injury. . .” Id. As the K.E.W. court explained, “[t]he statute does not require evidence
of a recent overt act that by itself proves the likelihood a proposed patient will cause
serious harm to others. Id. at 23 (citing Tex. Health & Safety Code § 574.034(d)).
Rather, the statute only requires the overt act “tends to confirm” the likelihood of
serious harm. Id. A recent overt act “tends to confirm” the patient poses a likelihood
of serious harm to himself, within the meaning of Section 573.034(d), “if the overt
                                          16
act is to some degree probative of a finding that serious harm is probable, even
though the overt act itself may not be dangerous.” Id. Thus “the statute requires
evidence of a recent act by the proposed patient, either physical or verbal, that can
be objectively perceived and that to some degree is probative of a finding that serious
harm to [himself] is probable if the person is not treated. The overt act itself need
not be of such character that it alone would support a finding of probable serious
harm to [the proposed patient]. See Tex. Health & Safety Code § 573.034(d)(1).” Id.
at 24.

         In addition to the statements appellant made, both Dr. Samuels and Helminiak
testified that if appellant were released without intervention, he would pose a danger
to himself. Both supported their testimony with facts concerning the necessity of
intramuscular injections, appellant’s refusal to voluntarily take his medication,
appellant’s negotiations with staff regarding taking his medication and the timing of
taking his medications, and appellants irrational behavior and actions at the hospital
when he was not taking his medications. Dr. Samuels testified that “if you look at
the overall picture from start to finish today, that he has taken some doses and he
hasn’t — if you just look at the total of all the doses, we would say it’s slanted more
heavily towards non-compliance.” Thus the conclusions of Dr. Samuels and
Helminiak were supported by facts.

         The testimony of appellant’s treating medical care providers was
uncontroverted in regard to the distress and deterioration appellant would suffer if
he did not receive his medication and treatment. Dr. Kimm opined that if the
recommended psychoactive medications were not administered, the consequences
to appellant would be a further decline in his ability to function. Dr. Samuels testified
if appellant were released without intervention, appellant would suffer severe and
abnormal mental, emotional, or physical distress; experience substantial mental or

                                           17
physical deterioration of his ability to function independently; would not be able to
make the necessary decisions for daily living, (in particular, health and safety
decisions); and would not be able to make a rational informed decision about
whether to submit to outpatient care. Thus there was evidence of a requisite overt
act and/or continuing pattern of behavior that tended to confirm appellant’s distress
and the deterioration of his ability to function.

      Considering all the evidence in the light most favorable to the probate court’s
finding, we determine a reasonable trier of fact could have formed a firm belief or
conviction that appellant was likely to cause serious harm to himself. See In re
J.F.C., 96 S.W.3d at 266. Accordingly, we conclude the evidence is legally sufficient
to support the probate court’s order.

      Further, giving due consideration to evidence the probate court could
reasonably have found to be clear and convincing, we determine the evidence is such
that a factfinder could reasonably form a firm belief or conviction the State’s
allegation that appellant was likely to cause serious harm to himself was true. Id.
The disputed evidence as to whether appellant heard voices telling him to hurt
himself is not so significant that the probate court could not reasonably have formed
a firm belief or conviction that the State’s allegation was true. Id. Accordingly, we
conclude the evidence is factually sufficient to support the probate court’s order.

                   Order to Administer Psychoactive Medication

      Appellant contends the probate court erred in ordering the administration of
psychoactive medication because there was legally and factually insufficient
evidence to support the commitment order. See Tex. Health & Safety Code
§§ 574.034, 574.106. As noted above, in this case the State was required to prove by
clear and convincing evidence that appellant lacked the capacity to make a decision
regarding the administration of the proposed medication, and treatment with the
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proposed medication was in his best interest. See Tex. Health & Safety Code
§ 574.106 (a-1)(1). Appellant refers to section 574.106(b)(1), which states the court
shall consider “the patient’s expressed preferences regarding treatment with
psychoactive medication.” Appellant did express his preference that the probate
court deny the petition. See Tex. Health & Safety Code § 574.106(b)(3)-(6).
However, as set forth above, there are other factors a court “shall consider.” Dr.
Samuels testified regarding these factors. His testimony was not disputed, no
contrary evidence was presented, and appellant makes no argument that these factors
did not weigh in favor of granting the petition.

      Considering all the evidence in the light most favorable to the probate court’s
finding, we determine a reasonable trier of fact could have formed a firm belief or
conviction that appellant lacked the capacity to make a decision regarding the
administration of the proposed medication, and treatment with the proposed
medication was in his best interest. See In re J.F.C., 96 S.W.3d at 266. Accordingly,
we conclude the evidence is legally sufficient to support the probate court’s order.

      Giving due consideration to evidence the probate court could reasonably have
found to be clear and convincing, we determine the evidence is such that a factfinder
could reasonably have formed a firm belief or conviction that the State’s allegations
are true. Id. There being no disputed evidence as to factors (b)(3) through (b)(6), we
conclude the contrary evidence as to factor (b)(1) is not so significant that the probate
court could not reasonably have formed a firm belief or conviction that the State’s
allegations are true. Id. Accordingly, we conclude the evidence is factually sufficient
to support the probate court’s order.

      In addition, having found the evidence is both legally and factually sufficient
to support the commitment order, there is no basis for appellant’s contention the



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probate court erred as to the medication order for lack of a valid order for temporary
mental health services.

                                   CONCLUSION

      Appellant’s issue is overruled. The probate court’s judgment of commitment
for temporary inpatient mental health services and order to administer psychoactive
medication are affirmed.




                                       /s/    Margaret “Meg” Poissant
                                              Justice



Panel consists of Justices Wise, Jewell and Poissant.




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