                                  NO. 12-12-00267-CV

                       IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

THE STATE OF TEXAS                                §          APPEAL FROM THE

FOR THE BEST INTEREST                            §           COUNTY COURT AT LAW

AND PROTECTION OF K.M.                          §            CHEROKEE COUNTY, TEXAS



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


                                          BACKGROUND
       On July 19, 2012, a criminal court rendered an order for in-patient mental health services
issued under Chapter 46B of the Texas Code of Criminal Procedure, the statute relating to
incompetency to stand trial. On July 27, 2012, an application for court ordered authorization for
the administration of psychoactive medication-forensic was filed. The application was prepared
by a physician, Dr. S. Lahiri. Dr. Lahiri diagnosed K.M. as suffering from Bipolar Disorder,
manic. K.M. refused to take medication voluntarily. The doctor indicated that K.M. lacks the
capacity to make a decision regarding administration of psychoactive medication because he is
acutely manic and psychotic with poor insight and impaired judgment. Dr. Lahiri stated that the
medication is the proper course of treatment and if K.M. is treated with the psychoactive
medication, his prognosis is fair, with restoration of competency. If the medication is not
administered, the consequences would be poor, with no clinical improvement.             Dr. Lahiri
believed that the benefits of the psychoactive medication outweigh the risks of such medication
in relation to present medical treatment and K.M.’s best interest.
       At the hearing on the application, Dr. Jill Pontius testified that she reviewed K.M.’s
medical records and she agrees that K.M. lacks the capacity to make a decision about taking
medication. She agreed with Dr. Lahiri’s statement that K.M. is acutely manic and psychotic
with poor insight and impaired judgment. Dr. Pontius had not met K.M. prior to the day of the
hearing, and she never spoke to him. She testified that the requested medications would be in the
proper course of treatment and in his best interest. Also, she testified, there is a good chance
K.M. will improve with medication. Further, his likelihood of regaining competency is much
improved if his Bipolar Disorder is treated.
       K.M. testified describing his first visit with Dr. Lahiri as lasting no more than two
minutes. He responded “no” to the doctor’s inquiry as to whether he wanted to take medications,
and then he left the room. He stated that he is much more competent than the average person and
does not need the medications. In fact, he asserted, the medications would be detrimental. He
explained that the medications “sever one’s feelings, the body from their feelings.” The court
found that K.M. lacks the capacity to make a decision regarding administering medication and it
is in K.M.’s best interest to grant the application. Accordingly, the court rendered an order
authorizing the administration of psychoactive medication.


                                               CAPACITY
       In his sole issue, K.M. contends the evidence is legally and factually insufficient to
support the order to administer psychoactive medication. He contends the State did not prove by
clear and convincing evidence that he lacks the capacity to make a decision regarding the
administration of the proposed medication. He further argues that the State did not prove that
treatment with the proposed medication was in his best interest. He argues that Dr. Pontius’s
opinion is not shown to have a sufficient basis in fact.
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
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



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not mean that we are required to ignore all evidence not supporting the finding because that
might bias a clear and convincing analysis. Id.
Applicable Law
       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) (West 2010). The court may
issue an order if it finds by clear and convincing evidence after the hearing 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) (per curiam).
“Capacity” means a patient’s ability to (1) understand the nature and consequences 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) (West 2010). In making its findings, the trial 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 ANN.
§ 574.106(b) (West 2010).
Analysis
       Dr. Lahiri did not testify at the hearing. Dr. Pontius testified briefly after reviewing
K.M.’s medical record. She never interviewed or treated K.M. She merely agreed with Dr.
Lahiri’s findings. She stated that she agrees that K.M. lacks the capacity to make a rational
decision regarding taking psychoactive medications and is acutely manic and psychotic with
poor insight and impaired judgment. She testified that there is a good chance he will improve
with medication and the requested medications are in the proper course of treatment and in



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K.M.’s best interest. She further stated that he will require medications to become competent
and the likelihood of his regaining competency is much improved if his Bipolar Disorder is
treated.
           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 (West 2010). Pleadings,
such as the physician’s application here, are not evidence that the statutory standard has been
met. See id. § 574.031(e) (West 2010) (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.). At the
hearing, Dr. Pontius did not explain why she believed K.M. lacked the capacity to make a
rational decision regarding the administration of psychoactive medication. Thus, there was no
evidence regarding why K.M. 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.). Further, a conclusory statement by Dr. Lahiri in the application, without any testimony or
explanation 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 that a reasonable trier of fact could not have formed a firm belief or conviction that
K.M. lacked the capacity to make a decision regarding administration of the proposed
medications and that treatment with the proposed medications was 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 and Safety Code. Having determined that the evidence is legally
insufficient, we need not address K.M.’s argument that the evidence is factually insufficient to
support the trial court’s findings. See TEX. R. APP. P. 47.1. We sustain K.M.’s sole issue.


                                           DISPOSITION
           Based upon our review of the record, we have concluded that the evidence is legally
insufficient to support the trial court’s order authorizing the administration of psychoactive



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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.


                                                                SAM GRIFFITH
                                                                   Justice

Opinion delivered July 3, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




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                               COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                         JUDGMENT

                                             JULY 3, 2013


                                      NO. 12-12-00267-CV

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

_____________________________________________________________________________
                        Appeal from the County Court at Law
                    of Cherokee County, Texas. (Tr.Ct.No. 39,926)
_____________________________________________________________________________
                 THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that there was error in the
trial court’s order authorizing the administration of psychoactive medication-forensic.
                      It is ORDERED, ADJUDGED and DECREED by this court that the trial
court’s order authorizing the administration of psychoactive medication-forensic be reversed
and judgment rendered denying the State’s application for an order to administer psychoactive
medication-forensic; and that this decision be certified to the court below for observance.
                      Sam Griffith, Justice.
                      Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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