                                   NO. 12-12-00173-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 C.D.                               §           CHEROKEE COUNTY, TEXAS



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


                                           BACKGROUND
          On April 26, 2012, Dr. Satyajeet Lahiri signed an application for an order to administer
psychoactive medication-forensic to C.D. In the application, Lahiri stated that C.D. 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. He testified that C.D. had been diagnosed with
delusional disorder, and requested the trial court to compel C.D. to take nine psychoactive
medications: an antidepressant, an anxoilytic/sedative/hypnotic, four antipsychotics, two mood
stabilizers, and a miscellaneous psychoactive drug. According to Lahiri, C.D. refused to take the
medications voluntarily and, in his opinion, C.D. lacked the capacity to make a decision
regarding administration of psychoactive medications because she was delusional with themes of
conspiracy, and lacked insight into her mental illness.
          Lahiri concluded that these medications were the proper course of treatment for C.D. and
that, if she were treated with the medications, her prognosis would be fair with resolution of her
psychotic symptoms and restoration of competency. Lahiri believed that, if C.D. were not
administered these medications, the consequences would be poor with no resolution of her
psychotic symptoms. 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
C.D.’s best interest. Lahiri also considered less intrusive treatments likely to secure C.D.’s
agreement to take psychoactive medication.
       On May 1, 2012, the trial court held a hearing on the application. At the hearing, C.D.
was allowed to proceed pro se.       At the close of the evidence, the trial court granted the
application. On May 1, 2012, 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 C.D.’s best interest and that C.D. lacked the
capacity to make a decision regarding administration of the medication.           The trial court
authorized the Department to administer psychoactive medications to C.D., including
antidepressants, antipsychotics, mood stabilizers, atypical-antipsychotics, miscellaneous
psychoactive drugs, and anxiolytics/sedatives/hypnotics. This appeal followed.


                                SUFFICIENCY OF THE EVIDENCE
       In her sole issue, C.D argues that the evidence is legally and factually insufficient to
support the trial court’s order to administer psychoactive medication-forensics.             More
specifically, C.D. contends that the State failed to prove, by clear and convincing evidence, that
she lacked the capacity to make a decision regarding administration of medication and that
treatment with the proposed medications was in her 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
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
                                                2
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, 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) (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). “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,
                                                  3
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
       At the hearing on the application, Lahiri testified that he was C.D.’s treating physician
and that C.D. was currently under a Chapter 46B order for court-ordered inpatient mental health
services.   He also stated that he completed the application for an order to administer
psychoactive medication-forensic and swore that all the statements in the application were true
and correct. Lahiri stated that C.D. was suffering from a delusional disorder, and that she had
verbally refused to accept medication voluntarily. According to Lahiri, he believed that C.D.
lacked the capacity to make a decision regarding the administration of psychoactive medication
because she was delusional with themes of conspiracy, and lacked insight into her mental illness.
He agreed that C.D. has been charged with two misdemeanor offenses, including harassment and
making a false report to a police officer.
       Lahiri testified that he had not seen any improvement in C.D.’s mental health since she
arrived at the mental health facility. Further, he did not believe that C.D. would improve without
medication and that her mental health would likely deteriorate if she is not treated with
psychoactive medications. According to Lahiri, C.D. had a history of mental illness. He stated
that C.D.’s competency would be restored faster if these medications were used. Further, he
testified that treatment with the medications set forth in the exhibit attached to the application
was the proper course of treatment for C.D. and was in her best interest. Lahiri stated that if these
medications were used, the benefit to C.D. would outweigh the risks. He testified that C.D. is
not cooperative in helping the team determine a treatment plan. Lahiri stated that in treatment
team meetings, the team has had meaningful conversations only regarding C.D.’s medical
problems.    However, he stated that the treatment team has made no progress in C.D.’s
psychiatric problems because she refuses to acknowledge that she has a mental illness or needs
treatment. Lahiri was aware that C.D. was found to be incompetent by a jury.
       On cross-examination, Lahiri admitted that he only met C.D. twice. He also stated that
he and C.D. discussed finding her competent without using psychoactive medications and
                                                 4
acknowledged that the mental health facility had competency classes. However, Lahiri stated
that he did not believe C.D. was competent and that psychoactive medications help regain
competency. He also knew that C.D. was admitted to Austin State Hospital in March 2011. He
was not aware that C.D. contended psychoactive medications led her to be charged with criminal
acts.
        C.D. testified that she did not believe she should be taking psychoactive medications
because they have had an adverse effect on her health, have never helped her, and have
“destroyed” her health. She contended that psychoactive medications interfered with her ability
to communicate with her civil rights attorney. She believes she was framed after a “break-in,”
and that she can prove it. C.D. stated that she would like her civil rights attorney to be consulted.
She also testified that she would like another opinion because when she was in Austin State
Hospital, it was not necessary to give her psychoactive medications. She contended that she
knew “all the parts of the players in the courtroom.” C.D. stated that she did not want to waive a
jury trial and that she wanted to “get a few things on the record” for the trial court to take judicial
notice so that she would have a point on appeal. She also claimed that if her civil rights attorney
had been contacted or subpoenaed, he would have testified. However, she said, it was difficult
for her to communicate with her attorney when she was “intoxicated” on psychoactive
medications.
        Although Lahiri stated that C.D. lacked the capacity to make a decision regarding the
administration of psychoactive medication, he did not explain at the hearing why C.D. lacked
such capacity. Lahiri testified that C.D. is not cooperative in determining a treatment plan
because she refuses to acknowledge that she has a mental illness or needs treatment. However,
he does not explain how C.D.’s refusal to acknowledge her mental illness shows a lack of
capacity to decide whether she should be administered psychoactive medication.
        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 (West 2010
& Supp. 2012). Pleadings, such as the physician’s application here, are not evidence that the
statutory standard has been met. See id. § 574.031 (West 2010) (stating that the Texas Rules of
Evidence apply to the hearing for court ordered mental health services unless the rules are
                                                  5
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 evidence from Lahiri at the hearing regarding why C.D. lacked the
capacity to make a decision regarding administration of pyschoactive medications. See In re
E.G., 249 S.W.3d 728, 731-32 (Tex. App.—Tyler 2008, no pet.).                     Further, a conclusory
statement by Lahiri in the application, without any testimony or explanation from him 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
C.D. lacked the capacity to make a decision regarding administration of the proposed
medications and that treatment with the proposed medications was in her 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 C.D.’s argument that the evidence is factually insufficient to
support the trial court’s findings. See TEX. R. APP. P. 47.1. We sustain C.D.’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
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 May 31, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

                                                    (PUBLISH)
                                                           6
                               COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                         JUDGMENT

                                             MAY 31, 2013


                                      NO. 12-12-00173-CV

                          THE STATE OF TEXAS FOR THE BEST
                          INTEREST AND PROTECTION OF C.D.

_____________________________________________________________________________
                        Appeal from the County Court at Law
                    of Cherokee County, Texas. (Tr.Ct.No. 39,810)
_____________________________________________________________________________
                 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.
                      James T. Worthen, Chief Justice.
                      Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                     7
