                                                                                       ACCEPTED
                                                                                   05-19-00541-CV
                                                                         FIFTH COURT OF APPEALS
                                                                                   DALLAS, TEXAS
                                                                                 6/16/2019 6:44 PM
                                                                                        LISA MATZ




                                                                                                          5th Court of Appeals
                                                                                            CLERK




                                                                                                           FILED: 06/18/2019
                                                                                       Lisa Matz, Clerk
                              NO. 05-19-00541-CV
              IN THE FIFTH DISTRICT COURT OF APPEALS
                         AT DALLAS, TEXAS             RECEIVED IN
                                                 5th COURT OF APPEALS
                                                              DALLAS, TEXAS
                                                          06/17/2019 9:58:00 AM
                               J.A., A MINOR                     LISA MATZ
                                                                   Clerk
                                 APPELLANT,
                                      V.
                             STATE OF TEXAS
                                 APPELLEE.


                      On appeal from Cause No. 19M-091
              In the County Court at Law, Kaufman County, Texas
                     Honorable Bobby Rich, Presiding Judge


                         APPELLANT’S BRIEF


Respectfully submitted by,
Tina H. Montoya
SBN 24039319
Montoya & Wyble Law, PLLC
408 W. Nash
Terrell, Texas 75160
Phone: 972-524-3344 • Fax: 972-563-6699
tina@tinamhall.com


                             COUNSEL FOR APPELLANT
                              ____________________
                         ORAL ARGUMENT REQUESTED
                 IDENTITY OF PARTIES AND COUNSEL


Appellant:                J.A.
                          Defendant

Represented in the        Tina H. Montoya
Appellate Court by:       TINA H. MONTOYA
                          408 W. Nash Street
                          Terrell, Texas 75160
                          Phone: 972-524-3344 • Fax: 972-563-6699
                          Email: tina@montoyawyblelaw.com

Represented in the        Tina H. Montoya
Trial Court by:           408 W. Nash Street
                          Terrell, Texas 75160

Appellee:                 State of Texas
                          Plaintiff

Represented in the        Clay Watkins
Trial Court by:           Kaufman County District Attorney
                          100 W. Mulberry
                          Kaufman, Texas 75142
                          Phone: 972-932-4331 • Fax: (972) 932-0357
                          Clay.Watkins@kaufmancounty.net




                                  2
                                       TABLE OF CONTENTS


Identity of Parties and Counsel ............................................................................. 2

Index of Authorities ........................................................................................... 3-6

Statement Regarding Oral Argument.................................................................... 8

Abbreviations and Record References .................................................................. 8

Statement of the Case ............................................................................................ 9

Issues Presented for Review ........................................................................... 10-11

APPELLANT’S BRIEF

I.      STATEMENT OF FACTS .......................................................................... 11-13

II.     SUMMARY OF THE ARGUMENT AND STANDARD OF REVIEW................. 13-19

III.    ARGUMENT ................................................................................................ 19

GENERAL OBJECTION TO THE CLERK’S RECORD................................................ 19

JURISDICTIONAL AND CONSTITUTIONAL ARGUMENTS ........................................ 20

        1.       The Trial Court Lacked Jurisdiction over J.A. Because Texas
                 Health & Safety Code Prohibits Minors Being Involuntarily
                 Committed................................................................................. 20

        2.       J.A.’s Legal Representation did not Meet the Strickland
                 Threshold Committed ................................................................... 22

        3.       The trial court did not comply with Texas Health & Safety
                 Code § 574.012 .............................................................................. 29



                                                         3
         A.       ISSUE ONE................................................................................... 31-40

          The trial court erred by not dismissing the case in accordance to
          Texas Health and Safety Code §574.009 because the two medical
          certificates on file did not comply with Texas Health and Safety
          Code §574.011.


         B.       ISSUE TWO .................................................................................. 41-46

         The evidence was legally and factually insufficient to support the trial
         court’s finding, by clear and convincing evidence, that J.A. would, as a
         result of mental illness cause serious harm to herself because the majori-
         ty of the expert’s testimony regarding a recent act was inadmissible
         hearsay.


         C.       ISSUE THREE............................................................................... 47-60

         The evidence was legally and factually insufficient to support the trial
         court’s finding, by clear and convincing evidence, that J.A. would, as a
         result of mental illness cause serious harm to others because the majority
         of the expert’s testimony regarding a recent act was inadmissible hear-
         say.

         D.       ISSUE FOUR ................................................................................. 60-66

         The evidence was legally and factually insufficient to support the trial
         court’s finding, by clear and convincing evidence, that J.A. would, as a
         result of mental illness, (i) continue to suffer severe and abnormal
         mental, emotional, or physical distress; (ii) continue to experience
         substantial mental or physical deterioration of the proposed pa-
         tient’s ability to function independently, to provide for the pro-
         posed 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.


PRAYER ................................................................................................................ 30

                                                            4
CERTIFICATE OF COUNSEL REGARDING WORD COUNT...................................... 68

CERTIFICATE OF SERVICE ................................................................................... 68

APPENDIX:

        App. A:          All Statutes




                                                     5
                                    INDEX OF AUTHORITIES


Case Law:

1.    Addington v. Texas, 99 S. Ct., at 1809 ........................................... 38,39

2.    Broussard v. State, 827 S.W.2d 619, 622, 1992 WL 63150 (Tex.
      App.—Corpus Christi 1992, no writ) .................................................. 65

3.    De Jarnett v State, 732 S.W.2d 346, 349 (Tex.Crim App.1987). ........... 39


4.    Humphrey v. Cady, 92 S. Ct. 1048, 1052, (1972),............................... 38

5.    In re B.A., 2016 WL 4628106 (Tex. App.–Tyler Sept. 7, 2016, no pet.)
      (mem. op.) .......................................................................................43,49,62

6.    In re C.H., 89 S.W.3d 17 (Tex. 2002) .................................................... 19

7.    In re M.T., 2017 WL 1018596 (Tex. App.–Fort Worth Mar. 16, 2017,
      no pet.) ...................................................................................................... 19

8.    In re Breeden, 4 S.W.3d 782 (Tex.App.-San Antonio 1999, no pet.). 33

9.    In re State ex el. J. C, 2005 WL 1037610(Tex. App.—Tyler May 5,
      2005, no pet.) ....................................................................................... 33,37

10.   J.M. v. State, 178 S.W.3d 185, 193 (Tex. App—Houston [1st Dist.]
      2005, no pet) ........................................................................ 37,43,49,62

11.   Marroquinv.State, 112 S.W.3d 295 (Tex. App.– El Paso 2003, no pet.)

      .............................................................................................................. 33,37

12.   Parham v. J. R., 442 U.S. 584, 602-4 (1979) ......................................... 21


                                                          6
13.   State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010)...........................42,48,62

14.   State ex rel. E.A., 2015 WL 5173036 at *9 (Tex. App.–Houston [14th
      Dist.] Sept. 3, 2015, no pet.) (mem. op.) ........................................ 33,37

15.   State ex rel. L.A., 2015 WL 4381340 at *3–5, (Tex. App.–Texarkana
      July 17, 2015, no pet.) (mem. op.) ........................................... 35,38,40

16.   State for A.K., 2018 WL 1181055, at *4 (Tex. App.—Tyler Mar. 7,
      2018, no pet.) ....................................................................... 37,43,49,62


17.   State for B.A., 2016 WL 4628106, at *3 (Tex. App.—Tyler Sept. 7,
      2016, no pet.) .................................................................37,43,49,57,62

18.   (State for G.H., 2018 WL 345788, at *7 (Tex. App.—Tyler Jan. 10,
      2018, no pet.) ...................................................................... 37,43,49,62

19.   State ex rel. S.K., 2013 WL 1867626 (Tex. App.—Texarkana May 3,
      2013, no pet.) ....................................................................... 38,43,49,62

20.   State ex rel. C.B., 12-11-00089-CV, 2011 WL 3918686 (Tex. App.—
      Tyler Sept. 7, 2011, no pet.)................................................. 38,43,49,63

21.   State ex rel. S.W., 356 S.W.3d 576 (2011) ........................................... 65



22.   State ex rel. 2005 WL 1037610(Tex. App.—Tyler May 5, 2005, no
      pet.) ...................................................................................................... 32,36

23.   Strickland v. Washington, 104 S. Ct. 2052, 2060, (1984)........... 15,22,34

24.   T.G. v. State, 7 S.W.3d 248, 252 (Tex. App.–Dallas 1999, no pet.).et.)49,62

25.   Vitek v. Jones, 100 S. Ct. 1254, 1263, 63 L. Ed. 2d 552 (1980). .... 38,39


                                                         7
Statutes:

1.   Texas Health & Safety Code §572.001(c-1) ..................................... 21

2.   Texas Health & Safety Code §573.003(16) ...................................... 13

3.   Texas Health & Safety Code §574.009...... 16,18,31,32,33,36,37,38,40

4.   Texas Health & Safety Code §574.010............................................. 24

5.   Texas Health & Safety Code §574.011..........................31,32,34,36,40

6.   Texas Health & Safety Code §574.012. ................................ 15,29,30

7.   Texas Health & Safety Code §574.004. .......................15,22,23,24,29

8.   Texas Health & Safety Code §574.106(a–1) .................................... 18

9.   Texas Health & Safety Code §574.034...... 13,18,41,42,47,48,61,62,63




                                          8
              STATEMENT REGARDING ORAL ARGUMENT


      J.A. believes that oral argument is necessary and would assist the Court in
making its determination because the issues in this case are complex in that it in-
volves an involuntary commitment for a minor child and the statute is changing
September 1,2019, which will greatly affect this child’s life.


              ABBREVIATIONS AND RECORD REFERENCES


Abbreviations:

1.    Appellant, J.A. will be referred to as “J.A.” or Appellant.”

2.    Appellee, State of Texas will be referred to as “State” or “Appellee.”

Record References:

1.    The Clerk’s Record; 1st Supplemental Clerk’s Record; 2nd Supplemental
      Clerk’s Record will be referred to as “CR” and “1-SCR” and “2-SCR”
      respectively, and will be cited by page(s), where applicable. CR:__; 1-
      SCR:__; 2-SCR:__.

2.    Reporter’s Record will be referred to as “RR” and will be cited by page
      number(s), where applicable. RR:__.

3.    Appellant’s Appendix will be referred to as “App.” and will be cited by
      tab(s) and page number(s), where applicable. App.__:__.




                                          9
                        STATEMENT OF THE CASE


Nature of the Case:         This case involved an involuntary commitment to
                            Terrell State Hospital of a 13 year old child. CR:88

Proceedings in              On May 2, 2019, the trial court held a hearing
the Trial Court:            on the State’s Application for Court-Ordered Men-
                            tal Health Services. RR:1

Trial Court Dispositions:   On May 2, 2019 the trial court signed:
                            Judgment No Jury Court Ordered Temporary Men-
                            tal Health Service In-Patient. CR:97-98.




                                    10
                    ISSUES PRESENTED FOR APPEAL


            JURISDICTIONAL AND CONSTITUTIONAL ARGUMENTS

The Trial Court Lacked Jurisdiction over J.A.
     1. Texas Health & Safety Code Prohibits Minors Being Involuntar-
        ily Committed to InPatient Mental Health Facility

     2. Hearing Should Not Have Been Held and Case Dismissed

     3. J.A. Did Not Have Adequate Legal Representation and a Fair
        Trial

     4. J.A.’s counsel did not comply with Texas Health & Safety Code
        § 574.004

     5. The trial Court did not comply with Texas Health & Safety
        Code § 574.012

                                    ISSUE ONE
      The trial court erred by not dismissing the case in accordance to
      Texas Health and Safety Code §574.009 because the two medical
      certificates on file did not comply with Texas Health and Safety
      Code §574.011.
                                    ISSUE TWO

     The evidence was legally and factually insufficient to support the trial
     court’s finding, by clear and convincing evidence, that J.A. would, as a
     result of mental illness cause serious harm to herself because the majori-
     ty of the expert’s testimony regarding a recent act was inadmissible
     hearsay.

                                 ISSUE THREE
     The evidence was legally and factually insufficient to support the trial
     court’s finding, by clear and convincing evidence, that J.A. would, as a
     result of mental illness cause serious harm to others because the majori-
                                     11
       ty of the expert’s testimony regarding a recent act was inadmissible
       hearsay.
                                   ISSUE FOUR
       The evidence was legally and factually insufficient to support the trial
       court’s finding, by clear and convincing evidence, that J.A. would, as a
       result of mental illness, (i) continue to suffer severe and abnormal
       mental, emotional, or physical distress; (ii) continue to experience
       substantial mental or physical deterioration of the proposed pa-
       tient’s ability to function independently, to provide for the pro-
       posed 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.




                                APPELLANT’S BRIEF


       Appellant J.A., submits this Appellant’s Brief and, as grounds there-

fore, would show as follows:

                                              I.
                                 STATEMENT OF FACTS


       As a result of a CPS case, Guardian, great aunt, Lou Autry was ap-

pointed Sole Managing Conservator of J.A.1 (RR 11:24 12:1) Guardian, great

aunt, Lou Autry voluntarily admitted J.A. to Terrell State Hospital on June


1
 The record references Guardian, great aunt, Lou Autry as J.A.’s Guardian, but Guardian, great
aunt, Lou Autry does not have Guardianship of the child through a legal proceeding in the Pro-
bate Court, instead she has Sole Managing Conservatorship of J.A.
                                              12
25, 2018 and was discharged by Dr. Sobin on July 13, 2018. (RR 66:2-3) On

August 11, 2018, Guardian, great aunt, Lou Autry voluntarily admitted J.A.

to Terrell State hospital (TSH) for aggressive behavior against Guardian,

great aunt, Lou Autry and J.A.’s sister. (RR 90:2-4) J.A. was raped by her

brother between her discharge on July 13, 2018 and readmission August 11,

2018. J.A. was treated by Dr. Sobin and was diagnosed as having PTSD and

DMDD (RR 66:20-25 67:1) On September 10, 2018, Terrell State Hospital

discharged J.A. to Waco Youth Center. (RR 66:2-3J.A. was involved in a

fight with another patient and a hospital employee was injured during the

process of breaking up the fight. (43:11-13) Guardian, great aunt, Lou Autry

was given a choice of taking J.A. home or allowing Waco Youth Center to

file an Application for Court Ordered Mental Health Services. (RR 43:8-9).

On January 11, 2019, J.A. was transported to Terrell Hospital.

      Dr. El-Awady began treating J.A. January 11, 2019 and diagnosed her

with Disruptive Mood Dysregulation Disorder (DMDD). (RR 17:19). Dr. El-

Awady testified that J.A. has angry outbursts that are disproportional to the

events causing the outbursts, which is a symptom of DMDD. (RR 22:11-18)

J.A. had to be restrained on February 7, 2018 and February 27, 2018. (RR

19:7-19). J.A. required emergency medication and behavioral interven-

                                     13
tion/redirection from Terrell State Hospital staff on multiple occasions. (RR

28:3-6). On April 1, 2019, J.A. was involved in a fight with another un-

known patient. (RR 28:20; RR 31:14). A hospital employee attempted to

break up the fight, by restraining J.A. (RR 28:20; RR 31:14). During the re-

straint, the employee’s leg was injured and was sent to the emergency room

for treatment. (RR 31:25 32:2).


                                       II.
                        SUMMARY OF THE ARGUMENT

      Before a person can be ordered confined to a hospital on a temporary

basis, the State must prove by clear and convincing evidence that the pro-

posed patient is mentally ill and also establish at least one of the criteria set

forth in Texas Health & Safety Code §574.034(a)(2). The trial court ren-

dered a judgment that J.A. has a mental illness as defined by Texas Health &

Safety Code §573.003(16) and is likely to cause serious harm to herself or

others and has severe and abnormal mental, emotional, or physical distress,

her inability to provide for her basic needs or make an informed decision

about whether to submit to treatment. TEX. HEALTH & SAFETY CODE

§574.034(a)(2). J.A. asserts, the trial court did not have jurisdiction to hear

the case, but even if it did, the State did not prove by clear and convincing

                                       14
evidence that 1) J.A.is likely to cause serious harm to herself; 2) J.A. is likely

to cause serious harm to herself; 3) J.A. is experiencing substantial mental or

physical deterioration of her ability to function independently, which is ex-

hibited by her inability, to provide for the proposed patient's basic needs, in-

cluding food, clothing, health, or safety.

      1. The Trial Court Lacked Jurisdiction over J.A. Because Texas
         Health & Safety Code Prohibits Minors Being Involuntarily
         Committed


      Texas law does not allow a minor to be involuntarily committed to an

inpatient mental health facility. The Texas Health and Safety Code instead

only allows for the voluntary admission of a minor to an inpatient mental

health facility

      J. A. is a minor. .(CR:48-49) Where no statute provides for the invol-

untary commitment of a minor to a mental health facility, the trial court

lacked jurisdiction to involuntarily commit J.A. to an inpatient psychiatric fa-

cility. Therefore, the trial court erred in committing J.A. to Terrell State

Hospital for no more than 90 days and the judgment should be reversed.

      2. J.A.’s Legal Representation did not Meet the Strickland
         Threshold


                                       15
      Because J.A. was being involuntarily committed to Terrell State Hospi-

tal (TSH) and potentially losing her right to liberty, under the Sixth Amend-

ment, J.A. was entitled to effective trial counsel. Strickland v. Washington,

466 U.S. at 688 (1984) Because J.A.’s trial counsel was not able to perform

all of the duties required under Texas Health & Safety Code §574.004, J.A.’s

representation did not meet the Strickland threshold.


   2. The trial Court did not comply with Texas Health & Safety Code §
      574.012

      J.A.’s counsel attempted to put on testimony regarding the least restric-

tive means of treatment, but the trial court did not want to hear the testimony.

(RR 56:23; 57; 58; 84:24-25; 96) The delicate facts and circumstances of this

case, makes this statute even more important for the Court to follow its statu-

tory duty so that the court could have determined if there was a lesser restric-

tive means for this child. Therefore, the trial court failing to complete his du-

ties has resulted in harmful error to J.A. and the trial court erred in commit-

ting J.A. to Terrell State Hospital for no more than 90 days and the judgment

should be reversed.

      3.    Hearing Should Not Have Been Held and Case Dismissed

      Texas Health and Safety Code §574.009(a) mandates that a hearing
                                       16
“may not be held unless there are on file with the court at least two certifi-

cates of medical examination for mental illness completed by different physi-

cians each of whom has examined the proposed patient during the preceding

30 days.” TEX. HEALTH & SAFETY CODE §574.009(a) Subsection (d) of

§574.009 Texas Health and Safety Code states “if the certificates required

under this section are not on file at the time set for the hearing on the applica-

tion, the judge shall dismiss the application and order the immediate release

of the proposed patient if that person is not at liberty.” TEX. HEALTH &

SAFETY CODE §574.009(d).

        Dr. El-Awady’s CME was deficient because, inter alia, No. 7 on his

CME should have had specific facts of recent examples of how J.A. was 1)

likely to cause harm to herself; 2) likely to cause harm to others; or 3)

continue to suffer severe and abnormal mental, emotional, or physical

distress and continue to deteriorate in her ability to function inde-

pendently and unable to make a rational and informed decisions as to

submit to treatment. (CR:92-95) But instead there are only conclusory

statements without any facts or dates of J.A.’s alleged behavior: “patient has

been aggressive” “repeated EMI” “placed in restraint” “patient not taking any

responsibility for her actions.” (CR:92-95) If being “aggressive” and “not

                                       17
taking responsibility for actions is enough to request a hearing to involuntari-

ly commit a person and force them to accept mental health treatment, many

people in Texas should be committed to Terrell State Hospital, J.A.’s counsel

included.

       Dr. Sobin’s CME was deficient because, inter alia, No. 7 on his CME

should have had specific facts of recent examples of how J.A. was 1) likely

to cause harm to herself; 2) likely to cause harm to others; or 3) continue

to suffer severe and abnormal mental, emotional, or physical distress

and continue to deteriorate in her ability to function independently and

unable to make a rational and informed decisions as to submit to treat-

ment. (CR:92-95) But instead there are only conclusory statements, without

any facts or dates of J.A.’s alleged behavior: “Jocelyn has an extensive histo-

ry of severe aggression” “has tried to harm herself” “has not responded to

treatment.” (CR:92-95) Again, these conclusory statements could describe

many Texans And if these conclusory statements are deemed “enough

facts/evidence” to request a hearing to have a person involuntarily committed

to a mental health facility, doctors become too powerful and can have anyone

involuntarily committed and forced to accept mental health treatment.



                                      18
        Because the CME’s were deficient, inter alia, for not stating the spe-

cific facts supporting the doctor’s opinion and those deficiencies were there-

fore equivalent to not having CME’s on file at all. Because the CME’s did

not comply with TEX. HEALTH & SAFETY CODE §574.009(a)(d), for not

having sufficient facts supporting Dr. El-Awady and Dr. Sobin’s opinion, the

trial court should have dismissed the case. In this case, the CME’s did not

comply with the statute and caselaw referenced above and therefore the trial

court erred by not dismissing the case and immediately releasing J.A.

                            STANDARD OF REVIEW

      The State’s burden of proof in an Application for Court Ordered Men-

tal Health Services is clear and convincing evidence. See Tex. Health & Safe-

ty Code §§ 574.034(a), 574.106(a–1). “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 estab-

lished.” State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010) In reviewing evi-

dence for legal sufficiency, under a clear and convincing standard, the Court

must review all the evidence in the light most favorable to the finding to de-

termine whether a reasonable factfinder could have formed a firm belief or

conviction that the finding was true. Id. The Court should resolve disputed

                                       19
fact questions in favor of the finding if a reasonable factfinder could have

done so, and should disregard all contrary evidence unless a reasonable fact-

finder could not have done so. Id.

         When evaluating the factual sufficiency of the evidence under the clear

and convincing standard, the Court should view all of the evidence in a neu-

tral light and determine whether a reasonable fact-finder could form a firm

belief or conviction that a given finding was true. See In re C.H., 89 S.W.3d

17, 18–19 (Tex. 2002); In re M.T., 2017 WL 1018596, at *5 (Tex. App.–Fort

Worth Mar. 16, 2017, no pet.)

                                                III.
                                           ARGUMENT

                   GENERAL OBJECTION TO THE CLERK’S RECORD

         J.A. hereby informs the Court that the Clerk’s Record is inaccurate and

portions of the Clerk’s Record should be removed or not considered in this

appeal because the documents were not entered into evidence at trial. The

documents that were filed in the Clerk’s Record from (CR:6-47) were in vio-

lation of the Health Insurance Portability and Accountability Act of 1996 and

without J.A.’s consent and obtained without a valid subpoena.2 (CR:1-103)


2
    J.A.’s Counsel did not find a subpoena in the Clerk’s Record
                                                 20
Further, the State did not serve J.A.’s counsel with the documents upon filing

the documents in the Clerk’s Record. In fact, J.A.’s counsel had to request

every document that she received in this case. It appears the State is attempt-

ing to have this Court review evidence that was not before the trial court and

J.A. prays this Court will not review the Clerk’s Records from page 6 through

page 47 to make its ruling.3

       1.     The Trial Court Lacked Jurisdiction over J.A. Because Texas
              Health & Safety Code Prohibits Minors Being Involuntarily
              Committed

       Texas law does not allow a minor to be involuntarily committed to an
inpatient mental health facility. The Texas Health and Safety Code instead
only allows for the voluntary admission of a minor to an inpatient mental
health facility

       Applicable Law

       Title 7, Subtitle C of the Texas Health and Safety Code governs the
commitment and admission of individuals to inpatient mental health facili-
ties, which does not grant the trial court jurisdiction to hold a hearing or order
a minor involuntarily committed to an inpatient mental health facility.

       Chapter 572 of the Health & Safety Code explicitly states “[a] minor

younger than 18 years of age may not be involuntarily committed unless pro-
3
  J.A.’s counsel believes J.A.’s case was prejudiced by the State filing those documents in the
Clerk’s Record and the State was attempting to circumvent the Texas Rules of Evidence by filing
the documents (CR:6-47)
                                              21
vided by this chapter, other state law, or department rule.” TEX. HEALTH &

SAFETY CODE §572.001(c-1)(emphasis added). There is nothing in Chapter

572 that provides for involuntary commitment, the entire chapter deals only

with voluntary admissions to inpatient mental health facilities. No depart-

ment rule or other state law explicitly discusses the involuntary commitment

of a minor.

      Section 572.001(c-1) has been amended by Senate Bill 1238, which

passed during the 2019 legislative session, clarifying that minors shall not be

involuntarily committed to inpatient mental health facilities unless provided

by department rule, or under Chapter 55 of the Family Code. See Acts 2019,

86th Leg., S.B. 1238, § 2, eff. Sept. 1, 2019. The reasoning behind this stat-

utory provision is reasonable. Parents and guardians retain a substantial, if

not the dominant, role in medical decision making, which includes the deci-

sion to institutionalize their child, and that the traditional presumption that

the parents and guardians act in the best interests of their child. Parham v. J.

R., 442 U.S. 584, 602-4 (1979)

      Facts and Legal Argument

      J. A. is a minor.(CR:48-49) Where no statute provides for the involun-

tary commitment of a minor to a mental health facility, the trial court lacked

                                      22
jurisdiction to involuntarily commit J.A. to an inpatient psychiatric facility.

Therefore, the trial court erred in committing J.A. to Terrell State Hospital for

no more than 90 days and the judgment should be reversed.

      2.    J.A.’s Legal Representation did not Meet the Strickland
            Threshold

      Because J.A. was being involuntarily committed to Terrell State Hospi-

tal (TSH) and potentially losing her right to liberty, under the Sixth Amend-

ment, J.A. was entitled to effective trial counsel. Strickland v. Washington,

466 U.S. at 688 (1984) Because J.A.’s trial counsel was not able to perform

all of the duties required under Texas Health & Safety Code §574.004, J.A.’s

representation did not meet the Strickland threshold.


Applicable Statutory Law

       Sec. 574.004. DUTIES OF ATTORNEY. (a) An attorney represent-
ing a proposed patient shall interview the proposed patient within a reasona-
ble time before the date of the hearing on the application.
       (b) The attorney shall thoroughly discuss with the proposed patient
the law and facts of the case, the proposed patient's options, and the grounds
on which the court-ordered mental health services are being sought. A court-
appointed attorney shall also inform the proposed patient that the proposed
patient may obtain personal legal counsel at the proposed patient's expense
instead of accepting the court-appointed counsel.
       (c) The attorney may advise the proposed patient of the wisdom of
agreeing to or resisting efforts to provide mental health services, but the pro-
posed patient shall make the decision to agree to or resist the efforts. Regard-

                                       23
less of an attorney's personal opinion, the attorney shall use all reasonable ef-
forts within the bounds of law to advocate the proposed patient's right to
avoid court-ordered mental health services if the proposed patient expresses a
desire to avoid the services. If the proposed patient desires, the attorney shall
advocate for the least restrictive treatment alternatives to court-ordered inpa-
tient mental health services.
        (d) Before a hearing, the attorney shall:
               (1) review the application, the certificates of medical examina-
tion for mental illness, and the proposed patient's relevant medical records;
               (2) interview supporting witnesses and other witnesses who will
testify at the hearing; and
               (3) explore the least restrictive treatment alternatives to court-
ordered inpatient mental health services.
        (e) The attorney shall advise the proposed patient of the proposed pa-
tient's right to attend a hearing or to waive the right to attend a hearing and
shall inform the court why a proposed patient is absent from a hearing.
        (f) The attorney shall discuss with the proposed patient:
               (1) the procedures for appeal, release, and discharge if the court
orders participation in mental health services; and
               (2) other rights the proposed patient may have during the period
of the court's order.
        (g) To withdraw from a case after interviewing a proposed patient, an
attorney must file a motion to withdraw with the court. The court shall act on
the motion as soon as possible. An attorney may not withdraw from a case
unless the withdrawal is authorized by court order.
        (h) The attorney is responsible for a person's legal representation un-
til:
               (1) the application is dismissed;
               (2) an appeal from an order directing treatment is taken;
               (3) the time for giving notice of appeal expires by operation of
law; or
               (4) another attorney assumes responsibility for the case.

TEX. HEALTH & SAFETY CODE §574.004


                                       24
       Sec. 574.010. INDEPENDENT PSYCHIATRIC EVALUATION
AND EXPERT TESTIMONY. (a) The court may order an independent
evaluation of the proposed patient by a psychiatrist chosen by the proposed
patient if the court determines that the evaluation will assist the finder of fact.
The psychiatrist may testify on behalf of the proposed patient.
       (b) If the court determines that the proposed patient is indigent, the
court may authorize reimbursement to the attorney ad litem for court-
approved expenses incurred in obtaining expert testimony and may order the
proposed patient's county of residence to pay the expenses.

TEX. HEALTH & SAFETY CODE §574.010

Facts and Legal Argument

      J.A.’s counsel, Tina Montoya,4 (Montoya) had a duty to conduct a rea-

sonably substantial and “independent examination of the facts, circumstanc-

es, pleadings and laws involved.” Strickland v. Washington, 466 U.S. at 688

(1984). In order to do this, Montoya was required to read Texas Health &

Safety Code §574.004 that outlines her duties in representing a mental health

patient, the pertinent portions of the statute are as follows:

        d) Before a hearing, the attorney shall:
               (1) review the application, the certificates of medical examina-
tion for mental illness, and the proposed patient's relevant medical records;
               (2) interview supporting witnesses and other witnesses who will
testify at the hearing; and
               (3) explore the least restrictive treatment alternatives to court-
ordered inpatient mental health services.



      4
          J.A.’s trial and appellate counsel is Tina Montoya
                                                25
       1. J.A. was not adequately represented in accordance to the
          Strickland requirements because TSH refused to provide
          J.A.’s counsel with all of her hospital and physician’s records.

       Tina Montoya received notice on April 2, 2019 that she was court ap-

pointed to represent J.A. and that a hearing was set April 4, 2019. Montoya

requested a continuance under Texas Health & Safety Code §574.005 be-

cause the Certificates of Medical Examinations had been on file for less than

3 days.(CR:48-49). The case was reset to April 18, 2019. (CR:50) J.A.’s

counsel requested a continuance under Texas Health & Safety Code §574.005

because the doctor J.A.’s counsel was going to hire, was not available to tes-

tify on April 18, 2019. (CR:60-61) The prosecutor and J.A.’s counsel agreed

to continue the hearing again until May 2, 2019. (CR:62)

       Montoya sent a subpoena duces tecum to both Terrell State Hospital

(TSH) and Waco Youth Center’s custodian of records, on April 8, 2019 and

April 9, 2019. (CR:73-76) TSH’s lawyer, Tina Carnes, used various sections

in the Texas Health and Safety Code to prevent Montoya from obtaining all

of J.A.’s hospital records, stating she was only entitled to some of J.A.’s

medical records. (CR:67-77) Montoya explained to Carnes that Under Texas

Health & Safety Code §574.003(c), Montoya was entitled to “have access to

all hospital and physician’s records.” (CR:71) See TEX.HEALTH & SAFE-

                                      26
TY CODE §574.003(c). Carnes responded with “I am not sure that chapter

574 speaks to release of records, but the duty of the attorney when represent-

ing the client.” (CR:70) Several emails were sent to Carnes attempting to ob-

tain those medical records. (CR:70-72) In one email Carnes threatened Mon-

toya with further legal action. (CR:72) Specifically, Carnes said “The records

will also be released for that sole purpose and if used for any other purpose

will result in further action, up to and including notification to U.S.H.H.S.

Office of Civil Rights and the court (for additional legal action).” (CR:72)

Montoya finds it disturbing that 1) TSH provided the State with some of

J.A.’s medical records, in violation of HIPPA, but Montoya, never received

those medical records; 2) J.A.’s medical records were filed in the Clerk’s file

without notice to Montoya, in violation of Texas Rules of Civil Procedure 21,

and where the trial court Judge would have access to read J.A.’s medical rec-

ords that were never entered into evidence.5 (CR:6-47) Carnes went on to

make another threat to Montoya about contacting the trial court. (CR:72)

Specifically, Ms. Carnes said “. . .Your client has already been delayed for a

month in getting that treatment due to your representation. Further delay will

be communicated to the court.” (CR:72) On April 16, 2019, I filed a Motion
5
 I have been practicing in front of the trial court Judge for several years and he is always pre-
pared for court.
                                                 27
for Court to Order the Release of Patient’s Records & In the Alternative Mo-

tion for Guardian Ad Litem.6 (CR:67-77)(CR: 99)

         2. J.A. was not adequately represented in accordance to the
            Strickland requirements because she did not have a Guardian
            Ad Litem appointed or the opportunity for an Independent
            Psychiatric Evaluation.


         Montoya also requested that the guardian, great aunt, Lou Autry, sign

the HIPPA release so TSH would release all of J.A.’s hospital and physi-

cian’s records and so that J.A. could have an independent evaluated by an-

other physician.7 (CR:67-77) TSH would not allow J.A. to be evaluated by

another physician without the guardian’s signature. (CR:67-77)                       Montoya

could not get a ruling from the Court on that Motion prior to May 2, 2019

hearing.8 Carnes agreed to have TSH provide Montoya with limited medical

records and directed me to Venonia Arnold, who then indicated she was the

custodian of records, although her signature block says different. (CR:77)




6
  On April 4, 2019, J.A.’s counsel made an oral Motion for the Court to Appoint a Guardian Ad
Litem for the child, but the prosecution objected and Court denied the Motion. J.A.’s counsel did
not request the Reporter’s Record for the April 4, 2019 hearing.
7
  In 15 years of representing TSH patient’s, I’ve never requested an Independent Psychiatric
Evaluation, but with this case it is necessary.
8
  The Prosecutor went on vacation on April 16, 2019 and did not return until April 29, 2019 and
the Judge was out of the office until May 1, 2019. Therefore J.A.’s counsel could not get a hear-
ing scheduled in time before the May 2, 2019 hearing.
                                               28
You will notice at the bottom of Venonia Arnold’s email that Carnes sent her

a message that says “your turn.”(CR:77). 9

       On May 2, 2019, the day of the hearing, I scheduled to meet with J.A.

at 12:00 p.m., like I had been doing for weeks, but when I arrived, TSH re-

fused to bring J.A. to Court until right before court began, J.A., the 13-year-

old child, did not testify. (RR 75:3-7)10

         J.A. needed to have a Guardian Ad Litem appointed to help J.A.’s

counsel to 1) make decisions regarding her case, 2) give permission to sign a

HIPPA form and 3) give permission to have the Independent Psychiatric

Evaluation completed. Montoya believes, after speaking with the expert who

was going to be hired to conduct the evaluation, that based on his testimony

and other mitigating factors, the result would have been different and J.A.

would not have been involuntarily committed to Terrell State Hospital.

As determined by the Supreme Court:

       That a person who happens to be a lawyer is present at trial
       alongside the accused . . . is not enough to satisfy the constitu-
       tional command. The Sixth Amendment recognizes the right to
       the assistance of counsel because it envisions counsel's playing a
       role that is critical to the ability of the adversarial system to pro-

9
  Montoya did not have the same problem with Waco Youth Center, she received all of their rec-
ords.
10
   There is an error in the reporter’s record that says “I visited with my client at noon” and what I
said was “I was supposed to visit with my client at noon”
                                                 29
      duce just results. An accused is entitled to be assisted by an attor-
      ney, whether retained or appointed, who plays the role necessary
      to ensure that the trial is fair.
      Strickland, 466 U.S. at 685. The Sixth Amendment guarantee of effec-

tive assistance of counsel assumes that the appointed counsel will provide

counsel sufficient to make the trial a reliable adversarial testing process. Id.

Montoya did not complete all of her duties required by the statute. See TEX.

HEALTH & SAFETY CODE §574.004.

      Montoya needed all of J.A.’s hospital and physician’s records to

properly represent J.A. and she needed an Independent Psychiatric Evalua-

tion. If Montoya had been able to review all of the all hospital and physi-

cian’s records and hire an expert to conduct the Independent Psychiatric

Evaluation, the result more than likely would have been different. Therefore,

Montoya not fulfilling her duties as J.A.’s court appointed counsel, resulted

in harmful error and the judgment should be reversed.

   3. The trial court did not comply with Texas Health & Safety Code §
      574.012

      Under Texas Health and Safety Code §574.012, the trial court was re-

quired to “direct the local mental health authority to file, before the date set




                                       30
for the hearing, its recommendation for the proposed patient's treatment.”

TEX. HEALTH & SAFETY CODE §574.012

       Applicable Law

         Sec. 574.012. RECOMMENDATION FOR TREATMENT. (a) The
local mental health authority in the county in which an application is filed
shall file with the court a recommendation for the most appropriate treatment
alternative for the proposed patient.
         (b) The court shall direct the local mental health authority to file, be-
fore the date set for the hearing, its recommendation for the proposed pa-
tient's treatment.
         (c) If outpatient treatment is recommended, the local mental health
authority will also file a statement as to whether the proposed mental health
services are available.
         (d) The hearing on an application may not be held before the recom-
mendation for treatment is filed unless the court determines that an emergen-
cy exists.
         (e) This section does not relieve a county of its responsibility under
other provisions of this subtitle to diagnose, care for, or treat persons with
mental illness.
         (f) This section does not apply to a person for whom treatment in a
private mental health facility is proposed.

TEX. HEALTH & SAFETY CODE §574.012

Facts and Legal Argument

      J.A.’s counsel attempted to put on testimony regarding the least restric-

tive means of treatment, but the trial court did not want to hear the testimony.

(RR 56:23; 57; 58; 84:24-25; 96) The delicate facts and circumstances of this

case, makes this statute even more important for the Court to follow its statu-
                                        31
tory duty so that the court could have determined if there was a lesser restric-

tive means for this child. Therefore, the trial court failing to complete his du-

ties has resulted in harmful error to J.A. and the trial court erred in commit-

ting J.A. to Terrell State Hospital for no more than 90 days and the judgment

should be reversed.

A.    Issue One.

       The trial court abused its discretion by not dismissing the case in
       accordance to Texas Health and Safety Code §574.009 because
       the two medical certificates on file did not comply with Texas
       Health and Safety Code §574.011.

Applicable Statutory Law

      Texas Health and Safety Code §574.009(a) mandates that a hearing

“may not be held unless there are on file with the court at least two certifi-

cates of medical examination for mental illness completed by different physi-

cians each of whom has examined the proposed patient during the preceding

30 days.” TEX. HEALTH & SAFETY CODE §574.009(a) Subsection (d) of

§574.009 Texas Health and Safety Code states “if the certificates required

under this section are not on file at the time set for the hearing on the applica-

tion, the judge shall dismiss the application and order the immediate release

of the proposed patient if that person is not at liberty.” TEX. HEALTH &


                                       32
SAFETY CODE §574.009(d).

      Texas Health and Safety Code §574.011 mandates that the Certificate

of Medical Examination for Mental Illness must include:

         (1) the name and address of the examining physician;
         (2) the name and address of the person examined;
         (3) the date and place of the examination;
         (4) a brief diagnosis of the examined person's physical and mental
condition;
         (5) the period, if any, during which the examined person has been
under the care of the examining physician;
         (6) an accurate description of the mental health treatment, if any,
given by or administered under the direction of the examining physician; and
         (7) the examining physician's opinion that:
                 (A) the examined person is a person with mental illness; and
                 (B) as a result of that illness the examined person is likely to
cause serious harm to the person or to others or is:
                 (i) suffering severe and abnormal mental, emotional, or phys-
ical 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) not able to make a rational and informed decision as to
whether to submit to treatment.
TEX. HEALTH & SAFETY CODE §574.011.

Applicable Case Law

      The statutory requirements for an involuntary commitment are strict

because an involuntary commitment is a drastic measure. State ex rel. 2005

                                       33
WL 1037610, at *4 (Tex. App.—Tyler May 5, 2005, no pet.) Citing, In re

Breeden, 4 S.W.3d 782, 789 (Tex.App.-San Antonio 1999, no pet.). Several

appellate courts across Texas have ruled that a trial court should dismiss Ap-

plications for Court Ordered Mental Health Service if the CME’s on file are

not in strict compliance with Texas Health & Safety Code §574.009(d). see,

e.g., State ex rel. E.A., 2015 WL 5173036 at *9 (Tex. App.–Houston [14th

Dist.] Sept. 3, 2015, no pet.) (mem. op.) (“Because two certificates of medi-

cal examination for mental illness were not on file at the time the application

hearing was set as required by section 574.009, the trial court should have

dismissed the application.”); State ex rel. L.A., 2015 WL 4381340 at *3–5,

(Tex. App.–Texarkana July 17, 2015, no pet.) (mem. op.) (concluding that

trial court erred in conducting commitment hearing because one of certifi-

cates on file was stale: the physician had not examined the proposed patient

within 30 days of hearing); Marroquin v. State, 112 S.W.3d 295, 303–04

(Tex. App.–El Paso 2003, no pet.) (concluding that conducting commitment

hearing “with only one proper certificate on file was harmful error”) In re

State ex el. J. C, 2005 WL 1037610, at *4 (Tex. App.—Tyler May 5, 2005,

no pet.) (ruling that Dr. Plyler's certificate did not conform to the statutory

requirements, and the trial court erred in conducting a hearing on the applica-

                                      34
tion for court-ordered temporary mental health services and entering an order

of commitment.)

Facts

        On April 2, 2019, the State filed an Application for Court Ordered

Mental Health Services and two Physician’s Certificate of Medical Examina-

tion for Mental Illness completed by Dr. El-Awady and Dr. Sobin to begin

the process of involuntarily committing J.A. to Terrell State Hospital.11 (CR

90) On April 29, 2019, the State filed the same two Physician’s Certificate of

Medical Examination for Mental Illness that were completed on April 2,

2019. (CR 92-94) However, J.A.’s counsel was never served a copy of the

April 29, 2019 filings. (RR 9:25; RR 10:1) At the May 2, 2019 hearing,

J.A.’s counsel objected to both Dr. El-Awady and Dr. Sobin’s Certificates of

Medical Examination (“CME’s”) complaining that the CME’s did not com-

ply with Texas Health and Safety Code §574.011 requirements. (RR 4:7-14)

         Dr. El-Awady’s CME was deficient because, inter alia, No. 7 on his

CME should have had specific facts of recent examples of how J.A. was 1)

likely to cause harm to herself; 2) likely to cause harm to others; or 3)


11
  The Clerk’s Record does not have the CME’s that were filed on April 2, 2019 that began the
original mental health commitment hearing, a quick review during the hearing revealed the
CME’s filed on April 29, 2019 were identical to the April 2, 2019.
                                              35
continue to suffer severe and abnormal mental, emotional, or physical

distress and continue to deteriorate in her ability to function inde-

pendently and unable to make a rational and informed decisions as to

submit to treatment. (CR: But instead there are only conclusory statements

without any facts or dates of J.A.’s alleged behavior: “patient has been ag-

gressive” “repeated EMI” “placed in restraint” “patient not taking any re-

sponsibility for her actions.” (CR: If being “aggressive” and “not taking re-

sponsibility for actions is enough to request a hearing to involuntarily commit

a person and force them to accept mental health treatment, many people in

Texas should be committed to Terrell State Hospital, J.A.’s counsel included.

       Dr. Sobin’s CME was deficient because, inter alia, No. 7 on his CME

should have had specific facts of recent examples of how J.A. was 1) likely

to cause harm to herself; 2) likely to cause harm to others; or 3) continue

to suffer severe and abnormal mental, emotional, or physical distress

and continue to deteriorate in her ability to function independently and

unable to make a rational and informed decisions as to submit to treat-

ment. (CR: But instead there are only conclusory statements, without any

facts or dates of J.A.’s alleged behavior: “Jocelyn has an extensive history of

severe aggression” “has tried to harm herself” “has not responded to treat-

                                      36
ment.” (CR: Again, these conclusory statements could describe many Texans

And if these conclusory statements are deemed “enough facts/evidence” to

request a hearing to have a person involuntarily committed to a mental health

facility, doctors become too powerful and can have anyone involuntarily

committed and forced to accept mental health treatment.

Law Applied to Facts

         1. CME’s Did Not Comply with TEX. HEALTH & SAFETY
            CODE §574.009(a)(d).

       Because the CME’s were deficient, inter alia, for not stating the specif-

ic facts supporting the doctor’s opinion and those deficiencies were therefore

equivalent to not having CME’s on file at all. (CR: J.A.’s Counsel argued

that the trial court should not hold a hearing because 1) the CME’s did not

strictly comply with Texas Health and Safety Code §574.009(a)(d); 2) the tri-

al court did not have jurisdiction to hear the case without the CME’s being on

file at the time set for the hearing; and 3) the trial court should dismiss the

case in accordance to Texas Health and Safety Code §574.011.12 (RR: State

ex rel. 2005 WL 1037610, at *4 (Tex. App.—Tyler May 5, 2005, no pet.)


12
  In full disclosure, the undersign admits that the caselaw on this issue is not settled law as many
cases have ruled that not having the CME’s on file are not jurisdictional, but that does not negate
the Judge’s requirement to follow the statute and dismiss the case regardless if this Court see’s
the deficiencies in the CME’s are jurisdictional or not.
                                                37
State ex rel. E.A., 2015 WL 5173036 at *9 (Tex. App.–Houston [14th Dist.]

Sept. 3, 2015, no pet.) (mem. op.); State ex rel. L.A., 2015 WL 4381340 at

*3–5, (Tex. App.–Texarkana July 17, 2015, no pet.) (mem. op.); Marroquin

v. State, 112 S.W.3d 295, 303–04 (Tex. App.–El Paso 2003, no pet.); and In

re State ex el. J. C, 2005 WL 1037610, at *4 (Tex. App.—Tyler May 5, 2005,

no pet.)

           2. The CME’s Did Not Comply with TEX. HEALTH & SAFETY
              CODE §574.009(a)(d) because they were not supported by
              facts of J.A.’s Specific Behavior.

       Because the CME’s did not comply with TEX. HEALTH & SAFETY

CODE §574.009(a)(d), for not having sufficient facts supporting Dr. El-

Awady and Dr. Sobin’s opinion, the trial court should have dismissed the

case. The Tyler Court of Appeals stated “An expert opinion recommending

commitment must be supported by the factual bases on which it is grounded

and not simply recite the statutory criteria. What is necessary is the expert’s

description of the patient’s specific behaviors on which the expert’s opinion

is based.” State for B.A., 2016 WL 4628106, at *3 (Tex. App.—Tyler Sept.

7, 2016, no pet.) (Citing J.M. v. State, 178 S.W.3d 185, 193 (Tex. App—

Houston [1st Dist.] 2005, no pet) See also, State for A.K., 2018 WL 1181055,

at *4 (Tex. App.—Tyler Mar. 7, 2018, no pet.); (State for G.H., 2018 WL

                                      38
345788, at *7 (Tex. App.—Tyler Jan. 10, 2018, no pet.); State ex rel. S.K.,

2013 WL 1867626, at *3 (Tex. App.—Texarkana May 3, 2013, no pet.);

State ex rel. C.B., 12-11-00089-CV, 2011 WL 3918686, at *4 (Tex. App.—

Tyler Sept. 7, 2011, no pet.)

       3. Because the CME’s Did Not Comply with TEX. HEALTH &
          SAFETY CODE §574.009(a)(d) this Appeal Should Be Re-
          versed Without Further Analysis.

      Most if not all of the cases cited above in subsection 2, went on to re-

view the entire record to determine if the evidence was legally and factually

sufficient to support the judgment itself, instead of dismissing the case as re-

quired by Texas Health & Safety Code §574.009(d). The provision that two

certificates must be on file at the time of the hearing is mandatory. State ex

rel L.A., 2015 WL 4381340, at *1 (Tex.App.–Texarkana July 17, 2015, no

pet.) (mem. op.).

      The United States Supreme Court in Vitek v. Jones, recognized that for

the ordinary citizen, commitment to a mental hospital produces “a massive

curtailment of liberty,” Humphrey v. Cady, 92 S. Ct. 1048, 1052, (1972), and

in consequence “requires due process protection.” Addington v. Texas, 99

S.Ct. 1804, 1809, (1979); O'Connor v. Donaldson, 95 S.Ct. 2486, 2496,

(1975). The loss of liberty produced by an involuntary commitment is more

                                      39
than a loss of freedom from confinement. It is indisputable that commitment

to a mental hospital “can engender adverse social consequences to the indi-

vidual” and that “[w]hether we label this phenomena ‘stigma’ or choose to

call it something else . . . we recognize that it can occur and that it can have a

very significant impact on the individual.” Addington v. Texas, 99 S. Ct., at

1809. Vitek v. Jones, 100 S. Ct. 1254, 1263, 63 L. Ed. 2d 552 (1980).

          J.A.’s involuntary commitment to Terrell State Hospital is a direct at-

tack on her constitutional right of not being deprived of liberty without due

course of law under the Texas Constitution and due process of the law under

the United States Constitution. TEX. CONST.                ART.   I, § 19   AND    U.S. CONST.

AMEND.     XIV, § 1 To that end, the statutory requirement of two CME’s to be

“on file at the time set for the hearing on the application” is equivalent to the

requirement of the police being required to obtain a warrant prior to arresting

a person. As a general rule, police officers must always get an arrest warrant

before taking someone into custody.13

arnett v. State, 732 S.W.2d 346, 349 (Tex.Crim.App.1987). Similarly, the

State must file two CME’s that are sworn under oath and contain detailed



13
   There are exceptions to arrest warrant requirements, but those exceptions are not relevant to
illustrate to this Court the similarities in the requirement of two CME’s and an arrest warrant.
                                                40
facts to explain the doctor’s opinion. TEX. HEALTH & SAFETY CODE

§574.009 and §574.011.

      A mental health commitment hearing is civil in nature, but because

one’s liberty is going to be deprived, the protections afforded a defendant in a

criminal case should be equally available to a mental health patient who is at

risk of being confined against her will. If this Court declines to dismiss this

case and moves forward with reviewing the entire record to determine if the

evidence is legally or factually sufficient, the Court is essentially allowing

J.A. to continue to be confined in Terrell State Hospital without due process

of the law. The two CME’s required to be on file at the time set for the hear-

ing on the application, is the due process element that prevents the State from

rounded up persons on the street and confining them to a mental facility

without good cause. That good cause being the requirement of two CME’s to

be on file at the time set for the hearing on the application.

Conclusion

      In this case, the CME’s did not comply with the statute and caselaw

referenced above and therefore the trial court erred by not dismissing the case

and immediately releasing J.A. Therefore, the trial court’s judgment should

be reversed.

                                        41
B.    Issue Two.

      The evidence was legally and factually insufficient to support the trial
      court’s finding, by clear and convincing evidence, that J.A. would, as a
      result of mental illness cause serious harm to herself because the majori-
      ty of the expert’s testimony regarding a recent act was inadmissible
      hearsay.

Applicable Statutory Law

      Before a person can be ordered confined to a hospital on a temporary

basis, the State must prove by clear and convincing evidence that the pro-

posed patient is mentally ill and also establish at least one of the criteria set

forth in Texas Health & Safety Code §574.034(a)(2). Texas Health & Safety

Code §574.034(a)(2) states as follows:

       (a) The judge may order a proposed patient to receive court-ordered
temporary inpatient mental health services only if the judge or jury finds,
from clear and convincing evidence, that:

       (1) the proposed patient is a person with mental illness; and
       (2) as a result of that mental illness the proposed patient:
               (A) is likely to cause serious harm to the proposed patient;
               (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 dete-
                       rioration of the proposed patient's ability to function
                       independently, which is exhibited by the proposed pa-
                       tient's inability, except for reasons of indigence, to
                       provide for the proposed patient's basic needs, includ-
                       ing food, clothing, health, or safety; and
                                       42
                       (iii) unable to make a rational and informed decision
                       as to whether or not to submit to treatment.

Texas Health & Safety Code §574.034(d) states as follows:

        (d) To be clear and convincing under Subsection (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.

TEX. HEALTH & SAFETY CODE §574.034(d)

Applicable Case Law

      J.A. can only be involuntarily committed to TSH if the State proves by

clear and convincing evidence that J.A. is mentally ill and also establish at

least one of the additional criteria set forth in section 574.034(a)(2). See TEX.

HEALTH & SAFETY CODE ANN. § 574.034(a)(2). In accordance to Tex-

as Health & Safety Code 574.034(b), the State must present evidence of a re-

cent overt act or a continuing pattern of behavior that tends to confirm: the

likelihood of serious harm to the proposed patient. The Texas Supreme Court

in State v. K.E.W., 315 S.W.3d 16, 24, 53 Tex. Sup. Ct. J. 969, 2010 WL

2635981 (Tex. 2010) held that the expressed standard requires that the overt



                                       43
act or pattern of conduct be “to some degree probative of a finding that seri-

ous harm to others is probable if the person is not treated.”

         Expert testimony confirming mental illness, standing alone, will not

support an involuntary commitment. In re B.A., 2016 WL 4628106, at *3

(Tex. App.–Tyler Sept. 7, 2016, no pet.) (mem. op.); see T.G. v. State, 7

S.W.3d 248, 252 (Tex. App.–Dallas 1999, no pet.). The Tyler Court of Ap-

peals stated “An expert opinion recommending commitment must be sup-

ported by the factual bases on which it is grounded and not simply recite the

statutory criteria. What is necessary is the expert’s description of the patient’s

specific behaviors on which the expert’s opinion is based.” State for B.A.,

2016 WL 4628106, at *3 (Tex. App.—Tyler Sept. 7, 2016, no pet.) (Citing

J.M. v. State, 178 S.W.3d 185, 193 (Tex. App—Houston [1st Dist.] 2005, no

pet) See also, State for A.K., 2018 WL 1181055, at *4 (Tex. App.—Tyler

Mar. 7, 2018, no pet.); (State for G.H., 2018 WL 345788, at *7 (Tex. App.—

Tyler Jan. 10, 2018, no pet.); State ex rel. S.K., 2013 WL 1867626, at *3

(Tex. App.—Texarkana May 3, 2013, no pet.); State ex rel. C.B., 12-11-

00089-CV, 2011 WL 3918686, at *4 (Tex. App.—Tyler Sept. 7, 2011, no

pet.).

Facts

                                       44
         Dr. El-Awady was the State’s only witness at J.A.’s hearing. (RR 1-64)

Dr. El-Awady’s testimony was nothing more than describing how any child

would react that has been in and out of CPS’s custody and abused and ne-

glected by the people who were charged with protecting her from being re-

peatedly raped, and then blaming her for not doing more to prevent the rape.

RR )14(RR 56:14-25; (RR 61:20-25) (RR 62:1). And shortly thereafter, J.A.

was mistreated in TSH in that she was required to sit in a chair for 12 hours

during “TSP punishment” on several occasions.15 (RR44:14-25; 45; 46:1-18)

Dr. El-Awady’s testimony about a a recent act or pattern of behavior did not

include specific facts and dates to prove that the alleged acts are recent. Most

of Dr. El-Awady’s testimony was not within his personal knowledge and in

admissible hearsay and therefore should not have been considered by the

court.

Dr. El-Awady’s Direct Examination-Self Harm:

MR. WATKINS: Q. In your opinion as a result of the mental illness, is the
patient likely to cause serious harm to herself?



14
   The therapy notes received from TSH for treatment between January 2019 through March
2019 indicated absolutely no treatment for the rape other than a notation in January 2019 by Dr.
Kennedy that said “J.A. regrets not doing more to prevent the rape.”
15
   J.A.’s counsel made a complaint to TSH and will be following up with the Inspector General’s
Office because TSH has not responded to the complaint.
                                               45
THE WITNESS: A. Yes, sir. I mean, like, she has been in restraint several
times. She has verbally and physically assaulted clients and other staff. (RR
27:20-25)

MR. WATKINS: Q. Could you tell the court a little bit about
why you say she harms herself?
THE WITNESS: A. I mean, like, she had episodes of scratching
herself, breaking pieces of tile, breaking pieces of
the wooden door. Again, I witnessed, myself, that
incident when she told another client to go there and
to break the light cover itself, which was on April 6.
I was the one on call. (RR 36:14-21)

MR. WATKINS: Q. When she does those behaviors, do you believe
those are suicidal ideations or attempts? Or is it
less than that, she just wants to harm herself for some
reason?

THE WITNESS: A. It's merely of like self-injurious behavior.
THE WITNESS: So she's harming herself, but not the way to kill herself.
MS. MONTOYA: Not trying to kill herself?
THE WITNESS: No. (RR 37:12-15)

Dr. El-Awady’s Cross Examination-Self Harm:

Q. (BY MS. MONTOYA) During the times that you
said that Jocelyn tried to scratch herself, did you
think she was trying to kill herself?
A. No, ma'am. (55:15-18)

Dr. Sobin’s Direct Examination-Self Harm

MS. MONTOYA: Dr. Sobin, do you think that
Jocelyn cuts herself for attention?
THE WITNESS: That might be partially so.



                                      46
MS. MONTOYA: Q. Do you think she's intending to kill herself? (RR 68:22-
23)
THE WITNESS: A. I don't believe so.

MS. MONTOYA: Q. So if she was released today, do you think that she
would go out and harm herself somehow? (RR 68:25)
THE WITNESS: A. Of course, I haven't been taking care of her
for seven months, but from her past history, I think it is possible.
MS. MONTOYA: Q. But not likely?
THE WITNESS: A. I don't think so. (RR 69:1-6)

Conclusion

      Dr. El-Awady testified that J.A. is self-harming, but not trying to kill

herself. Dr. Sobin’s testified that J.A.’s is self-harming partially for attention

not, but does not think it is likely J.A. would harm herself if released. The

State offered no evidence of specific facts and dates of when J.A. allegedly

committed the acts Dr. El-Awady testified. There was no testimony of any

thoughts of suicide or suicide attempts. There is inadequate testimony that

J.A. committed a recent overt act or pattern of behavior that tends to confirm

“to some degree probative of a finding that serious harm to herself is proba-

ble if she is not treated.” Therefore, the State failed to prove by clear and

convincing evidence that J.A. is likely to harm herself if not treated and the

trial court erred in making that finding and this Court should reverse the trial

court’s decision.

                                       47
C.    Issue Three.

      The evidence was legally and factually insufficient to support the trial
      court’s finding, by clear and convincing evidence, that J.A. would, as a
      result of mental illness cause serious harm to others because the majority
      of the expert’s testimony regarding a recent act was inadmissible hear-
      say.

Applicable Statutory Law

      Before a person can be ordered confined to a hospital on a temporary

basis, the State must prove by clear and convincing evidence that the pro-

posed patient is mentally ill and also establish at least one of the criteria set

forth in Texas Health & Safety Code §574.034(a)(2). Texas Health & Safety

Code §574.034(a)(2) states as follows:

       (a) The judge may order a proposed patient to receive court-ordered
temporary inpatient mental health services only if the judge or jury finds,
from clear and convincing evidence, that:

       (1) the proposed patient is a person with mental illness; and
       (2) as a result of that mental illness the proposed patient:
               (A) is likely to cause serious harm to the proposed patient;
               (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 dete-
                       rioration of the proposed patient's ability to function
                       independently, which is exhibited by the proposed pa-
                       tient's inability, except for reasons of indigence, to


                                       48
                       provide for the proposed patient's basic needs, includ-
                       ing food, clothing, health, or safety; and
                       (iii) unable to make a rational and informed decision
                       as to whether or not to submit to treatment.

Texas Health & Safety Code §574.034(d) states as follows:

        (d) To be clear and convincing under Subsection (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.

TEX. HEALTH & SAFETY CODE §574.034(d)


Applicable Case Law

      J.A. can only be involuntarily committed to TSH if the State proves by

clear and convincing evidence that J.A. is mentally ill and also establish at

least one of the additional criteria set forth in section 574.034(a)(2). See TEX.

HEALTH & SAFETY CODE ANN. § 574.034(a)(2). In accordance to Tex-

as Health & Safety Code 574.034(b), the State must present evidence of a re-

cent overt act or a continuing pattern of behavior that tends to confirm: the

likelihood of serious harm to the proposed patient. The Texas Supreme Court

in State v. K.E.W., 315 S.W.3d 16, 24, 53 Tex. Sup. Ct. J. 969, 2010 WL

2635981 (Tex. 2010) held that the expressed standard requires that the overt
                                       49
act or pattern of conduct be “to some degree probative of a finding that seri-

ous harm to others is probable if the person is not treated.”

         Expert testimony confirming mental illness, standing alone, will not

support an involuntary commitment. In re B.A., 2016 WL 4628106, at *3

(Tex. App.–Tyler Sept. 7, 2016, no pet.) (mem. op.); see T.G. v. State, 7

S.W.3d 248, 252 (Tex. App.–Dallas 1999, no pet.). The Tyler Court of Ap-

peals stated “An expert opinion recommending commitment must be sup-

ported by the factual bases on which it is grounded and not simply recite the

statutory criteria. What is necessary is the expert’s description of the patient’s

specific behaviors on which the expert’s opinion is based.” State for B.A.,

2016 WL 4628106, at *3 (Tex. App.—Tyler Sept. 7, 2016, no pet.) (Citing

J.M. v. State, 178 S.W.3d 185, 193 (Tex. App—Houston [1st Dist.] 2005, no

pet) See also, State for A.K., 2018 WL 1181055, at *4 (Tex. App.—Tyler

Mar. 7, 2018, no pet.); (State for G.H., 2018 WL 345788, at *7 (Tex. App.—

Tyler Jan. 10, 2018, no pet.); State ex rel. S.K., 2013 WL 1867626, at *3

(Tex. App.—Texarkana May 3, 2013, no pet.); State ex rel. C.B., 12-11-

00089-CV, 2011 WL 3918686, at *4 (Tex. App.—Tyler Sept. 7, 2011, no

pet.).



                                       50
Facts

        Dr. El-Awady was the State’s only witness at J.A.’s hearing. (RR 1-64)

Dr. El-Awady’s testimony was nothing more than describing how any child

would react that has been in and out of CPS’s custody and abused and ne-

glected by the people who were charged with protecting her from being re-

peatedly raped, and then blaming her for not doing more to prevent the rape.

RR )16 Dr. El-Awady’s testimony about a recent act or pattern of behavior did

not include specific facts and dates of when the alleged acts occurred. Most

of Dr. El-Awady’s testimony was not in his personal knowledge and in ad-

missible hearsay and therefore should not have been considered by the court.

Dr. El-Awady’s Direct Examination- Harm to Others:

VOIR DIRE EXAMINATION
BY MS. MONTOYA:
Q. Dr. El-Awady --
A. Yes, ma'am.
Q. -- have you seen any personal outbursts with --
A. Yes, ma'am.
Q. Okay. When did you see that?
A. I was involved in at least some of the personal holds and physical re-
straints of the patient. The first one was on February 7th. She started fighting
with the staff. She was placed in a physical hold. I was called to the unit to do
the face-to-face. And I witnessed that myself. (RR 19:1-12)

16
  The therapy notes received from TSH for treatment between January 2019 through March
2019 indicated absolutely no treatment for the rape other than a notation in January 2019 by Dr.
Kennedy that said “J.A. regrets not doing more to prevent the rape.”
                                               51
       Dr. El-Awady gives no details about what the “fighting” 17 was about,
this could merely be a heated disagreement that escalated where staff decid-
ed to restrain to neutralize the situation. And while he testified that he “wit-
nessed that myself”, he stated first that she was in a physical hold AND was
called to the Unit, which indicates he arrived after the incident, which also
explains why he could give no other details about the incident.

A. The second incident was on February 27. She started getting angry, flip-
ping chairs, pulling down the curtains, threatening staff. She, again, was
placed in a physical hold after she was told that she's not going to be having
any coed kind of evaluation with other -- like, when male and female patients
have same activities together.
Q. And you witnessed all of those?
A. Yes, ma'am. I was called in to do the face-to-face after the physical re-
straint.
Q. I'm sorry. Did you say after the physical restraint?
A. Yes. But I also witnessed her flipping the tables and the chairs.
A. And on April 6, I was the doctor on call that weekend. And I was called to
the unit, and I witnessed her having verbal threats toward the staff -- (RR
19:13-25; RR 20:1-3)

Q. So your last personal knowledge of her fighting or verbal threats is April
6, 2019, correct?
A. Yes. I witnessed personally. (RR 20:12-14)

      Dr. El-Awady gives no details about what how J.A. was “threatening
staff” he testified that he witnessed all of those specific acts, but then says he
was called in AFTER the physical restraint. And according to his own testi-
mony, physical restraints are not done until after J.A. acts out. (RR 52:19-25)
Therefore Dr. El-Awady has no personal knowledge of what happened prior
to him arriving on the Unit and observing J.A. flipping tables and chairs.




17
  Merriam-Webster Dictionary defines “fight,” inter alia, as a verbal disagreement or physical
combat.
                                               52
MS. MONTOYA: Your Honor, I would just say that, I would ask the court
not to let Dr. El-Awady to discuss, in general, about fights that happened af-
ter April 6, 2019. (RR 20:22-25)

THE COURT: Okay. That's overruled. And you may continue.

Q. What are the symptoms of disruptive mood dysregulation disorder that are
most prevalent in juvenile patients?
A. Usually the anger outbursts that is out of proportion for the provoking
events itself. These anger outbursts occur on frequent basis. Usually they do
not take responsibility for their action afterwards. In between these episodes,
I mean, like, their mood is mainly irritable and angry as a baseline. (RR 22:8-
18)18

MR. WATKINS: Q. In your opinion as a result of the mental
illness, is the patient likely to cause serious harm to
others?

A. Yes, sir. There's evidence by the several restraints she's been in and physi-
cal hold, at least seven of them. Some of the staff has been physically
harmed, and so one of them, at least, ended up in the emergency room. (RR
28:7-14)

Q. What were the circumstances of the admission?
A. She was transferred from Waco residential treatment center on a 90-day
commitment and medication petition. Apparently, she assaulted a staff mem-
ber over there.
MS. MONTOYA: Objection, Your Honor. I need to take him on voir dire. I
don't think he was in Waco to see the child assaulted anybody. (RR:23-12)
MS. MONTOYA: I would just say under Texas Rules of Evidence 803, Your
Honor, that it does not meet the exception that Mr. Watkins has just said. It
needs to be to describe medical history, past or present symptoms or sensa-
tions, their inception or their general cause. (RR 24:8-13)
18
   It should be noted that the Diagnostic Statistical Manual 5(DSM5) that is written by the Amer-
ican Psychiatric Association, has mandatory criteria that must be met in order for a patient to be
diagnosed with DMDD and “not taking responsibility for their actions” is not a symptom of
DMDD in the DSM5. Further, the symptoms must be observed in at least 2 settings. See Appen-
dix A.
                                               53
MS. MONTOYA: Did you overrule my objection, Your Honor?
THE COURT: It is overruled. (25:4-7)


MR. WATKINS: Q. When did that occur? Was it a staff member that ended
up in the emergency room?
A. Yes, sir.
MR. WATKINS: Q. Could you tell the court the circumstances of that?
A. Patient got in a fight and staff intervened.
MS. MONTOYA: Objection, Your Honor. I don't know that he was there.
THE WITNESS: I wasn't there.
MS. MONTOYA: I don't think he has personal knowledge of that infor-
mation.(RR 28:15-25)

      After admitting Dr. El-Awady did not have personal knowledge, the
Judge still allowed Dr. El-Awady to testify to the facts of the same incident
was inadmissible hearsay evidence and the Judge should not have considered
that evidence in making his ruling:

Q. So you had testified that there's a member of the Terrell State staff who
was sent to the emergency room?
A. Yes, sir.
Q. Could you tell the court more about the circumstances as you understand
them about that incident?
MS. MONTOYA: Your Honor, I'm going to
renew my objection that it's hearsay under there's no exception.
THE COURT: Okay. It's overruled. You can you answer the question.

     The Judge erred in considering Dr. El-Awady’s testimony in his ruling
because it was hearsay and not admissible evidence.

THE WITNESS: Yes, sir.
A. On April 1st, 2019, the patient was placed in the chair restraint for aggres-
sion. She received emergency medication during that time. PNA was injured
and had to go to ER for leg injury.



                                       54
cursing and getting physically assaultive, her ability to tolerate frustration,
her ability to follow the rules, not passing notes to other male clients or hug-
ging and kissing them. (RR 32:10-25;RR 33:1-2)

MR. WATKINS: Q. So for a patient, specifically, Jocelyn, what
do you look for when you're trying to monitor for improvement and see if
she's improving?
A. The -- the diminishing of the anger outburst, if she gets upset and angry to
be able to use more appropriate coping skills other than cursing and getting
physically assaultive, her ability to tolerate frustration, her ability to follow
the rules, not passing notes to other male clients or hugging and kissing them.
Usually it's mainly the behavior and how the patient conduct themselves. (RR
30:11-21)

Dr. El-Awady’s Cross Examination-Harm to Others:


Q. So from April 7th, when she got off of TSP
until April 21st, she did not have any fights or angry outbursts; is that cor-
rect?
A. No, ma'am. She was just redirected about taking other client's food and
she was ignoring staff (RR 47:23-24)

Q. Okay. And do you recall when she had a visit
with her Great-Aunt Lou?
A. She usually come and visit on the weekends.
Q. Okay. If I told you that she came on Saturday and Sunday, Easter week-
end, would that sound right to you?
A. I would believe you, ma'am.
Q. Okay. So that was Saturday and Sunday, would
have been the 20th and 21st, correct? (RR 48:7-15)

Q. So immediately after seeing her great-aunt, she got into a fight; is that cor-
rect?
A. I don't see -- I mean, like, it was immediate
or not. It was the next day.


                                       55
Q. The next day. So the next day after seeing her aunt, she got into a fight.
After being good for about 16, 17 days?
A. I mean, like, if you want to make that correlation time-wise, I guess the
answer would be yes. (48:21-25;49:1-4)

So from April 22nd until April 29th, we can
agree that Jocelyn had to be redirected, correct?
A. Uh-huh.
Q. But she got into no fights, did she?
A. No. (RR 49:10-14)

Q. Okay. And then she saw her great-aunt on
Sunday the 29th.
Q. 28th, I apologize?
A. Yes, thank you.
Q. And then on the next day, Monday the 29th, did Jocelyn get into a fight?
A. Yes, ma'am. (RR 49:15-25)

 Jocelyn that it states that because of her previous sexual abuse that she
should not be restrained unless absolutely necessary?
A. Yes, ma'am.
Q. Why is that?
A. Why is that what?
Q. Why would you make that order that she shouldn't be restrained because
of the sexual abuse?
A. Well, it's part of the criteria here. I mean, like, the -- the part of evaluation,
the restraint can be ordered except there is history of physical or sexual abuse
because it can have more trauma to the patient. (52:1-13)

Q. Okay. And isn't it true that Jocelyn has -- her fight on April 22nd and on
April 29th was with McKenzie? (RR 54:24-25)

Q. Okay. And isn't it true that McKenzie is almost 18 years old?
A. I don't think I can discuss other clients here right now without breaking
HIPAA regulation. (54:5-8)

THE COURT: Do you have any objections to that?

                                         56
MR. WATKINS: I would start just by
objecting to relevance (RR 54:17-18)

THE COURT: Explain to me, Ms. Montoya, why you need that information,
why that's relevant?
MS. MONTOYA: Your Honor, because the two fights that Jocelyn had,
McKenzie is much older than her and is about to get out. And Jocelyn had
been doing so well, and McKenzie was jealous is my theory on this because
she started these fights with -- and I think it's important for the court to know
that an almost 18-year-old was picking on a 14-year-old. (RR 55:1-7)

THE COURT: Okay. I don't think it's relevant.
MS. MONTOYA: Okay.
THE COURT: And I'm going to sustain your objection. And let's move on to
the next question. (55:8-12)

      The trial court erred by not considering the evidence regarding a much
older person picking on a 14-year-old child19, because J.A. was protecting
herself, which has more than likely become instinctual because of her long
history of abuse.

Law Applied to Facts


          Dr. El-Awady’s testimony focused on the fact that J.A.’s angry out-

bursts were “disproportionate to the provocation” in general terms. (RR 22:-

25) Dr. El-Awady attempts to give one example “ I mean, like, the response

to the anger is beyond that provocation itself. If somebody called her a name,

then she would hit them, you know, with a closed fist punch.” (RR 42:5-8)

However, it is unclear if he is giving a hypothetical or describing an actual

19
     At the time of the hearing McKenzie was 17 and J.A. was 13.
                                                57
event. Even if Dr. El-Awady is describing an actual event, he makes no men-

tion of what name J.A. was called or the date she might have hit someone.20

(RR 42:5-8) The Tyler Court of Appeals stated “what is necessary is the ex-

pert’s description of the patient’s specific behaviors on which the expert’s

opinion is based.” State for B.A., 2016 WL 4628106, at *3 (Tex. App.—

Tyler Sept. 7, 2016, no pet.) When J.A.’s counsel attempted to provide the

Court with evidence of reasons why J.A. might be aggressive and fighting,

the Judge ruled the evidence as not relevant. (RR 56:21-25)

       The incidents on February 7th and 27th21, Dr. El-Awady testified “I

witnessed myself,” but when he discusses both incidents, Dr. El-Awady

states “she was fighting with staff” “she was threatening staff” and “I was

called to the Unit.” If Dr. El-Awady had been there personally to witness

these alleged incidents, it would seem logical that his testimony would be

“she was fighting with me and the staff and she was threatening me and the

staff”. Even if the Court finds Dr. El-Awady had personal knowledge of these

two incidents, there is no detailed facts of what occurred on February 7th and

27th would not be considered a recent act as required by the statute.


20
  One might argue this is typical behavior of teenagers.
21
  It is unclear what year Dr. El-Awady was referring, but for argument sake, J.A.’s counsel is
assuming it was 2019, but leaving that determination to the Court.
                                               58
       The April 1, 2019 incident, Dr. El-Awady did not have personal

knowledge of what happened that day, but the Judge overruled J.A.’s counsel

hearsay objection. Dr. El-Awady testified that the “patient got in a fight and

staff intervened.” Was J.A. was being “picked on” by McKenzie and protect-

ing herself? Did the “other patient” involved in the fight hurt the staff mem-

ber? Did the staff member hurt herself in executing her duties? There was no

testimony regarding criminal charges being filed against J.A. There was no

testimony that J.A. intentionally hurt the staff member. The Texas Supreme

Court held that the expressed standard requires that the overt act or pattern of

conduct be “to some degree probative of a finding that serious harm to others

is probable if the person is not treated.” The fact that J.A. was involved in a

fight does not meet the clear and convincing threshold that J.A. is likely to

cause harm to others if not treated.

       J.A. was placed on TSP beginning April 2, 2019 where she spent 12

hours a day in her room with very few breaks. (RR 44:14-25; 45) J.A. had

no “fighting” or “hurting” anyone from April 2, 2019 until April 22,

2019, twenty days.22 (RR 47:3-7; 48:21-25; 49:1-4) The only incident re-

ported between those dates was in Dr. El-Awady’s testimony during voir dire
22
  During Dr. El-Awady’s cross examination, J.A.’s counsel inadvertently forgot to include the
days of no incidents while J.A. was on TSP.
                                              59
examination. (RR 20:3-8) Dr. El-Awady testified that April 6, 2019, “she

made verbal threats to staff.” (RR 20:3-8) Dr. El-Awady did not make spe-

cific statements regarding those “verbal threats,” but since J.A. was released

from TSP on April 7, 2019, it appears the “verbal threats” were not threats to

harm anyone. (RR 46:19-21)

       The guardian, Guardian, great aunt, Lou Autry, came to visit the child

on April 21, 2019, and on April 22, 2019, J.A. was involved in a fight with

McKenzie, who is 4 years older than J.A. (RR 48:21-25;49:1-4) (RR:70:11-

14)    J.A. had no “fighting” or “hurting” anyone from April 23, 2019 until

April 29, 2019. (RR 48:21-25;49:1-4) The guardian, Guardian, great aunt,

Lou Autry, came to visit the child on April 28, 2019, and J.A. got into a fight

with McKenzie on May 29, 2019.23 Both incidents on April 22, 2019 and

April 29, 2019, there was no testimony that anyone was harmed so it is un-

clear if the “fights” were verbal or physical.24 The Texas Supreme Court held

that the expressed standard requires that the overt act or pattern of conduct be

“to some degree probative of a finding that serious harm to others is probable

if the person is not treated.” The fact that J.A. was involved in two fights be-


23
   J.A.’s counsel attempted to present evidence that McKenzie was jealous that J.A. could be get-
ting out of TSH, but Judge sustained prosecutor’s relevance objection. (RR55:1-7)

                                               60
tween April 2, 2019 and May 2, 2019, with another teenager, who is also

locked up in TSH, when no serious harm was caused, does not meet the clear

and convincing threshold that J.A. is likely to cause harm to others if not

treated. The trial court erred.

Conclusion

      J.A.’s behavior described in the Reporter’s Record is not indicative of a

mentally ill child that is likely to cause serious harm to others. Instead, J.A.’s

behavior is indicative of a child that has been abused and neglected the ma-

jority of her life. The trial court erred and this case should be reversed.

D.    Issue Four.

      The evidence was legally and factually insufficient to support the trial
      court’s finding, by clear and convincing evidence, that J.A. would, as a
      result of mental illness, (i) continue to suffer severe and abnormal
      mental, emotional, or physical distress; (ii) continue to experience
      substantial mental or physical deterioration of the proposed pa-
      tient’s ability to function independently, to provide for the pro-
      posed 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.

Applicable Statutory Law

      Before a person can be ordered confined to a hospital on a temporary

basis, the State must prove by clear and convincing evidence that the pro-

posed patient is mentally ill and also establish at least one of the criteria set
                                        61
forth in Texas Health & Safety Code §574.034(a)(2). Texas Health & Safety

Code §574.034(a)(2) states as follows:

       (a) The judge may order a proposed patient to receive court-ordered
temporary inpatient mental health services only if the judge or jury finds,
from clear and convincing evidence, that:

       (1) the proposed patient is a person with mental illness; and
       (2) as a result of that mental illness the proposed patient:
               (A) is likely to cause serious harm to the proposed patient;
               (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 dete-
                       rioration of the proposed patient's ability to function
                       independently, which is exhibited by the proposed pa-
                       tient's inability, except for reasons of indigence, to
                       provide for the proposed patient's basic needs, includ-
                       ing food, clothing, health, or safety; and
                       (iii) unable to make a rational and informed decision
                       as to whether or not to submit to treatment.

Applicable Case Law

      J.A. can only be involuntarily committed to TSH if the State proves by

clear and convincing evidence that J.A. is mentally ill and also establish at

least one of the additional criteria set forth in section 574.034(a)(2). See TEX.

HEALTH & SAFETY CODE ANN. § 574.034(a)(2). In accordance to Tex-

as Health & Safety Code 574.034(b), the State must present evidence of a re-


                                       62
cent overt act or a continuing pattern of behavior that tends to confirm: the

likelihood of serious harm to the proposed patient. The Texas Supreme Court

in State v. K.E.W., 315 S.W.3d 16, 24, 53 Tex. Sup. Ct. J. 969, 2010 WL

2635981 (Tex. 2010) held that the expressed standard requires that the overt

act or pattern of conduct be “to some degree probative of a finding that seri-

ous harm to others is probable if the person is not treated.”

      Expert testimony confirming mental illness, standing alone, will not

support an involuntary commitment. In re B.A., 2016 WL 4628106, at *3

(Tex. App.–Tyler Sept. 7, 2016, no pet.) (mem. op.); see T.G. v. State, 7

S.W.3d 248, 252 (Tex. App.–Dallas 1999, no pet.). The Tyler Court of Ap-

peals stated “An expert opinion recommending commitment must be sup-

ported by the factual bases on which it is grounded and not simply recite the

statutory criteria. What is necessary is the expert’s description of the patient’s

specific behaviors on which the expert’s opinion is based.” State for B.A.,

2016 WL 4628106, at *3 (Tex. App.—Tyler Sept. 7, 2016, no pet.) (Citing

J.M. v. State, 178 S.W.3d 185, 193 (Tex. App—Houston [1st Dist.] 2005, no

pet) See also, State for A.K., 2018 WL 1181055, at *4 (Tex. App.—Tyler

Mar. 7, 2018, no pet.); (State for G.H., 2018 WL 345788, at *7 (Tex. App.—

Tyler Jan. 10, 2018, no pet.); State ex rel. S.K., 2013 WL 1867626, at *3

                                       63
(Tex. App.—Texarkana May 3, 2013, no pet.); State ex rel. C.B., 12-11-

00089-CV, 2011 WL 3918686, at *4 (Tex. App.—Tyler Sept. 7, 2011, no

pet.).

Facts

         Dr. El-Awady was the State’s only witness at J.A.’s hearing. (RR 1-64)

Dr. El-Awady’s testimony was nothing more than describing how any child

would react that has been in and out of CPS’s custody and abused and ne-

glected by the people who were charged with protecting her from being re-

peatedly raped, and then blaming her for not doing more to prevent the rape.

RR )25(RR 56:14-25; (RR 61:20-25) (RR 62:1). And shortly thereafter, J.A.

was mistreated in TSH in that she was required to sit in a chair for 12 hours

during “TSP punishment” on several occasions.26 Dr. El-Awady’s testimony

about a recent act or pattern of behavior did not include specific facts and

dates to prove that the alleged acts are recent. Most of Dr. El-Awady’s testi-

mony was not within his personal knowledge and in admissible hearsay and

therefore should not have been considered by the court.


25
   The therapy notes received from TSH for treatment between January 2019 through March
2019 indicated absolutely no treatment for the rape other than a notation in January 2019 by Dr.
Kennedy that said “J.A. regrets not doing more to prevent the rape.”
26
   J.A.’s counsel made a complaint to TSH and will be following up with the Inspector General’s
Office because TSH has not responded to the complaint.
                                               64
Dr. El-Awady’s Direct Examination

Q. If the patient were not treated, do you
believe that she would continue to suffer severe,
abnormal, mental, emotional, or physical distress?
A. Yes, sir.
Q. If the patient's not treated, do you believe
her ability to function independently would deteriorate
due to her mental illness?
A. Yes, sir.
Q. In what way would her ability to function
independently deteriorate?
A. I mean, like, she would continue to suffer
chronic and severe mental illness. She would continue
to have anger outburst, poor impulse control, self-harm
and potential -- and harming others. (RR 35:6-19)

Q. And if she -- do you believe she's adequately
able to care for herself at this time?
A. Not in her current condition, sir.
Q. Why do you believe that?
A. I mean, like, she continues to have poor
frustration tolerance. I mean, like, poor frustration
tolerance, she resolves to acting out as a defense
mechanism versus other -- other -- more appropriate
coping skills. She has been harming herself and
harming others.(RR 36:4-13)


Q. (BY MR. WATKINS) In terms of her hygiene,
diet, is she able to take care of herself in those
ways?
A. Yes, sir. (RR 37:17-20)


Q. In your opinion, is the patient able to make
rational, informed decisions about submitting to
                                      65
treatment?
A. Not in her current condition, sir. (RR 37:21-24)

Law Applied to Facts

      Dr. El-Awady was the State’s only witness at J.A.’s hearing. (RR 1-64)

Dr. El-Awady’s testimony was nothing more than attesting to the statutory

requirements, which is not enough evidence to meet their burden by a clear

and convincing standard that J.A. continues suffer severe and abnormal men-

tal, emotional or physical distress and will continue to experience deteriora-

tion of the ability to function independently and is unable to make a rational

and informed decision as to whether or not to submit to treatment. State ex

rel. S.W., 356 S.W.3d 576 (2011) What is specifically lacking in the present

case was any evidence of an overt act or continuing pattern of behavior that

would generally affect J.A.’s ability to function independently on a day-by-

day basis without the imposition of court-ordered mental health services.

Broussard v. State, 827 S.W.2d 619, 622, 1992 WL 63150 (Tex. App.—

Corpus Christi 1992, no writ)

Conclusion

      J.A.’s behavior described in the Reporter’s Record is not indicative of a

mentally ill child that continues suffer severe and abnormal mental, emotion-


                                       66
al or physical distress and will continue to experience deterioration of the

ability to function independently and is unable to make a rational and in-

formed decision as to whether or not to submit to treatment. Instead, J.A.’s

behavior is indicative of a child that has been abused and neglected the ma-

jority of her life. The trial court erred in making that finding and this Court

should reverse the trial court’s decision.




                                       67
                                    PRAYER

      WHEREFORE, PREMISES CONSIDERED, for all the reasons alleged and

briefed herein, Appellant J.A. prays that this Court:

          • reverse the trial court’s decision and render an order to immedi-

             ately release J.A. or remand

Appellant J.A. further requests that this Court grant her such other relief, both

general and special, at law or in equity, to which she may show herself to be

justly entitled.

                               Respectfully submitted,

                               Montoya & Wyble Law, PLLC
                               408 W. Nash
                               Terrell, Texas 75160
                               Phone: 972-524-3344
                               Fax: 972-563-6699

                               /s/ Tina H. Montoya
                                   Tina H. Montoya, SBN 24039319
                                   tina@montoyawyblelaw.com
                                   Attorney for Appellant




                                       68
            CERTIFICATE OF COUNSEL REGARDING WORD COUNT

      Pursuant to Texas Rule of Appellate Procedure 9, I certify the word
count in this Appellant’s Brief, excluding the portions allowed under the rule
totals 13,795 words.

                                      /s/Tina H. Montoya
                                      Tina Hall Montoya


                             CERTIFICATE OF SERVICE

       This is to certify that pursuant to Texas Rule of Appellate Procedure
6.3, a true and correct copy of this Appellant’s Brief has been forwarded to
on June 16, 2019:

Clay Watkins
Kaufman County District Attorney’s Office
100 W. Mulberry
Kaufman, Texas 75142
Clay.Watkins@kaufmancounty.net
                                      /s/Tina H. Montoya
                                      Tina H. Montoya




                                            69
