                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-14-00292-CV
                             ____________________

                  ANDREW SAWYER WELLER, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

              On Appeal from the Criminal District Court
                       Jefferson County, Texas
                    Trial Cause Nos. 49280, 49361
__________________________________________________________________

                          MEMORANDUM OPINION

      Andrew Sawyer Weller appeals a commitment order extending his inpatient

mental health services. In two appellate issues, Weller contends the evidence is

legally and factually insufficient to support the trial court’s finding that services

should be continued. We affirm the trial court’s commitment order.

                        PROCEDURAL BACKGROUND

      On January 11, 1988, Andrew Weller was found not guilty of murder by

reason of insanity and commited to a mental health facility. See Weller v. State,

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184 S.W.3d 787, 788 (Tex. App.—Beaumont 2006, no pet.); see also Act of May

25, 1983, 68th Leg., R.S., ch. 454, § 3, 1983 Tex. Gen. Laws 2640, 2643-47

(repealed 2005) (current version at Tex. Code Crim. Proc. Ann. art. 46C.256 (West

2006)).1 Weller has been continuously committed for inpatient treatment since

1988. On May 30, 2014, the State filed an application for renewal of extended

court-ordered mental health services. Attached to the State’s application were (1)

certificates of examination for mental illness, signed by two physicians who had

examined Weller and reviewed his mental health records during the thirty days

prior to the date of the application, (2) a dangerousness risk assessment, and (3) a

forensic psychiatry report to the court, dated May 7, 2014.

      The trial court conducted a hearing on the State’s application on June 2,

2014, and on June 3, 2014, the trial court again entered an order of commitment




      1
        The Texas Legislature repealed article 46.03 in 2005 and amended the Code
of Criminal Procedure to add “Chapter 46C. Insanity Defense.” Act of May 27,
2005, 79th Leg., R.S., ch. 831, §§ 1, 2, 2005 Tex. Gen. Laws 2841. The 2005
amendment “applies only to an offense committed on or after the effective date of
this Act. An offense committed before the effective date of this Act is covered by
the law in effect when the offense was committed, and the former law is continued
in effect for that purpose.” Act of May 27, 2005, 79th Leg., R.S., ch. 831, § 5, 2005
Tex. Gen. Laws 2841, 2853-54. The effective date of the Act was September 1,
2005. Act of May 27, 2005, 79th Leg., R.S., ch. 831, § 6, 2005 Tex. Gen. Laws
2841, 2854.

                                         2
continuing Weller’s inpatient mental health services. 2 In its order, the trial court

concluded that (1) Weller is mentally ill, (2) likely to cause serious harm to himself

or others as a result of his mental illness, (3) will, if not treated, continue to suffer

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

experience deterioration of his ability to function independently, and will be unable

to make a rational and informed decision regarding continuing treatment, and (4)

will continue to suffer from mental illness for more than ninety days. The trial

court also found “by clear and convincing evidence, that no sufficient settings for

care on a less-restrictive, or out-patient, basis exist at the present time, or will

become available in the foreseeable future.”

                                  THE EVIDENCE

      Weller appeared at the hearing of June 2, 2014, by telephone pursuant to his

request to do so. The trial court noted that State’s proposed exhibit one consisted of

twelve pages, including (1) a telefax submission form from Rusk State Hospital

(“Rusk”); (2) a cover letter from Dr. George Howland, the unit psychiatrist at

Rusk, and Brenda Slayton, the superintendent of Rusk; (3) a dangerousness risk

assessment; (4) a forensic psychiatry report to the court, signed by Howland; (5)

Howland’s certificate of medical examination for mental illness; and (6) a second
      2
       Weller waived his right to have a jury determine whether he continued to
meet the criteria for involuntary inpatient commitment.
                                           3
certificate of medical examination for mental illness, signed by Dr. Larry Hawkins,

all of which were attached to the State’s application. State’s exhibit one was

admitted into evidence without objection.

      The certificate of medical examination signed by Howland indicated that

Howland examined and evaluated Weller at Rusk on May 7, 2014, and stated that

Weller suffers from paranoid schizophrenia and is currently in the Hope

Residential Unit at Rusk. In the certificate, Howland opined that Weller is (1)

likely to cause serious harm to others and is suffering from severe and abnormal

mental, emotional or physical distress; (2) experiencing substantial mental or

physical ability to function independently, “which is exhibited by the proposed

patient’s inability, except for reasons of indigence, to provide for his basic needs,

including food, clothing, health, or safety”; and, (3) “unable to make a rational and

informed decision as to whether or not to submit to treatment.” Howland further

opined that Weller was refusing psychotropic medications, had been irritable,

appeared to be paranoid about “court[,]” and had “no insight into his mental

illness[,]” and he explained that Weller’s paranoia, lack of insight, and refusal to

take psychotropic medications demonstrate that Weller’s condition will continue

for more than ninety days.




                                         4
      The certificate of medical examination for mental illness signed by Hawkins

indicated that Hawkins examined Weller at Rusk on May 12, 2014, and stated that

Weller suffers from paranoid schizophrenia. Hawkins also determined that Weller

is (1) suffering from severe and abnormal mental, emotional or physical distress;

(2) experiencing substantial mental or physical inability to function independently,

“which is exhibited by the proposed patient’s inability, except for reasons of

indigence, to provide for his basic needs, including food, clothing, health, or

safety”; and, (3) “is unable to make a rational and informed decision as to whether

or not to submit to treatment.” Hawkins noted on the certificate that Weller

appeared to be irritable at times, argumentative over some issues, and “continues to

refuse any psychiatric medications[.]” Hawkins stated that although Weller still has

some paranoid views, he behaves “fairly well” without psychiatric medications and

“functions fairly well” in the hospital environment. Hawkins opined that although

Weller’s “[b]ehavior has responded to hospital structure[,]” Weller “would need

med[ication]s in [the] community.”

      The dangerousness risk assessment completed by clinician Joe Colkin

indicated that Weller has not been aggressive or violent since his admission to

Rusk’s residential program. Colkin noted that Weller killed both of his parents in

1986, and that “[r]ecords indicate that his family was considering civil

                                         5
commitment for him prior to the murder[s].” According to Colkin, Weller “has

also not had violent behaviors since he has been off of his medication.” Colkin

noted on the assessment as follows:

      Mr. Weller does not accept that he has a psychotic condition. This
      prevents him from considering realist[ic] options proposed by the
      psychiatrist. Also, he says he will not consider a group home setting,
      that his own rented space is what he needs. He understands that this
      position is atypical and difficult for Social Workers and MHA[]s to
      promote. He reasons that it is a practical plan that a judge would
      support.

Colkin also indicated in the assessment that Weller “states he does not believe he

has a mental illness and therefore does not need psychiatric medications[;]” Weller

believes his treatment for a stroke in the 1990s may have cured his psychosis; and

Weller “maintains that taking medication since that time for psychosis has not been

of benefit.” Colkin identified as mitigating circumstances Weller’s ability to

function well in Rusk’s residential program and Weller’s likely ability to function

in a “transitional outpatient setting.” Colkin characterized Weller’s risk for

aggression as low, but noted that Weller desires to live independently in a rural

setting away from Jefferson County rather than in a transitional setting in Jefferson

County. Colkin concluded that Weller has demonstrated the ability to manage

living in a residential setting, and Colkin “anticipated that [Weller] can manage

living in an outpatient transitional living setting.”

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       The forensic psychiatry report Howland provided to the court in a letter (as

part of State’s exhibit one) stated that Weller was charged with killing his parents,

and “[a]t the time of this incident[,] it was reported that he was concerned about

‘pod people.’” Howland discussed Weller’s belief that he does not need

psychotropic medications and noted that Weller has been off psychotropic

medications for some time. Howland noted that Weller “has been more irritable

lately than he usually is[,]” still feels that he does not need psychotropic

medications, lacks insight into his mental illness, believes he has been cured, and

“appears paranoid about the court.” Howland also indicated that Weller has a job

on the hospital grounds and “gets along fairly well” with his peers. Howland

stated, “It is the opinion of the Hope unit recovery team that Mr. Weller is still

paranoid at times. He is irritable and has no insight into his mental illness.”

Howland recommended that Weller be recommitted to Rusk to reside in the Hope

residential unit.

       Weller testified that he has been committed for approximately twenty-six

years, and he has never harmed himself or anyone else during that time. Weller

explained that he has been off his medication for at least four years, and he has

been able to care for himself and make decisions. Weller acknowledged that he

was mentally ill at one time, but stated that he is not currently mentally ill. Weller

                                          7
testified that he has taken different medications for mental illness, but “there

ha[s]n’t been any real need for it. There hasn’t been any psychosis or mental illness

for a very long time.” When asked whether he was aware that doctors are saying he

is still suffering from severe and abnormal mental, emotional, or physical distress,

Weller responded, “Just because they are saying that doesn’t necessarily mean that

it’s true[,]” and he denied feeling such distress. Weller testified that, with the

exception of “the stress of being locked up[,]” he has not experienced a substantial

mental or physical deterioration of his ability to function independently.

       Weller testified that he wakes himself each day, dresses himself, takes care

of his personal hygiene, and works. Weller testified that if he were permitted to

live in a less restrictive environment, he could get his own apartment, buy

groceries, cook food, wash his clothes, and do whatever he needed to do without

assistance. Weller explained that he could support himself with any assets or social

security payments to which he might be entitled. Weller acknowledged that he has

refused to take psychiatric medication despite Howland’s recommendation that he

do so. Weller explained that he believes the medication harms him and he does not

need such medication because he has had “no signs [of] psychosis or mental illness

for a very long time . . . .”




                                          8
      When the trial judge asked Weller whether he believes the doctors who are

prescribing psychotropic medications are wrong, Weller responded,

      Sir, they are doing a lot of things at these facilities that the Court
      doesn’t necessarily know about. There [are] a lot of homeless people
      here. There are a lot of crack heads here. They give them psychotropic
      meds and call them mental patients. That’s what’s happening in the
      State of Texas right now. I’ve lived it. I’ve been around it. I’ve seen it
      in the jails. I’ve seen it in these places. That’s why there is
      overcrowding in these places. You as law officers and people that
      represent the law need to take a close look at what is actually
      happening.

When the trial judge asked Weller whether he wanted to be released to live

independently at a location of his own choosing and whether he has discounted

other types of outpatient facilities, Weller responded as follows:

      [W]hen a person gets their freedom, they can choose where they want
      to live. If the State is going to tell me that I have to live at another
      place, then they can pick up the tab; and that’s not really my freedom.
      If I am released on an outpatient basis, I feel that I am capable of
      getting my own housing and reporting to the local MHA as required
      by the Court and complying with what MHA requires on an outpatient
      basis. I can do that.

At the conclusion of the hearing, the trial judge stated that “the Court . . . will grant

the State’s motion and find that this is in the best interest of justice at this time.”

                              ISSUES ONE AND TWO

      In issue one, Weller argues the evidence is legally insufficient to support the

trial court’s commitment order continuing his inpatient mental services. In issue

                                            9
two, Weller contends the evidence is factually insufficient to support the order. We

address issues one and two together.

       Under a legal sufficiency review when the burden of proof is “clear and

convincing evidence,” we “consider all the evidence in the light most favorable to

the finding to determine whether a reasonable trier of fact could have formed a

firm belief or conviction that its finding was true.” Harrison v. State, 179 S.W.3d

629, 634 (Tex. App.—Beaumont 2005, pet. denied). We assume the factfinder

resolved disputed facts in favor of its finding if a reasonable factfinder could. Id.

Under a factual sufficiency review, we consider all the evidence, both in support of

and contrary to the trial court’s findings, and we give “due consideration to

evidence that the factfinder could reasonably have found to be clear and

convincing.” Id. at 634-35. We must determine whether the evidence is such that a

factfinder could reasonably form a firm belief or conviction about the truth of the

allegations. Id. at 635. “We consider whether disputed evidence is such that a

reasonable trier of fact could not have reconciled that disputed evidence in favor of

its finding.” Id.

       As discussed above, before the trial court were two certificates of

examination for mental illness, dangerousness risk assessment, and a forensic

psychiatry report to the court. The certificates of examination both indicated that

                                         10
Weller has paranoid schizophrenia, is suffering from severe and abnormal mental,

emotional, or physical distress, is experiencing a substantial mental or physical

deterioration of his ability to function independently, and is unable to make a

rational and informed decision regarding whether or not to submit to treatment.

Howland’s certificate concluded that Weller is likely to cause serious harm to

others. Both Howland and Hawkins noted that Weller was paranoid at times and

refused to take psychotropic medications, and Howland stated that Weller lacked

insight into his mental illness. Colkin’s dangerousness risk assessment noted that

Weller refuses to accept that he has a psychotic condition, refuses to consider

treatment options proposed by his psychiatrist, and refuses to consider a group

home setting. The forensic psychiatry report submitted by Howland noted that

Weller has suffered from increased irritability, refuses to take psychotropic

medication, lacks insight into his mental illness, believes that he is cured, and

exhibits paranoia about the trial court, and Howland recommended that Weller be

recommitted to Rusk.

      Considering all the evidence in the light most favorable to the finding, we

conclude that a reasonable trier of fact could have formed a firm belief or

conviction that its finding was true. See id. at 634. Therefore, the evidence was

legally sufficient to support the trial court’s order. In addition, considering all the

                                          11
evidence, both in support of and contrary to the trial court’s findings, and giving

due consideration to evidence that the factfinder could reasonably have found to be

clear and convincing, we conclude that a reasonable fact finder could reasonably

form a firm belief or conviction about the truth of the State’s allegations. See id. at

634-35. Weller’s testimony that he is not mentally ill, does not need medication,

and can function independently is not so compelling that a reasonable trier of fact

could not have reconciled that evidence in favor of its finding. See id. Accordingly,

we overrule issues one and two and affirm the trial court’s order of commitment.

      AFFIRMED.

                                               ______________________________
                                                      STEVE McKEITHEN
                                                         Chief Justice


Submitted on March 16, 2015
Opinion Delivered April 9, 2015

Before McKeithen, C.J., Kreger and Johnson, JJ.




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