                                   NO. 12-18-00203-CV

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

 THE STATE OF TEXAS FOR                             §      APPEAL FROM THE

 THE BEST INTEREST AND                              §      COUNTY COURT AT LAW

 PROTECTION OF C.W.                                 §      CHEROKEE COUNTY, TEXAS

                                   MEMORANDUM OPINION
       C.W., a patient committed to a mental health facility pursuant to Chapter 46B of the Texas
Code of Criminal Procedure, appeals from an order authorizing the administration of psychoactive
medication. C.W. contends that the evidence is legally and factually insufficient to support the
trial court’s finding that the administration of psychoactive medication is in the best interest of the
patient. We reverse and render.


                                           BACKGROUND
       C.W. was found incompetent to stand trial for a criminal charge and was committed to
Rusk State Hospital for the purposes of regaining competency pursuant to Chapter 46 of the Texas
Code of Criminal Procedure. C.W. refused to take the medications prescribed for his illness. The
State petitioned the court for an order to administer psychoactive medications to C.W. At the
hearing, C.W.’s treating physician, Dr. Satyajeet Lahiri, testified that C.W. suffered from
Schizoaffective disorder. After the hearing, the trial court granted the order to administer the
psychoactive medication. This appeal followed.


                                  SUFFICIENCY OF THE EVIDENCE
       In his sole issue, C.W. challenges the legal and factual sufficiency of the evidence to
support the trial court’s order authorizing the administration of psychoactive medication.
Specifically, C.W. argues that the evidence is legally and factually insufficient to support the trial
court’s finding that the administration of psychoactive medication is in C.W.’s best interest.
Standard of Review
       Texas law requires that orders authorizing administration of psychoactive medication be
supported by clear and convincing evidence.            See TEX. HEALTH & SAFETY CODE ANN.
§ 574.106(a–1) (West 2017). Clear and convincing evidence is that 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
to be established. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979) (per curiam). This
intermediate standard falls between the preponderance standard of civil proceedings and the
reasonable doubt standard of criminal proceedings. Id.; In re G.M., 596 S.W.2d 846, 847 (Tex.
1980). While the proof must weigh heavier than merely the greater weight of the credible
evidence, there is no requirement that the evidence be unequivocal or undisputed. Addington, 588
S.W.2d at 570. This higher burden of proof elevates the appellate standard of legal sufficiency
review. Diamond Shamrock Ref. Co., L.P. v. Hall, 168 S.W.3d 164, 170 (Tex. 2005); Sw. Bell
Tel. Co. v. Garza, 164 S.W.3d 607, 622, 625 (Tex. 2004)
       In reviewing a legal sufficiency claim, we look at all the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact could have formed a firm
belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). When
reviewing factual sufficiency, we must give due consideration to evidence that the fact finder could
reasonably have found to be clear and convincing and then determine whether, based on the entire
record, a fact finder could reasonably form a firm conviction or belief that the allegations in the
application were proven. Id. The reviewing court must consider whether the disputed evidence is
such that a reasonable fact finder could not have reconciled that disputed evidence in favor of its
finding. Id. If the disputed evidence is so significant that a fact finder could not reasonably have
formed a firm belief in the finding, the evidence is factually insufficient. Id.
Applicable Law
       A trial court may issue an order authorizing the administration of one or more classes of
psychoactive medications to a patient who is under a court order to receive inpatient mental health
services. TEX. HEALTH & SAFETY CODE ANN. § 574.106(a)(1). The court may issue an order
under this section only if, after a hearing, it finds by clear and convincing evidence that (1) the
patient lacks the capacity to make a decision regarding the administration of the proposed



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medication, and (2) treatment with the proposed medication is in the best interest of the patient.
Id. § 574.106(a–1)(1).
         “Capacity” refers to a patient’s ability to (1) understand the nature and consequences of a
proposed treatment, including the benefits, risks, and alternatives to the proposed treatment, and
(2) make a decision whether to undergo the proposed treatment. Id. § 574.101(1) (West 2017). A
patient does not have the capacity to make a decision regarding the administration of medications
if the patient does not understand the nature of his mental illness or the necessity of the
medications. See A.S. v. State, 286 S.W.3d 69, 73 (Tex. App.–Dallas 2009, no pet.). In making
its finding that treatment with the proposed medication is in the best interest of the patient, the trial
court shall consider (1) the patient’s expressed preferences regarding treatment with psychoactive
medication, (2) the patient’s religious beliefs, (3) the risks and benefits, from the perspective of
the patient, of taking psychoactive medication, (4) the consequences to the patient if the
psychoactive medication is not administered, (5) the prognosis for the patient if treated with
psychoactive medication, (6) alternative, less intrusive treatments that are likely to produce the
same results as treatment with psychoactive medication, and (7) less intrusive treatments likely to
secure the patient’s agreement to take the psychoactive medication. TEX. HEALTH & SAFETY CODE
ANN. § 574.106(b).
Analysis
         In C.W.’s brief, he argues that the trial court erred in entering the order to administer
psychoactive medication because Dr. Lahiri provided conclusory testimony that treatment with the
medication was in C.W.’s best interest. For his contention, he directs our attention to our decision
in State ex. rel. E.G., 249 S.W.3d 728 (Tex. App.–Tyler 2008, no pet.).
         In E.G., the only evidence regarding the appellant’s best interest was a conclusory
statement in the application by the treating physician that the medications sought to be
administered were in the appellant’s best interest. Id. at 731. We held that the trial court erred in
entering its order to administer psychoactive medication, in part, because the treating physician
offered no testimony on the subject of whether the administration of the proposed medications was
in the best interest of the appellant.1 See id. at 731–32. We explained that a conclusory statement


         1
           In E.G., we held that the trial court erred in entering its order to administer psychoactive medication because
the evidence failed to establish both that the patient lacked the capacity to make a decision regarding the administration
of the proposed medication, and that the treatment with the proposed medication is in the best interest of the patient.
E.G., 249 S.W.3d at 731–32; see also TEX. HEALTH & SAFETY CODE ANN. § 574.106(a–1)(1). In concluding that the


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in the application, absent testimony from the physician at the hearing, cannot produce in the mind
of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established. Id. We also noted that the Texas Health and Safety Code does not authorize the trial
court to base its findings solely on the treating physician’s application, because pleadings, such as
the physician’s application, are not evidence that the statutory standard has been met. Id.; see TEX.
HEALTH & SAFETY CODE ANN. §§ 574.031(e) (West 2017) (stating that the Texas Rules of
Evidence apply to the hearing for court ordered mental health services unless the rules are
inconsistent with this subtitle), 574.101–.110 (West 2017); In re E.T., 137 S.W.3d 698, 700 (Tex.
App.–San Antonio 2004, no pet.); see also Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer,
904 S.W.2d 656, 660 (Tex. 1995) (noting that, generally, pleadings are not competent evidence,
even if sworn and verified). Thus, because the record contained nothing more than the physician’s
conclusory statement in the application, the evidence that the administration of the medications
would be in the appellant’s best interest was insufficient. E.G., 249 S.W.3d at 731–32.
         In this case, C.W. argues that the evidence adduced at the hearing is tantamount to the
evidence found to be insufficient in E.G., because the only evidence regarding C.W.’s best interest
came in the form of a conclusory statement from Dr. Lahiri. A review of the record from the
hearing reveals that Dr. Lahiri testified that C.W. suffers from schizoaffective disorder. Dr. Lahiri
further indicated that C.W. suffers from psychosis; his thinking is illogical and disoriented; he
suffers from paranoia; and he has a history of hearing voices and aggressive behavior. Dr. Lahiri
testified C.W. verbally and “by other means” refused to take the prescribed medication. Dr. Lahiri
affirmed that all of the statements made in his application were true, and his application was
entered into evidence.
         When asked whether he believed C.W. lacked capacity to decide whether to take his
medication, Dr. Lahiri said “yes.” When asked if Appellant was unable to weigh the risks and
benefits of medication, he answered, “He is not able to weight the risks versus benefits.” In
response to whether the benefits of the medication outweigh the risks, Dr. Lahiri answered, “the
benefits will outweigh the risks.” Dr. Lahiri also testified that the medications are “in the proper
course and best interest.” When asked if C.W. would regain competency faster if the medications


evidence was insufficient with regard to appellant’s capacity, we noted the treating physician failed to describe what
mental illness the appellant suffered from or why he lacked the capacity to make a decision regarding the
administration of psychoactive medications. E.G., 249 S.W.3d at 731.




                                                          4
were used, Dr. Lahiri stated, “Yes, he’s likely to regain competency faster if he uses these
medications.” The State asked if any of the medications would interfere with C.W.’s ability to
confer with his attorney in the underlying criminal charge, to which Dr. Lahiri replied, “They will
not interfere with his ability to confer with his attorney, and they will facilitate communication.”
         C.W.’s counsel asked Dr. Lahiri if C.W. complained of any side effects. Dr. Lahiri
answered that C.W. complains of a side effect from a previous medication. C.W.’s counsel also
asked if C.W. had any religious or constitutional objections to his medication, to which Dr. Lahiri
answered, “no.” Dr. Lahiri did not opine on C.W.’s prognosis at the hearing nor did he give any
opinion regarding the consequences of not administering the medication to C.W.2
         C.W. expressed concern about taking psychoactive medications because of their potential
side effects. He testified that he currently suffers from “twitching” of his mouth and sleeping a
lot. According to C.W., he is completely mentally stable and no longer needs “psych meds.” He
claimed to be “no longer psychotic” because he no longer hears voices and is drug-free. C.W.
testified that he has not heard voices in more than ten years. He believes that his psychosis can be
controlled without medication as long as he stays drug-free. C.W. further testified that he has a
religious belief against taking psychoactive drugs because he is Baptist. Furthermore, the record
is devoid of any outbursts or other evidence indicating that C.W. lacked control at the hearing. In
fact, at the conclusion of the hearing, C.W. asked the trial court, “Is there any way I can -- I can
appeal the decision because I don’t believe I need psycho – I’m not psychotic nor – I’m not a threat
to myself nor am I a threat to others.”
         Based on the evidence at the hearing, we conclude the trial court erred in granting the order
to administer psychoactive medication to C.W. See id. Dr. Lahiri’s testimony at the hearing
regarding C.W.’s best interests was merely a perfunctory recitation of the conclusory statements
made in his application. He offered no testimony as to the consequences to C.W. of not
administering the medications, his prognosis if the medication is administered, or the alternatives
to treatment with psychoactive medication. See E.T., 137 S.W.3d at 700 (evidence insufficient to
support order to administer psychoactive medication where State offered no evidence regarding


          2
            Only in Dr. Lahiri’s written application did he indicate that C.W.’s prognosis with medication was “fair
with clinical improvement and likely restoration of competency” and that the consequences if medications were not
administered included “poor with clinical deterioration, increase in aggressive risk and poor prognosis for competency
restoration.”




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patient’s lack of capacity and physician did not testify that proposed treatment was in patient’s
best interest, i.e., the consequences of not administering the medications, the patient’s prognosis
with the medications, and the alternatives to the medication); compare State ex. rel. D.W., 359
S.W.3d 383, 387 (Tex. App.–Dallas 2012, no pet.) (evidence was sufficient to establish
administration of medication was in patient’s best interest where treating physician testified that
medications would decrease patient’s delusions, but without them, she would remain too psychotic
to be discharged from the hospital; physician further opined on the benefits and side effects of the
antipsychotics and anxiolytics and indicated the benefits outweighed the risks, and the only
alternative to medication would be electric convulsive therapy, a more intrusive intervention). Nor
could the trial court rely solely on the State’s application. See E.G., 249 S.W.3d at 731–32.
Accordingly, we hold that the evidence presented at the hearing could not have produced in the
mind of the trier of fact a firm belief or conviction as to the truth of the allegations to be established.
See J.F.C., 96 S.W.3d at 266; see also E.G., 249 S.W.3d at 731–32; E.T., 137 S.W.3d at 700;
D.W., 359 S.W.3d at 387; State for Best Interest & Prot. of B.D., No. 12-17-00174-CV, 2017 WL
4161297, at *4 (Tex. App.—Tyler Sept. 20, 2017, no pet.) (mem. op.); TEX. HEALTH & SAFETY
CODE ANN. § 574.106(a–1)(1),(b). Because the evidence is legally insufficient, we need not
address C.W.’s contention that the evidence is factually insufficient to support the trial court’s
order. See TEX. R. APP. P. 47.1. We sustain C.W.’s sole issue.


                                                  DISPOSITION
         Based upon our review of the record, we conclude that the evidence is legally insufficient
to support the trial court's order authorizing the administration of psychoactive medication.
Therefore, we reverse the trial court’s order authorizing the administration of psychoactive
medication and render judgment denying the State’s application for an order to administer
psychoactive medication.
                                                                     GREG NEELEY
                                                                        Justice
Opinion delivered November 28, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
                                                   (PUBLISH)




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                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                       NOVEMBER 28, 2018


                                        NO. 12-18-00203-CV


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


                               Appeal from the County Court at Law
                          of Cherokee County, Texas (Tr.Ct.No. 42,442)

                      THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the order of the court below, it is ORDERED, ADJUDGED and DECREED by this Court that
the trial court’s order authorizing the administration of psychoactive medication be reversed and
judgment rendered denying the State’s application for an order to administer psychoactive
medication; and that this decision be certified to the court below for observance.
                   Greg Neeley, Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
