Opinion issued October 10, 2013




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                           NO. 01-13-00422-CV
                           NO. 01-13-00423-CV
                         ———————————
                              G.H., Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee



                     On Appeal from the Probate Court
                         Galveston County, Texas
               Trial Court Case Nos. MH-4237 & MH-4237A



                       MEMORANDUM OPINION

     G.H. appeals from an order for temporary inpatient mental health services

(No. 01–13–00422–CV) and an order to administer psychoactive medication (No.
01–13–00423–CV).1       In each appeal, G.H. challenges the legal and factual

sufficiency of the evidence to support the order.

      We affirm in each appeal.

                               Background Summary

      G.H., a 64-year-old woman, suffers from bipolar and schizoaffective

disorders.   G.H. functions well when she takes her psychiatric medication.

However, G.H has a history of refusing to take her medication, resulting in her

repeated hospitalization. Since 1990, G.H. has been admitted 15 times to the

psychiatric program of Mainland Medical Center (“MMC”).

      On January 28, 2013, G.H. was admitted to MMC, where she remained

hospitalized for 22 days. Experiencing visual and auditory hallucinations, G.H.

was again admitted to MMC on May 1, 2013. G.H. was brought to the hospital’s

emergency room for a psychiatric evaluation. When she arrived at the hospital,

G.H. was covered with feces. In the emergency room, G.H. became increasingly

agitated, screaming at the staff. Testing revealed that her potassium level was

dangerously low, putting her at risk for a heart attack. G.H. was admitted to the

medical unit of MMC due to her low potassium.

1
      The 90-day period for which the trial court ordered G.H. to receive inpatient
      services and psychoactive medication has expired. The Supreme Court of Texas
      has held that the expiration of the period stated in these orders does not render an
      appeal of such order moot. See State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010);
      J.M. v. State, 178 S.W.3d 185, 189 (Tex. App.—Houston [1st Dist.] 2005, no
      pet.).
                                           2
      On May 2, 2013, an application for emergency detention was signed by a

peace officer and filed with the trial court. In the application, the officer wrote that

G.H. was “threatening to kill [hospital] staff and others,” was paranoid, and was

“refusing meds.” To support the application, Dr. Lee Emory wrote a statement of

preliminary examination in which she stated that G.H. “has been . . . belligerent,”

was “not taking her meds,” and “has threatened to kill staff.” The doctor also

stated that G.H. “needs to go to [Austin State Hospital].”

      An application for court-ordered temporary inpatient mental health services

was also filed with the trial court. It sought to have G.H. committed for temporary

inpatient treatment. Dr. Emory signed a certificate of medical examination to

support the application. Dr. Emory stated in the certificate that G.H. had been

diagnosed with bipolar and schizoaffective disorders. Tracking the three statutory

criteria necessary to support court-ordered inpatient mental health services, Dr.

Emory indicated in the certificate that G.H. was

      (1) likely to cause serious harm to herself;

      (2) likely to cause serious harm to others; and

      (3) suffering severe and abnormal mental, emotional, or physical
      distress; was experiencing substantial mental or physical deterioration
      of her ability to function independently, which was exhibited by her
      inability . . . to provide for her basic needs, including food, clothing,
      health, or safety . . . and [was] unable to make a rational and informed
      decision as to whether or not to submit to treatment.



                                           3
      Dr. Emory also identified the factual bases of her opinion. In this regard,

she stated that G.H. had threatened to kill the hospital staff; had accused the staff

of abusing and sexually assaulting her; and had risked her health by refusing

medication and treatment for her low potassium level. Dr. Emory also filed an

application for an order to administer psychoactive medication, requesting the trial

court to authorize the administration of medication to G.H.

      The trial court ordered the continued detention of G.H.at MMC pending the

involuntary-commitment hearing. The trial court also appointed Dr. Emory and

Dr. Altaf Loya to examine G.H.

      The trial court conducted the temporary commitment hearing on May 8,

2013. Among the State’s witnesses were Dr. Loya, two nurses who had cared for

G.H. at MMC, and G.H.’s daughter. G.H. testified in her own defense.

      At the conclusion of the commitment hearing, the trial court determined that

the evidence satisfied the statutory requirements for court-ordered inpatient mental

health services.   In its order, the trial court stated that the allegations in the

application for commitment were “true and correct,” supported by clear and

convincing evidence that G.H. is mentally ill. The trial court also found that clear

and convincing evidence showed, as a result of G.H.’s mental illness, she was

likely to cause serious harm to herself and likely to cause serious harm to others.

The trial court further found that G.H. was “suffering severe and abnormal mental,

                                         4
emotional, or physical distress,” was “experiencing substantial mental or physical

deterioration of her ability to function independently, which [was] exhibited by

[G.H.’s] inability, except for reasons of indigence, to provide for her basic needs,

including food, clothing, health, or safety,” and was “unable to make a rational and

informed decision as to whether or not to submit to treatment.” The trial court

ordered G.H. committed to Austin State Hospital for a period not to exceed 90

days.

        Immediately following the commitment hearing, the trial court conducted a

hearing on the application to administer psychoactive medication. Dr. Loya again

testified for the State. G.H. did not testify in her own defense. At the conclusion

of the hearing, the court signed an order to administer psychoactive medication,

providing that the medications could be administered to G.H. during her 90-day

temporary inpatient commitment.

        G.H. appeals both orders.

                                    Sufficiency Challenges

        In one issue, G.H. challenges the legal and factual sufficiency of the

evidence to support the commitment order and to support the order to administer

psychoactive medication.




                                           5
A.    Standards of Review

      To obtain either an order for temporary commitment or an order to

administer psychoactive medication, the State must prove its case by clear and

convincing evidence.    See TEX. HEALTH & SAFETY CODE ANN. § 574.034(a)

(Vernon 2010), § 574.106(a-1) (Vernon 2010).          In this context, “clear and

convincing evidence” means “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 established.” State v. Addington, 588 S.W.2d 569, 570

(Tex. 1979).

      Because the State’s burden of proof is clear and convincing evidence, we

apply a heightened standard of review to sufficiency-of-the-evidence challenges.

See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).          When reviewing the legal

sufficiency of the evidence in a case requiring proof by clear and convincing

evidence, we determine whether the evidence is such that a factfinder could

reasonably form a “firm belief or conviction as to the truth of the allegations

sought to be established.” State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010) (K.E.W.

I) (quoting Addington, 588 S.W.2d at 570). We examine all evidence in the light

most favorable to the finding, assuming that the “factfinder resolved disputed facts

in favor of its finding if a reasonable factfinder could do so.” In re J.F.C., 96

S.W.3d 256, 266 (Tex.2002).        We disregard all contrary evidence unless a

                                         6
reasonable factfinder could not have done so. K.E.W. I, 315 S.W.3d at 20 (citing

In re J.F.C., 96 S.W.3d at 266).

      Likewise, the higher burden of proof alters the appellate standard of factual-

sufficiency review. C.H., 89 S.W.3d at 25-26. In reviewing the evidence for

factual sufficiency under the clear and convincing standard, we inquire “whether

the evidence is such that a factfinder could reasonably form a firm belief or

conviction about the truth of the State’s allegations.” See id. at 25. We consider

whether disputed evidence is such that a reasonable factfinder could not have

resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at

266; K.E.W. v. State, 333 S.W.3d 850, 855 (Tex. App.—Houston [1st Dist.] 2010,

no pet.) (remanded from the Supreme Court of Texas) (K.E.W. II). In so doing, we

must give “due consideration to evidence that the factfinder could reasonably have

found to be clear and convincing.” See In re J.F.C., 96 S.W.3d at 266. We

examine the entire record to determine whether “the disputed evidence that a

reasonable factfinder could not have credited in favor of the finding is so

significant that a factfinder could not reasonably have formed a firm belief or

conviction”; if it is, the evidence is factually insufficient. In re J.F.C., 96 S.W.3d

at 266; K.E.W. II, 333 S.W.3d at 855.




                                          7
B.    Statutory Requirements for Temporary Commitment

      Health and Safety Code subsection 574.034(a) provides that 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 mentally ill; and

      (2)    as a result of that mental illness the proposed patient:

             (A)   is likely to cause serious harm to himself;

             (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
                           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)   unable to make a rational and informed decision as
                           to whether or not to submit to treatment.

TEX. HEALTH & SAFETY CODE ANN. § 574.034(a).

      Subsection 574.034(c) requires that, if the judge or a jury finds that the

proposed patient meets the commitment criteria prescribed by subsection (a), the

judge or the jury must specify which criterion listed in subsection (a)(2) forms the

                                          8
basis for that decision. Id. § 574.034(c). The Health and Safety Code further

requires that, to be clear and convincing under subsection 574.034(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.

Id. § 574.034(d).

      The Supreme Court of Texas has concluded that the term “overt act,” found

in subsection 574.034(d), is not limited to physical conduct but may be any action

objectively perceivable, including verbal statements. K.E.W. I, 315 S.W.3d at 22.

More specifically, the court determined that “a proposed patient’s words are overt

acts within the meaning of Section 574.034(d).”           Id.   A proposed patient’s

statements “can be relevant both to determining whether he is mentally ill and also

to predicting what actions he might or will take in the future as a result of mental

illness.” Id. The statute permits “the law’s intervention to prevent serious injury

to others” when a person with a mental illness makes statements that foreshadow

violence. Id.

      The statutory language does not require evidence of a recent overt act that,

by itself, proves the likelihood a proposed patient will cause serious harm to others.


                                          9
Id. at 23. Rather, the statute requires evidence of an overt act that “tends to

confirm” the “likelihood” of serious harm to others. Id. at 23 (citing TEX. HEALTH

& SAFETY CODE ANN. § 574.034(d)(1)). “[A] recent overt act by a proposed

patient ‘tends to confirm’ that the patient poses a likelihood of serious harm to

others within the meaning of Section 573.034(d) if the overt act is to some degree

probative of a finding that serious harm is probable. . . .” K.E.W. I, 315 S.W.3d at

24. This is true even though the overt act itself may not be dangerous. Id. The

court determined that the statutory language is sufficiently broad to allow

commitment regardless of whether the person’s threat actually causes physical

harm. See id. at 22. The court summarized the State’s burden of proof as follows:

       [T]he statute requires evidence of a recent act by the proposed patient,
       either physical or verbal, that can be objectively perceived and that is
       to some degree probative of a finding that serious harm to others is
       probable if the person is not treated. The overt act itself need not be
       of such character that it alone would support a finding of probable
       serious harm to others.

Id. at 24.

       Here, the trial court indicated that it based the commitment order on all three

statutory criteria listed in subsection (a)(2), including the criterion that G.H. was

likely to cause serious harm to others. See TEX. HEALTH & SAFETY CODE ANN.

§ 574.034(a)(2).

       G.H. does not dispute the trial court’s finding that she is mentally ill.

Instead, she challenges the legal and factual sufficiency of the evidence to support
                                          10
the trial court’s three subsection (a)(2) findings supporting commitment. Her

appeal includes a challenge to the trial court’s determination that G.H. was likely

to cause serious harm to others if not committed for temporary inpatient treatment.

Id. § 574.034(a)(2)(B).    In this regard, G.H. contends that the State offered

insufficient evidence of a recent overt act tending to confirm the likelihood that she

would cause serious harm to others if not treated. Id. § 574.034(d).

C.    Legal Sufficiency of Evidence to Support Commitment Order

      We first turn to the record to determine whether legally-sufficient evidence

showed “a recent overt act” that tends to confirm the likelihood that G.H. would

cause serious harm to others. To support the commitment order, the State offered

the expert testimony of board certified psychiatrist, Dr. Atlaf Loya. Dr. Loya

testified that his opinion testimony was based on his personal knowledge of G.H.

and her medical records. During her most recent admission to MMC, Dr. Loya

saw G.H. as a consulting physician and stated that he had also conducted a

psychiatric evaluation of G.H. In addition, Dr. Loya had been G.H.’s attending

physician during her previous admission to MMC.

      Dr. Loya testified that, when she was most recently brought to the

emergency room, G.H. was “increasingly agitated, and screaming, yelling at the

ER staff.” He stated that it was difficult for him to evaluate G.H. in the hospital

because she was in an acute psychotic phase, had “pressured speech,” would not

                                         11
listen to him, and would not stop talking. According to Dr. Loya, interrupting

G.H. resulted in her becoming “verbally aggressive and belligerent.”

      When asked whether G.H. is likely to cause harm to others as a result of her

mental illness, Dr. Loya responded affirmatively. He supported his response by

stating, “[S]he tends to get very aggressive, threatening and she has made

verbalized threats to the staff and other people, many other people.”

      Dr. Loya also testified that G.H. had been “very threatening” to home health

care workers to the extent that they have become “scared” of her. Because of this,

“several home health care companies are not willing to work with her.”

      G.H. contends that Dr. Loya’s testimony does not adequately “substantiate a

cognizable threat to others” because it does not identify the specific behaviors on

which his opinion is based. G.H. does not, however, acknowledge that Dr. Loya

identified the “detailed basis” for his opinion in a “Physician’s Certificate of

Medical Examination for Mental Illness.” The certificate, which Dr. Loya signed

under oath, was admitted into evidence at the commitment hearing.            In the

certificate, Dr. Loya stated that G.H. had threatened to kill the hospital staff. He

identified that as a basis for his opinion. This evidence, coupled with Dr. Loya’s

testimony regarding G.H.’s threatening, aggressive, and belligerent behaviors

toward hospital staff and home health care workers, provides a basis for Dr. Loya’s




                                         12
testimony that G.H. is likely to cause serious harm to others. See K.E.W. I, 315

S.W.3d at 22.

      In addition Dr. Loya’s testimony, the State offered the testimony of S.

Broom, the nursing supervisor at MMC. He stated that, during G.H.’s most recent

admission, he had been called by the nursing staff on the medical unit to assist with

G.H. because she was “out of control and threatening.” Broom testified that, when

he arrived at her room, G.H. “was screaming, hollering, threatening to kill people.”

Broom stated that the charge nurse informed him that G.H. had threatened to kill

all the staff on the unit, including Dr. Loya. Broom testified that the nursing staff

ultimately had to obtain an emergency order from Dr. Loya to give G.H. a shot of

medication “just to calm her down, because she was so out of control and

threatening.” Broom further testified that he was concerned that G.H. would hurt

the medical staff because, during her previous admission, she injured a nurse by

stabbing the nurse with a pencil.

      G.H. contends that the evidence of her threats to kill the staff “does not

identify any overt act in which [she] hurt anyone at MMC during this admission or

in the recent past.” However, as discussed, the supreme court has made clear that

“overt act,” found in subsection 574.034(d), is not limited to physical conduct but

may be any action objectively perceivable, including verbal statements

foreshadowing violence. See id. G.H.’s propensity and ability to actually injure

                                         13
someone was shown by Broom’s testimony that G.H. had stabbed a nurse with a

pencil during her last admission three months earlier.

      G.H.’s daughter, Annette, also testified for the State. According to Annette,

G.H. has been “becoming more aggressive with me, to the point that she acts like

she’s going to throw things at me.” The daughter stated, “She hasn’t physically

thrown things at me but she has thrown things at some of the home health care

workers.” For example, Annette stated that G.H. had thrown a walker at one of the

workers.

      G.H. intimates that her daughter’s testimony does not indicate a recent overt

act because Annette did not testify when G.H. had thrown the walker at the health

care worker. However, when read in the context of her statement that G.H. has

been becoming more and more aggressive, Annette’s testimony indicates that the

events of which she testified had recently occurred and that G.H.’s threatening

behaviors were escalating.

      To support commitment, the State must present evidence of a recent act by

the proposed patient, either physical or verbal, that can be objectively perceived,

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

probable if the person is not treated. See id. at 24. Here, the evidence of G.H.’s

verbal threats to kill the hospital staff and her physical acts of throwing objects at

home health care workers are such acts.

                                          14
      We conclude that the State introduced legally sufficient evidence to prove an

overt act by G.H. that tended to confirm the likelihood of serious harm to others;

that is, considering the evidence as we must, we conclude that a reasonable trier of

fact could have formed a firm belief or conviction that it was probable that G.H.

was likely to cause serious harm to others if not treated. See TEX. HEALTH &

SAFETY CODE ANN. § 574.034(a)(2)(B); see also id. § 574.034(d). Accordingly,

we hold that the evidence is legally sufficient to support the trial court’s order for

temporary inpatient mental health services.

D.    Factual Sufficiency of Evidence to Support Commitment Order

      In addressing G.H.’s factual sufficiency complaint, we give due

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

clear and convincing. See C.H., 89 S.W.3d at 25. G.H. cites nursing supervisor

Broom’s testimony, given during cross-examination, that he did not believe G.H.

would hurt anyone if released from the hospital. Broom testified that he held this

belief because G.H. “tends to stay at home by herself.”

      As discussed, evidence was also presented that G.H. had been aggressive

and threatening to her daughter and to home health care workers.            Broom’s

testimony that he did not believe G.H. was a threat to others if released from the

hospital is not so significant that the trial court, as factfinder, could not have

reasonably resolved any discrepancies in the evidence in favor of its finding. See

                                         15
In re J.F.C., 96 S.W.3d at 266. In other words, Broom’s testimony is not so

significant that a reasonable trier of fact could not have reconciled this evidence in

favor of its finding and formed a firm belief or conviction that G.H. was likely to

cause serious harm to others. See id.; K.E.W. II, 333 S.W.3d at 855. Accordingly,

we hold that the evidence is factually sufficient to support the trial court’s order for

temporary inpatient mental health services. 2

      We overrule G.H.’s sole issue challenging the legal and factual sufficiency

of the evidence to support the order for temporary commitment in appellate cause

number 01-13-00422-CV.

E.    Sufficiency of Evidence Supporting Medication Order

      An order authorizing the administration of psychoactive medication may be

entered only if the patient is under a valid order for temporary or extended mental

health services. See TEX. HEALTH & SAFETY CODE ANN. § 574.106(a)(1) (Vernon

2010).    G.H.’s appellate challenge to the trial court’s order to administer

psychoactive medication appears to be that, because the trial court’s order for

involuntary commitment is not supported by sufficient evidence, there is no

underlying predicate commitment order authorizing the medication order. See id.


2
      Because we have held that the evidence is legally and factually sufficient to
      support temporary inpatient commitment pursuant to subsection 574.034(a)(2)(B),
      we need not address the sufficiency of the evidence to support the trial court’s
      other two subsection 574.034(a)(2) findings supporting commitment. See TEX. R.
      APP. P. 47.1.
                                          16
Because we have concluded that the trial court’s order of involuntary commitment

is supported by legally and factually sufficient evidence, we overrule G.H.’s sole

issue in her appeal of the order to administer psychoactive medication. See E.V.A.

v. State, Nos. 01-05-00871-CV, 01-05-00872-CV, 2005 WL 3497716, at *6 (Tex.

App.—Houston [1st Dist.] Dec. 22, 2005, no pet.) (mem. op.) (affirming order to

administer psychoactive medication when only argument offered challenging order

was that evidence was insufficient to support commitment order).

      We overrule G.H.’s sole issue challenging the order authorizing the

administration of psychoactive medication in appellate cause number 01-13-

00423-CV.

                                   Conclusion

      We affirm the trial court’s order for temporary inpatient mental health

services (No. 01–13–00422–CV) and its order to administer psychoactive

medication (No. 01–13–00423–CV).




                                            Laura Carter Higley
                                            Justice

Panel consists of Justices Keyes, Higley, and Massengale.




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