             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________
           No. 02-19-00253-CV
      ___________________________

         IN THE MATTER OF N.N.



  On Appeal from County Court at Law No. 2
           Wichita County, Texas
        Trial Court No. 50572-LR-D


 Before Sudderth, C.J.; Gabriel and Bassel, JJ.
Memorandum Opinion by Chief Justice Sudderth
                          MEMORANDUM OPINION

      Appellant N.N. appeals the trial court’s order requiring the administration of

psychoactive medication. See Tex. Health & Safety Code Ann. § 574.106(a)(2). We

affirm.

                                    Background

      While awaiting trial on charges of stalking and harassment, Appellant was

found incompetent to stand trial and ordered committed to inpatient mental-health

treatment in May 2019. See Tex. Code Crim. Proc. Ann. art. 46B.073. Psychiatrist Dr.

Peter Fadow, who had begun treating Appellant on July 2, sought an order for the

administration of psychoactive medication for N.N. See id. art. 46B.086; Tex. Health

& Safety Code Ann. §§ 574.104, .106. At the July 10 hearing on the application for

such an order, Dr. Fadow testified that Appellant suffers from schizophrenia, which

manifests in Appellant through delusional thoughts and delusional fixations on female

professionals. According to Dr. Fadow,

      [Appellant] reports that he has - - a group or a military group is pumping
      gas into his residence at his home and that he has had these attacks
      going on since 2013 up until the date of his arrest. He also forms these
      delusional fixations on female professionals, including a Dallas
      newscaster and an attorney in the Dallas area. [Appellant] has
      hallucinations. He says this gas that’s pumped into his home caused a
      stinging sensation on his head and also his - - his stomach and that he
      can smell it. So, he’s got olfactory and tactile hallucinations. He has
      acted on these delusional thoughts, and he’s been engaged allegedly in
      stalking these females and harassing. I also note that from reviewing
      records of a previous hospitalization at Rusk State Hospital that he has
      also retaliated in the past as well.

                                          2
Dr. Fadow testified that Appellant presents a danger to others at the hospital,

specifically to female professionals working there. Although Dr. Fadow admitted that

it had yet to happen, he explained, “[Appellant’s] pattern is to think that he has

romantic relationships with these women, and I think that could occur here as well.”

      Appellant refused to voluntarily take medication because he did not believe he

suffered from a mental illness.      Appellant also refused psychoactive medication

because of prior side effects he suffered related to heart conditions when he had taken

antipsychotic medications in the past.1 But according to Dr. Fadow, “the internist on

[Appellant’s] heart condition” had verified that Appellant could be safely treated with

antipsychotic medications and “cleared him for medication,” without any need to

follow up with a cardiologist. Consequently, Dr. Fadow recommended Appellant take

Abilify, a “very effective antipsychotic” that would also cause the least side effects.

And while Appellant had complained that Abilify made him feel hungry, Dr. Fadow

expressed confidence that weight gain caused by increased hunger could be controlled

through diet. Because weight gain could cause other medical problems, such as high

blood pressure, Dr. Fadow testified that the medical team keeps a close eye on the

situation: “[W]e monitor it very closely here, and we do have a dietitian to prevent the

excessive weight gain from occurring.”


      1
        According to Dr. Fadow, Appellant “has a history of a slower heart rate called
bradycardia, also left ventricular hypertrophy, and it does limit his - - the medications
that he can use.”

                                           3
        In Dr. Fadow’s opinion, Appellant would continue to be psychotic without

medication, “and his paranoid delusions are such that he will form a fixation, probably

on one of our female staff, a physician or a social worker, and he might become

aggressive as he has previously.” Dr. Fadow testified that there were no available

alternatives or less intrusive treatments available that would likely produce the same

results as treatment with medication.

        According to Dr. Fadow, when he had attempted to explain the benefits and

side effects of Abilify to Appellant, Appellant did not appear to fully understand

them.     Dr. Fadow attributed Appellant’s lack of understanding to Appellant’s

mistaken belief that he did not suffer from delusional thoughts or hallucinations.

Based upon his observations and interactions with Appellant, Dr. Fadow concluded

that medication was in Appellant’s best interests and that Appellant lacked the

capacity to make decisions about its administration.

        Appellant also testified at the hearing. He confirmed that he suspected that

toxic gas was being pumped into his home and causing his high blood pressure. And

he testified that although he had taken Abilify in the past, it was ineffective:

        A. …[T]he key issue is what benefits you’re going to have. And these
        thoughts that Dr. Fadow refers to as delusions, which may or may not
        be true, didn’t change - -

        Q. Okay.

        A. - - so that’s the core issue of taking the medication is they’re going to
        change your thought process. And did it change? No.

                                             4
Appellant reiterated his concern that medication could cause him to gain weight and

that, in turn, his blood pressure would again rise to unhealthy levels. Appellant also

complained that Abilify gave him an “icky feeling,” causing him to feel anxious, to

suffer from dry mouth, and to experience difficulty in sleeping, concentrating, and

exercising.

      The trial court granted the application for medication administration. In its

written order, the trial court found by clear and convincing evidence that Appellant

was in need of psychoactive medication and that

   • Appellant was under a court order to receive inpatient mental health services;

   • Appellant was in custody awaiting trial in a criminal proceeding and was
     ordered to receive inpatient mental health services in the six months preceding
     the hearing;

   • Appellant lacked the capacity to make a decision regarding the administration
     of the proposed medication and treatment with the proposed medication was
     in the best interest of Appellant;

   • Appellant was ordered to receive inpatient mental health services by a criminal
     court with jurisdiction over him, he presented a danger to himself or others in
     the inpatient facility in which he was being treated as a result of a mental
     disorder or mental defect as determined under section 574.1065, and treatment
     with the proposed medication was in Appellant’s best interest; and

   • the proposed medication was in the proper course of treatment, was in
     Appellant’s best interest, and Appellant was refusing to take the medication
     voluntarily.
See Tex. Health & Safety Code Ann. § 574.106.




                                          5
                                      Discussion

       Appellant brings one issue on appeal challenging the legal and factual

sufficiency of the evidence supporting the trial court’s order authorizing the

administration of medication.

I. Psychoactive-medication orders

       Trial courts may authorize the administration of one or more classes of

psychoactive medication to a patient who is in custody awaiting trial in a criminal

proceeding and who was ordered to receive inpatient mental-health services preceding

a hearing. Id. § 574.106(a)(2). In order to do so, the trial court must find by clear and

convincing evidence

       (1) that the patient lacks the capacity to make a decision regarding the
       administration of the proposed medication and treatment with the
       proposed medication is in the best interest of the patient; or
       (2) if the patient was ordered to receive inpatient mental health services
       by a criminal court with jurisdiction over the patient, that treatment with
       the proposed medication is in the best interest of the patient and . . . :
              (A) the patient presents a danger to the patient or others in the
              inpatient mental health facility in which the patient is being
              treated as a result of a mental disorder or mental defect as
              determined under Section 574.1065[.]
Id. § 574.106(a-1).

       Clear and convincing evidence is that measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established. In re S.P., 444 S.W.3d 299, 302 (Tex. App.—


                                           6
Fort Worth 2014, no pet.). While the proof must be of a heavier weight than merely

the greater weight of the credible evidence, there is no requirement that the evidence

be unequivocal or undisputed. Id.

       In weighing the evidence, the trial court is required to 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 mediation is not
       administered;
       (5) the prognosis for the patient if the patient is 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). And finally, if the trial court makes a

finding that the patient presents a danger to himself or others in the inpatient mental-

health facility in which he is being treated, the trial court shall consider:

       (1) an assessment of the patient’s present mental condition;
       (2) whether the patient has inflicted, attempted to inflict, or made a
       serious threat of inflicting substantial physical harm to the patient’s self
       or to another while in the facility; and
       (3) whether the patient, in the six months preceding the date the patient
       was placed in the facility, has inflicted, attempted to inflict, or made a

                                              7
      serious threat of inflicting substantial physical harm to another that
      resulted in the patient being placed in the facility.
Id. § 574.1065.

II. Standard of review

      When evaluating the legal sufficiency of the evidence, we determine whether

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

conviction that its finding was true. S.P., 444 S.W.3d at 302. We review all of the

evidence in the light most favorable to the finding, resolve any disputed facts in favor

of the finding if a reasonable factfinder could have done so, disregard all evidence that

a factfinder could have disbelieved, and consider undisputed evidence even if it is

contrary to the finding. Id. The factfinder, not this court, is the sole judge of the

credibility and demeanor of the witnesses. Id.

      When evaluating the factual sufficiency of the evidence, we determine whether,

on the entire record, a factfinder could reasonably form a firm conviction or belief

that its finding was true. Id. at 303. If the disputed evidence that a reasonable

factfinder could not have credited in favor of the finding is so significant that a

factfinder could not have reasonably formed a firm belief or conviction in the truth of

its finding, then the evidence is factually insufficient. Id. We must not supplant the

trial court’s judgment with our own. Id.




                                           8
III. Application

      Although Appellant’s issue on appeal is couched as an evidentiary-sufficiency

complaint, it also challenges the constitutionality of the statute governing the forced

medication of “non-dangerous” patients ordered by a criminal court to receive

mental-health treatment.2 See Tex. Health & Safety Code Ann. § 574.106(a-1). But

challenges to the constitutionality of a statute may be waived, In re R.B., 225 S.W.3d

798, 801 (Tex. App.—Fort Worth 2007, no pet.), and by neglecting to raise this

argument in the trial court, Appellant failed to preserve it for our review. Tex. R.

App. P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1); Bushell v. Dean, 803 S.W.2d 711,

712 (Tex. 1991) (op. on reh’g). We presume that statutes enacted by our legislature

are constitutional, and attacks on that presumption should generally be raised as an

affirmative defense to the enforcement of the statute. In the absence of such a

complaint in the trial court, we are without authority to consider it. R.B., 225 S.W.3d

at 801. We therefore overrule this portion of Appellant’s argument.

      Appellant’s challenge to the sufficiency of the evidence appears to be limited to

the trial court’s finding that he lacked capacity to make a decision regarding the




      2
        Appellant argues in his brief that “applying Section 574.106(a-1)(1) to a non-
dangerous 46B patient is an Unconstitutional [sic] violation of that patient’s due
process rights because it does not consider the 4-part test required by the United
States Supreme Court in Sell v. United States[, 539 U.S. 166, 123 S. Ct. 2174 (2003)].”

                                           9
administration of medication.3 While Appellant argues that his testimony at the

hearing demonstrated his capacity to make medication decisions, he ignores evidence

to the contrary—specifically, Dr. Fadow’s testimony about Appellant’s failure to

understand or admit to his delusional condition. Dr. Fadow testified that Appellant’s

schizophrenic condition manifests in delusional thoughts and fixations on female

professionals. Dr. Fadow detailed Appellant’s claims that the government had been

pumping gas into his residence and causing hallucinations.      He also testified about

Appellant’s fixation on a female newscaster and a female attorney.             Although

Appellant demonstrated knowledge and intelligence during his testimony,4 during his

brief testimony Appellant also rambled and required redirection through counsel.5

Throughout his testimony, Appellant repeated his doubt as to Dr. Fadow’s

assessment of his medical condition and “alleged delusions” referring to his delusions



      3
        Appellant does not challenge the trial court’s findings that Appellant presents a
danger to himself or others in his mental-health facility. By failing to do so, Appellant
has arguably forfeited any argument regarding the factual sufficiency of the evidence
supporting the trial court’s finding of Appellant’s dangerousness. See Tex. R. App. P.
33.1(a)(1)(A).
      4
        For example, while complaining about the “sedative effect” of the proposed
medication, Appellant offered, “So, I mean, Justice Scalia has recognized it’s hard to
go through a trial when you’re on the antipsychotic medication. He was a supreme
court justice.”
      5
        At one point, Appellant digressed into a query of why he was sent to sit out in
the hall frequently in third grade, followed by an observation that “you have not
verified whether or not this toxic gas is being pumped into my home.”

                                           10
as “these thoughts that Dr. Fadow refers to as delusions, which may or may not be

true.”

         “Capacity” is statutorily defined as a patient’s ability to understand the nature

and consequences of a proposed treatment, including the benefits, risks, and

alternatives to the proposed treatment; and to make a decision whether to undergo

the proposed treatment.        Tex. Health & Safety Code Ann. § 574.101(1).            To

understand the nature and consequences of a proposed treatment, one must recognize

the nature of the condition to be treated. See A.S. v. State, 286 S.W.3d 69, 73 (Tex.

App.—Dallas 2009, no pet.) (holding evidence sufficient to support lack-of-capacity

finding when schizophrenic patient did not understand nature of her illness and

necessity of the medications). In addition to the fact that Appellant questioned Dr.

Fadow’s characterization of his beliefs as delusions, Appellant’s chief complaint about

the medication was the weight gain and the consequent risk of a heart attack. But Dr.

Fadow testified that an internist had approved the administration of medication

despite his heart conditions and that Appellant’s weight would be monitored and

could be managed through diet.

         Examining the entirety of the record, the evidence is legally and factually

sufficient to support the trial court’s finding by clear and convincing evidence that

Appellant lacked the capacity to make a decision regarding the proposed medication

and that the medication was in his best interest. See id.; In re C.S., 208 S.W.3d 77, 84–

85 (Tex. App.—Fort Worth 2006, pet. denied) (holding evidence sufficient to support
                                            11
lack-of-capacity finding where patient’s physician testified that medication could

improve patient’s quality of life by alleviating delusions and that patient’s condition

had previously improved while taking medication). We therefore overrule Appellant’s

sole issue.

                                      Conclusion

       Having overruled Appellant’s sole issue, we affirm the trial court’s order.



                                                       /s/ Bonnie Sudderth
                                                       Bonnie Sudderth
                                                       Chief Justice

Delivered: August 28, 2019




                                           12
