According to appellant, each instance was caused by someone being aggressive toward him;  A.B. simply defended himself.  He had not shown any aggression without cause, had not hurt anyone, and did not intend to hurt anyone. v. << (2011)

THE STATE OF TEXAS IN THE BEST INTEREST AND PROTECTION OF A.B.

On Appeal from the County Court at Law No. 2

Kaufman County, Texas

Trial Court Cause No. 11M–093

MEMORANDUM OPINION

Opinion By Justice Francis

In this accelerated appeal, A.B. challenges the trial court's judgment committing him for temporary inpatient mental health care.   In two points of error, A.B. claims the evidence is legally and factually insufficient to support the findings upon which the trial court's order was based.   We affirm.

A.B. was picked up by the Titus County police on April 26, 2011 because he was wandering in traffic.   That same day, the State filed an application for temporary court-ordered mental health services.   The trial court ordered A.B. committed to Terrell State Hospital (TSH) pending a hearing on the application.   At the May 16 hearing, Dr. Anthony Claxton and A.B. testified.   The trial court found A.B. was mentally ill, found he was likely to cause serious harm to others and would, if not treated, continue to suffer severe and abnormal mental, emotional or physical distress and continue to experience deterioration of his ability to function independently, and found A.B. was unable to make a rational and informed decision as to whether or not to submit to treatment.   The court granted the application and ordered A.B. committed to TSH for a period not to exceed ninety days.

In two points of error, A.B. contends the evidence is insufficient to support the trial court's findings in support of the commitment order.   Under his first point, he argues no evidence or insufficient evidence shows he was likely to cause harm to others.   Under his second point, he claims no evidence or insufficient evidence establishes he would continue to suffer severe and abnormal mental, emotional, or physical distress if not treated or was unable to make rational and informed decisions regarding whether to submit to treatment.

A judge may order a patient to be committed for temporary inpatient mental health services if the State establishes, by clear and convincing evidence, the patient is mentally ill and at least one of three statutory criteria exists.   Tex. Health & Safety Code Ann. § 574.034(a) & 574.106(a-l) (West 2010).   Specifically, the judge must find the patient is (1) likely to cause harm to himself;  (2) likely to cause harm to others;  or (3) suffering severe and abnormal mental, emotional, or physical distress;  experiencing substantial mental or physical deterioration of the ability to function independently, which is exhibited by the inability (excluding indigence) to provide for his basic needs, including food, clothing, health, or safety;  and unable to make a rational and informed decision as to whether or not to submit to treatment.   Id. § 574.034(a)(1), (2).   The statute requires evidence of an overt act that “tends to confirm” the “likelihood” of serious harm to others.  State v. K.E.W., 315 S.W.3d 16, 23 (Tex.2010);  see Tex. Health & Safety Code Ann. § 574.034(d).

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 sought to be established.”  State v. Addington, 588 S.W.2d 569, 570 (Tex.1979) (per curiam).   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 either the likelihood of serious harm to others or the proposed patient's distress and the deterioration of his ability to function.  Tex. Health & Safety Code Ann. § 574.034(d).  The recent overt act or continuing pattern of behavior must relate to the criteria on which the judgment is based.   See T.G. v. State, 7 S.W.3d 248, 252 (Tex.App.—Dallas 1999, no pet.).   The expert's opinions and recommendations must be supported by a showing of the factual bases on which they are grounded.  Id.

Because the State's burden of proof is clear and convincing evidence, we apply a heightened standard of review.  In re C.H., 89 S.W.3d 17, 25 (Tex.2002).   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 petition were proven.  Id.

Here, the judge found A.B. was mentally ill;  this finding is not challenged on appeal.   In addition, the judge found A.B. was likely to cause harm to others and was (i) suffering severe and abnormal mental, emotional, or physical distress, (ii) experiencing substantial mental or physical deterioration of the ability to function independently, which is exhibited by the inability (excluding indigence) to provide for his 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.

During the hearing, Dr. Claxton testified A.B. was brought in after he was found wandering in traffic.   Dr. Claxton examined A.B. on May 2 as well as the day of the hearing.   According to Dr. Claxton, A.B. has schizoaffective disorder, bipolar type which is characterized by mood swings and psychosis symptoms.   The doctor described A.B.'s case, stating he has “extreme irritability and mood swings, crying out for no apparent reason in the hall, seems like, in response to internal stimuli, although he denies that he's hearing voices or seeing things.”   A.B. is extremely paranoid at times;  his speech “has been pressured and loose, his psychomotor activity has been increased.”   A.B. does not believe he is ill;  therefore, he does not believe he needs medications and has been refusing treatment.

Dr. Claxton discussed A.B.'s acts of aggression toward others, stating the incidents were numerous and recent.   According to the doctor, these acts were unprovoked and required emergency medication.   In addition, A.B. had numerous incidents where he had to be separated from female patients because he made unwarranted advances and inappropriate gestures and comments.   Since being placed at TSH, A.B. had been on one-to-one close observation because of these repeated acts of aggression.   Hospital officials confiscated shanks he made shortly after he arrived.   Dr. Claxton completed a certificate of medical examination for mental illness on A.B. six days after A.B. arrived at TSH;  the certificate noted three attacks on other patients over the weekend and that A.B. had poor insight into his illness.   Dr. Claxton finally noted A.B. had been released from prison just six days before being picked up by the Titus police and that he had a “tussle” with the police.

A.B. testified he lives in Mt. Vernon with his mother.   The day he was picked up for wandering in traffic, he was hitchhiking home.   His brother had taken him to a friend's house but A.B. did not want to do drugs and sleep on a stranger's sofa, so he decided to hitchhike to his mother's house where he lived.   His sixty-three year old disabled mother had allowed him to live with her when he was released from prison.   He was looking for a job, was not taking any medications at the time of the hearing, and had not taken any while he was in prison.

When asked about the confrontations with other patients, A.B. responded:

Somebody was taking my property off my bed to probably give to somebody herself [sic].   I grabbed a guy and squared him out of my room.   Some other black guy came, trying to take revenge for this other guy that tried to take my property.

I got in a fight with him, and it resorted to a telephone because other people would let him use the telephone for hours and hours on the telephone.   I said, sir, let me use the phone.   It's only supposed to be 15 minutes—or five minutes.   I got in a fight with him, again.

Another fight was, somebody pulled a table on me for no prior reason, and the table hit my legs and my feet.   I co-cocked [sic] him.   And another reason was, somebody—that's about it.

Although A.B. claims the evidence is legally and factually insufficient to support the trial court's ruling, after reviewing the record, we cannot agree.   Dr. Claxton testified A.B. had several incidents of aggression toward other patients over a seventeen-day period immediately preceeding the hearing and had to be physically separated from certain patients because of his actions.   During this time, hospital officials also confiscated some shanks from A.B. These incidents required A.B. be medicated and supervised on a one-to-one basis.   Although A.B. testified his actions were in self defense, the trial court was the fact finder and could have concluded A.B.'s testimony was not credible and disregarded it.

When viewed in the light most favorable to the trial court's findings, we conclude the evidence in the record shows A.B.'s behavior was dangerous to others.   We further conclude, based on the entire record, a fact finder could reasonably form a firm conviction or belief that A.B. was likely to cause harm to others.   The evidence is legally and factually sufficient to support the finding that, as a result of his mental illness, A.B. would likely cause serious harm to others.   We overrule A.B.'s first point of error.

In light of our disposition of A.B.'s first point, we need not address his second point of error.   See Tex.R.App. P. 47.1. We affirm the trial court's judgment.

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