the State of Texas for the Best Interest and Protection of C. B. ( 2021 )

NO. 12-20-00264-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.B. § CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
This is an accelerated appeal of a trial court’s order that C.B. be involuntarily
administered psychoactive medication. C.B.’s court appointed counsel filed a brief in
compliance with Anders v. California, 366 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967)
and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). 1 We affirm.
BACKGROUND
C.B. is a patient at Rusk State Hospital (RSH) pursuant to an order for in-patient mental
health services. On November 18, 2020, an application was filed for court-ordered
administration of psychoactive medication to C.B. On November 24, the trial court conducted
an evidentiary hearing on the matter.
At the hearing, Dr. Robert Lee testified on the State’s behalf. Dr. Lee testified that
Appellant suffered from schizophrenia. Dr. Lee further stated that C.B. refused medication and
lacked the capacity to make a decision regarding medication. According to Dr. Lee, C.B. refused
1
See In re State ex rel. Best Interest & Prot. of L.E.H., 228 S.W.3d 219, 220 (Tex. App—San Antonio
2007, no pet.) (concluding that Anders procedure is appropriate when court-appointed counsel concludes an appeal
from involuntary commitment order is frivolous); see also In re T.R.G., No. 07–05–0179–CV, 2005 WL 2152915,
at *1 (Tex. App.—Amarillo Sept.7, 2005, no pet.) (mem. op.); In re E.M., No. 03-96-00703-CV, 1997 WL 217186,
at *2 (Tex. App.—Austin May 1, 1997, no writ) (op.). We hold that the Anders procedure also is appropriate when
court-appointed counsel concludes an appeal from an order to administer psychoactive medication is frivolous. Cf.
In re L.E.H., 228 S.W.3d at 220.
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medication due to paranoid delusions and concerns that the medications would prevent him from
having children. Dr. Lee characterized these concerns as irrational.
Dr. Lee discussed the exhibit attached to the application, which sets forth the
classification of medications he wished to administer to C.B. Dr. Lee stated that the benefits of
the medications referenced in the exhibit outweighed the risks associated with them. Dr. Lee
further testified that C.B. likely will regain trial competency faster if the medications are used
versus if they are not used. He also testified that none of the medications requested would
interfere with C.B.’s ability to confer with his attorney about his underlying criminal charges.
Dr. Lee stated that he was aware that C.B. was at RSH pursuant to a court order for
mental health services in accordance with Texas Code of Criminal Procedure, Article 46B,
following what he described as “a charge related to injury to a disabled child.”
On cross-examination, he testified that C.B. has complained about side effects from the
medications. However, Dr. Lee characterized them as “psychosomatic symptoms or symptoms
he may have because of anxiety, but they are not a direct side effect from the medication.” He
further testified that there are no less intrusive therapies to allow C.B. to regain competency at
this time.
C.B. testified that he did not wish to take the medications because of the side effects he
experienced. He further testified, “I don’t like to be treated like a child because I don’t deserve
to take some medicine because I haven’t been – I haven’t hit nobody or anything, and he trying
to say that I need medicine just because they make me mad.”
The trial court ultimately granted the application for administration of psychoactive
medications. In so doing, the court found that C.B. lacked the capacity to make a decision
regarding administering of medication and that said medication was in his best interest. This
appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
C.B.’s counsel filed a brief in compliance with Anders v. California and Gainous v.
State. In it, he states that he diligently reviewed the appellate record and is of the opinion that
the record reflects no reversible error and that there is no error upon which an appeal can be
predicated. He further relates that he is well acquainted with the facts in this case. In compliance
with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978),
2
C.B.’s brief presents a chronological summation of the procedural history of the case and states
that his counsel is unable to raise any arguable issues for appeal. 2 We likewise reviewed the
record for reversible error and have found none.
CONCLUSION
C.B.’s counsel moved for leave to withdraw. See In re Schulman, 252 S.W.3d 403, 407
(Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the
merits. However, despite our having found no reversible error, we deny counsel’s request to
withdraw. See In re P.M., 520 S.W.3d 24, 27–28 (Tex. 2016). In In re P.M., the Texas
Supreme Court held that the right to counsel in suits seeking the termination of parental rights
extends to “all proceedings in [the Texas Supreme Court], including the filing of a petition for
review.” Id. at 27. After disposition by the court of appeals, an appeal of an order to administer
psychoactive medication is made to the Texas Supreme Court. See TEX. HEALTH & SAFETY
CODE ANN. §§ 574.070(e), 574.108(a) (West 2017). Accordingly, applying P.M. to the
circumstances of this case, we conclude that counsel’s obligation to C.B. has not yet been
discharged. See P.M., 520 S.W.3d at 27; see also, State for Best Interest & Prot. of M.R., No.
12-19-00228-CV, 2020 WL 500772, at *2 (Tex. App.—Tyler Jan. 31, 2020, no pet.) (per
curiam) (mem. op.). If C.B., after consulting with counsel, desires to file a petition for review,
counsel should timely file with the Texas Supreme Court “a petition for review that satisfies the
standards for an Anders brief.” P.M. 520 S.W.3d at 27; cf. A.C. v. Tex. Dep’t of Family &
Protective Servs., No. 03-16-00543-CV, 2016 WL 5874880, at *1 n.2 (Tex. App.–Austin Oct. 5,
2016, no pet.) (mem. op.). We affirm the trial court’s judgment. See TEX. R. APP. P. 43.2.
Opinion delivered August 18, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
2
In compliance with Kelly v. State, C.B.’s counsel provided C.B. with a copy of the brief, notified C.B. of
his motion to withdraw as counsel, informed C.B. of his right to file a pro se response, and took concrete measures
to facilitate C.B.’s review of the appellate record. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014).
C.B. was given time to file his own brief. The time for filing such a brief has expired and no pro se brief has been
filed.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 18, 2021
NO. 12-20-00264-CV
THE STATE OF TEXAS FOR THE
BEST INTEREST AND PROTECTION OF C.B.
Appeal from the County Court at Law
of Cherokee County, Texas (Tr.Ct.No. 43067)
THIS CAUSE came to be heard on the appellate record and brief filed herein,
and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
4