State ( 2018 )

NO. 12-18-00077-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
THE STATE OF TEXAS FOR THE § APPEAL FROM THE
BEST INTEREST AND PROTECTION § COUNTY COURT AT LAW
OF J. W. § CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
This is an accelerated appeal of a trial court’s judgment involuntarily committing J.W. for
temporary mental health services and ordering the administration of psychoactive medication to
him. J.W.’s court-appointed counsel filed a brief in compliance with Anders v. California, 386
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
On March 16, 2018, an application was filed for court-ordered temporary mental health
services with regard to J.W. On March 20, 2018, the trial court conducted an evidentiary hearing
on the matter. Following the hearing, the trial court found that there is clear and convincing
evidence that J.W. (1) is likely to cause serious harm to others, (2) is suffering severe and abnormal
mental, emotional, or physical distress, (3) is experiencing substantial mental or physical
deterioration of his ability to function independently, which is exhibited by his inability, except
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., not designated for publication); In re E.M., No.
03-96-00703-CV, 1997 WL 217186, at *2 (Tex. App.–Austin May 1, 1997, no writ) (op., not designated for
publication). We conclude 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.
for reasons of indigence, to provide for his basic needs, including food, clothing, health, or safety,
and (4) is unable to make a rational and informed decision as to whether to submit to treatment.
As a result, the trial court rendered a written order committing J.W. for temporary inpatient mental
health services for a period up to forty-five days, but not to exceed ninety days.2
That same day, the trial court held an evidentiary hearing on J.W.’s treating physician’s
application for administration of psychoactive medication to J.W. Thereafter, the trial court found
that the allegations made in the application are “true and correct and are supported by clear and
convincing evidence,” treatment with the proposed medication is in J.W.’s best interest, and J.W.
lacks the capacity to make a decision regarding administration of the medication. As a result, the
trial court granted the application and rendered an order for administration of psychoactive
medication to J.W. This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
J.W.’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), J.W’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.3 We likewise reviewed the record for reversible
error and have found none.
CONCLUSION
As required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), J.W.’s counsel
moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App.
2
At the hearing, the trial court pronounced the term of J.W.’s commitment as a period “not to exceed
[forty-five] days.” However, a written order controls over a trial court’s oral pronouncement when there is an
inconsistency. See In re A.S.G., 345 S.W.3d 443, 448 (Tex. App.–San Antonio 2011, no pet.).
3
In compliance with Kelly v. State, J.W.’s counsel provided J.W. with a copy of the brief, notified J.W. of
his motion to withdraw as counsel, informed J.W. of his right to file a pro se response, and took concrete measures to
facilitate J.W.’s review of the appellate record. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). J.W.
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.
2
2008) (orig. proceeding). We carried the motion for consideration with the merits. Having done
so and finding no reversible error, we grant J.W.’s counsel’s motion for leave to withdraw and
affirm the trial court’s judgment.
As a result of our disposition of this case, J.W.’s counsel has a duty to, within five days of
the date of this opinion, send a copy of the opinion and judgment to J.W. and advise him of his
right to file a petition for review. Cf. TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411
n.35. Should J.W. wish to seek review of this case by the Texas Supreme Court, he must either
retain an attorney to file a petition for review on his behalf or he must file a petition for review pro
se. Any petition for review must be filed within forty-five days from the date of either this opinion
or the last timely motion for rehearing that was overruled by this court. See TEX. R. APP. P. 53.7.
Any petition for review must be filed with the Texas Supreme Court. See TEX. R. APP. P. 53.1.
Any petition for review should comply with the requirements of Texas Rule of Appellate
Procedure 53.2. Cf. In re Schulman, 252 S.W.3d at 408 n.22.
Opinion delivered September 19, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 19, 2018
NO. 12-18-00077-CV
THE STATE OF TEXAS FOR THE BEST
INTEREST AND PROTECTION OF J. W.
Appeal from the County Court at Law
of Cherokee County, Texas (Tr.Ct.No. 42,336)
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.