Andrew Sawyer Weller v. State ( 2009 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-09-00114-CV ____________________

ANDREW SAWYER WELLER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause Nos. 49280, 49361

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MEMORANDUM OPINION

This is an appeal from a commitment order. In one issue, Andrew Sawyer Weller asserts that "[t]he trial court erred in entering an order renewing court ordered inpatient extended mental health services because the order is factually insufficient." We affirm the trial court's order.

Weller was found not guilty of murder by reason of insanity on January 11, 1988. See Weller v. State, 184 S.W.3d 787, 788 (Tex. App.--Beaumont 2006, no pet.). Weller was committed for treatment pursuant to article 46.06, section 4(d) of the Texas Code of Criminal Procedure. Id.; see also Act of May 25, 1983, 68th Leg., R.S., ch. 454, § 3, 1983 Tex. Gen. Laws 2640, 2643-47 (repealed 2005) (current version at Tex. Code Crim. Proc. Ann. art. 46C.256 (Vernon 2006)). ⁽¹⁾ Weller is currently committed to Rusk State Hospital.

The State filed an application for renewal of extended court-ordered mental health services. Section 4(d)(5) of article 46.03 provides that a person acquitted by reason of insanity and committed to a mental hospital or other appropriate facility may only be discharged by an order of the committing court, and charges the trial court with determining whether the acquitted person continues to meet the criteria for involuntary commitment. Act of May 25, 1983, 68th Leg., R.S., ch. 454, § 3, 1983 Tex. Gen. Laws 2640, 2644-45 (repealed 2005); see also Tex. Health & Safety Code Ann. §§ 574.031-.037 (Vernon 2003 & Supp. 2008). "'The court can only recommit appellant if it finds that he meets one of the criteria for commitment specified in Mental Health Code section 574.035.'" Weller v. State, 273 S.W.3d 350, 353 (Tex. App.--Beaumont 2008, no pet.) (quoting Campbell v. State, 118 S.W.3d 788, 793 (Tex. App.--Houston [14th Dist.] 2003, pet. denied)).

After Weller waived his right to a jury trial, the trial court held a hearing on the application. The court found by clear and convincing evidence, that Weller (1) is mentally ill; (2) will, if not treated, continue to suffer severe abnormal mental, emotional and physical distress; (3) will, if not treated, continue to experience deterioration of his ability to function independently; (4) is presently unable to make a rational and informed decision as to whether or not to submit to treatment; (5) his present condition is expected to continue for more than 90 days; and (6) his current treatment for his psychosis, which is monitored to detect signs of Leukopenia (low white blood cell count), must be reviewed by proper health authorities due to a recent blood analysis reflecting a critically low result. The court entered a judgment committing Weller to Rusk State Hospital for inpatient treatment.

Appellant asserts on appeal that the trial court's order is "factually insufficient" because the trial court "made oral findings in open court," which appellant asserts "do not comport with the required statutory findings." Appellant further contends that the findings in the court's written order conflict with the court's oral findings and that the court's oral pronouncement controls. Appellant argues that the trial court's order should be modified to conform with the court's oral findings and that once the order is modified the court will be "left with the inescapable conclusion that the state has wholly failed to meet its burden, and the trial court erred in entering its order." In support of this argument, appellant relies on comments made by the trial court during the hearing including an exchange that took place between Weller and the trial judge.

During the competency hearing, the State called two expert witnesses, Dr. Dan Roberts, a clinical psychologist, and Dr. Edward Gripon, a psychiatrist. To arrive at his opinion, Dr. Roberts interviewed Weller and reviewed Weller's records. Dr. Roberts testified that it is his opinion that Weller is mentally ill and his mental illness is severe and persistent. Dr. Roberts testified about Weller's refusal to take antipsychotic medication in the past. Dr. Roberts further testified that he observed signs that Weller's thought process remained disturbed and somewhat ineffective and his judgment and reasoning skills appear to be impaired. Dr. Roberts stated that he saw ongoing signs of paranoia in Weller. In Dr. Roberts's opinion, Weller's signs of ongoing mental illness were significant enough to render him unstable. Dr. Roberts stated that without continuing treatment in an inpatient facility Weller would be a danger to himself and others and that Weller would continue to suffer severe and abnormal mental, emotional or physical distress. Dr. Roberts explained that in the "past year" Weller had "tried to cover his symptoms" and stated that he was not psychotic "in spite of the fact that he clearly has been for many years." Without treatment in an inpatient facility, Dr. Roberts believed that Weller would continue to experience deterioration of the ability to function independently.

Dr. Gripon, who testified that he has been involved in Weller's case since the mid-1980s, reviewed Weller's hospital records prior to testifying at the hearing. Weller, however, refused to meet with Dr. Gripon. Like Dr. Roberts, Dr. Gripon testified that Weller's mental illness was severe and persistent and that if not treated Weller would continue to suffer severe abnormal mental, emotional or physical distress. Dr. Gripon further testified, based on his evaluation, that if not treated Weller would continue to experience deterioration of the ability to function independently. In Dr. Gripon's opinion, Weller did not have the ability to participate in outpatient treatment services effectively and voluntarily. Following Dr. Gripon's testimony, the state rested.

Weller called Dr. Satyajeet Lahiri, a psychiatrist at Rusk State Hospital to testify. Dr. Lahiri was part of the treatment team that prepared the Rusk State Hospital's report, submitted to the court, regarding whether Weller needed continued hospitalization or was ready for discharge into the community. Dr. Lahiri explained that Weller was free to walk within the grounds of the facility without an escort and was considered reliable and independent. According to Dr. Lahiri, "very few" patients have the least restrictive ground access that Weller has at Rusk Hospital. Dr. Lahiri explained that Weller was part of the work program and was considered psychiatrically stable, meaning he was not showing "acute signs of psychosis" and was "free of assaultive or self-injuries tendencies." Dr. Lahiri testified that Weller had received only positive reports regarding his job performance.

It was the opinion of Dr. Lahiri and the treatment team that as of February 14, 2008, Weller did not in any way appear to be symptomatic of his mental illness. According to Dr. Lahiri, Weller's "symptoms were well-controlled by the medication." Dr. Lahiri testified that when Weller was initially admitted he had problems with his medication; however, once Weller's medication was changed, Weller was comfortable with that medication and the medication was "effective as it controlled his symptoms very well." Dr. Lahiri explained, "Mr. Weller had psychotic symptoms related to his being paranoid and also he's expressing delusional thinking. So these symptoms were very well targeted by his taking [his current medication] because he did not show any acute psychotic symptoms; and this is why I mentioned that [his current medication] was effective." Dr. Lahiri acknowledged that Weller would have to take the medication, "or some other medication as regulated by a doctor" for a long period of time. Dr. Lahiri explained that he and the other two members of the treatment team were recommending to the court that Weller be discharged from inpatient care. Following Dr. Lahiri's testimony, appellant rested.

After both parties rested but before the court made its ruling, the court informed the parties that it had received a note from Dr. Gripon stating, "[c]all Dr. Gripon. Very important regarding Weller." Over appellant's objection, the court allowed Dr. Gripon to be recalled and further examined. Dr. Gripon testified that he had received a call from the Jefferson County Correctional Facility after he had testified, informing Dr. Gripon that Weller's lab work indicated that Weller had developed a side effect from the drug he had been prescribed and which was being administered to him, which he had been taking for seven months. According to Dr. Gripon, Weller had developed Leukopenia, a dangerously low white blood cell count. Dr. Gripon stated that Weller would have to be taken off his current medication and that the treating physicians would "have to go back to square one" in regulating Weller's medication.

The hearing was continued until March 4, 2009, to give Weller's counsel an opportunity to review the lab results and contact any additional witnesses he may need to call in response. On March 4, 2009, the information regarding Weller's blood analysis was admitted into evidence over objection by Weller's counsel. At that time the court made the following comments on the record:

All right. Well, its going to be admitted; and notwithstanding Mr. Johnson's statements, what I believe we have here is something that we're all concerned about, the well-being of Mr. Weller. No one, I don't think, here wants to see Mr. Weller in any other condition but better and good and safe and healthy and if all of that results in him being released to outpatient treatment, then so be it. But what has been dropped before this Court is a grenade with its pin pulled out, in essence. A lab test which the evidence presented by the defendant has been showing in this area to be normal is now not only abnormal but is being represented in a critical - a critically disturbing state. And the way I review this from what I know about what I am seeing, Mr. Weller is in dire physical health because of this and I don't think we are in a position to do anything else, in all fairness to him and his safety and health, but to get the people who are best able to treat him and get him back to a normalcy and that is to refer him back to the Texas Department of State Health Services so they can either determine whether this is an aberration or whether his treatment needs to be adjusted to a treatment schedule and a treatment method that is safe for him.

Thereafter, Weller requested that he be allowed to address the court, at which time a brief exchange took place between Weller and the court. Weller expressed to the court his desire to work with the mental health authority on an outpatient basis to find an alternative treatment for his mental illness. Thereafter, the following discussion ensued:

THE COURT: [T]he court is not going to allow that request until we have the doctors who say this medicine is what's good for you, it's working and you're not having any adverse consequences and --

THE DEFENDANT: You have that.

THE COURT: Until that last moment, that's the way it was headed but right now without [the current medication], that means you would not be getting any treatment for your psychosis and in that situation, the Court is not doing its proper work and is not --

THE DEFENDANT: Well, through safe administration from the mental health authority's treatment team there at Spindletop. I haven't even sat with the psychiatrist there, and I'm sure he's very concerned about this also.

THE COURT: Yes, sir. I understand. I can appreciate what you're saying. The Court is going to administer and formulate an order that would require Mr. Weller to go back to the Texas Department of State Health Services, let them analyze this and get back to me at the earliest possible time and if they at any time in the near future decide that we can take him back up and pick up where this hearing left off or, you know, have another hearing based upon the new facts concerning the new treatment, the Court will be ready, willing and able to do that. But, otherwise, we're going to have to get Mr. Weller back for the treatment that this Court can be satisfied and feel comfortable with.

. . . .

THE DEFENDANT: But how can you throw out a full year of doing exactly that?

THE COURT: Because this test now has shown -- it's a different set of circumstances. It has been fine for a year. Now this test shows, as you know, that this medicine is adverse and the doctors --

THE DEFENDANT: That's right. I've been off of it and my blood is creating new blood cells and all that and its correcting itself.

THE COURT: Well, I'm a doctor of jurisprudence; and I don't know if you're a medical physician. I don't think you have any experience.

THE DEFENDANT: No, but that's what the blood people are telling me.

THE COURT: But we want the experts to render a decision but the experts, a doctor, has looked at these results and this result shows a critical, critical response. It says "critical" on it; and to me, that means you need to get taken care of.

Appellant asserts that these remarks, made by the trial court on the record, constitute oral findings that conflict with the written findings set forth in the court's judgment. Appellant further contends that the judgment must be modified to conform to the court's oral pronouncement of its findings, which are insufficient to support the judgment. Appellant cites Coffey v. State, 979 S.W.2d 326 (Tex. Crim. App. 1998) in support of his argument. In Coffey, the court held that when the court's oral pronouncement of the defendant's sentence and its written memorialization of the sentence vary, the oral pronouncement controls. Id. at 328; see also Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). In most criminal cases, a defendant's sentence must be pronounced orally in his presence. See Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (Vernon Supp. 2008); see also Taylor, 131 S.W.3d at 500. The judgment serves as a written declaration of the court's oral pronouncement of the defendant's sentence. Taylor, 131 S.W.3d at 500. In Texas, mental health commitment proceedings are civil rather than criminal proceedings. See In the interest of G.D., 10 S.W.3d 419, 422 (Tex. App.--Waco 2000, no pet.); see also N.W. v. State, 678 S.W.2d 158, 160 (Tex. App.--Beaumont 1984, no writ); Taylor v. State, 671 S.W.2d 535, 539 (Tex. App.--Houston [1st Dist.] 1983, no writ). We find Coffey, and the line of criminal cases which follow its rule, inapplicable to the present case.

Generally, in civil proceedings, a court's statements during a hearing do not constitute findings. See Int'l Ass'n of Fire Fighters Local 624 v. City of San Antonio, No. 04-06-00506-CV, 2007 WL 4124306, at *3 (Tex. App.--San Antonio Nov. 21, 2007, no pet.); see also Intec Sys., Inc. v. Lowrey, 230 S.W.3d 913, 918 (Tex. App.--Dallas 2007, no pet.) (recognizing that a court's oral statements cannot substitute for findings); Gibson v. Bostick Roofing & Sheet Metal Co., 148 S.W.3d 482, 494 (Tex. App.--El Paso 2004, no pet.) (holding that the court's comment on the record was an oral comment and did not constitute a finding of fact or conclusion of law); Larry F. Smith, Inc. v. The Weber Co., 110 S.W.3d 611, 615 (Tex. App.--Dallas 2003, pet. denied) (recognizing the "long standing rule" that oral statements cannot substitute for findings of fact and conclusions of law). The Texas Rules of Civil Procedure require that a party request findings of fact of fact and conclusions of law and that written findings be filed separately by the court. See Tex. R. Civ. P. 296, 297, 299 & 299a. Here, however, the Texas Health and Safety Code mandates that the court make findings for extended inpatient mental health services and set forth those findings in the court's order. See Tex. Health & Safety Code Ann. § 574.035(c) ("[J]udge must specify which criterion listed in [the statute] forms the basis for the decision."); id. § 574.035(g) ("[C]ourt may not enter an order . . . unless appropriate findings are made and are supported by [the] testimony . . . ."); see also Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000) (finding that when a rule of procedure conflicts with a statute, the statute prevails unless the rule was passed subsequent to the statute and repeals the statute). The trial court's comments on the record do not constitute findings. See generally Int'l Ass'n of Fire Fighters, 2007 WL 4124306, at *3; Tex. Health & Safety Code Ann. § 574.035(c), (g).

Assuming it was proper for the court to make oral findings regarding its reasons for extending court-ordered mental health services under the Texas Health and Safety Code, we disagree with appellant's contention that the court's comments in the present case conflict with its written findings. The court found in part, that Weller (1) is mentally ill; (2) will, if not treated, continue to suffer severe abnormal mental, emotional and physical distress; (3) will, if not treated, continue to experience deterioration of his ability to function independently; and (4) is presently unable to make a rational and informed decision as to whether or not to submit to treatment. See Tex. Health & Safety Code Ann. § 574.035(a)(1)(C)(i)-(iii). The court's comments regarding Weller's changed circumstances support these findings.

The trial court could reasonably have found by clear and convincing evidence submitted on the record that prior to and without taking his current medication, Weller continued to meet the statutory criteria for involuntary commitment. Dr. Lahiri's favorable opinions regarding Weller's mental stability at the time of discharge from his care were clearly based upon the perceived positive effects that the current medication was having on Weller's mental illness, as long as it was being properly administered and taken by Weller. Dr. Lahiri further testified that without this medication and before it was prescribed and taken by Weller, Weller did not exhibit appropriate behaviors to allow Dr. Lahiri to express his opinion that Weller could be effectively treated on an outpatient basis. The trial court could reasonably conclude from Dr. Gripon's testimony after receiving the most recent blood tests from Weller that Weller was going to have to be taken off of the medication that had allowed Weller to show the improvements in his condition that Dr. Lahiri found favorable. Our review of the record indicates that the evidence is legally and factually sufficient to support the court's judgment. We overrule appellant's sole issue on appeal and affirm the judgment of the court below.

AFFIRMED.

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CHARLES KREGER

Justice

Submitted on June 23, 2009

Opinion Delivered August 27, 2009

Before McKeithen, C.J., Kreger and Horton, JJ.

1. The Texas Legislature repealed article 46.03 in 2005 and amended the Code of Criminal Procedure to add "Chapter 46C. Insanity Defense." Act of May 27, 2005, 79th Leg., R.S., ch. 831, §§ 1, 2, 2005 Tex. Gen. Laws 2841. The 2005 amendment "applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose." Act of May 27, 2005, 79th Leg., R.S., ch. 831, § 5, 2005 Tex. Gen. Laws 2841, 2853-54. The effective date was September 1, 2005. Act of May 27, 2005, 79th Leg., R.S., ch. 831, § 6, 2005 Tex. Gen. Laws 2841, 2854.