in the Matter of R.W. ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00137-CV
___________________________
IN THE MATTER OF R.W.
On Appeal from County Court at Law No. 2
Wichita County, Texas
Trial Court No. 50468-L-D
Before Sudderth, C.J.; Gabriel and Bassel, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant R.W. appeals from the county court’s order authorizing the Texas
Department of Mental Health and Mental Retardation to administer, regardless of
R.W.’s refusal, psychoactive medication to restore him to competency. R.W.
challenges the sufficiency of the evidence to support the order. We conclude that the
evidence was legally and factually sufficient to support the county court’s findings,
authorizing the involuntary administration of medication.
I. BACKGROUND
A. INCOMPETENCY DETERMINATIONS
R.W. was charged with two criminal offenses.1 On September 24, 2018, R.W.’s
attorney filed a motion for the appointment of an expert to examine R.W. for his
competency to stand trial. See Tex. Code Crim. Proc. Ann. arts. 46B.004–.005, .021.
The district court appointed a disinterested expert to examine R.W., and the expert
reported to the court that R.W. was incompetent to stand trial. See id. art. 46B.025.
On November 14, 2018, the district court found R.W. incompetent to stand trial
because of mental illness and ordered him committed to a state hospital for 120 days.
See id. art. 46B.073(a).
The charges were for the failure to register as a sex offender and for assaulting
1
a public servant. Tex. Code Crim. Proc. Ann. art. 62.102; Tex. Penal Code Ann.
§ 22.01(a), (b)(1).
2
The Texas Department of State Health Services later informed the district
court that R.W. had not attained competency and filed two certificates of R.W.’s
recent psychiatric examinations, affirming that R.W. was not competent. See id. arts.
46B.077(b), .079, .083. Both the State and R.W.’s counsel reviewed the certificates
and agreed that R.W. was not competent to stand trial on the pending criminal
charges. See id. art. 46B.083. The district court found by clear and convincing
evidence that R.W. suffered from a mental illness and as a result of that illness, he was
suffering severe and abnormal mental, emotional or physical distress;
[was] experiencing substantial mental or physical deterioration of his
ability to function independently, which [was] exhibited by the
defendant’s inability, except for reasons of indigence, to provide for his
basic needs, including food, clothing, health, [or] safety; and, [was]
unable to make a rational and informed decision as to submit to
treatment.
See Tex. Health & Safety Code Ann. § 574.035(a)(1), (2)(C); Tex. Code Crim. Proc.
Ann. arts. 46B.083(a), .084(e). On March 22, 2019, the district court concluded that
R.W. met the criteria for court-ordered, extended mental-health services and ordered
R.W. committed to a state hospital for a period not to exceed twelve months “for
further examination and treatment toward the specific objective of attaining
competency to stand trial.” See Tex. Health & Safety Code Ann. § 574.035(h); Tex.
Code Crim. Proc. Ann. art. 46B.102. R.W. does not challenge this order on appeal.
See id. § 574.070(a).
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B. ORDER TO ADMINISTER PSYCHOACTIVE MEDICATIONS
On April 15, R.W.’s treating physician filed, on the State’s behalf and in a
county court at law with probate jurisdiction, an application for an order authorizing
psychoactive medications for R.W. See id. § 574.104, .106(c); Tex. Gov’t Code Ann.
§ 25.2452. In the application, the physician, Zahida X. Syed, stated that she had
diagnosed R.W. with “Schizophrenia, Non-compliance with treatment” and that the
administration of four classes of psychoactive medications would be appropriate and
in R.W.’s best interest.2 Syed averred that R.W. verbally and by other indication
refused to voluntarily take the recommended medications and that he lacked the
capacity to make a medication decision:
The patient is paranoid, delusional and entitled. He is getting agitated by
getting loud, having verbal altercation with staff and using profanity
towards his provider. He believes and states that the State [owes]
2,960,00[0] dollars for 37 years of false imprisonment on him. He is
refusing to take any psychotropics because of poor insight and
judgment.
Syed concluded that with the appropriate medication, R.W. could be restored to
competence but could not be if the medications are not administered. The county
court appointed an attorney to represent R.W. and set a hearing on the application for
April 17. See Tex. Health & Safety Code Ann. § 574.105(1)–(4).
2
The requested four classes were antidepressants, antipsychotics,
anxiolytics/sedatives/hypnotics, and mood stabilizers. See Tex. Health & Safety Code
Ann. § 574.101(3).
4
At the hearing, Dr. Charlene Shero, a consulting physician, testified as a
qualified expert regarding the State’s application.3 She reviewed R.W.’s medical
records and concluded that he was diagnosed with schizoaffective disorder bipolar
type, “leaning more towards” schizophrenia, which caused disordered thinking,
unstable moods, and an unstable affect. R.W. presented a risk of harm to others, was
“extremely explosively angry,” and could not reason logically. R.W. refused to take
his medications and would only yell and curse if hospital staff tried to discuss it with
him. On April 4 when a nurse tried to raise the issue and explain the risks and
benefits of the medications, he threatened her “yelling out lewd, sexual, assaultive
comments for nearly ten minutes,” which “terrified” her. Between March 26 and
April 17, R.W. “threatened repeatedly to [anally] rape” a nurse when she asked him to
wear appropriate clothing to class; physically threatened another nurse; asked for
female staff members’ home addresses and cursed when the request was refused;
wore a shirt to class on which he had drawn a sexually explicit picture of the teacher;
and threatened Shero when she tried to interview him. Shero testified that the
recommended medications, with the exception of antidepressants, would decrease
R.W.’s aggression and increase the chances he could be restored to competency. But
he could not be restored to competency without the medications and would
3
The State and R.W.’s counsel stipulated that Shero was qualified to testify as
an expert.
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eventually hurt someone. Shero stated that there were no alternatives to the
recommended medications and that their benefits outweighed any risk to R.W.
R.W. also testified at the April 17 hearing. He stated that he was not dangerous
and that he was not refusing to take medications. R.W. also seemed to assert that the
hearing was a nurse’s retaliation after a dispute over a telephone call. R.W. had drawn
a picture of the facts surrounding the telephone call but it, like his testimony, is hard
to decipher.
The county court stated at the end of the hearing that the application would be
granted: “The Court finds it has jurisdiction. The Court will grant the application as
to antipsychotics, anxiolytics, mood stabilizers. I’ll tender notice of the Court’s
decision here in open court and enter an order consistent with this.” See
id. § 574.105(7). The county court also issued a written notification of its
determination as required by statute: (1) R.W. “does not have the capacity to make a
proper determination regarding the administration of the proposed medication”;4
(2) treatment with antipsychotics, anxiolytics, and mood stabilizers is in R.W.’s best
interest; (3) the county court relied on Shero’s testimony in making its determinations;
(4) the benefits to be obtained by treatment are greater than any risks associated with
4
The county court included in the notification that (1) R.W.’s condition would
stabilize or improve and that his quality of life will be better with the requested
treatment and (2) R.W. presents a danger to himself or others at the court-ordered
treatment facility.
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the treatment; and (5) “no suitable alternative” to the treatment is available. See id.
§ 574.106(g).
In its April 17 order authorizing psychoactive medication, the county court
made several findings:
• The facts alleged in Syed’s application were true and correct and supported by
clear and convincing evidence.
• R.W. lacked the capacity to make a decision regarding the administration of
the medications, and the proposed medications were in R.W.’s best interest.5
• A criminal court ordered R.W. to receive inpatient mental-health services,
R.W. presented a danger to himself or others in that facility, and the proposed
treatment was in R.W.’s best interest.
• The proposed medications were in the proper course of treatment, were in
R.W.’s best interest, and R.W. was refusing to voluntarily take the medications.
See id. § 574.106(a), (a-1)(1)–(2)(A), (b), (i); see also id. § 574.1065.
C. APPEAL
R.W. appeals from this order and in his sufficiency arguments, attacks the
State’s proof that (1) his refusal to take the medications was based on a lack of
capacity, (2) he made any threats of harm during the six months before he arrived at
the treatment facility, (3) medication was in his best interest after considering his
religious beliefs, and (4) medication was in his best interest after reviewing the
associated risks. R.W. additionally challenges the county court’s failure to orally
The county court did not order antidepressants to be administered as
5
requested in Syed’s application.
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pronounce his best interest, “which is required by statute[] under the patient’s rights
during this proceeding.”
II. EVIDENTIARY SUFFICIENCY
A. STANDARD AND SCOPE OF REVIEW
Clear and convincing evidence must support orders authorizing the
administration of psychoactive medication. See id. § 574.106(a-1). This quantum of
proof is that measure or degree of evidence 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. See In re S.P., 444 S.W.3d 299, 302 (Tex. App.—Fort Worth 2014, no
pet.). While this is more than the mere greater weight of the credible evidence, clear
and convincing evidence does not have to be unequivocal or undisputed. See id.
In reviewing the evidence for legal or factual sufficiency, we are to determine if
the factfinder could form a firm belief or conviction that the challenged finding was
true. See In re M.T., Nos. 02-17-00011-CV, 02-17-00012-CV, 2017 WL 1018596, at *5
(Tex. App.—Fort Worth Mar. 16, 2017, no pet.) (per curiam) (mem. op.); S.P.,
444 S.W.3d at 302; cf. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002) (holding in
termination appeal that clear-and-convincing burden of proof at trial means both legal
and factual sufficiency appellate reviews determine “whether the evidence is such that
a factfinder could reasonably form a firm belief or conviction about the truth of the
State’s allegations”). What evidence we may consider to make this determination is
dictated by the type of challenge. If legal sufficiency is raised, we consider all of the
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evidence in the light most favorable to the finding. See S.P., 444 S.W.3d at 302.
Regarding a factual-sufficiency challenge, we look to the entire record and consider
evidence that the factfinder could reasonably have found to be clear and convincing.
In re K.S., No. 11-19-00064-CV, 2019 WL 1841894, at *2 (Tex. App.—Eastland
Apr. 25, 2019, no pet.) (mem. op.) (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).
But the factfinder is the sole arbiter of the credibility and weight of the evidence,
which we may not second-guess. See S.P., 444 S.W.3d at 302.
B. “THE STATE . . . FAILED TO PROVE MANY ELEMENTS
REQUIRED TO FORCIBLY ADMINISTER MEDICATIONS. . . .”
For a trial court to grant an application for the administration of psychoactive
medication, the State must prove by clear and convincing evidence that the patient is
in a class of patients eligible for such an order and that the patient meets the statutory
criteria. See Tex. Health and Safety Code Ann. § 574.106(a)–(a-1). R.W. does not
dispute that he “was under a court order to receive inpatient mental health services”;
thus, he was eligible for an order authorizing pharmaceutical treatment. Id.
§ 574.106(a)(1).
The State has several statutory options to prove that a court is authorized to
order the administration of psychoactive medications to an eligible patient. One way
is by proving 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.” Id. § 574.106(a-1)(1); see, e.g., In re
9
A.S.K., No. 02-13-00129-CV, 2013 WL 3771348, at *3 (Tex. App.—Fort Worth
July 18, 2013, no pet.) (mem. op.) (“Although the trial court authorized the
medication under both section 574.106(a-1)(1) and section 574.106(a-1)(2), sufficient
evidence of either would support the trial court’s order.”).
1. Capacity
R.W. first asserts that the evidence was legally and factually insufficient to
support the county court’s finding that he did not have the capacity to make medical
decisions. His argument focuses on Shero’s testimony that R.W. could make a
decision but that it would not be reasoned or logical. R.W. extrapolates from this
testimony that Shero believed he “could make his own decisions, she just felt he made
the wrong ones.”
Capacity is defined as an 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). Shero testified that R.W. could make
decisions but that because of his diagnosed mental illness, those decisions were based
on disordered thinking, unstable moods, explosive anger, paranoia, and a “lack of
logical reasoning.” And she testified that his decision to refuse the recommended
medications was not “a real decision so much as a demand.” She recounted that some
of his violent outbursts at the hospital were directed at staff members who tried to
discuss his treatment plan with him, including its risks and benefits. He refused to
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talk about it at all. Shero stated, however, that the benefits of the treatment
outweighed the side effects. No lesser means would be effective to get R.W. to take
the medications, which are the only way to restore R.W. to competency. R.W.’s
testimony did not rebut this evidence. He mainly recounted his belief that a nurse’s
actions regarding another patient’s need to make a phone call were part of a
conspiracy directed at him in retaliation for his refusal.
Deferring to the county court’s credibility determinations and considering the
evidence in the appropriate light, we conclude that this evidence was legally and
factually sufficient to allow the county court to have formed a firm belief or
conviction that R.W. did not have the capacity to make a decision regarding the
administration of the proposed medication. See, e.g., S.P., 444 S.W.3d at 305; A.S. v.
State, 286 S.W.3d 69, 73 (Tex. App.—Dallas 2009, no pet.); In re C.S., 208 S.W.3d 77,
84 (Tex. App.—Fort Worth 2006, pet. denied); State ex rel. D.O., No. 12-05-00274-
CV, 2006 WL 475459, at *3–4 (Tex. App.—Tyler Feb. 28, 2006, no pet.) (mem. op.);
State ex rel. A.R.F., No. 12-03-00294-CV, 2004 WL 1123832, at *3 (Tex. App.—Tyler
May 19, 2004, no pet.) (mem. op.); In re S.E.W., Nos. 14-02-00602-CV, 14-02-00603-
CV, 2002 WL 31599910, at *3 (Tex. App.—Houston [14th Dist.] Nov. 21, 2002, no
pet.) (not designated for publication).
2. Best Interest
R.W. also challenges the sufficiency of the evidence to support the finding that
the treatment would be in his best interest. He relies on the statutory factors that the
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county court was required to consider in making its best-interest finding and argues
that the county court had insufficient evidence of two of the factors: (1) “the patient’s
religious beliefs” and (2) “the risks and benefits,[6] from the perspective of the patient,
of taking psychoactive medication.” Tex. Health & Safety Code Ann.
§ 574.106(b)(2)–(3).
The nature of involuntary treatment means that it is against the wishes of a
patient. Even though the trial court is required to consider the patient’s preferences
and beliefs, it is not required to defer to them. See State ex rel. C.L., No. 12-18-00056-
CV, 2018 WL 5961415, at *4 (Tex. App.—Tyler Nov. 14, 2018, no pet.) (mem. op.).
No evidence rebutted Shero’s testimony, supported by R.W.’s medical records, that
R.W.’s mental illness prevented him from making a rational decision about
medication. And R.W. did not voice any religious objections to the treatment, only
his belief that the medications were part of a retaliatory conspiracy. See id. Similarly,
Shero testified that R.W. refused to discuss the risks and benefits of the proposed
treatment plan, resulting in a violent outburst against two staff members, and R.W.
did not address the risks or benefits in his testimony. We presume that the county
court gave any evidence of R.W.’s preferences and beliefs due consideration. See id.;
cf. C.S., 208 S.W.3d at 84 (finding evidence legally sufficient to support best-interest
finding even though patient did not address her religious beliefs); In re R.S.C., 921
6
R.W. does not challenge the sufficiency of the evidence to show the benefits
of the proposed treatment plan.
12
S.W.2d 506, 514 (Tex. App.—Fort Worth 1996, no pet.) (finding trial court complied
with section 574.106(b) even though religious beliefs were not considered because
patient offered no evidence of her beliefs).
Accordingly, we conclude that the evidence was legally and factually sufficient
to allow the county court to have formed a firm belief or conviction that treatment
with the proposed medication was in R.W.’s best interest. See, e.g., C.L., 2018 WL
5961415, at *4; S.P., 444 S.W.3d at 306–07; State ex rel. C.G., 372 S.W.3d 746, 750–51
(Tex. App.—Dallas 2012, no pet.); C.S., 208 S.W.3d at 84.
C. “THE TRIAL COURT . . . FAILED TO PRONOUNCE
PATIENT’S BEST INTERESTS ORALLY. . . .”
In his final argument, R.W. asserts that the county court failed to give him oral
notification of the specifics of its best-interest finding, which he argues “weighs
against” a finding that the treatment plan was in R.W.’s best interest. See Tex. Health
& Safety Code Ann. § 574.105(7) (providing oral notification of court’s capacity and
best-interest notification is a patient right). In support, R.W. cites a case in which our
sister court of appeals concluded that the evidence was legally insufficient to support a
best-interest finding and noted that the county court had not given an oral, best-
interest notification. In re E.T., 137 S.W.3d 698, 700–01 (Tex. App.—San Antonio
2004, no pet.). But in that case, there was a complete absence of evidence that the
proposed treatment was in the patient’s best interest, which was reflected in the trial
court’s failure to orally make such a finding. Id. As we have already discussed, the
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evidence here was legally and factually sufficient to show that the proposed treatment
was in R.W.’s best interest even though the county court’s oral notification did not
specifically address R.W.’s capacity and best interest, which can be inferred from the
county court’s oral granting of the application. Cf. C.L., 2018 WL 5961415, at *4
(“The trial court must consider C.L.’s preferences and beliefs [in its best-interest
determination], but . . . [i]t is presumed that the trial court gave C.L.’s preferences and
beliefs due consideration.”); R.S.C., 921 S.W.2d at 514 (upholding best-interest
finding even though religious beliefs were not considered because patient offered no
evidence of her beliefs).
Although the trial court did not orally pronounce its capacity and best-interest
determinations, which is a statutory patient right, R.W. does not clearly assert a
remedy flowing from this deficiency other than to assert it weakens the other evidence
supporting the trial court’s written best-interest finding. But in determining a patient’s
best interest in the context of an order to administer psychoactive medication, a trial
court must weigh a myriad of considerations that should not be completely
discounted based on a failure to orally pronounce them. See Tex. Health & Safety
Code Ann. § 574.106(b). During the oral notification at the conclusion of the hearing,
the county court stated that a written order would be forthcoming. On that same day,
the county court signed a written order that clearly found R.W. lacked capacity and
the treatment would serve his best interest. These findings were supported by
sufficient evidence as we previously discussed. This best-interest evidence supported
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the county court’s order even in the absence of an oral pronouncement, which if error
was, at most, harmless. Cf. S.P., 444 S.W.3d at 306 (holding failure to provide patient
right to written notification found in section 574.106 was harmless clerical mistake in
light of evidence S.P. was able to ascertain what evidence court relied on and to timely
appeal the order).
III. CONCLUSION
We conclude that the evidence was legally and factually sufficient to allow the
county court to have formed a firm belief or conviction that R.W. did not have the
capacity to make a decision regarding the administration of the proposed medication
and that treatment with the proposed medication was in R.W.’s best interest. See Tex.
Health & Safety Code Ann. § 574.106(a-1)(1). Because this ground alone authorized
the issuance of an order to administer psychoactive medication, we need not address
R.W.’s attacks on the evidence supporting the alternative ground—R.W. presents a
danger to himself or others. See id. § 574.106(a-1)(2); Tex. R. App. P. 47.1; A.S.K.,
2013 WL 3771348, at *3. Finally, the county court’s nonspecific oral notification that
the application would be granted does not undermine the evidence supporting the
county court’s capacity and best-interest findings in the written notification and the
order. See Tex. Health & Safety Code Ann. § 574.106(a-1), (g). We overrule R.W.’s
issue and affirm the county court’s order authorizing psychoactive medication.
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/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: June 27, 2019
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