State ( 2002 )

NO. 12-02-00123-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 M.R.

§ CHEROKEE COUNTY, TEXAS

Appellant M.R. appeals from an order of commitment for temporary inpatient mental health

services. After a hearing without a jury, the trial court ordered M.R. committed to Rusk State Hospital for a period not to exceed ninety days. In seven issues, Appellant asserts his constitutional rights to due process and equal protection have been violated, the evidence is legally and factually insufficient to support the order, and he was denied effective assistance of counsel. We affirm.

Background  

On April 1, 2002, an application for court-ordered temporary mental health services was filed requesting the court commit Appellant to Rusk State Hospital for a period not to exceed ninety days. The application was supported by a certificate of medical examination for mental illness, prepared by a physician, Dr. C.B. Cuellar, who had examined Appellant on March 29, 2002. Dr. Cuellar diagnosed Appellant as having schizoaffective disorder, bipolar type and determined that Appellant is mentally ill. He also indicated that Appellant is likely to cause serious harm to himself and is suffering severe and abnormal mental, emotional or physical distress, is experiencing substantial mental or physical deterioration of his ability to function independently, and is unable to make a rational and informed decision as to whether or not to submit to treatment. His opinion was based on the facts that Appellant was agitated, profane, and out of touch with reality. He indicated that on March 29, Appellant drove himself to Rusk State Hospital and was "cussing" caregivers in Houston. Dr. Cuellar also stated that Appellant presents a substantial risk of serious harm to himself or others if not immediately restrained. This risk was demonstrated by Appellant's behavior and by evidence of severe emotional distress and deterioration in his mental condition to the extent that he cannot remain at liberty.

On April 3, 2002, Appellant was examined by Dr. Victoria Morgan who then also prepared a certificate of medical examination for mental illness. Dr. Morgan diagnosed Appellant as suffering from schizoaffective disorder and a psychotic disorder secondary to a head injury. She found that Appellant is mentally ill and likely to cause serious harm to others. Dr. Morgan relied on Appellant's statement of April 3 that he would "take out" family members. She agreed that Appellant presents a substantial risk of serious harm to self or others if not immediately restrained, an opinion she based on Appellant's behavior. Dr. Morgan indicated that, on the date she examined Appellant, he stated that he does not need medication because there is nothing wrong with him. Further, Appellant was irrational, paranoid, and an impulsive danger to his family.

Dr. Morgan testified at the commitment hearing and verified the information in her certificate. She explained that, on the day she examined Appellant, he said he was feeling angry and aggressive and that he would act on his threat to family members if he did not remove himself from the situation. She also stated he exhibited symptoms of paranoia, psychosis, and impulsivity. On cross-examination, Dr. Morgan explained that Appellant is not cooperative with treatment of any type and that he has made no improvement since his admission to the hospital. She stated that he has committed no overt act or made any overt statement of intent to harm himself or others since his admission to the hospital. He can dress and feed himself, take care of his personal hygiene and initiate conversation and respond appropriately. On redirect, Dr. Morgan explained that Appellant's history shows that when he leaves the hospital he goes off his medication. He does not interact with family members in a constructive way. He gets agitated and irritable at them. In the past, he has been assaultive and "tore up" his house. She also stated that he has ongoing paranoid delusions.

Appellant explained to the court that he came to Rusk State Hospital to get his thoughts together but he did not need drugs as they have adverse effects on him. He further explained that people break into his apartment in Harris County while he is asleep and inject drugs into him.

The trial court entered an order for temporary inpatient mental health services after determining that the evidence supports the allegations that Appellant is mentally ill and likely to cause serious harm to others. The court ordered Appellant committed to Rusk State Hospital for a period not to exceed ninety days.

Sufficiency of the Evidence  

In his sixth issue, Appellant asserts the evidence is neither legally nor factually sufficient to support the order of commitment. He contends the record does not show he is likely to cause serious harm to himself or to others, is suffering severe and abnormal mental, emotional, or physical distress, is experiencing substantial deterioration of the ability to function independently, or is unable to make a rational and informed decision regarding whether to submit to treatment. Thus, he argues, the State failed to meet its evidentiary burden under the statute.

In his seventh issue, Appellant asserts the trial court erred in ordering the temporary inpatient mental health services in the absence of a showing of a recent overt act. He asserts the doctor testified that Appellant did not engage in an overt act and no testimony indicated a continuing pattern of behavior.

In reviewing no evidence points of error, the reviewing court must consider only the evidence and inferences tending to support the trial court's finding, disregarding all contrary evidence and inferences. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). If there is any evidence of probative force to support the finding, the no evidence issue must be overruled and the finding upheld. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, no more than a scintilla of evidence exists and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). However, if the evidence supplies some reasonable basis for differing conclusions by reasonable minds as to the existence of a vital fact, some evidence or, in other words, more than a scintilla of evidence exists. Id.  

In addressing a factual sufficiency of the evidence challenge, this Court must consider and weigh all of the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Where no findings of fact and conclusions of law were requested of or filed by the trial court, all questions of fact are presumed and found in support of the judgment. Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987). In the absence of findings of fact and conclusions of law, the judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex. 1968).

The trial judge may order a proposed patient to receive court-ordered temporary inpatient mental health services if the judge or jury finds, from clear and convincing evidence, that the proposed patient is mentally ill and, as a result of the mental illness he is likely to cause serious harm to himself, is likely to cause serious harm to others, or is (i) suffering severe and abnormal mental, emotional, or physical distress, (ii) experiencing substantial mental or physical deterioration of his ability to function independently, which is exhibited by his inability, except for reasons of 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. Tex. Health & Safety Code Ann. § 574.034(a) (Vernon Supp. 2002). To be clear and convincing under this statute, 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 the proposed patient or others, or the proposed patient's distress and the deterioration of his ability to function. Tex. Health & Safety Code Ann. § 574.034(d) (Vernon Supp. 2002). Clear and convincing evidence means the measure or 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).

The State provided expert testimony explaining that Appellant is mentally ill and describing an overt act by Appellant, his threats to "take out" family members, which occurred just six days before entry of the order. Dr. Morgan explained that Appellant told her he had to remove himself from the situation or he would harm family members. This expert testimony of an overt act tends to confirm the likelihood of serious harm to others, thus satisfying the statutory requirement for clear and convincing evidence in support of the order for temporary inpatient mental health services. See Tex. Health & Safety Code Ann. § 574.034(d). The evidence is legally sufficient to support the trial court's order. See McLaughlin, 943 S.W.2d at 430.

In addressing Appellant's factual sufficiency complaint, we consider the remainder of the evidence. On cross-examination, Dr. Morgan stated that Appellant had not committed any overt acts or made any statements threatening to harm others since being admitted to the hospital. In his interview with Dr. Morgan, Appellant denied having a need for medication, stating there is nothing wrong with him. Although Dr. Morgan appears to have contradicted herself on cross-examination, both her certificate and her testimony on direct examination support a finding that Appellant threatened his family. Where there is conflicting evidence, the trier of fact's verdict on such matters is generally regarded as conclusive. Beall v. Ditmore, 867 S.W.2d 791, 796 (Tex. App.-El Paso 1993, writ denied). Thus, the evidence shows a substantial threat of future harm to others based on a threat in the recent past. See Seekins v. State, 626 S.W.2d 97, 99 (Tex. Civ. App.-Corpus Christi 1981, no writ). Further, Dr. Morgan testified that Appellant has a history of going off his medication after leaving the hospital. Then he does not interact with family members in a constructive way. Instead, he gets agitated and irritable. He has been assaultive and has ongoing paranoid delusions. Thus, the evidence supports a finding of a continuing pattern of behavior showing Appellant is likely to harm others.

Weighing all the evidence, we cannot say that the trial court's finding that Appellant is likely to cause harm to others and its decision to order Appellant to submit to inpatient mental health services are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain, 709 S.W.2d at 176. Thus, the evidence is factually sufficient to support the trial court's finding. Because we hold the evidence is both legally and factually sufficient to support the trial court's order, we overrule Appellant's sixth and seventh issues.

Constitutional Claims  

In his first and second issues, Appellant contends the trial court erred in rendering judgment in violation of state and federal guarantees of due process. He asserts that certain terms found in section 574.034 of the Health and Safety Code are overly broad, vague, and ambiguous so the statute is susceptible to a variety of interpretations, making it violative of the due process clause of each constitution. In his third and fourth issues, he asserts that application of section 574.034 results in a violation of his right to equal protection under both the state and federal constitutions.

Appellant did not complain to the trial court that his state and federal constitutional rights to due process and equal protection were being violated. A constitutional claim must have been asserted in the trial court to be raised on appeal. Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993). Therefore, Appellant has not preserved these complaints for review. We overrule Appellant's issues one, two, three, and four.

Ineffective Assistance of Counsel  

In his fifth issue, Appellant contends he was denied effective assistance of counsel because trial counsel failed to object to the constitutionality of the applicable statutes. He argues that this resulted in his being subjected to unconstitutional statutes at trial and the loss of relief due to waiver on appeal.

The United States Supreme Court has established a two-part test, also adopted by Texas courts, to determine whether the representation of counsel was effective. The defendant must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. The appellant has the burden of proving ineffective assistance of counsel claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Claims of ineffective assistance of counsel must be supported by the record. See Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App. [Panel Op.] 1981). When the record contains no evidence of the reasoning behind counsel's conduct, we cannot conclude counsel's performance was deficient. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

The record is silent as to counsel's trial strategy. We have no evidence from counsel's perspective concerning whether he considered challenging the constitutionality of section 574.034 and, if so, the reasons he decided not to. Therefore, we are unable to determine that the failure to raise those issues in the trial court constitutes ineffective assistance of counsel. Jackson, 877 S.W.2d at 771. Appellant has failed to show that his counsel's performance fell below the objective standard of reasonableness. Further, even if we agreed that trial counsel's performance was deficient, Appellant has failed to make any showing that he was prejudiced as a result. Appellant alludes to the fact that, had counsel made the objections, the trial court might have agreed with him. However, he presents no authority from which we can determine that counsel's constitutional challenges, if raised, would have been sustained by the trial court. Appellant has failed to show that there is a reasonable probability that the result of the proceeding would have been different but for the alleged error made by counsel. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Appellant has failed to meet his burden of proving ineffective assistance of counsel. Jackson, 973 S.W.2d at 956. Accordingly, we overrule Appellant's fifth issue.

We affirm the trial court's order.

SAM GRIFFITH

Justice

Opinion delivered October 31, 2002.

Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.

(DO NOT PUBLISH)