in Re M.W.A. ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00356-CV
IN RE M.W.A.
From the County Court at Law No. 2
Johnson County, Texas
Trial Court No. F201200047
MEMORANDUM OPINION
Appellant M.W.A. appeals from a judgment of involuntary commitment for in-
patient mental-health services for a period not to exceed ninety days and an order to
administer psychoactive medication. We will affirm.
Sufficiency of the Evidence
In his first issue, M.W.A. contends that the evidence is legally and factually
insufficient to support the order for temporary mental health services.
The burden of proof for an involuntary commitment is clear and convincing
evidence. TEX. HEALTH & SAFETY CODE ANN. § 574.034(a) (West 2010). Clear and
convincing evidence is that “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). And, because the
State’s burden of proof is clear and convincing evidence, we apply a heightened
standard of review. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). In reviewing a legal-
sufficiency claim, we look at all the evidence in the light most favorable to the finding to
determine whether a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). When
reviewing a factual-sufficiency claim, we must give due consideration to evidence that
the factfinder could reasonably have found to be clear and convincing and then
determine whether, based on the entire record, a factfinder could reasonably form a
firm conviction or belief that the allegations in the petition were proven. Id.
Section 574.034(a) of the Health and Safety Code provides that a trial court may
order temporary inpatient mental-health services if it finds by clear and convincing
evidence that the proposed patient is mentally ill and at least one of three criteria results
from that mental illness. TEX. HEALTH & SAFETY CODE ANN. § 574.034(a). Two of the
alternative criteria are that the proposed patient is likely to cause serious harm to
himself or others. Id. § 574.034(a)(2)(A)-(B). The third alternative criterion requires
clear and convincing evidence that: (1) the proposed patient is suffering severe and
abnormal mental, emotional, or physical distress; (2) his mental or physical
deterioration impacts his ability to function independently, “which is exhibited by the
proposed patient’s inability, except for reasons of indigence, to provide for [his] basic
needs, including food, clothing, health, or safety”; and (3) he is unable to make rational
In re M.W.A. Page 2
and informed decisions as to whether or not to submit to treatment. Id. §
574.034(a)(2)(C).
For the State to satisfy its burden of clear and convincing evidence, section
574.034(d) further provides that 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: (1) the likelihood of serious harm to the patient or others; or (2) the proposed
patient’s distress and the deterioration of the proposed patient’s ability to function. Id.
§ 574.034(d). The recent overt act or continuing pattern of behavior must relate to the
criterion on which the judgment is based. In re F.M., 183 S.W.3d 489, 492 (Tex. App.—
Houston [14th Dist.] 2005, no pet.). The expert’s opinions and recommendations must
be supported by a showing of the factual bases on which they are grounded. T.G. v.
State, 7 S.W.3d 248, 252 (Tex. App.—Dallas 1999, no pet.).
Here, the order for temporary mental health services states that, based on the
verdict of the jury, M.W.A. is mentally ill, and as a result of that mental illness, all three
statutory criteria were satisfied: (1) M.W.A. was likely to cause serious harm to himself;
(2) M.W.A. was likely to cause serious harm to others; and (3) M.W.A. 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 his 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 whether or not to submit to treatment. In
challenging the legal and factual sufficiency of the evidence to support this order,
In re M.W.A. Page 3
M.W.A. specifically argues that the State did not present evidence of a recent overt act
or a continuing pattern of behavior tending to confirm either the likelihood of serious
harm to himself or others or his distress and the deterioration of his ability to function.
The evidence presented was as follows: Becky Phillips, the mental health
continuity of care coordinator for Pecan Valley Behavioral Centers in Johnson County,
testified that she has known M.W.A. since 1998 and that he has received public mental
health services related to his schizophrenia diagnosis since that time. He has been
hospitalized several times at public facilities: at Austin State Hospital in 2001 and 2003
and at the Mental Health State Hospital in Virginia in 2009. He has also had multiple
hospitalizations in private facilities.
In July 2012, Congressman Bill Flores’s secretary called Phillips and told her that
M.W.A. had been calling their office requesting financial assistance. Phillips contacted
M.W.A. and began assisting him in finding temporary housing, food, and clothing.
M.W.A. has a fixed income of around $672 a month, on which some patients live very
comfortably, but M.W.A. would usually rent a motel room, exhaust his finances by the
middle of the month, and then begin calling others for help to find a place to stay.1
Phillips had him listed in her records as homeless.
Phillips testified that M.W.A. suffers from extreme paranoia due to his
schizophrenia and that it was very obvious when she contacted him that July that the
paranoia was driving a lot of his decisions. M.W.A.’s paranoia leads him to believe that
1The only family of M.W.A.’s that Phillips had any contact with was a brother who lived in Grandview,
but M.W.A. was unhappy staying with him.
In re M.W.A. Page 4
he is frequently being chemically poisoned, which makes providing services for him
very difficult. For instance, M.W.A. insisted that, at the motel where Phillips placed
him, everything they sprayed or used to clean his room was attacking him physically.
Phillips also spoke to the Adult Protective Services case manager in Johnson County,
who told Phillips that she had probably placed M.W.A. in as many as ten different
residential settings, including apartments, nursing homes, and assisted living facilities,
but that he had either walked off or sabotaged all of those settings.
Phillips was also confronted with M.W.A.’s inability to take care of himself on a
daily basis. Phillips stated that it is “real obvious” that M.W.A. does not bathe on a
regular basis. He has food stamps but eats only what he can heat up in the microwave
and frequently believes that his food may be poisoned. Although he would have access
to medication because he has Medicaid, he will not take psychiatric medication.
Moreover, M.W.A. has a religiosity delusion that has been going on for quite a while.
M.W.A. often refers to himself as Jesus and has talked to Phillips about getting
messages from “a power bigger than the rest of us,” a power that may be what some
people refer to as God. Phillips has not heard M.W.A. directly threaten himself or
someone else, but she did hear him say that “there are powers beyond all of us that are
going to take care of all of us who are not taking care of him.” The case manager also
told Phillips that while he had an apartment in Keene, M.W.A. was arrested for
attacking a neighbor because she was wearing perfume.
The State introduced, through Phillips, a Physician’s Certificate of Medical
Examination for Mental Illness (CME) prepared by Dr. Sejal Mehta and Dr. Gary
In re M.W.A. Page 5
Malone, respectively. First, Dr. Mehta’s CME stated that he evaluated and examined
M.W.A. on August 10, 2012. Dr. Mehta reported that, during the examination, M.W.A.
said that the government had put “chips” in him and was following him around and
that the air has cyanide in it and “they are planning to kill me but I will kill them before
that.” Additionally, Dr. Mehta explained that M.W.A. committed the following acts:
refused medications; acted aggressively and threateningly; talked about nuclear waste;
made nonsensical statements; and made threats to kill. Dr. Mehta thus stated that
M.W.A.’s Mental Status examination revealed that he was paranoid and delusional,
aggressive toward people, threatening his case worker, and experiencing homicidal
ideation. And, based on the foregoing, Dr. Mehta opined that M.W.A. was mentally ill
(schizophrenia-paranoid), and that as a result of that illness M.W.A. was likely to cause
serious harm to himself; was likely to cause serious harm to others; and
[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 [his]
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 whether or not to submit to
treatment.
Dr. Mehta further opined that M.W.A. presented a substantial risk of serious harm to
himself or others if not immediately restrained and that emergency detention was the
least restrictive means by which the necessary restraint might be accomplished, which
was demonstrated by M.W.A.’s behavior, as well as evidence of severe emotional
distress and deterioration in his mental condition to the extent that he could not remain
at liberty.
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Dr. Malone’s CME stated that he evaluated and examined M.W.A. on August 13,
2012. Dr. Malone reported that M.W.A. said that “they” were trying to hurt him and
that the medicine was poison. Dr. Malone also stated that M.W.A. was refusing
treatment, not eating, and not bathing. Based on the foregoing, Dr. Malone opined that
M.W.A. was mentally ill (schizophrenia), and that as a result of that illness M.W.A.
[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 [his]
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 whether or not to submit to
treatment.
Dr. Malone also further opined that M.W.A. presented a substantial risk of serious harm
to himself or others if not immediately restrained and that emergency detention was the
least restrictive means by which the necessary restraint might be accomplished, which
was demonstrated by M.W.A.’s behavior, as well as evidence of severe emotional
distress and deterioration in his mental condition to the extent that he could not remain
at liberty.
Phillips testified that the physicians’ CMEs matched up with what she was
seeing and what she had in her file regarding M.W.A. On August 14, 2012, the trial
court ordered M.W.A. to be taken to North Texas State Hospital. When Phillips visited
him there the week before trial, M.W.A. told her that they had mopped the floor, that it
had soaked through his shoes and into his feet, and that he was being poisoned by the
bleach. Phillips concluded that M.W.A. was more paranoid now than he had been in
the past and that if he did not get the treatment and medication he needs, his
In re M.W.A. Page 7
deterioration would become more extreme. Phillips stated that treatment on an
outpatient basis would not work for M.W.A. because he has the legal right to refuse
treatment and medication and services, but his continued exercise of the right would
only end up in his demise. Phillips said that as long as M.W.A. was not medicated, he
would not be making rational decisions that would allow him to be treated in a less
restrictive outpatient residential setting.
Vince Vogt, M.W.A.’s assigned social worker at North Texas State Hospital, then
testified that since first seeing him, M.W.A. had been gradually declining. At the time
of trial, M.W.A. was not taking care of his basic needs by himself. M.W.A. had not been
bathing on a regular basis, and he quite often wore the same clothing. Vogt attributed
this behavior to M.W.A.’s mental illness. Vogt stated that he did not think M.W.A.
would get better on his own. Nor did Vogt think M.W.A. could be treated on an
outpatient basis until his mental state improved. Instead, Vogt thought M.W.A. needed
a 90-day treatment period, with medication, to start getting better.
Dr. Zahida Syed, M.W.A.’s treating physician at North Texas State Hospital, then
testified that she first examined M.W.A. on August 15, 2012. At that time, Dr. Syed
found M.W.A. to be very paranoid. He was having delusions about being poisoned by
different chemicals, fumes, and detergents. He was also having delusions about having
various medical problems like mesothelioma, melanoma, and bone cancer; about
having a chip in his brain; about having a metal piece in his throat that prevented him
from swallowing; about needing 24-hour oxygen; and about needing the assistance of
an electric wheelchair. The medical doctors had examined M.W.A. and found his only
In re M.W.A. Page 8
ailment to be eczema, for which they prescribed a steroid cream. Dr. Syed diagnosed
M.W.A. as having “schizophrenia, paranoid type.”
Since M.W.A.’s admission to North Texas State Hospital, Dr. Syed had been
seeing him twice per week, as well as receiving reports on him every morning. Dr.
Syed stated that when she saw M.W.A., the main thing he wanted was to be released.
Dr. Syed said that although M.W.A. never made a direct threat or was physically
aggressive, he would get very agitated and irritable. He had said, “[I]t’s going to be in
the best interest for you if you are going to release me.” He also told a woman, “I don’t
mind killing. I can kill.”
M.W.A. was refusing any type of treatment at the hospital. Dr. Syed said that
M.W.A. believes he cannot swallow medication because he has a metal piece in his
throat. Dr. Syed offered M.W.A. alternatives to swallowing the medication, such as
injecting the medication or allowing it to dissolve in the mouth, but he still refused.
M.W.A.’s hygiene in the hospital has also been very poor. Although the hospital
has made several concessions for him, M.W.A. is reluctant to take showers. Dr. Syed
stated that she is also worried about M.W.A.’s unwillingness to eat properly. Dr. Syed
said that M.W.A. misses meals, and when he does eat, he only eats twenty to forty
percent of the meal. Dr. Syed testified that, for him, losing weight could be dangerous
because he only weighs about 100 pounds. She believes that if he is not hospitalized for
a period up to ninety days, he will continue to deteriorate.
In re M.W.A. Page 9
Dr. Syed’s CME that she prepared on September 7, 2012 was admitted into
evidence. In it, she opined that M.W.A. was mentally ill (schizophrenia, paranoid type),
and as a result of that illness, M.W.A.
[was] suffering severe and abnormal mental, emotional or physical
distress; experiencing substantial mental or physical deterioration of his[]
ability to function independently, which [was] exhibited by [his] inability,
except for reasons of indigence, to provide for [his] needs, including food,
clothing, health, or safety and not able to make a rational and informed
decision as to whether to submit to treatment.
As the basis for her opinion, Dr. Syed detailed her observations of M.W.A. as explained
above. Dr. Syed also stated that she opined that M.W.A. presented a substantial risk of
serious harm to himself or others if not immediately restrained, which was
demonstrated by his behavior and by evidence of severe emotional distress and
deterioration in his mental condition to the extent that he cannot remain at liberty.
The State also introduced, through Dr. Syed, the CME of Dr. Peter George Faden.
Dr. Faden’s CME states that he evaluated and examined M.W.A. on September 7, 2012.
He opined that M.W.A. was mentally ill (schizophrenia, paranoid type), and as a result
of that illness, M.W.A.
[was] suffering severe and abnormal mental, emotional or physical
distress; experiencing substantial mental or physical deterioration of his[]
ability to function independently, which [was] exhibited by [his] inability,
except for reasons of indigence, to provide for [his] needs, including food,
clothing, health, or safety and not able to make a rational and informed
decision as to whether to submit to treatment.
Dr. Faden detailed the basis for the opinion as follows:
Pt. severly [sic] psychotic with delusional thought. He is not able to
satisfy basic needs and is endangering himself. Pt. not bathing had
developed a rash that could lead to infections. Pt. had been living in a tent
In re M.W.A. Page 10
for several months. The local MHMR arranged trial placement at a motel
and offered medications for his symptoms of psychosis. He would not
participate in treatment and fled the motel due to fears of being poisoned.
M.W.A. testified on his own behalf and stated that he did not feel like he needed
medication and he did not wish to harm himself or others.
Based on our review of the evidence, we conclude that the State presented clear
and convincing evidence such that a reasonable factfinder could form a firm belief or
conviction that M.W.A. has engaged in a recent overt act or a continuing pattern of
behavior that tends to confirm his distress and the deterioration of his ability to
function.2 First, the State presented evidence of M.W.A.’s continued inability to
maintain housing because of his paranoia and delusions that he is being chemically
poisoned. Similarly, the State presented evidence that M.W.A. eats very little because of
his delusional belief that the food is poisoned. And Dr. Syed testified that, for him,
losing weight could be dangerous because he only weighs about 100 pounds.
Furthermore, the State presented evidence that because of his mental state, M.W.A.
bathes infrequently, which has caused him to have eczema.
The State also presented evidence that despite M.W.A.’s distress and the
deterioration of his ability to function, M.W.A. refuses to submit to treatment. Dr. Syed
testified that M.W.A. believes he cannot take medication because he has a metal piece in
his throat that prevents him from swallowing. Accordingly, we hold that the evidence
2 We thus need not decide whether the State presented clear and convincing evidence such that a
reasonable factfinder could form a firm belief or conviction that M.W.A. has engaged in a recent overt act
or a continuing pattern of behavior that tends to confirm the likelihood of serious harm to himself or
others.
In re M.W.A. Page 11
supporting the trial court judgment for temporary in-patient mental-health services is
legally and factually sufficient. We overrule M.W.A.’s first issue.
Failure to Conduct Hearing
In his second issue, M.W.A. contends that the trial court abused its discretion in
ordering that he should be administered psychoactive medication without first
conducting a hearing in compliance with section 574.106 of the Health and Safety Code.
At the end of the temporary commitment hearing in this case, the trial judge
stated, “The Court has before it Order for Temporary Inpatient Mental Health Services
and Order for Customary Administration of Psychoactive Medications. Which the
Court -- is there any objections to this?” The State and defense both responded, “No.”
The trial court then signed both orders.
For a complaint to be preserved for appeal, the record must show that the
appellant made a timely request, objection, or motion. TEX. R. APP. P. 33.1(a)(1).
M.W.A., through his counsel, never complained that he was entitled to a separate
hearing regarding the administration of psychoactive medication and in fact voiced that
he had no objection to the order; therefore, he failed to preserve his complaint for
review. See id.; Boufaissal v. Boufaissal, 251 S.W.3d 160, 162 (Tex. App.—Dallas 2008, no
pet.) (“a party will not be allowed to complain on appeal of an action or ruling which
she invited or induced”). We overrule M.W.A.’s second issue.
Having overruled both of M.W.A.’s issues, we affirm the trial court’s judgment
of involuntary commitment for in-patient mental-health services for a period not to
exceed ninety days and the order to administer psychoactive medication.
In re M.W.A. Page 12
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed April 18, 2013
[CV06]
* (Chief Justice Gray concurs. A separate opinion will not issue.)
In re M.W.A. Page 13