Ex Parte Cecil Adickes ( 2022 )

NUMBERS 13-21-00015-CR & 13-21-00016-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EX PARTE CECIL ADICKES
On appeal from the 147th District Court
of Travis County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Justice Tijerina
In appellate cause numbers 13-21-00015-CR and 13-21-00016-CR, appellant
Cecil Adickes appeals the trial court’s revocation of his outpatient or community-based
treatment and supervision. By one issue, Adickes contends that the evidence is
insufficient to conclude that he will become likely to cause serious harm to another as
required by Article 46C.266(b) of the Texas Code of Criminal Procedure. See TEX. CODE
CRIM. PROC. ANN. art. 46C.266(b) (establishing the parameters which allow revocation of
an acquitted person’s outpatient community treatment and supervision). We reverse and
remand.1
I. BACKGROUND
In two causes, Adickes was found not guilty by reason of insanity (NGRI) of one
count of assault on a public servant and one count of assault on a security officer. See
TEX. PENAL CODE ANN. § 22.01(b)(1), (b)(4). The trial court determined that Adickes
committed an act that constituted the attempt or threat of serious bodily injury to another
person, and Adickes was ordered to undergo inpatient treatment at a maximum-security
unit. In 2020, after finding that outpatient care was appropriate, the trial court ordered
Adickes released from inpatient care and placed him on outpatient treatment and
supervision. Subsequently, after absconding from his outpatient treatment, Adickes was
taken into custody, and the State filed a motion to revoke his community-based
supervision. The trial court held a hearing on December 16, 2020, where the case
supervisor testified that Adickes had left his outpatient care; Adickes testified
acknowledging that he had left his treatment facility. The trial court found that Adickes
“violated the terms of his release,” revoked his outpatient care, and ordered Adickes back
to inpatient treatment. This appeal followed. See TEX. CODE CRIM. PROC. ANN. art.
46C.270 (providing that an acquitted person may appeal from “an order modifying or
revoking an Order for Outpatient or Community-Based Treatment and Supervision
entered under Article 46C.266 or refusing a request to modify or revoke that order”).
1 These cases are before this Court on transfer from the Third Court of Appeals in Austin pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
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II. APPLICABLE LAW AND STANDARD OF REVIEW
A trial court must order that a person acquitted due to insanity be committed to
inpatient treatment or residential care if it is established at a hearing that: (1) “the
person . . . has a severe mental illness or mental retardation”; (2) that mental illness or
mental retardation will likely result in the person causing serious bodily injury to another
without treatment and supervision; and (3) “inpatient treatment or residential care is
necessary to protect the safety of others.” TEX. CODE CRIM. PRO. ANN. art. 46C.253(b)(1–
3). “The order of commitment to inpatient treatment or residential care expires on the
181st day following the date the order is issued but is subject to renewal . . . . ” Id. art.
46C.256(a). Once requested, the trial court must hold a hearing to determine if it will
modify the commitment order to direct outpatient treatment and supervision. Id. art.
46C.256(c). The trial court shall modify the commitment order and order outpatient care
“if at the hearing the acquitted person establishes by a preponderance of the evidence
that treatment and supervision can be safely and effectively provided as outpatient or
community-based treatment and supervision.” Id. art. 46C.262(f). The trial court may
modify or revoke court-ordered outpatient treatment and supervision if, at a hearing, the
State establishes by clear and convincing evidence that the acquitted person: (1) “failed
to comply with the regimen in a manner or under circumstances indicating the person will
become likely to cause serious harm to another if the person is provided continued
outpatient or community-based treatment and supervision”; or (2) “has become likely to
cause serious harm to another if provided continued outpatient or community-based
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treatment and supervision.” Id. art. 46C.266(b). If the State makes this showing, the trial
court “may take any appropriate action, including . . . ordering the person committed for
inpatient or residential care.” Id. art. 46C.266(c)(1).
The clear and convincing standard is an intermediate standard, falling between the
preponderance standard of ordinary civil proceedings and the reasonable doubt standard
of criminal proceedings. Rodriquez v. State, 525 S.W.3d 734, 739 (Tex. App.—Houston
[14th Dist.] 2017, no pet.) (citing State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)
(per curiam)). “While the proof required under this standard must weigh more heavily than
merely the greater weight of the credible evidence, there is no requirement that the
evidence be unequivocal or undisputed.” Id. A clear and convincing standard of review of
the sufficiency of the evidence requires that “we review all of the evidence in the light
most favorable to the finding to determine whether a reasonable factfinder could have
formed a firm belief or conviction that the finding was true.” Id. (citing State v. K.E.W., 315
S.W.3d 16, 20 (Tex. 2010)). “We resolve disputed fact questions in favor of the finding if
a reasonable factfinder could have done so, and we disregard all contrary evidence
unless a reasonable factfinder could not have done so.” Id. The evidence is legally
insufficient if (1) there is a complete absence of evidence of a vital fact, (2) the court is
barred by rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere
scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. See id.(citing City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)).
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III. DISCUSSION
Adickes contends that the State failed to provide any evidence supporting a finding
that he failed to comply with the order of outpatient care in a manner or under
circumstances indicating he will become likely to cause serious harm to another if he is
provided continued outpatient or community-based treatment and supervision. Therefore,
the evidence is legally insufficient to support the trial court’s revocation of his outpatient
care. The State responds that it proved by clear and convincing evidence that Adickes’s
outpatient treatment should be revoked because: (1) Adickes left his outpatient treatment
without authorization; (2) the State’s witness testified that someone allegedly found a
substance resembling synthetic marihuana among Adickes’s possessions; (3) Adickes
was found unresponsive outside of the treatment facility; (4) the State could not verify that
Adickes took his medication and did not use illegal substances due to his absence from
the program; and (5) Adickes shouted “bullshit” during the revocation hearing.
In the context of civil commitment, the Texas Supreme Court noted that a finding
that a person “is likely to cause serious harm to others” pursuant to Texas Health and
Safety Code § 574.034(a)(2) “requires evidence of a recent act . . . , either physical or
verbal, that can be objectively perceived and that is to some degree probative of a finding
that serious harm to others is probable if the person is not treated.” K.E.W., 315 S.W.3d
at 24; see TEX. HEALTH & SAFETY CODE ANN. § 574.034(a)(2). None of the evidence
presented at the revocation hearing and cited by the State rises to the level which would
produce in the mind of the trier of fact a firm belief or conviction that Adickes is or will
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become likely to cause serious harm to another if he is continued on outpatient treatment.
Instead, the evidence presented merely proved that Adickes committed two prior violent
acts, was found NGRI, was admitted to inpatient care, was released from inpatient
treatment, was placed on outpatient treatment, failed to comply with his outpatient
treatment, possessed something resembling synthetic marihuana, suffered a medical
emergency requiring a hospital visit, did not communicate with the outpatient services
and probation office, and interrupted the revocation hearing by shouting “bullshit.”
Moreover, there is no evidence in the record that Adickes stopped taking his medication
while he was not in outpatient care or that he used illegal substances.2 Importantly, no
evidence was presented that Adickes engaged in any behavior which would lead to a firm
belief that he would become or was a danger to another person when he absconded from
his treatment facility.3 See K.E.W., 315 S.W.3d at 26 (finding that the patient’s statements
regarding his belief that he had an assignment to impregnate specific women, seeking
access to specific females, his written plans detailing his mission with specific women
who he firmly believed he needed to impregnate, and his verbal insistence on searching
for the women, were all overt acts that supported the patient would likely “cause serious
2 The State claims that the trial court could have inferred that Adickes used synthetic marihuana
from the State’s witness’s testimony that he possessed something resembling synthetic marijuana.
However, the State cites no authority, and we find none, providing that use of synthetic marihuana under
these circumstances constitutes clear and convincing evidence that Adickes is or will become likely to cause
serious harm to another.
3 The State could have also met its burden by showing that Adickes has become likely to cause
serious harm to another if provided continued outpatient or community-based treatment and supervision.
However, given that we conclude the State failed to prove by clear and convincing evidence that Adickes
will become likely to cause serious harm to another if continued on outpatient care, the State also failed to
provide evidence under this heightened standard.
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harm to others.”). Accordingly, we conclude that the evidence is legally insufficient to
support by clear and convincing evidence that Adickes’s noncompliance with outpatient
care was in a manner or under circumstances showing that Adickes will become likely to
cause serious harm to another if he is continued on outpatient treatment.
The State further argues that the trial court took judicial notice of Adickes’s past
behavior, and his violent history taken with the above evidence proves by clear and
convincing evidence that Adickes’s non-compliance was made in a manner or under
circumstances indicating that he would become likely to cause serious harm to another if
kept on outpatient care. “In order to be judicially noticed, a fact must be a matter of
common knowledge, verifiable without the necessity of an assessment of the truth and
veracity of an interested witness in a particular case.” Davis v. State, 293 S.W.3d 794,
797 (Tex. App.—Waco 2009, no pet.). Judicial notice cannot be matters which were heard
in a prior criminal trial, “i.e., that certain witnesses gave certain testimony.” Bradley v.
State, 564 S.W.2d 727, 731 (Tex. Crim. App. 1978). The record must clearly reflect the
precise matter judicially noticed. Id. at 733.
Here, the record is not clear regarding what, if anything, the trial court judicially
noticed. See id. In addition, it is unknown whether any judicially noticed evidence was of
common knowledge, verifiable without the necessity of an assessment of the truth and
veracity of an interested witness in this case. See Davis, 293 S.W.3d at 797. Therefore,
the evidence judicially noticed is unknown to this Court, and we will not rely on anything
not properly admitted at the revocation hearing. Having found the evidence legally
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insufficient to support revocation of Adickes’s outpatient care, we sustain his sole issue.
IV. CONCLUSION
We reverse the trial court’s judgments in both appellate causes and remand to the
trial court for proceedings consistent with this memorandum opinion.
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
18th day of August, 2022.
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