State ( 2008 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00007-CV ______________________________





THE STATE OF TEXAS FOR THE BEST INTEREST AND PROTECTION OF J. T.

---

On Appeal from the County Court at Law Cherokee County, Texas Trial Court No. 35,695

---

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

J.T. appeals the trial court's order authorizing extended mental health services pursuant to Section  574.035  of  the  Texas  Health  and  Safety  Code.  See  Tex.  Health  &  Safety  Code Ann. § 574.035 (Vernon Supp. 2007). ⁽¹⁾ On appeal, J.T. contends that the trial court erred by admitting evidence that he had been receiving mental health services for the past six years and that the evidence is legally and factually insufficient to support the finding required to uphold the trial court's order. We will affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

J.T. was first committed to Rusk State Hospital in 2001 when it was discovered that he built a guillotine and intended to kill himself because he bore the "mark of the beast." When, in November 2007, the State filed its latest application to extend mental health services, J.T. requested a jury trial to determine whether he should continue to receive court-ordered mental health services.

Dr. Victoria Morgan, M.D., completed one of the required certificates of medical examination and has been J.T.'s treating physician since June 2007. Dr. Morgan reviewed his medical history, and her testimony detailed occurrences during J.T.'s stay at the hospital and her own observations as J.T.'s treating physician. She described J.T.'s suicide attempt in July 2005 in which he attempted to hang himself in his bathroom the day after he had been approved for a lower observation status. J.T. has not had another suicide attempt since the hospital put him back on a higher observation status. ⁽²⁾ J.T. attends his treatment meetings with doctors, but refuses to answer certain questions. Particularly, he always answers "No comment" when asked during his treatment meetings if he wants to hurt himself or has plans to do so. Dr. Morgan described how certain components of J.T.'s disorder have become more severe in the few months prior to the hearing. He frequently writes very detailed letters to document perceived injustices, including letters to the hospital administration and the FBI. Dr. Morgan also testified about J.T.'s tendency to go without food or fluids in response to perceived abuses of authority. Dr. Sethurama Srinivasan, J.T.'s former treating physician, also testified that J.T. suffered from delusional disorder and detailed J.T.'s 2005 suicide attempt. He completed the second required certificate of medical examination.

Carol Norbell, a social worker and member of J.T.'s treatment team, testified that her interaction with J.T. is largely pleasant, but J.T. is unwilling to disclose how he is doing and feeling. She explained that J.T. would not talk to her about his sleeping patterns, family-related issues, and whether or not he heard voices. In July 2007, J.T.'s treatment team held a meeting in which it considered J.T.'s request to be placed on a lower observation status. During that meeting, J.T. requested to read a passage from the Bible and referred to the "mark of the beast," which Norbell described as reminiscent of J.T.'s suicidal ideations from his initial hospitalization.

Sylvia Middlebrook, a staff psychologist, confirmed that J.T. refuses to answer most questions, even those that Middlebrook characterizes as innocuous questions regarding sleep and appetite. Based on her review of his medical records and her observations of him, Middlebrook concurred with the diagnosis of delusional disorder and with Dr. Morgan's assessment that J.T. is at risk to harm himself. In particular, she cited his refusal to eat and drink and his refusal, when asked, to give the treatment team any assurance that he will not harm himself. She conceded it is difficult to know the extent of any other disorders, if any, because of J.T.'s refusal to answer questions.

II. APPLICABLE LAW

Orders for extended mental health services are governed by the following provision:

(a) The judge may order a proposed patient to receive court-ordered extended inpatient mental health services only if the jury, or the judge if the right to a jury is waived, finds, from clear and convincing evidence, that:

(1) the proposed patient is mentally ill;

(2) as a result of that mental illness the proposed patient:

(A) is likely to cause serious harm to himself;

(B) is likely to cause serious harm to others; or

(C) is:

(i) suffering severe and abnormal mental, emotional, or physical distress;

(ii) experiencing substantial mental or physical deterioration of the proposed patient's ability to function independently, which is exhibited by the proposed patient's inability, except for reasons of indigence, to provide for the proposed patient's 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;

(3) the proposed patient's condition is expected to continue for more than 90 days; and

(4) the proposed patient has received court-ordered inpatient mental health services under this subtitle or under Chapter 46B, Code of Criminal Procedure, for at least 60 consecutive days during the preceding 12 months.

Tex. Health & Safety Code Ann. § 574.035. When, as in this case, the proposed patient has already been subject to an order for extended mental health services, the jury is not required to make the fourth finding as set out in the statute. Tex. Health & Safety Code Ann. § 574.035(a)(4), (d). If the judge or jury finds that the proposed patient meets the prescribed commitment criteria, the judge or jury must specify which criterion forms the basis of the decision. Tex. Health & Safety Code Ann. § 574.035(c); Martin v. State, 222 S.W.3d 532, 535 (Tex. App.--Houston [14th Dist.] 2007, pet. denied).

Clear and convincing evidence is that measure or degree of proof 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. Tex. Civ. Prac. & Rem. Code Ann. § 41.001(2) (Vernon Supp. 2007); State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). To be clear and convincing under Section 574.035(a), the evidence must include expert testimony and evidence of a recent overt act or a continuing pattern of behavior that tends to confirm (1) the likelihood of serious harm to the proposed patient or others or (2) the proposed patient's distress and the deterioration of the proposed patient's ability to function. Tex. Health & Safety Code Ann. § 574.035(e). The overt act or continuing pattern of behavior "must relate to the criterion on which the judgment is based." See In re F.M., 183 S.W.3d 489, 492 (Tex. App.--Houston [14th Dist.] 2005, no pet.); J.M. v. State, 178 S.W.3d 185, 193 (Tex. App.--Houston [1st Dist.] 2005, no pet.).

III. ADMISSION OF EVIDENCE

In his first point of error, J.T. complains that the trial court abused its discretion by admitting evidence that referred to prior commitments to Rusk State Hospital and the alleged acts surrounding those commitments. Evidence is relevant if it has any tendency to make any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. J.T. maintains the probative value of this evidence is substantially outweighed by the danger of unfair prejudice or confusion of the issues by the jury. See Tex. R. Evid. 403. J.T. points out that a juror interrupted Dr. Morgan's testimony with the question "Has he been in the hospital since 2001?" J.T. contends that this spontaneous question from the juror demonstrates the impact that the evidence had on the jury.

We review a trial court's evidentiary ruling for an abuse of discretion. Campbell v. State, 118 S.W.3d 788, 795 (Tex. App.--Houston [14th Dist.] 2003, pet. denied). When faced with a similar argument, the Houston-Fourteenth Court disagreed that the patient's prior violent acts were not relevant to the jury's assessment of the Section 574.035 factors:

The state of an individual's emotional and psychological well-being--or lack thereof--and whether the person should remain committed because of a mental illness, requires more than a snapshot of a single year in a person's life; it is a broad inquiry. In an involuntary commitment case, we ask whether the person is mentally ill and needs help (1) to protect himself or others or (2) to maintain his health. Especially when a person was criminally violent while insane and has been committed for years, focusing only on the most recent years of life provides no frame of reference. To determine if one who has been mentally ill is now well, or at least able to protect others and maintain his health, a psychological history is necessary.

Id. at 796. Of course, the precise nature of the evidence in Campbell is somewhat different than the evidence at issue here. We recognize, though, that a similar perspective applies here. Here, we are called upon specifically to examine the record for a recent overt act or a continuing pattern of behavior. That said, we must look at what J.T. has done in the past. Inevitably, since J.T. was, in fact, in the state hospital, evidence relevant to a continuing pattern of his behavior will refer to the fact that J.T. was in the state hospital. We note that the State presented evidence relating to J.T.'s condition and behavior rather than simply taking the position that J.T. should be involuntarily committed this time because he has been committed in the past.

We also note that, in certain circumstances, a judge or jury must find that the proposed patient has received court-ordered inpatient mental health services for at least sixty consecutive days during the preceding twelve months. See Tex. Health & Safety Code Ann. § 574.035(a)(4). Section 574.035(d) eliminates the need for this finding when, as here, the proposed patient already has been subject to an order for extended mental health services. By creating such an exception, Section 574.035 contemplates the admission of evidence relating to prior orders authorizing extended mental health services. The evidence in question is relevant.

We must now consider whether this evidence, though relevant, should be excluded because it was unfairly prejudicial. Under Rule 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tex. R. Evid. 403. To properly apply Rule 403 to relevant evidence, the trial court must balance and weigh the probative effect of the evidence against its potential for unfair prejudice or confusion. In re C.J.F., 134 S.W.3d 343, 356 (Tex. App.--Amarillo 2003, pet. denied). In weighing the probative value of the evidence against the danger of unfair prejudice, the court must first examine the necessity for and probative effect of the evidence. Id. As we have concluded, evidence referring to J.T.'s prior commitments is relevant to the issues the jury must examine, and any risk of unfair prejudice must be measured against this relatively high degree of relevance. See Campbell, 118 S.W.3d at 798. Unfair prejudice means an "undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990).

The record here suggests the jury carefully considered the evidence for over an hour and arrived at its verdict based on the evidence presented and not on an improper basis. We observe, and will detail further in response to J.T.'s next point of error, that the jury had a great deal of evidence on which it could have found the State satisfied the statutory criteria. Further, the State did not focus on the fact that J.T. had been at Rusk State Hospital since 2001; it did not rely on that aspect of the evidence to support its application. The fact that he was in the hospital, as we have stated, is incidental to and almost inseparable from the evidence regarding J.T.'s behavior and mental condition.

After a witness testified to J.T.'s initial hospital admission, a juror asked a question regarding J.T.'s hospitalization since 2001. The trial court responded to the juror's question in a swift manner that was clear and concise, but did not emphasize the matter:

THE COURT: Time out. Yes, ma'am?

JUROR: Has he been in the hospital since 2001?

THE COURT: Let the lawyers speak to that. Okay?

JUROR: I'm sorry.

THE COURT: The lawyer will address all of the evidence.

JUROR: Oh.

THE COURT: Okay.

Of course, we cannot determine from the record the inflection with which the juror asked the question, whether the juror expressed shock or whether she was simply asking the question as a means of satisfying her own curiosity. The record does suggest that the question was not a spontaneous exclamation since the juror had somehow gained the trial court's attention prior to asking the question. Beyond that, the record provides us little information about the illocutionary force of the question. J.T. suggests that the asking of this question demonstrates that the probative value of the evidence, which we find to be high, was substantially outweighed by its prejudicial effect. We do not arrive at such a conclusion. Considering the nature of the findings a jury must make in this type of case, the exception created by Section 574.035(d), the state of the evidence, and the trial court's response to the juror's question, we conclude that the trial court did not abuse its discretion in allowing evidence that referred to the fact that J.T. has been committed since 2001.

IV. SUFFICIENCY OF THE EVIDENCE

The order for extended mental health services states the jury found, by clear and convincing evidence, that J.T. is mentally ill, that as a result of his mental illness, he is likely to cause serious harm to himself, and that he is suffering severe and abnormal mental, emotional, or physical distress; that J.T. is 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 that he is unable to make a rational and informed decision as to whether or not to submit to treatment. ⁽³⁾

A. Standards of Review

In reviewing the legal sufficiency of the evidence where the burden of proof is clear and convincing evidence, we consider all of 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 findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the trier of fact resolved disputed facts in favor of its finding if a reasonable trier of fact could do so, and we must disregard all contrary evidence that a reasonable trier of fact could have disbelieved or found to be incredible. Id.

In reviewing factual sufficiency challenges, we review all the evidence in the record, both supporting and opposing the trial court's findings. In re C.H., 89 S.W.3d 17, 27-29 (Tex. 2002). We must give due consideration to evidence the trier of fact could reasonably have found to be clear and convincing. Id. at 25. Under the clear-and-convincing standard, we determine whether the evidence is such that the trier of fact could reasonably form "a firm belief or conviction" as to the truth of the allegations sought to be established by the State. Id. We must consider whether disputed evidence is such that a reasonable trier of fact could not have reconciled that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266.

B. Evidence of Mental Illness

At the outset, we note that J.T. does not challenge the sufficiency of the evidence that his condition is expected to continue for more than ninety days. See Tex. Health & Safety Code Ann. § 574.035(a)(3). In support of his contention that the evidence is insufficient to support the jury's finding that he is mentally ill, ⁽⁴⁾ J.T. points to the inconsistency between Dr. Srinivasan's testimony and the evidence of mental illness found in Dr. Morgan's testimony and both medical certificates. J.T. also contends that the limited contact between Dr. Morgan and J.T. would not permit her to form a basis for her opinion that J.T. suffers from a mental illness. ⁽⁵⁾

In their respective certificates of medical examination, Drs. Morgan and Srinivasan diagnosed J.T. as having "delusional disorder." Dr. Morgan testified that she diagnosed J.T. as suffering from a delusional disorder, mixed type. She explained that J.T.'s diagnosis includes the "mixed type" notation because his delusional disorder has two key components: persecutory type which involves paranoia, and grandiose type which can be of a religious context. To further explain her diagnosis of grandiose component, she explained that J.T. told the staff in 2001 that he had the "mark of the beast" and continues to tell the staff that he bears such mark.

Dr. Srinivasan treated J.T. from 2003 to 2006. He testified that he initially diagnosed J.T. as schizophrenic when J.T. first came to the hospital. He concurs with the more recent diagnosis of delusional disorder. According to the doctor, J.T.'s condition is worsening. He explained the difficulty he had when examining an agitated J.T. who was constantly taking notes during the examination:

All that I could say was that he was psychotic. And to say that he has a delusional disorder, he needs to tell me something. But at this time he did not talk to me, and so I did not, you know, figure out any kind of delusions. But in the past, he had told me all kinds of delusions. So, I can only say that he is getting worse than what he was a couple of years ago.

Based on her review of J.T.'s history and her observations, psychologist Middlebrook concurred with the diagnosis of delusional disorder and explained that it is difficult to know the extent of any other disorders from which J.T. may be suffering, if any, because J.T. refuses to answer most questions. Although the doctors did agree as to the difficulty in diagnosing J.T. when he refuses to answer questions, they did provide a diagnosis and factual bases supporting their diagnoses. Their testimony pointed to current behavior and observations and to medical history as a basis for the diagnosis of delusional disorder. Having considered all of the evidence in a light most favorable to the jury's finding, we conclude that the evidence is legally sufficient to support the jury's finding that J.T. is mentally ill. Also, giving due consideration to evidence the jury could have found to be clear and convincing, we conclude that factually sufficient evidence supports the jury's finding that J.T. is mentally ill.

C. Evidence of a Continuing Pattern of Posing a Risk of Harm to Himself

J.T. correctly directs us to authority that, even if the evidence of mental illness is sufficient, such evidence alone is insufficient to satisfy the statutory elements of Section 574.035. See L.S. v. State, 867 S.W.2d 838, 867 (Tex. App.--Austin 1993, no writ). Since evidence of mental illness alone is insufficient to justify involuntary commitment, we look to evidence that supports the other challenged elements of Section 574.035. Specifically, J.T. contends the evidence is insufficient to show an overt act or continuing pattern of behavior that would support a finding that he poses a risk of harm to himself under Section 574.035(a)(2)(A) and the multi-faceted finding under Section 574.035(a)(2)(C). ⁽⁶⁾

1. "Mark of the Beast" and Suicidal Notions

In much the same way as the doctors explained that J.T.'s reluctance to cooperate impacted their ability to diagnose him, the doctors also expressed frustration in trying to learn whether J.T. still entertained thoughts of suicide. Dr. Morgan explained the difficulty J.T. has posed by refusing to answer questions concerning his plans to hurt himself:

My concern and belief is that the statements that he's made previously and now refuses to discuss with us about his risk of self harm means that I cannot make a risk prediction about his danger to himself. He may have an immediate plan the moment he walks out the door here, with his failure to communicate with us on any level about risk of suicide, suicidal thoughts, my concern is that he does still have that plan, because I have no reason to think that that is gone out of his mind.

Dr. Morgan stated in her certificate of medical examination and during her testimony that she considered J.T. at risk for self-harm. The doctors, who have treated J.T. at points throughout his stay at Rusk State Hospital, explained that he refuses to take any medication and answers "No comment" in response to questions about both his condition and more day-to-day topics relating to his physical health, suggesting that J.T. chooses to continue in his pattern of behavior. Further, Dr. Morgan explains that, in his July 2007 treatment meeting, J.T. read scripture concerning the "mark of the beast": "The mark of the beast is still a part of his thinking and something that he wanted to communicate with us. Even though he doesn't do that on a day-to-day basis, it is still a part of his line of thinking." Based on his observations and review of J.T.'s progress, Dr. Srinivasan believes that J.T. would harm himself if he were released from the hospital. He noted in his certification that J.T. discussed "developing a perfect guillotine to decapitate himself."

If there were any confusion remaining as to whether J.T. planned to attempt suicide, J.T. clarified his intentions during his own testimony on direct examination. Indeed, J.T.'s testimony at trial clearly demonstrates that he continues to behave in a self-destructive manner. He testified at trial that he believes the government placed on him the "mark of the beast" or a forerunner of such mark. He explained that it is preferable to commit suicide than to be violated by the government. ⁽⁷⁾ Not surprisingly, J.T. then unequivocally expresses his plans to commit suicide and reconciles his plan with his unaffiliated Christian beliefs by explaining that the "sophisticated" scheme by which the government has placed this mark on his body allows him to make an exception to the general rule that an individual should not kill:

I don't say that I'm a harm to myself. I think that's the wrong word. In our Christian Bible, its [sic] says that in the end times, in the book of Revelations, that the government - we're going to be forced to take the mark of the beast. I mean, it spells it out. It's Chapter 13. And - hold on. And then in Chapter 14, it says that those who received the mark of the beast, they'll spend eternity in hell.

When his attorney asked him whether he planned to take his own life if released from the hospital, J.T. replied, "Yes, I do." This testimony shows that J.T. continues to demonstrate both the state of mind and the attendant pattern of behavior ⁽⁸⁾ that tend to confirm the likelihood of serious harm to himself. His continued adherence to the idea that he bears the "mark of the beast," his insistence that this mark justifies his suicide, his previous suicide attempts on that basis when he was under less supervision, and his recent attempts to be placed on a lower observation status all serve as evidence that J.T. continues to engage in a pattern of behavior that tends to confirm the likelihood that he poses a risk of serious harm to himself.

J.T. likens the evidence here to that presented in State of Texas for the Best Interest and Protection of P.W., 801 S.W.2d 1, 3 (Tex. App.--Fort Worth 1990, writ denied). In P.W., a member of the patient's family testified that the patient had called him and asked "where would be the best place to hold [a] pistol to kill herself without causing a lot of pain." Id. The patient was also convinced that everyone was an agent of her ex-husband and that he was tapping her telephone. Id. She had also destroyed a great deal of personal property. Id. Unlike the evidence in P.W., here J.T. has at least twice attempted suicide and continues to espouse the same ideas that he used to justify those prior attempts. He unequivocally testified that he does plan to commit suicide in order to avoid the consequences of the "mark of the beast" that the government placed on him. He, unlike P.W., has taken steps to harm himself and continues to believe in his basis for committing suicide. J.T. has demonstrated a pattern of behavior that tends to confirm he wants to commit suicide, whereas the evidence only showed that P.W. asked questions about committing suicide.

J.T. also relies on Broussard v. State, 827 S.W.2d 619 (Tex. App.--Corpus Christi 1992, no writ), and Johnstone v. State, 961 S.W.2d 385, 389 (Tex. App.--Houston [1st Dist.] 1997, no writ), among other similar cases, to support his position that the evidence is insufficient. In Broussard, the patient was ordered to receive temporary mental health services. ⁽⁹⁾ 827 S.W.2d at 619. The jury found that the patient was mentally ill and, as a result, was likely to cause serious harm to others and would, if not treated, continue to suffer severe and abnormal mental, emotional, or physical distress, would continue to experience deterioration of his ability to function independently, and was unable to make a rational and informed decision as to whether or not to submit to treatment. See Tex. Health & Safety Code Ann. 574.034(a)(B), (C). The court easily concluded that there was no evidence that Broussard was likely to harm others. Broussard, 827 S.W.2d at 622. The court then outlined the relevant evidence to the other bases for the temporary commitment, including evidence that the patient had six or seven prior admissions for the same condition. Id. at 620. Ultimately, the court concluded that such evidence, along with evidence of the patient's continuing delusional behavior and generalizations of her hostile behavior and provocative statements, failed to show a recent "overt act or continuing pattern of behavior that would generally affect [her] ability to function independently on a day-by-day basis without the imposition of court-ordered mental health services." Id. at 622. The court reasoned that evidence that merely reflects that an individual is mentally ill and in need of hospitalization is no evidence that the statutory standard has been met. Id.

In Johnstone, doctors testified that the patient in that case repeatedly refused to take his medication and that his ability to function independently would continue to deteriorate. 961 S.W.2d at 389. The court pointed out that the courts in Broussard and J.S.C. found that findings of this nature are not specific enough to show an overt act or continuing pattern of behavior. The Johnstone court noted that in Broussard, the addition of evidence that the patient had been repeatedly admitted to mental institutions for the same condition still was not sufficient to show a continuing pattern of behavior. See Johnstone, 961 S.W.2d at 389. The Johnstone court held the evidence was insufficient to satisfy the statute.

Here, the record goes beyond the mere fact that J.T. has been hospitalized several times before. Rather, the evidence details the religious delusions concerning the mark of the beast and the doctrine by which J.T. justifies his suicide. The record also shows a pattern of attempting suicide, most notably right after he was moved to a lower observation status in the hospital. That attempt was nearly successful; the staff had to cut J.T. down from his noose. Finally, the record confirms that the doctors are not merely guessing at what J.T. will do when J.T. plainly states that he does plan to commit suicide if he is released. The evidence provides the factual bases for the doctors' opinions and also demonstrates that J.T. continues to engage in behavior consistent with the behavior that not only justified his initial commitment, but also served as an independent basis for the trial court's December 2007 order for extended mental health services. See L.S., 867 S.W.2d at 844 (order for extended mental health services affirmed when evidence showed that, when untreated, patient ritualistically burned his skin with cigarettes, drank excessive amounts of water resulting in reduced sodium serum levels, placed nine-volt batteries to the exposed roots of his teeth, failed to maintain sanitary hygiene, and walked into traffic without looking).

2. Refusal to Eat or Drink

The evidence also shows that J.T. has started to deprive himself of food and fluids in attempts to resolve perceived injustices against him. Dr. Morgan explained that J.T. will remain in the bathroom without eating, drinking, meeting, or exercising due to staff members' "abuse of authority." Dr. Morgan described that J.T. perceived this abuse of authority when a staff member pulled his or her hands back when J.T. extended his tray or silverware to the staff member in the dining hall. J.T. testified that hospital staff also would not allow him to wash his hands before meals. J.T. also believes he is entitled to money from the hospital's donation program ⁽¹⁰⁾ and has demonstrated his protest by refusing to eat or drink until the issue is resolved. As a result, he has lost twenty-six pounds in a little over two months and had to receive medical care on at least four occasions. According to Dr. Morgan, this type of weight loss is detrimental to J.T.'s health. Evidence that J.T. regularly refuses to eat or drink at all, be it in protest to the injustices he perceives or otherwise, is evidence of a recent overt act or a continuing pattern of behavior that tends to confirm that J.T. is a risk of serious harm to himself.

V. CONCLUSION

Considered in a light most favorable to the jury's finding, evidence that J.T. continues to refuse food and fluids for extended periods of time and still plans to commit suicide because he believes the government has placed on him the "mark of the beast" is evidence sufficient to produce in the minds of the jury a firm belief that J.T. poses a serious risk of harm to himself, satisfying Section 574.035(a)(2)(A). Giving due consideration to such evidence, we conclude that the evidence concerning the doctors' difficulty in getting J.T. to answer many questions is not such that it would prevent a reasonable jury from reconciling the disputed evidence in favor of its finding. The evidence is both legally and factually sufficient. Having also concluded that the trial court did not

abuse its discretion by admitting evidence referring to J.T.'s extended hospitalization, we affirm the trial court's order.

Jack Carter

Justice

Date Submitted: March 6, 2008

Date Decided: March 7, 2008

1. In a companion case, cause number 06-08-00010-CV, J.T. appeals from the related order authorizing administration of psychoactive medication. See Tex. Health & Safety Code Ann. §§ 574.104, 574.106 (Vernon Supp. 2007).

2. At the time of trial, J.T. was on "one-to-one" observation status while he was awake and was on intake and output monitoring due to his recent refusal to eat or drink. In the past, J.T. had also been placed on "close observation" status in which one staff member is assigned to closely monitor up to three patients.

3. We point out that the jury found two of the three bases under Section 574.035(a)(2). As structured, the order does not create a problem. See In re J.S.C., 812 S.W.2d 92, 96 (Tex. App.--San Antonio 1991, no writ) (holding that a "fill-in-the-blanks" judgment form must state the findings of the statutory criteria conjunctively, not disjunctively). When the evidence sufficiently establishes one criterion under Section 574.035(a), we are not required to decide whether there was sufficient evidence to satisfy another basis for commitment. See In re R.M., 90 S.W.3d 909, 912 (Tex. App.--San Antonio 2002, no pet.); Mezick v. State, 920 S.W.2d 427, 431 (Tex. App.--Houston [1st Dist.] 1996, no writ); Holliman v. State, 762 S.W.2d 656, 659 n.3 (Tex. App.--Texarkana 1988, no writ). Accordingly, we have reviewed the record to determine whether the evidence is sufficient to support either of the two bases found in this case.

4. "Mental illness" means an illness, disease, or condition, other than epilepsy, senility, alcoholism, or mental deficiency, that: (A) substantially impairs a person's thought, perception of reality, emotional process, or judgment; or (B) grossly impairs behavior as demonstrated by recent disturbed behavior. Tex. Health & Safety Code Ann. § 571.003(14) (Vernon Supp. 2007).

5. To the extent that this contention would appear to raise the qualification of Dr. Morgan as an expert, we note that the parties stipulated to the qualifications of Drs. Morgan and Srinivasan as experts in the field of mental health.

6. For reference, we reiterate that Section 574.035(a)(2)(C) requires a showing that, as a result of his or her mental illness, the proposed patient is

suffering severe and abnormal mental, emotional, or physical distress; experiencing substantial mental or physical deterioration of the proposed patient's ability to function independently which is exhibited by the proposed patient's inability, except for reasons of indigence, to provide for the proposed patient's basic needs, including food, clothing, health, or safety; and unable to make a rational and informed decision as to whether or not to submit to treatment.

Tex. Health & Safety Code Ann. § 574.035(a)(2)(C).

7. We add that J.T. elaborated his justification for maintaining such a notion by referring to an unidentified church's written material:

I think there are reasonable exceptions. Let me give you one. In a book, I believe it's called One Day at A Time, I can't remember, I think it might be - - it comes from the voice of the [inaudible] organization out of Oklahoma, and it has 365 days listed in it and a little short story on each page. And one of those stories in there was a woman - - well, first of all, and there was a king in this - - It didn't give a lot of specifics. It was pretty short. But a king would violate the women because he had that much power, and - - married or not married, it didn't make any difference to him. And so, this woman that was married knew that the soldiers would come and get her, and her husband run away. So, when they came and got her, she excused herself to her bedroom and put a sword through herself. I think she done the right thing. There are exceptions. I mean, rather than being violated, I'll take my life. Rather than somebody violating me. I think there are exceptions to taking your life. And this - - The government has secretly put something on my body. I think this is an exception. Whether this is the mark of the beast or not that the government has placed on me, I don't know. It's highly sophisticated, and - - You just wouldn't believe it. But if it's not the mark of the beast, it's a forerunner of it.

.

8. Though J.T. argued that the suicide attempts are not recent, we find it unnecessary to address whether the 2001 or 2005 suicide attempts are "recent" overt acts as contemplated by Section 574.035(e).

9. Though Broussard does deal with court-ordered temporary mental health services, and we are examining here an order for extended mental health services, we note the similarity between the standards in Sections 574.034(a)(2)(C) and 574.035(a)(2)(C). Nonetheless, the state of the evidence in the instant case most notably distinguishes it from Broussard.

10. Dr. Morgan explained that there is a volunteer services program separate from but associated with the hospital that will allot a certain small amount of spending money to indigent patients so that those patients can spend that money at the hospital canteen. She explained that a patient who receives money from an outside source is not eligible for the donation program. J.T. testified that he asked friends for money to buy stamps so that he could send letters. He testified that he was forced to ask for money because the donation program was not giving him any money. The record does not otherwise clarify whether J.T. stopped receiving the donation program money before or after his friends sent him money.