Hung Dasian Truong v. State

Opinion issued February 28, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00454-CR
———————————
HUNG DASIAN TRUONG, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Case No. 1172979
OPINION
In 2008, appellant, Hung Dasian Truong, was charged with the second-degree
felony offense of manslaughter. The following year, in 2009, the trial court found
appellant not guilty by reason of insanity and signed an order committing him for
inpatient treatment. The trial court has renewed the inpatient commitment order for
each of the following years. In this appeal, appellant challenges the trial court’s May
10, 2018 recommitment order, contending that the State presented insufficient
evidence to support the order renewing appellant’s commitment for inpatient
treatment.
We affirm.
Background
On June 29, 2008, appellant drove through a traffic barricade at a high rate of
speed and struck Houston Police Department Officers G. Gryder and F. Pylon.
Officer Gryder died as a result of his injuries, and the State charged appellant with
the offense of manslaughter. While appellant’s criminal case was pending, the trial
court ordered two psychologists to evaluate appellant for his competency to stand
trial as well as his sanity at the time of the offense. During his interviews with the
psychologists, which occurred approximately six months apart, appellant reported
that he had been having auditory hallucinations for several years and that he had had
hallucinations while he was driving home on the day of the incident. Appellant stated
that he thought the “voices were from God or from the devil,” that the voices were
fighting, that the voices told him to run over the officers with his car, and that he
“thought [Officer Gryder] was a demon” and “the arresting officers were angels.”
2
Both psychologists concluded that, in their professional opinions, appellant suffered
from schizophrenia and was legally insane at the time of the offense.
On December 17, 2009, the trial court found appellant not guilty of the
charged offense by reason of insanity. In its judgment, the trial court found that the
charged offense involved dangerous conduct that caused serious bodily injury to
another person and that placed another person in imminent danger of serious bodily
injury. The court ordered appellant committed to North Texas State Hospital for
thirty days for evaluation. In January 2010, the trial court agreed with North Texas
State Hospital’s recommendations and found, by clear and convincing evidence, that
appellant had a severe mental illness, that as a result of that illness appellant was
likely to cause serious bodily injury or harm to another if he was not provided
treatment and supervision, that appropriate treatment and supervision could not be
safely or effectively provided on an outpatient basis, and that inpatient treatment was
necessary to protect the safety of others. The trial court ordered appellant committed
to North Texas State Hospital for inpatient treatment for 180 days. Appellant was
later transferred to Rusk State Hospital.
The trial court renewed the commitment orders on an annual basis and ordered
appellant recommitted to Rusk State Hospital for inpatient treatment each year from
2010 through 2018. The trial court’s May 10, 2018 recommitment order is the
subject of this appeal.
3
On April 5, 2018, the State requested that the trial court renew its order
committing appellant for inpatient treatment. The State alleged that due to the
severity of appellant’s mental illness, he was “at a high risk for recurrence of
symptoms if not actively in treatment” and that a renewed inpatient commitment
order would “ensure the continuity of care and supervision that supports effective
delivery of inpatient treatment.”
On April 24, 2018, Dr. George Howland, appellant’s treating psychiatrist at
Rusk State Hospital, examined appellant and completed a statutorily-required
“Physician’s Certificate of Medical Examination for Mental Illness.” Dr. Howland
reported that appellant had been under his care for five years and seven months and
that appellant had been diagnosed with schizoaffective disorder-bipolar type, alcohol
abuse, and cocaine abuse. Dr. Howland opined that appellant was not likely to cause
serious harm to himself, nor was he likely to cause serious harm to others. Dr.
Howland stated, “[Appellant] has been stable with no manic episodes in 18 months.
His meds have not been changed recently. He participates in classes and follows unit
rules.” Appellant reported, “My meds are good,” “I’m ready to go, I think,” “I’m
doing well,” and he reported that he was not having any manic symptoms.
Dr. Howland also completed a “Forensic Psychiatry Report to Court-NGRI
Acquittee.” Under a heading entitled “Recent course in the hospital” Dr. Howland
stated:
4
[Appellant] follows the rules and gets along with others on the unit. He
knows he needs to take his meds to stay well. He has good insight into
his mental illness. He has a client worker job that he does well. He has
not been aggressive to himself or others. He has taken his medication
with no problem. He does self-administration of his meds with nursing
supervision. [Appellant] has done well for 16 months with no signs of
mania. He has not been psychotic over this period.
Dr. Howland stated that, in the opinion of the Hope Unit Recovery Team, appellant
was ready for discharge from inpatient treatment at Rusk State Hospital because his
mood had been stable for sixteen months, he had not been aggressive, and he had
been compliant with treatment.
The trial court held a hearing on the State’s motion to renew appellant’s
inpatient commitment on May 9, 2018. At the hearing, Dr. Howland testified that he
had been appellant’s treating psychiatrist at Rusk State Hospital since March 2012.
Appellant’s medications included a mood stabilizer and an antipsychotic drug. Dr.
Howland testified that if appellant stopped taking his mood stabilizer, his manic
symptoms could return, he could experience pressured speech, and he could become
hypersexual and aggressive. He also stated that appellant took antipsychotic
medication to help with psychotic symptoms, including “voices, disorganized
thoughts, [and] delusional thoughts.” Dr. Howland stated that appellant “needs to
stay on his medicine like all psychiatric patients do” to avoid the recurrence of his
symptoms.
5
Dr. Howland testified that in September 2016, nearly two years before the
hearing, appellant approached Dr. Howland, spoke with pressured speech, and told
Dr. Howland that he did not want to take his antipsychotic medication because he
felt that it was making him urinate too much. Dr. Howland and appellant discussed
the issue, and appellant ultimately agreed to take all of his medications. Dr. Howland
testified that he believed it was good that appellant spoke to him about his concerns.
He also testified that, at that time, he increased the dosage of appellant’s mood
stabilizer and, since that time, appellant had done “really well,” with no manic or
psychotic symptoms.
Dr. Howland also testified concerning appellant’s administration of his
medication at Rusk. Appellant self-administered his medication under the
supervision of a nurse. Appellant’s medications were kept locked up at the nurses’
station, and he would approach the station at the scheduled time and take his
medication after a nurse verified that he was taking the correct medication. When
the State asked Dr. Howland if appellant would need “this type of self-
administration” if he were placed in outpatient care, Dr. Howland testified:
Well, I think in the community it will be a lower level of care. I think
he knows his meds, and I think he could take his meds on his own; but
depending on what the requirements are of the Court, if they want him
to be dispensed his meds, he’s fine with that. I have confidence in him;
because if you talk with him and you ask him, he knows his meds. He
knows when he takes them. He knows why he’s taking them. He’s very
good with his meds. So, whatever the Court deemed—you know,
whatever they were happy with would be fine with me.
6
Dr. Howland stated that he believed appellant was “stable on his meds” and that
appellant should be able to work if he were placed on an outpatient treatment plan
and the court allowed him to have a job. He also stated that he did not believe that
appellant was likely to cause serious harm to himself or to others. He did not believe
that further inpatient treatment was necessary. He stated, “If he stays on his meds
and makes his appointments and follows what the Court says in the community, I
think he’ll do fine.”
Dr. Sarah Rogers conducted a dangerousness risk assessment on appellant that
involved a review of patient records, the evaluation of risk factors, and a clinical
interview. She agreed with the State that appellant reported he had started having
auditory hallucinations as a young adult and that he was having hallucinations on
the night of the offense. She also agreed that appellant reported that he had started
using alcohol, cocaine, and ecstasy, and she agreed that appellant’s substance abuse
likely exacerbated his auditory hallucinations. Dr. Rogers opined that appellant had
been “very engaged and involved” with his treatment at Rusk State Hospital and that
appellant had good insight into his mental illness. She testified:
[B]ecause people oftentimes are not diagnosed [with a mental illness],
and a tragedy happens. They get treatment. They get the correct
medication. They get insight. Just as my risk assessment shows,
[appellant] has gained insight, you know, and learned that he does have
a mental illness. He needs to take medication. He needs to stay away
from substances. And so, that’s why we were able to give him an
estimate of low risk. You know, we are looking at his functioning in the
7
community, his risk for future violence; and he came out to be low risk.
Not everybody is low risk. Some people are moderate or high risk, but
[appellant] is low risk . . . .
She opined that appellant had the ability to participate in outpatient treatment, given
that he resided on the least restrictive unit at Rusk State Hospital and self-
administered his medication, and she agreed with Dr. Howland that outpatient
treatment was appropriate for appellant.
Theresa Allen has been appellant’s social worker at Rusk State Hospital since
March 2013. She testified that in October 2017, appellant—accompanied by three
members of Rusk staff—went on a court-approved visit to a local McDonald’s to
meet his sister and father and that the outing “went well, and he returned to the
[Rusk] campus without any difficulties.” She stated that appellant participated in
several classes and extracurricular activities at Rusk and participated in overnight
camp-outs that occurred on Rusk property. She testified that appellant has never
been aggressive while at Rusk. She described appellant as a model patient who
followed all rules and guidelines and interacted well with staff and other patients.
She stated that appellant had informed her that he would follow all guidelines set by
the court if he were placed in outpatient treatment. She also stated that the Hope
Unit, where appellant resides, is an “open” unit designed to prepare patients for
outpatient treatment, that it is not fenced in, and that appellant has never eloped from
the facility since he arrived in 2010.
8
Dr. David Bobb testified that he is a psychiatrist for the Harris Center—Harris
County’s mental health authority—and that he evaluated appellant to determine if
he were fit to be released for outpatient treatment. He stated that he would be
appellant’s treating psychiatrist if appellant were placed in outpatient treatment,
which he believed was appropriate. Dr. Bobb agreed that, after leaving Rusk,
appellant would not have twenty-four hour direct access to a psychiatrist, but he
would be provided with the phone number for twenty-four hour Harris Center help
line if he started experiencing symptoms or decompensating after hours. Dr. Bobb
testified that, under the system used by the Harris Center, he could see appellant “as
frequently as needed based on his presentation” and appellant did not have to report
to Dr. Bobb’s office; instead, a clinician would bring appellant to Dr. Bobb.
Dr. Bobb reviewed appellant’s medical records—in which appellant admitted
to abusing alcohol, cocaine, marijuana, and ecstasy—and he categorized appellant’s
substance abuse history as “extensive.” He stated that if, upon release from Rusk,
appellant began abusing drugs again, “that would increase his risk of having
hallucinations, having psychiatric instability,” but Dr. Bobb stated that he could not
determine if appellant would necessarily become violent or reoffend.
The State discussed with Dr. Bobb various treatment plans for appellant that
had been formulated among personnel at Rusk, the Harris Center, and other agencies
that assisted patients newly released to outpatient treatment. The first plan,
9
developed by Rusk State Hospital’s recovery team, stated that appellant “has
demonstrated he can successfully live in a residential setting and outpatient setting
with medication monitoring” and recommended that appellant live at an assisted
living facility where his “psychiatric condition, medication and outpatient recovery
compliance can be monitored.” This plan named the Divine Heritage Assisted Living
facility on Longbrook Drive in Houston as the recommended assisted living facility
for appellant. On May 3, 2018, the Harris Center completed a revised “State Hospital
Forensic Aftercare Recommendations” form that recommended the Divine Heritage
Assisted Living facility on Hornbrook Drive in Houston as the proposed placement
for appellant. Dr. Bobb testified that he found out on the morning of the hearing—
May 9, 2018—that the recommended outpatient placement for appellant had been
changed once again, but he did not know the details of why that change had occurred.
He agreed with the State that appellant’s “placement in the community is important.”
Dr. Bobb also testified concerning the development of an outpatient treatment
plan:
[T]hroughout the interview [with appellant], [the Harris Center’s intake
coordinator] listened to the things that were going to be pertinent to
[appellant’s] outpatient treatment plan. And these are pretty much
standardized for most clients to be tweaked as the clients come in. We
talked about medications. We talked about housing. We talked about
drug screening. We talked about all those things that identified as
potential risk factors that would increase [appellant’s] chances of
decompensation.
10
Dr. Bobb testified that substance abuse is a risk factor that is weighted a little more
heavily, but living environment, history of medication compliance,1 and family
support are also risk factors. He stated, “All of those play a role in helping to
reduce—when addressed correctly, reduce a client’s risk.” He testified that the
designation of a licensed personal care facility is important “so that we can ensure
that [the patient is] put in a licensed care home that is staffed by people who help us
monitor his medication management.”
Dr. Trina Burkes-Jones, an investigator for the Mental Health Division of the
Harris County District Attorney’s Office, testified that she conducts evaluations of
living facilities for not-guilty-by-reason-of-insanity acquittees being released from
inpatient care. She testified that she conducts these evaluations for the safety of the
general public and because the trial court must approve the particular residence.
Burkes-Jones evaluated two assisted living facilities that had been
recommended for appellant, both of which were owned and operated by the same
person, Justina Uzowulu. The facility on Longbrook was the first one recommended
1
Dr. Bobb testified that, in his interview with appellant, which occurred in April
2018, he repeatedly talked about what had happened in September 2016 when
appellant did not want to take his antipsychotic medication due to one of the side
effects “because I needed him to make sure if he’s having side effects, which is the
number one reason why people stop taking their psychiatric medication, that he feel
comfortable to be able to talk with me.” Dr. Bobb stated, “And it seems like from
that episode [in September 2016], [appellant] had learned the importance of
medication compliance.”
11
as a placement for appellant, and Burkes-Jones described it as a single-family
residence with a converted garage that was licensed for eleven residents. When
Burkes-Jones arrived at the Longbrook facility, she observed Uzowulu in her car,
backing out of the driveway. Burkes-Jones and Uzowulu spoke, and Uzowulu agreed
to let Burkes-Jones look around. Burkes-Jones testified that the Longbrook facility
was “filthy,” with rotted and fermented food in the kitchen and an open biohazard
bag on top of the refrigerator. No administrative staff other than Uzowulu worked at
this facility, and Uzowulu’s staffing logs indicated that she worked twenty-four
hours per day at both the Longbrook and the Hornbrook facilities.
While Burkes-Jones was visiting the Longbrook facility, a large tree in the
front yard of the house fell. The door to the office of this facility, which was where
medications were stored, was unlocked. Burkes-Jones described the office as
disorganized, stating that the residents’ medications were mixed together, some
medications were loose and not stored in bottles, some medications were not labeled,
some medications were clearly old and not recent, some medications were on the
floor, and Burkes-Jones could not tell which medications belonged to which
residents.2 Uzowulu told Burkes-Jones that she was the only one who administered
medications and she did not allow residents to self-administer their medications.
2
Uzowulu told Burkes-Jones, “[I]f [the residents] take their medicine, they take it. If
they don’t, they don’t.”
12
Burkes-Jones visited the facility on April 17, and a medications log had no
information entered after April 15. An open folder containing the residents’ personal
information was lying on the floor of the office. The only locked portion of the
facility was a drawer in the office that held cigarettes Uzowulu would give to the
residents.
Burkes-Jones visited the Hornbrook facility, also owned and operated by
Uzowulu, on May 8, 2018. This facility was also a single-family residence, but
without a converted garage, and was licensed for nine residents. Uzowulu was not
present when Burkes-Jones arrived, but she arrived within minutes after Burkes-
Jones called her. No other staff was present. As far as the cleanliness of this facility,
Burkes-Jones testified:
I can tell that [Uzowulu] knew that I was coming because it was clean.
She told me, I cleaned up before you came because I was expecting you
the day before. But when it came to the medications, it was almost the
same [as the Longbrook facility].
Burkes-Jones testified that, at the Hornbrook facility, the residents’ medications
were stored behind a door that Uzowulu attempted to keep closed with a clothes
hanger. Burkes-Jones agreed with the State that the medicine cabinet “look[ed] about
the same” as the one at the Longbrook facility.
Burkes-Jones testified that, as with Longbrook facility, Uzowulu was unable
to tell which medications belonged to which residents. Uzowulu did not keep a
medication log at this facility, nor did she keep any kind of record that tracked
13
whether the residents were experiencing symptoms, whether the residents were
attending therapy sessions, or whether the residents were improving. When asked
how residents were able to get help if they had any problems, Burkes-Jones testified:
“[Uzowulu] stated that she uses the 911 system as a way to help control her people,
because she’s the only one there and she has mostly males in both facilities.”
Burkes-Jones also testified concerning the treatment that residents received at
Uzowulu’s facilities:
One of the questions that I ask when I go is where they—where are they
[the residents] receiving their treatment from? Who’s providing their
treatment? How are they getting their therapeutic care past the hospital
to maintain their continuum of care? When I asked [Uzowulu] about
that [at] the first meeting that we had [at the Longbrook facility], she
could not give me a location of who was doing her treatment. Because
her clients [the residents] are allowed to leave at will to come and go as
they please, she has no stipulations on how they go, where they go or
who they go with, as long as they are back in the home by 7:00 o’clock.
So that, in itself, let me know that she was not using a day program.
On our second meeting I had to sit her down and tell her, look, with the
clients coming from the State hospital, we have to know who is
providing their care; and she wasn’t truthful with me. So, she started—
I asked her, give me a name. Give me a telephone number. I need a
contact person. She could not provide those, anything. So, she threw
out a name, I think Roland something. I asked her where was it. She
told me it was downtown in the medical center. What was the address?
So, she went through her phone; and she said that it was at 8300
Homestead. And I told her, okay. So, I didn’t press her anymore about
the facility. And I asked her, well, what kind of treatment are they
receiving? Well, I bus them there and drop them off; and I told her okay.
Burkes-Jones then immediately left the Hornbrook facility and drove to the location
on Homestead. Burkes-Jones’s first impression of the Homestead location was that
14
it was abandoned: the location was “junked” and “rotted,” there were broken
windows that had been replaced by plywood, and the building did not look like it
was occupied. The trial court admitted photographs of the Longbrook facility, the
Hornbrook facility, and the Homestead location.
Burkes-Jones also testified that, at the time of the hearing, Uzowulu had a case
pending in federal court concerning her alleged receipt of around $800,000 in
kickbacks related to transportation and care of clients under Medicaid. Burkes-Jones
further testified that one of the residents of the Hornbrook facility “overseas the
home like a house boss” and that this resident had a criminal history that included
several aggravated assault on a police officer cases, several resisting arrest cases,
and a case concerning the manufacturing and delivery of a controlled substance.
Appellant also testified at the hearing. He testified that, since being placed on
his current medication, his mood was stable and he had not had any auditory
hallucinations. He stated that he was comfortable speaking to Dr. Howland about
any symptoms and that he had met Dr. Bobb and felt comfortable speaking with him
as well. He testified that it was important to tell his doctors if he started having
symptoms again so they could adjust his medication. He also testified that he knows
which medications he is supposed to take, the dosage, and the reason for his
medications and that, at Rusk, he selects the medications he needs while a nurse
watches.
15
Appellant also testified that, if he is released for outpatient treatment, it would
be important for him to follow all rules and guidelines imposed by his doctors and
by the court because otherwise he might be returned to inpatient care. He stated that
he realized that, if he stopped taking his medication, he could become likely to cause
serious bodily injury to another person. He stated that he did not believe that he still
needed inpatient commitment because he “got treatment, and [he is] stabilized.”
At the close of the hearing, the trial court stated:
Based on the evidence and testimony, the Court finds that you are doing
well at the mental health hospital, Mr. Truong, where they monitor your
medication. If you missed any of your medication, you could be a
danger to yourself, as well as the community.
Therefore, pursuant to Chapter 46(c) of the Texas Code of Criminal
Procedure, the Court hereby finds from clear and convincing evidence
that the patient has a severe mental illness. And as a result of that mental
illness, the patient is likely to cause serious bodily injury or serious
harm to another if the patient is not provided treatment and supervision.
Appropriate treatment and supervision for the patient’s mental illness
cannot be safely or effectively provided as outpatient or community-
based treatment and supervision, and inpatient treatment or residential
care is necessary to protect the safety of others.
And, therefore, the Court orders the patient committed to Rusk State
Hospital for one year from this date of this order.
The trial court signed a written order memorializing these findings. This appeal
followed.
16
Sufficiency of the Evidence
In his sole issue on appeal, appellant contends that the State failed to present
sufficient evidence to support the trial court’s May 10, 2018 order renewing his
inpatient commitment at Rusk State Hospital. Specifically, appellant argues that the
State failed to prove that treatment and supervision for his mental illness could not
be safely and effectively provided as outpatient treatment and that, as a result,
inpatient treatment was necessary to protect the safety of others.
A. Standard of Review
When the burden of proof is heightened to a clear-and-convincing standard,
as is the case for commitment proceedings following a finding of not guilty by reason
of insanity, the sufficiency of evidence standards of review are also heightened.
House v. State, 261 S.W.3d 244, 247 (Tex. App.—Houston [14th Dist.] 2008, no
pet.). In conducting a legal sufficiency review when the burden of proof is clear and
convincing evidence, we must consider 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 as to the truth of the allegations sought to be established. Id.; see
Rodriquez v. State, 525 S.W.3d 734, 739 (Tex. App.—Houston [14th Dist.] 2017,
no pet.) (“While the proof required under [the clear and convincing evidence]
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.”).
17
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. State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010). We must avoid
substituting our own judgment for that of the factfinder. House, 261 S.W.3d at 247.
B. Commitment Proceedings for Acquitted Persons
Code of Criminal Procedure Chapter 46C, which applies to offenses
committed after September 1, 2005, governs the raising of the insanity defense, the
determination of a defendant’s sanity, and the disposition of a defendant after a
finding of not guilty by reason of insanity. If a defendant is found not guilty by
reason of insanity (“an acquitted person”), the trial court shall determine whether the
charged offense involved conduct that (1) caused serious bodily injury to another
person, (2) placed another person in imminent danger of serious bodily injury, or
(3) consisted of a threat of serious bodily injury to another person through the use of
a deadly weapon. TEX. CODE CRIM. PROC. ANN. art. 46C.157. If the court determines
that the offense involved conduct that caused serious bodily injury to another person,
the court retains jurisdiction over the acquitted person until either the court
discharges the person and terminates its jurisdiction or the cumulative total period
of institutionalization and outpatient or community-based treatment and supervision
equals the maximum term provided by law for the offense of which the person was
acquitted by reason of insanity. Id. art. 46C.158.
18
In situations in which the court makes a finding that the offense involved
dangerous conduct, the court shall order the acquitted person to be committed for a
period not to exceed thirty days in order to evaluate the person’s present mental
condition and to determine the “proper disposition of the acquitted person,” for
example, whether inpatient treatment is necessary or whether outpatient treatment is
appropriate. Id. art. 46C.251(a), (d). The trial court must hold a disposition hearing
within thirty days of acquittal. Id. art. 46C.251(d). At the hearing, the court must
address (1) whether the acquitted person has a severe mental illness or mental
retardation; (2) whether as a result of any mental illness or mental retardation the
person is likely to cause serious harm to another; and (3) whether appropriate
treatment and supervision can be safely and effectively provided as outpatient or
community-based treatment and supervision. Id. art. 46C.253(b).
The trial court shall order the acquitted person committed to a mental hospital
for inpatient treatment or residential care if the State establishes by clear and
convincing evidence that:
(1) the person has a severe mental illness or mental retardation;
(2) the person, as a result of that mental illness or mental retardation,
is likely to cause serious bodily injury to another if the person is
not provided with treatment and supervision; and
(3) inpatient treatment or residential care is necessary to protect the
safety of others.
19
Id. art. 46C.256(a). In determining whether the State has proved that inpatient
treatment is necessary, the court shall consider whether the evidence shows both that
(1) an adequate regimen of outpatient or community-based treatment will be
available to the acquitted person; and (2) the person will follow that regimen. Id. art.
46C.256(b). An order for commitment to inpatient treatment expires on the 181st
day after the date the order is issued, but it is subject to renewal as provided by
statute. Id. art. 46C.256(c).
A trial court that orders an acquitted person committed to inpatient treatment
shall determine on an annual basis whether to renew the order. Id. art. 46C.261(a).
At least thirty days before the order is scheduled to expire, the institution to which
the acquitted person is committed or the State may request that the commitment
order be renewed. Id. art. 46C.261(b). The request must explain in detail why
renewal is being requested and why outpatient or community-based treatment and
supervision is not appropriate. Id. The court “shall renew the order only if the court
finds that the party who requested the renewal has established by clear and
convincing evidence that continued mandatory supervision and treatment are
appropriate.” Id. art. 46C.261(h). The court may modify the order to provide for
outpatient treatment “if the court finds the acquitted person has established by a
preponderance of the evidence that treatment and supervision can be safely and
effectively provided as outpatient or community-based treatment and supervision.”
20
Id. art. 46C.261(i). A renewed order authorizes inpatient or outpatient treatment for
not more than one year. Id. art. 46C.261(h).
The trial court may order an acquitted person to participate in outpatient
treatment on renewal of a commitment order under article 46C.261. Id. art.
46C.263(a). The court may order the acquitted person to participate in outpatient
treatment only if (1) the court receives and approves an outpatient treatment plan
that comprehensively provides for the outpatient treatment and supervision, and
(2) the court finds that the outpatient treatment provided for by the plan will be
available and provided to the acquitted person. Id. art. 46C.263(b). If the trial court
signs an order requiring the acquitted person to participate in outpatient treatment,
the order “must identify the person responsible for administering an ordered regimen
of outpatient or community-based treatment and supervision.” Id. art. 46C.263(f).
“In determining whether an acquitted person should be ordered to receive outpatient
or community-based treatment and supervision rather than inpatient care or
residential treatment, the court shall have as its primary concern the protection of
society.” Id. art. 46C.263(g).
An acquitted person may appeal from an order renewing inpatient
commitment entered under article 46C.261. Id. art. 46C.270(b)(3).
21
C. Analysis
In arguing that the trial court properly renewed appellant’s inpatient
commitment order for another year, the State contends that it was not required to
demonstrate by clear and convincing evidence that appellant was likely to cause
serious harm to others; instead, it argues that it only needed to establish by clear and
convincing evidence that “continued mandatory supervision and treatment are
appropriate.”
Code of Criminal Procedure Article 46C, Subchapter F—entitled “Disposition
Following Acquittal By Reason of Insanity: Finding of Dangerous Conduct”—sets
out the procedures for evaluating and committing an acquitted person after, as in this
case, the trial court has made a finding that the charged offense involved dangerous
conduct. See id. arts. 46C.251–.270. Article 46C.261, which governs the renewal of
orders for inpatient commitment, specifically details the procedures that a trial court
is to follow in determining whether to renew a commitment order for another year.
See id. art. 46C.261. Subsection (h) provides, “A court shall renew the order only if
the court finds that the party who requested the renewal has established by clear and
convincing evidence that continued mandatory supervision and treatment are
appropriate.” Id. art. 46C.261(h). This particular statute does not provide any criteria
for determining whether continued inpatient supervision and treatment are
appropriate.
22
Other articles in Subchapter F, however, do provide criteria for the trial court
to consider when determining whether inpatient commitment is appropriate. Article
46C.253, governing the trial court’s “hearing on disposition” following the initial
thirty-day commitment after the court enters a judgment of acquittal, provides that
the court shall address (1) whether the acquitted person has a severe mental illness
or mental retardation; (2) whether as a result of any mental illness or mental
retardation, the person is likely to cause serious harm to another; and (3) whether
appropriate treatment and supervision for any mental illness or mental retardation
rendering the person dangerous to another can be safely and effectively provided as
outpatient or community-based treatment and supervision. Id. art. 46C.253(b).
Article 46C.256 sets out the requirements for committing an acquitted person
for inpatient treatment and provides that the court shall order inpatient commitment
if the State establishes by clear and convincing evidence that (1) the person has a
severe mental illness or mental retardation; (2) as a result of that mental illness or
mental retardation, the person is likely to cause serious bodily injury to another if
not provided with treatment and supervision; and (3) inpatient treatment or
residential care is necessary to protect the safety of others. Id. art. 46C.256(a); see
id. art. 46C.253(c) (“The court shall order the acquitted person committed for
inpatient treatment or residential care under Article 46C.256 if the grounds required
for that order are established.”). In determining whether inpatient treatment is
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necessary, the court shall consider whether the evidence shows that an adequate
regiment of outpatient treatment will be available to the person and the person will
follow that regimen. Id. art. 46C.256(b).
We disagree with the State’s contention that it was not required to establish
that appellant was likely to cause serious harm to others. In determining whether
continued inpatient treatment is “appropriate” in the context of renewing an inpatient
commitment order, the trial court must necessarily consider whether the acquitted
person continues to meet the requirements for inpatient treatment as set out in
Articles 46C.253 and 46C.256. Indeed, that is what the trial court in this case did at
the hearing and in its May 10, 2018 commitment order. The trial court specifically
found, by clear and convincing evidence, that appellant had a severe mental illness,
that as a result of that illness appellant was likely to cause serious bodily injury or
harm to another if not provided treatment and supervision, that appropriate treatment
and supervision could not be safely or effectively provided as outpatient or
community-based treatment and supervision, and that inpatient treatment was
necessary to protect the safety of others. In making its findings, the trial court thus
considered the criteria for inpatient treatment set out in Article 46C.253 and
46C.256. We therefore turn to whether the trial court’s findings are supported by
clear and convincing evidence.
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Appellant does not dispute that he has a severe mental illness, that he needs
treatment for his mental illness, and that, if left untreated, his mental illness may
result in serious harm to others. He argues, however, that the evidence presented at
the hearing does not support the trial court’s finding that inpatient treatment is
necessary to protect the safety of others; instead, the evidence demonstrated that
appropriate treatment for his mental illness can be safely and effectively provided as
outpatient or community-based treatment. He further argues that the State’s focus
during the recommitment hearing on the quality of the housing in which he would
live after release is misplaced because “[h]ousing is not treatment” and the trial court
should not have considered housing at all in making its determination. We disagree.
The State presented evidence that appellant has been diagnosed with
schizoaffective disorder-bipolar type, as well as alcohol and cocaine abuse.
Appellant has a history of abusing drugs—including alcohol, cocaine, marijuana,
and ecstasy—and the State presented evidence that his substance abuse likely
exacerbated the auditory hallucinations that he had experienced, leading to the
incident that resulted in the death of Officer Gryder. Both Dr. Howland and Dr. Bobb
emphasized the importance of appellant remaining on his regimen of psychoactive
medication, which includes a mood stabilizer and an antipsychotic, the importance
of appellant addressing any concerns that he has with his medications and their side
effects with his psychiatrist instead of unilaterally deciding to cease taking his
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medications, and the importance of appellant avoiding the use of illegal substances.
The doctors agreed that appellant’s mental illness needed lifelong treatment and that
his continued use of psychoactive medication was of paramount importance in
keeping his manic and psychotic symptoms at bay.
The State also presented evidence that Rusk State Hospital and the Harris
Center had worked with outside agencies in developing a treatment plan for
appellant should he be released to outpatient care. The Rusk recovery team
recommended “an assisted living facility where Mr. Truong’s psychiatric condition,
medication and outpatient recovery compliance can be monitored.” The recovery
team first recommended the Longbrook facility for appellant, but several days before
the recommitment hearing, the recommendation changed to the Hornbrook facility.
By the time of the hearing, the Hornbrook facility was no longer recommended, and
the Harris Center was searching for an appropriate assisted living placement for
appellant. Thus, there was no specific recommendation for an assisted living
placement at the time of the hearing.
The record contains extensive evidence demonstrating the inappropriateness
of both the Longbrook and the Hornbrook facilities for appellant. Aside from the
filthy living conditions of the Longbrook facility, both facilities lacked staff to care
for the residents, with Uzowulu as the only staff member, apparently assisted at the
Hornbrook facility by a resident, a man with a lengthy criminal history including a
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drug-related case. The record reflects that Uzowulu’s system for keeping track of
her residents’ medications was incoherent, that the medications were not secured,
and that her medication logs either were not up-to-date (at the Longbrook facility)
or were nonexistent (at the Hornbrook facility). Uzowulu had no records of where
her residents attended treatment, and she provided no actual supervision of her
residents, allowing them to leave the facilities freely and dropping them off at an
abandoned building, supposedly for treatment. Her method of helping her residents
if they had a problem was “us[ing] the 911 system as a way to help her control her
people.” She told Burkes-Jones, the investigator for the Harris County District
Attorney’s Office, that “if [the residents] take their medicine, they take it. If they
don’t, they don’t.”
The facilities owned and operated by Uzowulu were not recommended for
appellant at the time of the recommitment hearing, but no specific replacement had
been found. Appellant argues that “[h]ousing is not treatment” and that the trial court
should not have considered the adequacy of housing recommendations in making its
decision. We do not agree that housing and the particular location where appellant
would be living is irrelevant to his treatment and supervision. Dr. Bobb testified that
housing and living environment—along with medications, drug screening, and
family support—are risk factors that could increase appellant’s chances of
decompensating and experiencing symptoms again. Dr. Bobb also testified that the
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designation of a licensed personal care facility is important “so that we can ensure
that [the patient is] put in a licensed care home that is staffed by people who help us
monitor his medication management.” Where appellant lives, and the care that he
receives while there, is, like his medication compliance and his visits to his
psychiatrist, an important component of his treatment, and these factors were
properly considered by the trial court.
In determining whether inpatient care has been proved necessary to protect
the safety of others, the trial court must consider whether the evidence shows both
that (1) an adequate regimen of outpatient or community-based treatment will be
available to the acquitted person, and (2) the person will follow that regimen. TEX.
CODE CRIM. PROC. ANN. art. 46C.256(b); see also id. art. 46C.263(g) (“In
determining whether an acquitted person should be ordered to receive outpatient or
community-based treatment and supervision rather than inpatient care or residential
treatment, the court shall have as its primary concern the protection of society.”). Dr.
Howland, Dr. Rogers, and Dr. Bobb all testified that they believed outpatient
treatment was appropriate for appellant and that he could succeed in such a program.
Dr. Bobb testified that he would be appellant’s treating psychiatrist if appellant were
released, and he stated that appellant would have access to him, clinicians that
worked with him, and the Harris Center’s after-hours help line if appellant needed
assistance outside of Dr. Bobb’s office hours. Appellant testified that he knew the
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importance of taking his prescribed medications, that he felt comfortable speaking
to Dr. Bobb about his medications and any concerns with those medications, and
that he would follow any rules or guidelines imposed on him by his doctors or by
the court.
Although there was evidence that appellant would, if released from inpatient
treatment, be under the care of a psychiatrist, and that appellant would follow that
psychiatrist’s instructions, there was no evidence presented that appellant would
reside in an appropriate assisted living facility that would provide supervision and
monitoring of his medication, a crucial aspect of appellant’s treatment. Under this
record, we conclude that the trial court could have formed a firm belief or conviction
that an adequate regimen of outpatient or community-based treatment was not
available to appellant and, therefore, that inpatient treatment or residential care was
necessary to protect the safety of others. See id. art. 46C.256(a)(3), (b); House, 261
S.W.3d at 247 (requiring appellate court to consider all evidence in light most
favorable to finding to determine whether reasonable factfinder could have formed
firm belief or conviction as to truth of allegations sought to be established). We
therefore hold that sufficient evidence supports the trial court’s conclusion that
continued inpatient supervision and treatment are appropriate for appellant. See TEX.
CODE CRIM. PROC. ANN. art. 46C.261(h).
We overrule appellant’s sole issue.
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Conclusion
We affirm the trial court’s May 10, 2018 recommitment order.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Landau.
Publish. TEX. R. APP. P. 47.2(b).
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