The State of Texas for the Best Interest and Protection of D. B. v. the State of Texas

NO. 12-23-00187-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE STATE OF TEXAS FOR THE § APPEAL FROM THE
BEST INTEREST AND PROTECTION
OF D. B. § COUNTY COURT AT LAW

§ CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

This is an accelerated appeal of the trial court’s order that D.B. involuntarily be
administered psychoactive medications. In one issue, D.B. argues that the evidence is legally
and factually insufficient to support the trial court’s order. We affirm.

BACKGROUND
D.B. is a patient at Rusk State Hospital (RSH) pursuant to a court order for in-patient
mental health services. On July 7, 2023, an application was filed for court-ordered
administration of psychoactive medications to D.B. On July 11, the trial court conducted an
evidentiary hearing on the matter.
The trial court ultimately granted the application for administration of psychoactive
medications. In so doing, the court found that D.B. lacked the capacity to make a decision
regarding administering medications and that said medications were in his best interest. This
appeal followed.

EVIDENTIARY SUFFICIENCY
In his sole issue, D.B. argues that the evidence is both legally and factually insufficient to
support the trial court’s order to administer psychoactive medications.
Standard of Review
Texas law requires that orders authorizing administration of psychoactive medication be
supported by clear and convincing evidence. See TEX. HEALTH & SAFETY CODE ANN.
§ 574.106(a–1) (West 2017). Clear and convincing evidence is that degree of proof which will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations
to be established. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979) (per curiam). This
intermediate standard falls between the preponderance standard of civil proceedings and the
reasonable doubt standard of criminal proceedings. Id.; In re G.M., 596 S.W.2d 846, 847 (Tex.
1980). While the proof must weigh heavier than merely the greater weight of the credible
evidence, there is no requirement that the evidence be unequivocal or undisputed. Addington,
588 S.W.2d at 570. This higher burden of proof elevates the appellate standard of legal
sufficiency review. Diamond Shamrock Ref. Co., L.P. v. Hall, 168 S.W.3d 164, 170 (Tex.
2005); Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 622, 625 (Tex. 2004).
In reviewing a legal sufficiency claim, we look at all the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact could have formed a firm
belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We
must assume that the fact finder settled disputed facts in favor of its finding if a reasonable fact
finder could do so and disregard all evidence that a reasonable fact finder could have disbelieved
or found incredible. Id. This does not mean that we are required to ignore all evidence not
supporting the finding because that might bias a clear and convincing analysis. Id.
When reviewing factual sufficiency, we must give due consideration to evidence that the
fact finder could reasonably have found to be clear and convincing and then determine whether,
based on the entire record, a fact finder could reasonably form a firm conviction or belief that the
allegations in the application were proven. Id. In determining whether the fact finder has met
this standard, we consider all the evidence in the record, both that in support of and contrary to
the trial court’s findings. In re C.H., 89 S.W.3d 17, 27-29 (Tex. 2002). The reviewing court
must consider whether the disputed evidence is such that a reasonable fact finder could not have
reconciled that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. If the
disputed evidence is so significant that a fact finder could not reasonably have formed a firm
belief in the finding, the evidence is factually insufficient. Id.
Applicable Law
A trial court may issue an order authorizing the administration of one or more classes of
psychoactive medications to a patient who is under a court order to receive inpatient mental
health services. TEX. HEALTH & SAFETY CODE ANN. § 574.106(a)(1). The court may issue an
order under this Section only if, after a hearing, it finds by clear and convincing evidence that
(1) the patient lacks the capacity to make a decision regarding the administration of the proposed
medication and (2) treatment with the proposed medication is in the best interest of the patient.
Id. § 574.106(a–1)(1).
“Capacity” refers to a patient’s ability to (1) understand the nature and consequences of a
proposed treatment, including the benefits, risks, and alternatives to the proposed treatment, and
(2) make a decision whether to undergo the proposed treatment. Id. § 574.101(1) (West 2017).
A patient does not have the capacity to make a decision regarding the administration of
medications if the patient does not understand the nature of his mental illness or the necessity of
the medications. See A.S. v. State, 286 S.W.3d 69, 73 (Tex. App.–Dallas 2009, no pet.). In
making its finding that treatment with the proposed medication is in the best interest of the
patient, the trial court shall consider (1) the patient’s expressed preferences regarding treatment
with psychoactive medication, (2) the patient’s religious beliefs, (3) the risks and benefits, from
the perspective of the patient, of taking psychoactive medication, (4) the consequences to the
patient if the psychoactive medication is not administered, (5) the prognosis for the patient if
treated with psychoactive medication, (6) alternative, less intrusive treatments that are likely to
produce the same results as treatment with psychoactive medication, and (7) less intrusive
treatments likely to secure the patient’s agreement to take the psychoactive medication. TEX.
HEALTH & SAFETY CODE ANN. § 574.106(b).
Discussion
On appeal, D.B. argues that the State’s evidence is conclusory and lacks sufficient detail
regarding whether the administration of medications is in his best interest. In support of his
contention, he relies on State ex rel. E.G., 249 S.W.3d 728 (Tex. App.–Tyler 2008, no pet.).
However, in E.G., the only evidence offered with regard to the “best interest” element was the
conclusory statement by the treating physician in the state’s application. See id. at 731. We held
that the trial court erred in entering its order to administer psychoactive medications, in part,
because the treating physician offered no testimony as to whether the administration of the
proposed medications was in the appellant’s best interest. See id. at 731–32. We explained that
a conclusory statement in the application, absent testimony from the physician at the hearing,
cannot 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. Id. We also noted that the Texas Health and Safety Code
does not authorize the trial court to base its findings solely on the treating physician’s application
because pleadings, such as the physician’s application, are not evidence that the statutory
standard has been met. Id.; see TEX. HEALTH & SAFETY CODE ANN. §§ 574.031(e) (West Supp.
2022) (stating that the Texas Rules of Evidence apply to the hearing for court ordered mental
health services unless the rules are inconsistent with this subtitle), 574.101–.110 (West 2017 &
Supp. 2022); In re E.T., 137 S.W.3d 698, 700 (Tex. App.–San Antonio 2004, no pet.); see also
Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (noting
that, generally, pleadings are not competent evidence, even if sworn and verified). Thus, in that
case, because the record contained nothing more than the physician’s conclusory statement in the
application, the evidence that the administration of the medications would be in the appellant’s
best interest was insufficient. E.G., 249 S.W.3d at 731–32.
Here, D.B. argues that the evidence adduced at the hearing is tantamount to the evidence
we concluded to be insufficient in E.G. because the only evidence regarding D.B.’s best interest
came from a conclusory statement from his treating physician. But a review of the record from
the hearing reveals that Robert Lee, M.D. 1 testified at the hearing that D.B. suffered from mental
illness, namely schizophrenia, and that he expressly refused to take medications voluntarily to
treat this condition. Lee further testified that D.B has a long history of mental illness, he is
“floridly psychotic,” he fights with peers, he has urinated on the floor twice, he hits people for no
apparent reason, he is paranoid about medication, and he is paranoid about staff and peers at
RSH. Lee stated that D.B. lacked the capacity to make rational decisions about medications and
is unable to engage in a rational discussion of his need for medications or, otherwise, to discuss
the risks versus the benefits of taking them. Lee referred to Appendix A to the State’s
application, which sets forth the classification of the medications that potentially would be
administered. Lee stated that the medications would be used in the proper course of D.B.’s
treatment, were in his best interest, and that there were not any alternative treatment protocols
which would be less intrusive for D.B. Lee testified that the benefits of these medications would

1
At the hearing, the parties stipulated to Lee’s expert qualifications.
outweigh the risks and, if the medications were not used, D.B. would become a danger to others.
He opined that D.B. likely would regain competency faster if medications are used versus if D.B.
does not take any medication. Lee explained that the risks of D.B.’s not taking medications were
that his mental condition would continue to deteriorate, he would need to be restrained, and he
would continue to exhibit aggressive behaviors, which would pose a risk of harm to others and
himself.
On cross examination, Lee testified that D.B. objected to medications because D.B.
denies having a mental illness and, therefore, does not believe he requires medication. Lee also
testified that he is not aware of D.B.’s having objected to taking the medication due to religious
reasons or for fear of potential side effects therefrom.
D.B. also testified at the hearing. On direct examination, when asked about his issues
with taking medication, he responded that he believed the medications would impair him and,
later, would interfere with his plan to represent himself in court in Dallas County on the
underlying charges, which consist of aggravated assault with a deadly weapon. Instead, D.B.
stated that he was in RSH “to take a class.” D.B. lamented that Lee would not prescribe him
Ambien, which he previously had taken for several years but, instead, prescribed Risperdal to
help him focus. D.B. denied that he was incompetent and asserted that Lee lied under oath. On
cross examination, D.B. stated that he did not want to take any medication at all and engaged in a
lengthy plea regarding his preference to abstain from taking medication of any kind.
In sum, Lee offered specific testimony regarding the consequences to D.B. if the
psychoactive medications are not administered, the prognosis for D.B. if he is treated with
psychoactive medications, and the absence of alternative, less intrusive treatments that are likely
to produce the same results as treatment with psychoactive medication. See TEX. HEALTH &
SAFETY CODE ANN. § 574.106(b). Based on the foregoing, and our review of the testimony from
the hearing, we conclude that the trial court could have formed a firm belief or conviction as to
the truth of the findings that (1) D.B. lacks the capacity to make a decision regarding the
administration of the proposed medication and (2) treatment with the proposed medications is in
D.B.’s best interest. See id. § 574.106(a-1)(1). Thus, we hold that there is clear and convincing,
legally sufficient evidence to support the trial court’s order to administer psychoactive
medications.
Turning to the issue of factual sufficiency, we note that the only potentially “disputed”
evidence offered at the hearing was D.B.’s testimony. As noted above, D.B expressed his
preference that he not be treated with any psychoactive medication and denied that he suffered
from mental illness. Moreover, he stated no religious objection to taking the medications.
Having considered whether this disputed evidence is such that the trial court could not have
reconciled it in favor of its finding, we conclude that such disputed evidence is not so significant
that the trial court could not reasonably have formed a firm belief in the evidence in support of
the findings on which its order is based. See In re J.F.C., 96 S.W.3d at 266. Accordingly, we
hold that the evidence is factually sufficient to support the trial court’s order to administer
psychoactive medications. D.B.’s sole issue is overruled.

DISPOSITION
Having overruled D.B.’s sole issue, we affirm the trial court’s order to administer
psychoactive medications.
GREG NEELEY
Justice
Opinion delivered September 29, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 29, 2023

NO. 12-23-00187-CV

THE STATE OF TEXAS FOR THE BEST INTEREST AND PROTECTION OF D. B.,

Appeal from the County Court at Law
of Cherokee County, Texas (Tr.Ct.No. 43514)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
trial court’s order.
It is therefore ORDERED, ADJUDGED, and DECREED that the order
that D.B. be involuntarily administered Psychoactive Medications of the court below be in all
things affirmed, and that this decision be certified to the court below for observance.

Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.