DP v. State of Texas (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Higley) (civil commitment order,
mediation order)
We affirm the trial court's order of commitment for temporary in-patient mental health
services (appellate cause no. 01-09-00097-CV) and the trial court's order to
administer psychoactive medication (appellate cause no. 01-10-00002-CV).
AFFIRM TC JUDGMENT: Opinion by Justice Laura Carter Higley     
Before Chief Justice Radack, Justices Alcala and Higley
01-09-00097-CV  David S. Petersen III v. The State of Texas    
Appeal from
Probate Court No 3 of Harris County
Trial Court Judge: The Honorable Georgia Akers  

MEMORANDUM OPINION

D.P. appeals from an order of commitment for temporary in-patient mental health services (appellate cause
no. 01-09-000097-CV) and from an order to administer psychoactive medication (appellate cause no.
01-10-000002-CV). (1) In each appeal, D.P. challenges the legal and factual sufficiency of the evidence to
support the findings on which each order is based.

We affirm both orders.

Background

In 2004, D.P. was diagnosed with a chronic mental illness, paranoid schizophrenia. When he took
medication for his illness, D.P. functioned normally. In 2008, D.P. stopped taking his medication. Over
several months, D.P.'s wife, Stacey, detected a gradual change in D.P. Stacey noticed that D.P. was
becoming increasingly irrational, accusatory, and argumentative. He also had developed a belief that
terrorists were planning to attack him and his family. To protect his family from the terrorists, appellant
began leaving a loaded firearm out at night, despite Stacey's concern for their three children, ages 12, 8,
and 6.

On January 9, 2009, D.P. and his family were sitting down for dinner when D.P. became very angry and
started yelling at his family. D.P. threw the beer bottle from which he was drinking across the room. D.P.
continued to yell at Stacey. He demanded that she tell him "who was doing this to our family." Stacey sent
the children to start their baths, while she went to the bedroom to get her bag. At the same time, D.P. went
to the closet and got a gun.

Stacey told D.P. that she was going to leave with the children. D.P. blocked the front door. Stacey asked
D.P. to let her and the children leave. D.P. refused, stating, "No, we're being attacked." Stacey grabbed her
keys, but D.P. took them from her. D.P. and Stacey then engaged in a physical struggle. Stacey called the
police and continued to beg D.P. to let her and the children leave.

Meanwhile, the three children were in a bedroom where Stacey had told them to wait. When D.P. went to
get something from another bedroom, Stacey grabbed her daughter's house key and yelled for the children
to come. D.P. returned before they could leave the house. He insisted that they not leave and blocked the
door with a gun. Stacey later testified that the children were able to leave the house by walking "under the
gun."

Once outside, the children ran to a neighbor's house. Stacey stayed on the telephone with the police. D.P.
came out of the house and sat on the porch with a gun in his hand. D.P. continued to yell that he was going
to "get" whoever was attacking his family.

After the police arrived, D.P. went into the house. The police stayed for four hours but D.P. refused to
come out.

On January 13, 2009, Stacey filed an application for court-ordered temporary mental health services,
seeking to have D.P. committed for temporary in-patient treatment. As the basis for the application, Stacey
cited D.P.'s conduct on January 9, 2009 when he had brandished the gun and refused to let the family
leave. The application was supported by Stacey's affidavit and two certificates of medical examination. One
of the certificates was signed by Dr. Jorge Raichman. Dr. Raichman stated in the certificate that D.P. had
been diagnosed with paranoid schizophrenia. The doctor indicated that, in his opinion, D.P. was likely to
cause serious harm to others. In support of his opinion, Dr. Raichman identified the factual basis of his
opinion as follows: "[D.P.] pulled out an automatic weapon to defend his home from imaginary intruders."

On January 15, 2009, the trial court placed D.P. into protective custody at West Oaks Hospital pending the
involuntary commitment hearing. The trial court ordered that D.P. be examined further by Dr. Raichman.

While he was in the hospital, D.P. spoke with Stacey on the telephone. D.P. continued to maintain that the
family had been under threat of attack by terrorists on the night of January 9. D.P. also told Stacey that he
believed that Dr. Raichman was a terrorist.

Pending the temporary commitment hearing, D.P. refused to take medications for his mental illness. Dr.
Raichman filed a "Petition for Order to Administer Psychoactive Medication," requesting the trial court to
authorize the administration of antipsychotic medication to D.P.

D.P. did not request a jury, and the trial court conducted the temporary commitment hearing on January 23,
2009. Dr. Raichman, Stacey, and D.P.'s father testified for the State. D.P. testified in his own defense. At
the conclusion of the hearing, the trial court granted Stacey's application to have D.P. temporarily
committed for in-patient treatment. The trial court indicated that it based its decision on its finding that D.P.
was likely to cause serious harm to others if he was not involuntarily committed for treatment.

Following the hearing, the trial court signed an order of commitment for temporary in-patient mental health
services. The trial court ordered that D.P. be committed to West Oaks Hospital for a period not to exceed
90 days. In its order, the trial court indicated that it had found, by clear and convincing evidence, that D.P.
is mentally ill and is likely to cause serious harm to others.

Immediately following the commitment hearing, the trial court conducted a hearing on the Dr. Raichman's
application to administer psychoactive medication. Dr. Raichman testified for the State, and appellant
testified in his own defense. At the conclusion of the hearing, the court signed an "Order to Administer
Psychoactive Medication," providing that antipsychotic medications could be administered to D.P. during his
90-day temporary commitment. In the order, the trial court recited that it found that the administration of the
medication is in D.P.'s best interest and that D.P. lacked the capacity to make a decision regarding the
administration of the medication.

D.P. appeals both orders.

Legal and Factual Sufficiency Challenges

On appeal, D.P. challenges the legal and factual sufficiency of the evidence to support the findings on
which the commitment order and the order to administer psychoactive medication are based. (2)

A. Burden of Proof and Standards of Review

To obtain either an order for temporary commitment or an order to administer psychoactive medication, the
Texas Legislature requires that the State prove its case by clear and convincing evidence. See Tex. Health
& Safety Code Ann. § 574.034(a) (Vernon 2003), § 574.106(a-1) (Supp. 2009). In this context, "clear and
convincing evidence" means "that measure or degree of proof which will produce in the mind of the trier of
fact a firm belief or conviction as to the truth of the allegations sought to be established." State v.
Addington, 588 S.W.2d 569, 570 (Tex. 1979). Because the State's burden of proof is clear and convincing
evidence, we apply a heightened standard of review to sufficiency-of-the-evidence challenges. See In re
C.H., 89 S.W.3d 17, 25 (Tex. 2002).

In evaluating the legal sufficiency of the evidence, we review all the evidence in the light most favorable to
the finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that
the finding was true. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In doing so, we assume the
factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could do so, and we
disregard all evidence that a reasonable factfinder could have disbelieved or found to have been
incredible. Id.

Likewise, the higher burden of proof alters the appellate standard of factual sufficiency review. C.H., 89
S.W.3d at 25-26. In reviewing the evidence for factual sufficiency under the clear and convincing standard,
we inquire "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction
about the truth of the State's allegations." See id. at 25. We must consider all the evidence in the record,
both that in support of and contrary to the trial court's findings. See id. at 27-28. This Court must give due
consideration to evidence that the factfinder could reasonably have found to be clear and convincing. See
id. at 25. We must consider whether disputed evidence is such that a reasonable trier of fact could not
have reconciled the disputed evidence in favor of its finding. Id.

B. Commitment Order

We have recognized that "a person may not be deprived of his liberty by a temporary involuntary
commitment unless there is a showing of a substantial threat of future harm to himself or others." Taylor v.
State, 671 S.W.2d 535, 538 (Tex. App.--Houston [1st Dist.] 1983, no writ). Health and Safety Code
subsection 574.034(a) provides that the judge may order a proposed patient to receive court-ordered
temporary inpatient mental health services only if the judge or a jury finds, from clear and convincing
evidence, that:

(1) the proposed patient is mentally ill; and

(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.

Tex. Health & Safety Code Ann. § 574.034(a).

Subsection 574.034(c) requires that, if the judge or a jury finds that the proposed patient meets the
commitment criteria prescribed by subsection (a), the judge or the jury must specify which criterion listed in
subsection (a)(2) forms the basis for that decision. Id. § 574.034(c). Our review is limited to the criteria
actually identified. See Johnstone v. State, 961 S.W.2d 385, 388 (Tex. App.--Houston [1st Dist.] 1997, no
writ).

In this case, the trial court indicated that it based the commitment order on the second statutory criterion.
See Tex. Health & Safety Code Ann. § 574.034(a)(2)(B). The commitment order reflects that the trial court,
as fact finder in this case, found that D.P. is likely to cause serious harm to others. See id.

The Health and Safety Code further requires that, to be clear and convincing under subsection 574.034(a),
the evidence must include expert testimony and, unless waived, (3) 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.

Id. § 574.034(d). The trial court need not specify which of the two bases listed in subsection 574.034(d)
supports its subsection 574.034(a) findings. See J.M. v. State, 178 S.W.3d 185, 191 (Tex. App.--Houston
[1st Dist.] 2005, no pet.) (citing M.S. v. State, 137 S.W.3d 131, 135 n.5 (Tex. App.--Houston [1st Dist.]
2004, no pet.)). However, the recent overt act or continuing pattern of behavior proven by the State must
relate to the criterion on which the judgment is based. Id. at 193; In re C.O., 65 S.W.3d 175, 181 (Tex.
App.--Tyler 2001, no pet).

To support commitment, the State offered Stacey's testimony in which she detailed the events of January 9,
2009. Stacey recounted how, at dinnertime, D.P. became "very angry very quickly" and "threw a beer bottle
across the floor." Stacey testified that he threw the bottle "not at anybody, but in anger." Stacey described
how D.P. began yelling at her and their children and demanded that she tell him "who was doing this to our
family."

Stacey testified that, when she went to get her bag to leave, "[D.P.] got a gun out of the closet . . . and
stood at my front door and he would not let me leave with our children." Stacey related that she then asked
D.P. "nicely" to let them leave, but he refused, stating, "No, we're being attacked."

Stacey testified, "I tried to grab my keys. He took them from me. There was a physical struggle." At that
point, Stacey called the police.

Stacey described how she then took action to distract D.P. When he left the room, she grabbed her
daughter's house key and called the children to come. But then, "[D.P.] came from around the corner, still
insistent that we not leave. He put the gun in front of the door and my children couldn't leave and I was in
between the girls. . . . My children went under the gun to leave the house, and we got outside." Stacey
testified that D.P. then "came outside, sat on the porch with the gun in hand, and he was yelling that he's
going to get whoever is attacking us." When he heard the police sirens, D.P. went into the house. For the
next four hours, Stacey, D.P.'s father, and the police tried to convince D.P. to come out of the house, but
he refused.

D.P. contends that Stacey's testimony regarding the events of January 9 is legally insufficient to support a
finding in support of temporary commitment. D.P. argues that the evidence does not show a recent overt
act or a continuing pattern of behavior that tends to confirm the likelihood that D.P. would cause serious
harm to others, as required by subsection 574.034(d). See Tex. Health & Safety Code Ann. § 574.034(d).
More specifically, D.P. contends that the record contains no evidence to show that D.P. "ever harmed or
threatened to harm anyone."

D.P.'s appellate argument does not appropriately view Stacey's testimony in the light most favorable to the
trial court's finding supporting commitment, as required in a legal-sufficiency review. When viewed through
such prism, Stacey's testimony showed that, in response to a delusional threat, D.P. (1) threw a beer bottle
in anger in the presence of his family, (2) shouted at Stacey and the children, (3) retrieved a gun when
Stacey said that she and the children were leaving, (4) refused to allow the family to leave, (5) physically
blocked the door with his body and with a gun, (6) grabbed Stacey's keys from her to prevent her from
leaving, (7) engaged in a physical struggle with Stacey, (8) went outside with his gun and sat on the porch,
and (9) began shouting that he would "get" who was attacking the family.

To support commitment, a threat of harm to others must be substantial and based on actual dangerous
behavior manifested by some overt act or threats in the recent past. See Taylor, 671 S.W.2d at 538. Here,
the State, through Stacey's testimony, presented such evidence.

We conclude that the State introduced legally sufficient evidence to prove an overt act by D.P. that tended
to confirm the likelihood of serious harm to others. That is, considering the evidence as we must, we
conclude that a reasonable trier of fact could have formed a firm belief or conviction that D.P. was likely to
cause serious harm to others. See Tex. Health & Safety Code Ann. § 574.034(a)(2)(B); see also id. §
574.034(d). Accordingly, we hold that the evidence is legally sufficient to support the trial court's
commitment order.

D.P. also contends that the record contains factually insufficient evidence to support the commitment order
because the evidence did not show that D.P. "ever harmed or threatened to harm anyone." D.P. points out
that he explained at the hearing that he threw the beer bottle because the beer tasted like "pure alcohol."
Indeed, D.P.'s testimony at the hearing indicated that he threw the bottle and became angry because he
thought that the terrorists had poisoned his beer. D.P. also points out that Stacey testified that he did not
throw the bottle at her or the children, but threw it "in anger."

D.P. also cites Stacey's testimony that D.P. had continuously owned guns since they were married and that
"it had never been an issue before." D.P. further points out that he did not engage in a confrontation with
the police but stayed in the house. Lastly, D.P. calls attention to the fact that Dr. Raichman based his
testimony that D.P. was "likely to hurt somebody" on Stacey's account of the episode, not on personal
observations.

In addressing D.P.'s factual sufficiency complaint, we give due consideration to evidence that the factfinder
could have reasonably found to be clear and convincing. See C.H., 89 S.W.3d at 25; see also Tex. Health
& Safety Code Ann. § 574.034(a)(2)(B). Giving due consideration to Stacey's testimony, as discussed
supra, the evidence cited by D.P. does not invalidate or fatally undermine the State's showing that D.P.
engaged in a recent overt act that tends to confirm the likelihood that D.P. would cause serious harm to
others.

In addition, the substantial threat of harm to others posed by D.P. becomes even more apparent when the
events of January 9, 2009 are viewed in the context of the entire record. See Taylor, 671 S.W.2d at 538.
The evidence showed that, in the months before the incident, D.P. had become increasingly irrational,
accusatory, and argumentative. D.P. suffered from the persistent delusion that he and his family were
under the threat of being attacked by terrorists. Stacey testified that in the past, D.P. had episodes where
he stayed in bed and had quit several jobs because he feared being attacked. But with this episode,
Stacey testified that D.P. had shown "more anger." D.P. had also recently started leaving a loaded firearm
unsecured at night, despite the fact that young children were in the home. The evidence showed that D.P.
owned a number of guns; Stacey referred to D.P. as a "collector" of guns.

The evidence further showed that D.P.'s delusions regarding terrorists continued to persist. At the time of
the hearing, D.P. continued to believe in the validity of his delusions. D.P. testified that, on the night of the
incident, the terrorists had poisoned his beer. D.P. expressed great disappointment in Stacey that she
would not assist him in protecting their family from the terrorists. The evidence also showed that he
considered Dr. Raichman to be a terrorist.

We acknowledge that the State must show more than delusions or other facts that merely confirm a
proposed patient's mental illness to meet the evidentiary standard for a temporary commitment. See C.O.,
65 S.W.3d at 182. Here, the State has made such a showing. D.P.'s delusions involved threats of violence,
that in turn caused D.P. to arm himself with a firearm and temporarily hold his family against their will. Such
a scenario shows that a substantial threat of harm to others is likely to occur.

We do not take the deprivation of D.P.'s liberty lightly; however, the facts of this case reveal a recipe for
disaster: a mentally ill man suffering from delusions of threats of violence, who has demonstrated a
willingness to respond to his delusions by using firearms. We agree with our sister court that "Texas law
does not require relatives or physicians of the mentally ill (or the courts) to stand idly by until serious harm
occurs. . . . The purpose of temporary commitment is to avoid just such harm." See In re G.H. v. State, 94
S.W.3d 115, 117 (Tex. App.--Houston [14th Dist.] 2002, no pet.).

In light of the entire record, we conclude that the trial court could have reasonably formed a firm belief or
conviction that D.P. was likely to cause harm to others. See C.H., 89 S.W.3d at 25. We hold that the
evidence is factually sufficient to support the trial court's commitment order.

We overrule D.P.'s sole issue in appellate cause no. 01-09-00097-CV.

C. Medication Order

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). (4)

The court may issue an order if 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. Tex. Health & Safety Code Ann. §
574.106(a-1).

Here, D.P. asserts that the evidence was legally and factually insufficient to show that he lacked the
capacity to make a decision regarding the administration of the proposed medication. The legislature has
defined "capacity" as a patient's ability to (1) understand the nature and consequence 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. Tex. Health & Safety Code Ann. § 574.101(1) (Vernon 2003).

At the medication hearing, Dr. Raichman again testified that D.P. suffers from paranoid schizophrenia. Dr.
Raichman explained both the benefits and side-effects of the proposed antypschotic medication. With
respect to the benefits, Dr. Raichman testified, "The antypschotics will help delusions to attenuate or go
away, and [the patient's] judgment improves. They become more responsible and they are able to function
like everyone." Dr. Raichman explained that the side-effects include involuntary movements of the lips and
tongue, which usually occur after a number of years of taking medication. He stated that less "malignant"
side-effects include sedation, dryness of the mouth, and constipation. Dr. Raichman testified that he had
explained the side-effects and the benefits of the proposed medication to D.P.

Dr. Raichman also told the trial court that an injectable form of the medication, which need only be
administered once a month, has less-frequent side-effects than the oral form of the medication; however,
D.P.'s insurance had not approve the injectable form. Dr. Raichman assured the trial court that he would
appeal to D.P.'s the insurance company following the hearing to allow D.P. to take the injectable form. Dr.
Raichman testified that there are no effective alternative medications or treatments that would have fewer
adverse side-effects than the proposed medication.

Dr. Raichman also testified regarding D.P.'s prognosis. According to Dr. Raichman, without medication,
D.P.'s prognosis is as follows: "Continued hospitalization, paranoia, delusion[s], potential danger to his
family and community." In contrast, with medication, Dr. Raichman testified that D.P.'s hospitalization would
be shortened, and he would be able to return to work. In sum, "He would be happy, everybody safer."

Dr. Raichman also opined that D.P. lacked the capacity to make a decision regarding medication. Dr.
Raichman explained that D.P. lacked capacity because "he's delusional and doesn't think that he is sick."
Dr. Raichman confirmed that D.P. told him that he is not "sick."

Considering all the evidence in the light most favorable to the finding, we conclude a reasonable trier of
fact could have formed a firm belief or conviction that D.P. lacked the capacity to make a decision
regarding administration of the proposed medication. See J.F.C., 96 S.W.3d at 266. Accordingly, we hold
that the evidence is legally sufficient to support the trial court's medication order. See A.S. v. State, 286
S.W.3d 69, 73 (Tex. App.--Dallas 2009, no pet.) (holding that doctor's testimony that patient did not
"understand the nature of her mental illness or the necessity of the medications" was legally-sufficient
evidence to support no capacity finding); State ex rel. J.L.G., No. 12-06-00055-CV, 2006 WL 2465623, at
*7 (Tex. App.--Tyler Aug. 25, 2006, no pet.) (mem. op.) (holding that doctor's testimony that patient lacked
capacity based on patient's "marked delusional denial of his illness" was legally sufficient to support
lack-of-capacity finding).

In support of his factual-sufficiency challenge, D.P. points to his testimony that he did not want to take the
proposed medication because, in the past, he had suffered side-effects from it. D.P. testified that when he
is taking the medication, "my lips start ticking." He also stated that the medication "just makes me crazy."
According to D.P., the medication made him hyperactive, causing him "to be unable to sit still." D.P. told the
trial court that these side-effects adversely affected his ability to perform his job. D.P. acknowledged that
he had been employed in the past while taking medication, but claimed that he was not able to work to "the
best of my ability."

In addition, D.P. points out that Dr. Raichman acknowledged that D.P. had articulated to him the manner in
which the medication had adversely affected him in the past. Dr. Raichman also acknowledged that he and
D.P. had discussed the benefits and the adverse side-effects of the medication, and that D.P. had
described the benefits of the medication.

Further, D.P. relies on his own testimony regarding his employment as a purchasing agent for a hospital
chain. He claims that, because he frequently makes decisions for his employer, it follows that he should be
able to make decisions regarding his own medical treatment.

As with any factual-sufficiency review, we give due consideration to the evidence that the trial court in this
case could have reasonably found to be clear and convincing evidence that D.P. lacked the capacity to
make a decision regarding administration of the proposed medication. See C.H., 89 S.W.3d at 25. Here, the
evidence showed that D.P. denied the fact that he suffers from paranoid schizophrenia. A fact otherwise
unrefuted. D.P.'s testimony also indicated that he believed that his difficulties over the years had been
caused by medication, not his mental illness.

From this evidence, the trial court could have inferred that D.P. lacked the ability to make a decision
whether to undergo the proposed treatment. See Tex. Health & Safety Code Ann. § 574.101(1). D.P.'s
ability to understand the risks and the benefits of the medication are irrelevant if he not only lacks insight
into his own mental illness, but denies it entirely. While he may be able to describe the benefits of the
medication, D.P. cannot weigh the benefits against the adverse effects if he incorrectly believes that the
benefits have no application to him.

In light of the entire record, we conclude that the trial court could have reasonably formed a firm belief or
conviction that D.P. lacked the capacity to make a decision regarding administration of the proposed
medication. See C.H., 89 S.W.3d at 25; see also A.S., 286 S.W.3d at 73 (holding evidence to be factually
sufficient to show lack of capacity when patient did not understand her mental illness, even though patient
testified that medication made her feel "ill"). We hold that the evidence is factually sufficient to support the
trial court's medication order.

We overrule D.P.'s sole issue in appellate cause no. 01-10-000002-CV.

Conclusion

We affirm the trial court's order of commitment for temporary in-patient mental health services (appellate
cause no. 01-09-00097-CV) and the trial court's order to administer psychoactive medication (appellate
cause no. 01-10-00002-CV).

Laura Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.

1. Although the specified term of both orders--a period not to exceed 90 days--has expired, the mootness doctrine does not
apply to D.P.'s appellate challenges. See J.M. v. State, 178 S.W.3d 185, 189-90 (Tex. App.--Houston [1st Dist.] 2005, no pet.)
(citing Lodge v. State, 608 S.W.2d 910, 912 (Tex. 1980) and discussing reasons why mootness doctrine does not apply
when terms of such orders have expired).

2. D.P.'s issues are framed as factual-sufficiency challenges; however, in the body of his brief, D.P. appears to also assert a
legal-sufficiency challenge to both orders.

3. The record does not indicate that D.P. waived this requirement.

4. Section 574.106 has been amended since the trial court signed the order in this case. See Act of May 29, 2009, 81st Leg.,
R.S., ch. 624, § 1, sec. 574.106, 2009 Gen. Laws 1407, 1407-08. However, the amendments are not germane to the issue
before us. Therefore, for ease of reference, we cite the current version of the statute.