COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00398-CV
IN THE MATTER OF J.M.
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FROM THE PROBATE COURT OF DENTON COUNTY
TRIAL COURT NO. MH-2014-715
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MEMORANDUM OPINION1
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Appellant J.M. appeals from a judgment for temporary court-ordered
inpatient mental health services. In a single issue, J.M. challenges the legal
sufficiency of the evidence to support the trial court’s findings. We affirm.
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See Tex. R. App. P. 47.4.
I. Background
J.M. suffers from bipolar disorder and has received inpatient treatment on
four prior occasions. She was discharged from the North Texas State Hospital
(NTSH) on November 21, 2014. On November 24, 2014, a peace officer with the
Denton County Sheriff’s Office, believing J.M. was mentally ill, took J.M. into
custody without a warrant and transported her to Mayhill Hospital in Denton,
Texas. See Tex. Health & Safety Code Ann. §§ 573.001–.026 (West 2010 &
Supp. 2014) (providing procedures for emergency detention for cases of
suspected mental illness). In his notification of detention, the officer stated that
he believed that J.M. was mentally ill and that there was imminent risk that she
would seriously harm herself or others based upon a report from the Denton
County Mental Health Mental Retardation Lewisville outpatient clinic that since
J.M.’s release from NTSH, she had become verbally and physically aggressive
towards her elderly parents, had been leaving her residence in her pajamas and
wearing no shoes, had been receiving car rides from strangers, and had been
walking into traffic. See id. § 573.002.
On November 25, 2014, Ashley Rigsby, LPC, a mental health professional
at Mayhill Hospital, filed a sworn application for temporary court-ordered mental
health services, alleging that J.M. was mentally ill and as a result of that mental
illness (1) was likely to cause serious harm to herself, (2) was likely to cause
serious harm to others, and (3) was suffering from severe and abnormal mental,
emotional, or physical distress; was experiencing substantial mental or physical
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deterioration of her ability to function independently, which was exhibited by
J.M.’s inability, except for reasons of indigence, to provide for her basic needs,
including food, clothing, health, or safety; and was unable to make a rational and
informed decision as to whether or not to submit to treatment. See id.
§§ 574.001 (West 2010), .002 (West Supp. 2014). According to Rigsby’s
affidavit filed in support of the application, J.M. was at risk of serious harm to
herself or others because of her physical aggression towards her elderly parents,
her engagement in reckless behavior such as playing in the street and accepting
rides from strangers, and her psychotic and paranoid thought processes, which
included J.M.’s belief that her dog and people were watching her.
Also on November 25, 2014, Dr. Asad Islam, M.D. filed a sworn certificate
of medical examination for mental illness. See id. § 574.009 (West 2010). Dr.
Islam averred that he examined J.M. on November 24, 2014, at Mayhill Hospital
and diagnosed her with bipolar disorder, most recent episode mixed with
psychosis. Dr. Islam believed that as a result of her illness, J.M. was (1) was
likely to cause serious harm to herself, (2) was likely to cause serious harm to
others, and (3) was suffering from severe and abnormal mental, emotional, or
physical distress; was experiencing substantial mental or physical deterioration of
her ability to function independently, which was exhibited by J.M.’s inability,
except for reasons of indigence, to provide for her basic needs, including food,
clothing, health, or safety; and was unable to make a rational and informed
decision as to whether or not to submit to treatment. See id. § 574.011(a)(7)
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(West 2010). He based this opinion on J.M.’s physical aggression towards her
elderly parents, her wandering from her home and into traffic, her accepting rides
from strangers, and her reported auditory and visual hallucinations. He stated
that he believed that J.M. presented a substantial risk of serious harm to herself
or others if not immediately restrained based on her behavior and “by evidence of
severe emotional distress and deterioration in [her] mental condition to the extent
that [she] cannot remain at liberty.” He recommended inpatient hospitalization
and noted that her condition had been deteriorating since her release from NTSH
on November 21, 2014.
The State filed a motion for an order of protective custody of J.M. pending
resolution of the case, and the trial court granted it. See id. § 574.021 (West
2010). The trial court appointed counsel to represent J.M., set dates for a
probable cause hearing and the application hearing, and issued notice to J.M.
See id. §§ 574.003, .005–.006, .025 (West 2010). At the probable cause hearing
on November 25, 2014, the hearing officer determined that there was probable
cause to believe that J.M. presented a substantial risk of serious harm to herself
or others such that she could not be at liberty pending the final hearing and
ordered that she be detained at NTSH. See id. § 574.025.
On November 26, 2014, Dr. Peter George Fadow, M.D. filed a sworn
certificate of medical examination for mental illness. See id. § 574.009. Dr.
Fadow stated that he examined J.M. on November 25, 2014, at NTSH and
diagnosed her with bipolar I disorder, most recent episode mixed severe with
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psychotic features. Like Dr. Islam, Dr. Fadow believed that as a result of her
illness, J.M. (1) was likely to cause serious harm to herself, (2) was likely to
cause serious harm to others, and (3) was suffering from severe and abnormal
mental, emotional, or physical distress; experiencing substantial mental or
physical deterioration of her ability to function independently, which was exhibited
by J.M.’s inability, except for reasons of indigence, to provide for her basic
needs, including food, clothing, health, or safety; and was unable to make a
rational and informed decision as to whether or not to submit to treatment. See
id. § 574.011(a)(7). Dr. Fadow reported that since J.M.’s release from NTSH on
November 21, 2014, she had not been cooperating with outpatient care or taking
her mediations, and according to her family, she had been abusing drugs. He
also stated that she had been violent towards NTSH staff and required
emergency medication and restraints to prevent continued violence. J.M.
admitted to Dr. Fadow to making threats to kill herself by running into traffic. Dr.
Fadow recommended that J.M. be temporarily committed to NTSH.
At the December 8, 2014 hearing on the application for temporary mental
health services, J.M. and Dr. James D. Shupe, M.D., an expert in the field of
forensic psychiatry who had examined J.M., testified. The trial court found that
J.M. was mentally ill and that as a result of her mental illness, J.M. (1) is likely to
cause serious harm to herself; (2) is likely to cause serious harm to others; and
(3) will, if not treated, continue to suffer severe and abnormal mental, emotional,
or physical distress and will continue to experience deterioration of her ability to
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function independently and is unable to make a rational and informed decision as
to whether or not to submit to treatment. The trial court granted the State’s
application and ordered J.M. committed to NTSH for a period not to exceed
ninety days. J.M. appealed.
II. Analysis
In her sole issue, J.M. argues that the State failed to prove by clear and
convincing evidence that (1) she is likely to cause serious harm to herself or
others or (2) is suffering severe and abnormal mental, emotional, or physical
distress and will continue to experience deterioration of her ability to function
independently and is unable to make a rational and informed decision as to
whether or not to submit to treatment because the State failed to present specific
evidence of a recent overt act or continuing pattern of behavior under health and
safety code section 574.034(d). See id. § 574.034(a)(2), (d) (West Supp. 2014).
A. Health and Safety Code Section 574.034
A court may order a proposed patient to receive temporary inpatient
mental health services only if the factfinder concludes from clear and convincing
evidence that the proposed patient is mentally ill and also meets at least one of
the additional criteria set forth in section 574.034(a)(2):
(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:
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(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.
Id. § 574.034(a). Here, the trial court found that J.M. is mentally ill, which she
does not challenge on appeal. In addition, the trial court found each of the
State’s allegations under subsection (2) to be true.
B. The State’s Burden
The evidentiary standards for involuntary commitment are high. State ex
rel. E.E., 224 S.W.3d 791, 794 (Tex. App.—Texarkana 2007, no pet.) (citing
Harris v. State, 615 S.W.2d 330, 333 (Tex. Civ. App.—Fort Worth 1981, writ ref’d
n.r.e.)). The State has the burden of establishing by clear and convincing
evidence that the proposed patient meets at least one of the additional criteria
listed in section 574.034(a)(2). Mezick v. State, 920 S.W.2d 427, 430 (Tex.
App.—Houston [1st Dist.] 1996, no writ). 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 sought to be established.” State v.
Addington, 588 S.W.2d 569, 570 (Tex. 1979).
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As a general rule, when court-ordered temporary mental health services
are sought under subsection (a), specific requirements for clear and convincing
evidence are imposed: the evidence must include expert testimony and, unless
waived, 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.
§ 574.034(d). An expert diagnosis of mental illness, without more, is not
sufficient to confine a patient for compulsory treatment. Mezick, 920 S.W.2d at
430. The State cannot meet its burden of proof without presenting evidence of
the behavior of the proposed patient that provides the factual basis for the expert
opinion. See id. Moreover, the recent overt act or continuing pattern of behavior
shown by the State must also relate to the criterion on which the judgment is
based. J.M. v. State, 178 S.W.3d 185, 193 (Tex. App.—Houston [1st Dist.] 2005,
no pet.).
C. Standard of Review
To review 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 factfinder 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 factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could do so, and we
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must disregard all evidence that a reasonable factfinder could have disbelieved
or found to be incredible. Id.
D. Sufficiency of the Evidence
First, J.M. contends that the State failed to show by clear and convincing
evidence that she is likely to cause serious harm to herself or others. See Tex.
Health & Safety Code Ann. § 574.034(a)(2)(A), (B). In order to meet its
evidentiary burden, the State was required to bring forth expert testimony of
either a recent overt act or a continuing pattern of behavior that tends to confirm
the likelihood of serious harm to the proposed patient or others. See id.
§ 574.034(d)(1); see also J.M., 178 S.W.3d at 193 (“[T]he recent overt act or
continuing pattern of behavior proven by the State must relate to the criterion on
which the judgment is based.”). While the trial court took judicial notice of the
application for temporary mental health services and the certificates of medical
examination filed by Dr. Islam and Dr. Fadow, it could not take judicial notice of
the truth of any allegations contained in those documents. See State ex rel.
K.H., No. 02-02-00301-CV, 2003 WL 21404821, at *2 (Tex. App.—Fort Worth
June 19, 2003, no pet.) (mem. op.). Therefore, we may consider only the
evidence presented at the hearing. See id.
During the hearing, Dr. Shupe, the State’s expert witness, testified that he
examined J.M. the day of the hearing and at least once before. The purpose of
his examination on the day of the hearing was to determine whether J.M. needed
to remain at NTSH and to talk with her about her desire to remain there. During
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his examination, Dr. Shupe observed that J.M. was cooperative and pleasant, but
she wanted to go home. He also learned that J.M. did not believe that she
needed to remain hospitalized and thought that everything would be fine if she
were released.
Based upon his examination of J.M., Dr. Shupe diagnosed J.M. with
bipolar disorder and recommended continued court-ordered inpatient treatment.
Dr. Shupe testified that J.M. was likely to cause harm to herself and others. He
further testified that a couple of days after J.M. was released from NTSH on
November 21, 2014, she was walking out into traffic and was aggressive towards
her elderly parents. On cross-examination, Dr. Shupe stated that based upon his
examination, he did not believe that J.M. was suicidal. However, he thought her
lack of judgment and impulse control would put her into dangerous situations
because she still did not seem to understand how dangerous her behavior was or
why she was hospitalized again, which made Dr. Shupe worry that she would do
the same things again.
When asked why she was admitted to NTSH, J.M. responded, “Because I
was walking around in the street. I was walking barefoot outside and I was just
— I was walking to my aunt’s house. Being overly aggressive with my mother.”
J.M. further testified that she punched her mother in the shoulder. J.M.
understood the difference between inpatient and outpatient treatment and
preferred the latter. She thought she could be “very successful” in attending
outpatient treatment and asked the trial court to order outpatient treatment.
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J.M. argues that Dr. Shupe’s testimony alone is insufficient to establish
clear and convincing evidence because his testimony regarding J.M.’s likeliness
to cause harm to herself or others was conclusory. With respect to the trial
court’s finding under section 574.034(a)(2)(A), J.M. argues that the State did not
present sufficient evidence to establish that J.M. was a serious harm to herself
because (1) Dr. Shupe testified J.M. was not suicidal; (2) Dr. Shupe had no
knowledge as to the severity of the incident where J.M. walked into traffic; (3)
J.M. testified she was merely “walking around in the street”; and (4) there was no
evidence of the traffic conditions, whether the roadway was dangerous, or J.M.’s
proximity to oncoming traffic, if any.
Vehicular traffic, by its very nature, poses a danger to pedestrians. Even
though J.M. was not suicidal, walking out into traffic is an overt act that tends to
confirm the likelihood that J.M. was a serious harm to herself. See State ex rel.
D.D., No. 12-12-00220-CV, 2013 WL 3486991, at *3 (Tex. App.—Tyler July 10,
2013, no pet.) (mem. op.) (stating that even in the absence of attempted suicide,
walking in front of traffic was an overt act tending to confirm the likelihood of
serious harm to oneself); see also State ex rel. L.S.G., No. 12-04-00240-CV,
2005 WL 737038, at *4 (Tex. App.—Tyler 2005, no pet.) (mem. op.) (stating that
walking into oncoming traffic is a recent overt act that tends to confirm the
likelihood of serious harm to oneself). J.M. characterized the incident as “walking
around in the street,” but the trial court could have reasonably resolved this
disputed evidence in favor of its finding because Dr. Shupe testified that J.M.
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lacked judgment and impulse control and did not seem to understand how
dangerous her behavior could be. Viewing the evidence in the light most
favorable to the finding, we conclude that the trial court could have formed a firm
conviction or belief that J.M. is likely to cause serious harm to herself. See Tex.
Health & Safety Code Ann. § 574.034(a)(2)(A), (d)(1). Because we have held
the evidence is legally sufficient to support the trial court’s finding under section
574.034(a)(2)(A) and because only one subsection under section 574.034(a)(2)
is needed to support a temporary commitment, we need not determine whether
the evidence is also legally sufficient to support the trial court’s findings under
subsections 574.034(a)(2)(B) or (C). See id. § 574.034(a)(2); In re P.O.C., No.
02-13-00263-CV, 2013 WL 5517889, at *5 & n.5 (Tex. App.—Fort Worth Oct. 3,
2013, no pet.) (mem. op.) (noting that only one statutory criterion must be met
under section 574.034(a)(2) to form the basis for judgment for temporary court-
ordered inpatient mental health services and affirming judgment where evidence
was sufficient to support finding that proposed patient was likely to cause serious
harm to himself); see also Tex. R. App. P. 47.1 (stating that appellate court need
only address every issue necessary to final disposition of appeal). Accordingly,
we overrule J.M.’s sole issue.
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III. Conclusion
Having overruled J.M.’s sole issue, we affirm the trial court’s judgment for
temporary court-ordered inpatient mental health services.
PER CURIAM
PANEL: GARDNER, WALKER, and GABRIEL, JJ.
DELIVERED: February 12, 2015
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