State

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00720-CV
No. 04-14-00724-CV

THE STATE OF TEXAS FOR THE BEST INTEREST AND PROTECTION OF N.D.

From the Probate Court No. 1, Bexar County, Texas
Trial Court Nos. 2014-MH-3263 & 2014-MH-3242
Honorable Polly Jackson Spencer, Judge Presiding 1

Opinion by: Sandee Bryan Marion, Chief Justice

Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Luz Elena D. Chapa, Justice

Delivered and Filed: March 4, 2015

AFFIRMED

On September 30, 2014, having found that appellant was mentally ill and met the criteria

for court-ordered temporary mental health services, the trial court ordered appellant to be

temporarily committed for inpatient mental health services pursuant to section 574.034 of the

Texas Health and Safety Code. By separate order, the court authorized treatment with

psychoactive medication during appellant’s temporary commitment. Appellant appeals from both

orders, challenging the legal and factual sufficiency of the trial court’s findings. We affirm.

1
The Honorable Oscar Kazen conducted the hearings.
 04-14-00720-CV & 04-14-00724-CV

STANDARD OF REVIEW

To obtain either an order for temporary commitment or an order to administer psychoactive

medication, the State must prove its case by clear and convincing evidence. See TEX. HEALTH &

SAFETY CODE ANN. § 574.034(a) (West Supp. 2014), § 574.106(a-l) (West 2010). 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). When

reviewing the legal sufficiency of the evidence in a case requiring proof by clear and convincing

evidence, we determine whether the evidence is such that a factfinder could reasonably form 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); State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010)

(quoting Addington, 588 S.W.2d at 570). 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. Id. 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 have done so. Id.; City of Keller v. Wilson, 168 S.W.3d 802, 817

(Tex. 2005).

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 consider whether disputed evidence is such that a reasonable factfinder could not have

resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d 256, 266 (Tex.

2002). In so doing, we must give “due consideration to evidence that the factfinder could

reasonably have found to be clear and convincing.” Id. We examine the entire record to determine
-2-
 04-14-00720-CV & 04-14-00724-CV

whether “the disputed evidence that a reasonable factfinder could not have credited in favor of the

finding is so significant that a factfinder could not reasonably have formed a firm belief or

conviction”; if it is, the evidence is factually insufficient. Id.

COMMITMENT ORDER

In its commitment order, the trial court found that appellant is mentally ill and 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.

See TEX. HEALTH & SAFETY CODE § 574.034(a)(1) & (a)(2)(C).

“To be clear and convincing under Subsection (a), 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.”

Id. § 574.034(d). Expert testimony recommending involuntary temporary commitment must be

supported by a factual basis; “a bald diagnosis alone is insufficient to support commitment.” In re

Breeden, 4 S.W.3d 782, 784 (Tex. App.—San Antonio 1999, no pet.).

Here, the State sought the temporary commitment of appellant to University Hospital. At

the hearing, the evidence presented consisted of the testimony of Dr. Kelin Ogburn, a psychiatrist

with the hospital, and the testimony of appellant. Ogburn testified she was familiar with appellant

and, based on her personal knowledge as well as appellant’s history and medical records, Ogburn

diagnosed appellant with schizo-affective disorder. She agreed this diagnosis was an illness,

disease or condition that substantially impaired appellant’s thought perception of reality, emotional

process, or judgment. When asked what facts went into her diagnosis, Ogburn said appellant was
-3-
 04-14-00720-CV & 04-14-00724-CV

“quite paranoid, delusional, responding to internal stimuli, and her hyper-religiosity that makes

her quite delusional.” Ogburn said appellant was brought to the hospital after a CD caught fire

when appellant lit a nearby candle. She said appellant assumed the fire was a mistake, but

appellant’s family was very concerned because the flame was big and appellant was in danger of

setting the entire house on fire. As a result, appellant’s sister had appellant admitted under a mental

health warrant.

Ogburn also testified to other information contained in the mental health warrant that were

of concern to appellant’s family. Ogburn said appellant was not performing her “activities of daily

living” at home, she had not been eating “for a while,” she had been fasting extensively, she did

not shower because she believes there are cameras in her shower and people are spying on her, she

believes her brother-in-law is setting up cameras all over the house, and she punched holes in the

walls because she believed she heard her former boyfriend’s voice through the walls and she was

trying to get rid of him. Ogburn said everything in the warrant was consistent with the psychosis

portion of her diagnosis.

Ogburn testified that, while in the hospital, appellant needed a lot of encouragement at first

to begin eating, but that has improved in the seven days since appellant was admitted. However,

she believed appellant was eating because she was being supervised. Since being in the hospital,

appellant has been polite, but not cooperative, during interviews, and appellant denies most of her

problems. Ogburn said appellant told her there were cameras in the house, her brother-in-law had

been spying on her, and she was hearing voices through the walls. 2 Ogburn said appellant was

also breaking things with her own hands in an attempt to “just destroy property.” Ogburn said

2
At this point in Ogburn’s testimony, appellant interjected, “No, I did not.”

-4-
 04-14-00720-CV & 04-14-00724-CV

appellant was “extremely religious” to the point of being almost delusional, she believes she has a

special relationship with Jesus, and she believes she can see Jesus’ eyes moving on her icons.

Based on what she observed, Ogburn did not believe appellant could function

independently because she would not eat or shower unless told to do so, she only showers in the

dark because she believes there are cameras in the shower, she would not interact with anyone,

and “she is always kind of by herself, talking to herself or praying or whatever she was doing in

her room.” Ogburn believed appellant’s deterioration is exhibited by her inability, except for

reasons of indigence, to provide for her own basic needs, including food, clothing, health and

safety. Ogburn did not think appellant was capable of making rational and informed decisions

about whether to submit to treatment, and her delusions indicate a “disconnect from reality.”

Ogburn said appellant’s behavior had been progressively getting worse over the past nine years.

She did not believe appellant had the ability to safeguard herself from various risks and dangers

because “she is quite a calm person and maybe easy to manipulate in a way.”

When asked whether she believed University Hospital is the least restrictive appropriate

setting for appellant, Ogburn said she believed appellant needed a different place, somewhere she

can stay for a prolonged period and be offered different services, for example, going outside.

However, Ogburn agreed University Hospital was the least restrictive option for appellant. Ogburn

admitted appellant had not threatened to hurt herself or expressed a suicidal tendency, and the only

verbal altercation occurred when Ogburn told appellant she had to come to court. Ogburn said

appellant has not manifested any behavior that she is likely to cause serious harm to others.

Next, appellant testified, first about the fire. Appellant explained she had two religious

icons, one of which was on a CD cover and the other was made of paper. She also had two candles

on a window sill: a beeswax in a glass candle holder and an olive oil candle with a cotton wick.

She had slanted the glass candle holder sideways so she could burn incense on the glass. She said
-5-
 04-14-00720-CV & 04-14-00724-CV

she asked God’s assistance in lighting the olive oil candle when the entire top surface of the candle

started to burn. She said usually only the wick burns when the candle is lit. At some point,

appellant left the room and when she returned, about fifteen minutes later, the CD cover was on

fire. The fire spread and melted part of the encasement window. Appellant said the fire was an

accident, she had never before started a fire by burning candles, and “it wasn’t a house fire.”

However, appellant admitted that, at some point in the past, she had been burning a candle at her

sister’s house when the candle overheated, melted, and caused a countertop to “bubble up.”

Appellant’s testimony was often disjointed:

Q. Okay. I’m done talking about the fire so I’m going to go on to something else.
A. Which I had kept them, but my mother threw them away; I don’t know where
she put them.
Q. And how old is your mother?
A. And there was also a small — there were three small kind of cheap crosses.
Those you get in the mail, I don’t know from different places.
Q. Well, again, let’s not talk about —
A. But they did not — this is part of the fire. They did not melt because they were
right there.
Q. Okay.
A. But the heavier metal of the crank, the window crank, melted completely.
Q. Do you think that was God’s touch, he saved the crosses but melted the metal,
is that what you’re saying?
A. Yeah, because those crosses were right there where all the rest of it was burning.

...

Q. . . . Can you tell me a little bit about the fasting that we heard about. What kind
of fasting diet is it that you’re on?
A. Usually it’s Wednesdays or Fridays, but you can also fast on Monday too, if
you want to. It’s no meat, no dairy, no olive oil, no wine.
Q. And you do that every week?
A. No fish.
Q. How often do you fast?
A. Shellfish is ok.

Appellant denied hearing voices or punching holes in the walls, but she admitted showering

in the dark for “privacy . . . [from] [s]urveillance cameras.” Appellant said she was not compliant

with taking her medication because she did not need the medicine.
-6-
 04-14-00720-CV & 04-14-00724-CV

On appeal, appellant asserts that because there was no eye-witness testimony about her

punching holes in the walls, hearing voices, or details of the fire, there was no direct evidence of

any overt act or continuing course of behavior upon which to conclude she was unable to function

independently. Therefore, appellant argues the evidence is legally and factually insufficient to

support the trial court’s commitment order. We disagree.

As stated above, expert diagnosis alone is not sufficient to confine a patient for compulsory

treatment, and the expert’s opinion and recommendations must be supported by a showing of the

factual basis on which they are grounded. See In re Breeden, 4 S.W.3d at 784. However, although

the proof must be more than merely the greater weight of the credible evidence, there is no

requirement the evidence be unequivocal or undisputed. Addington, 588 S.W.2d at 570. Nor is

there a requirement that the factual basis be direct evidence. Lopez v. State, 775 S.W.2d 857, 859

(Tex. App.—San Antonio 1989, no writ), disapproved on other grounds, Campbell v. State, 85

S.W.3d 176, 183 (Tex. 2002).

In addition to the medical records reviewed by Ogburn, the record reflects appellant

admitted to showering in the dark because she believed surveillance cameras were present, she

engaged in sometimes extensive fasting while on her own, while at the hospital she ate only when

told to do so, she caused a fire at her home while her elderly mother was present, and she did not

believe she needed medication. Although appellant disputed Ogburn’s version of some of the

underlying events, the trial court was the sole judge of credibility. On this record, we conclude

the evidence is both legally and factually sufficient to support the trial court’s commitment order.

ADMINISTRATION OF PSYCHOACTIVE MEDICATIONS

“The court may issue an order authorizing the administration of one or more classes of

psychoactive medication to a patient who . . . is under a court order to receive inpatient mental

health services . . . .” Id. § 574.106(a)(1). Here, after issuing the commitment order, the trial court
-7-
 04-14-00720-CV & 04-14-00724-CV

held a hearing on and granted the State’s application for an order to administer psychoactive

medication. On appeal, the only basis on which appellant challenges the trial court’s medication

order is that the evidence is legally and factually insufficient to support the trial court’s

commitment order. Because we have determined the evidence is sufficient to support the trial

court’s commitment order, the evidence is also sufficient to support the trial court’s order to

compel psychoactive medications.

CONCLUSION

We overrule appellant’s issues on appeal and affirm the trial court’s orders.

Sandee Bryan Marion, Chief Justice

-8-