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Texas Supreme Court
Garza v. Alviar, 395 SW2d 821 (Tex. 1965) ....................... ' ........... 8
Holt Atherton Industries, Inc. v. Heine, 835 SW2d 80 (Tex. 1992) ................ 8
Texas Agpellate Court
In Re Breeden, 4 SW3d 782, 785 (Tex. App. -San Antonio 1999, no writ) .......... 8
State of T exas for the Best Interest and Protection of C O., ' -
65 SW3d 175 (Tex. App- -Tyler 2001, no writ) .................. 8
State ex rel. F.B. 2007 Tex. App. Lexis 6058, *7 (Tex. App.-Tyler 2007) ........ 7, 9
Johnstone v. State, 96l SW2d 385 (Tex. App.- H-ouston [lSt District] 1997, '
no writ) .................................................. 8
UNITED STATES CONSTITUTIONAL PROVISIONS:
Amena'ment 5 ..................................... l ............................ 5
TEXAS sTATUTEs;
Texqs Health & 'Safety Code Art. 5 74. 070 ............................... ' ..... 2
Tex;s Health & Safely Code Art. 574. 104 .................................... 5
Texas Health & Safety Code Art. 574. 106 .......... ' ...................... 2, 6, 9
Chapter 46B, Texas Code of Criminal Procedure ............... _. ................ 2, 3, 9
iii
CAUSE NO. 12-15-00016`-CV
IN THE
COURT OF APPEALS
FOR THE
TWELFTH DISTRICT OF TEXAS
AT TYLER
THE STATE OF TEXAS
FOR THE BEST INTEREST AND PROTECTION
OF
K. T.
On Appeal from Civil Cause No. 41,309
in the County Court At Law Of
Cherokee County, Texas
Brief for Appellant
TO THE HONORABLE JUSTICES OF SAID COURT:
NOW COMES Keith Taylor, Appellant in the above-styled and numbered cause and
Respondent in the Trial Court, and, by and through appointed Counsel, files this his Brief of
Appellant and respectfully reports to the Court of Appeals that no errors were found to have been
committed by the Trial Court relating to the rulings during trial in Cause Number 41,309 in the
County Court at Law of Cherokee County, Texas, before the Honorable Judge Janice Stone, Judge
Presiding.
QI:IMQM_M
The Judgment of the Court for an Order to Administer Psychoactive Medication-Forensic
is set forth in the Clerk’s Record (Cl. R. 4).
JURISDICTION
Appellant jurisdiction for this cause is properly before this Court pursuant to Texas Health
Safety Code Art. 574.106.
STATEMENT OF POINTS OF ERROR
No points of error were found following review of the record and this brief is submitted in
compliance with Anders v. Califorjni_a, 386 U.S. 738 (1967).
I.
NATURE OF THE PROCEEDING
This cause originated in the County Court at Law of Cherokee County, Texas. The patient
` was brought to Rusk State Hospital in Rusk,' Cherokee County, Texas under an order brought under
Chapter 46B of the Texas Code of Criminal Procedure, dated October 27, 2014. (Cl.R. at 4); (R.R.
at 4). On or about January 9, 2015, an Application for Order to Administer Psychoactive
Medication-Forensic was filed by Robert Lee, M.D. (Cl.R. at 4). On January 13, 2015, a bench
trial was initiated wherein the Court granted the Application (Cl. R. at 11); (R.R. at l4). Notice
of Appeal was timely filed on or about January 20, 2015 (Cl. R. at 16). The Court Clerk’s Record
(Cl. R.) and the Court Reporter’s Record (R.R.) were timely flled of record. Because of the nature
of the case, the appeal has been accelerated pursuant to Texas Health & Safety Code art. 574.070.
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II.'
SUMMARY OF THE FACTS
Appellant is an adult male who, at the time of the filing of this appeal Was a patient at the
Texas Mental Health & Mental Retardation Facility in Rusk, Texas, also known as Rusk State
Hospital (RSH), pursuant to an order dated October 27, 2014, under Chapter 46B of the Texas
Code of Criminal Procedure. (Cl. R. at 4).
On January 13, 2015, a hearing on the Application for Order to Administe`r Psychoactive
Medication-Forensic was held. (R. R. Vol. l of 1).
The State called one witness, Dr. Robert Lee. (R. R. at 4). Dr. Lee testified that Appellant
verbally refused medication, that Appellant lacked the capacity to make a decision regarding
medication, that Appellant refused to speak to the doctor on most occasions with regard to his
mental illness and/or treatment (R. R. at 6-7). Dr. Lee also testified that Appellant was placed
on a unit of the hospital reserved for individuals who are deemed to be dangerous after a review
by the “Dangerous Review Board. (R. R. at 6-7). Dr. Lee then testified that Exhibit A, which is
attached to the Application sets forth the classifications of medication which he wished to use on
Appellant. (R.R. at 7). Dr. Lee also testified that the benefits of the medications outweighed the
risks associated with them. (R.R. at 5).
Next, Dr. Lee testified that he was aware that Appellant was at RSH under an order for
court-ordered mental health services pursuant to Article 46B of the Texas Code of Criminal
Procedure due to “[c]harges related to robbery.” (R.R. at 5-6). Dr. Lee testified that it was likely
that Appellant’s competency would be restored faster if he took the medications'than without the
use of the medications (R.R. at 7). Dr. Lee further testified that he believed the medications
would provide the least intrusive means for restoration of Appellant’s competency and that
Appellant’s competency would likely not be restored without the use of` medications (R.R. at 7-
8).
On cross-examination, Dr. Lee testified that Appellant had sporadically taken some
medications and refused others. (R.R. at 9). Dr. Lee also testified that Appellant refused changes
in dosages, refused to attend treatment team and often refused to allow the Med Clinic physicians
to examine him for fear that they were reading his mind. (R. R. at 9-10). The Dr. also testified
that Appellant had previously told the Dr. that he was depressed and would kill himself “one of _
these days” if he was not treated, but that Appellant would also refuse to take an antidepressant.
(R.R. at 9).
Appellant was then called to testify. (R. R. at 10). Appellant testified that he agreed with
the Dr. That he needed to take medications, but Appellant maintained that he was “90 percent
compliant with [hjs] medications.” (R. R. 11). Appellant also testified that he had previously n
requested.increases of certain medications from the Dr. (R. R. At 11-12).
Dr. Lee was recalled by the State and asked about Appellant’s claims. (R. R. at 13). Dr. '
Lee testified that Appellant had actually refused a request to increase the medication which
Appellant testified that he asked to be increased the previous week. (R. R. at 13). Dr. Lee also
testified that Appellant had to be placed on one to one observation because of “unpredictable
behavior” and that Appellant had also attacked another patient the previous week. (R. R. at 13-14)
The trial court ultimately granted the Application for Administration of Psychoactive
Medications. (R. R. at 141 In addition to the Court’s finding that Appellant lacked the capacity
to make a decision regarding administering of medication and that said medication was in
Appellant’s best interest, the Court found that Appellant presented a danger to himself or others
in the in the facility. (Cl. R. at 1'1).
SUMMARY OF THE ARGUMENT
Following a review of the trial proceedings and judgment, no error, that was more than
harmless error, was found that could be presented for review to the appellate court, and therefore,
appointed counsel seeks to withdraw herefrom and has invited response hereto from the Appellant.
v ARGUMENT AND AUTHORITY
Application
An Application for Order for Order to Administer Psychoactive Medication-Forensic was
filed by Dr. Robert Lee M.D. Said application appears to signed by Dr. Lee and to be in the proper
form and meet all requirements of such an application pursuant to Texas Health and Safety Code
§574.104. (Cl. R. at 4).
Standard of Review
The Federal (;Jovernment may not deprive any person of liberty without due process of law.
U. S. Const., Amdt. 5. An individual'has a constitutionally protected liberty interest in avoiding the
unwanted administration of antipsychotic drugs. Sell v. United States, 539 U.S. 166, 178, 123 S.Ct.
2174, 156 L.Ed. 2d 197 (2003). However, the Government may administer antipsychotic drugs to
a non-consenting defendant who is mentally ill and facing serious criminal charges in order to render
that defendant competent to stand trial where the following circumstances exist: (l) there are
important governmental interests at stake; (2) the involuntary medication will significantly further
those concomitant state interests; (3) the involuntary medication is necessary to further those
interests; and (4) the administration of the antipsychotic drugs are medically appropriate Sell, 539
U. S. at 179-82.
The first prong of the Sell standard requires that there be an important governmental interest '
. at stake. Id. The Government generally has an important interest in bringing to trial an individual
accused of a serious crime. ]a'. at 180. The United States Supreme Court has generally defined a
serious offense as being any offense for which a defendant may be sentenced to more than six
months imprisonment. U.S. v. Leveck-Amirmokri, 2005 U.S Dist. Lexis 7610 * ll (W.D. Tex. Mar.
10, 2005). '
To satisfy the second prong of` the Sell standard, the court must find that the involuntary
medication will significantly further those interests Sell, 539 U.S. at 181. lt must find that the
administration of the drugs is substantially likely to render the defendant competent to stand trial and
that the drugs are highly unlikely to have side effects that will interfere significantly with the
defendant’s ability to assist counsel. Id. ln United States v. Algere, the court held that to satisfy this
element, the government must set forth the particular medication, including the dose range, it
proposes to administer to the defendant to restore his competency due to the evaluation of potential
side effects required by Sell. 396 F.Supp. 2d 734, 741 (E.D. La 2005).
Thirdly, the court must find that the involuntary medication is necessary to further those
interests. Sell, 539 U.S. at 181. To make this determination, the court must determine that any
alternative, less intrusive treatments are unlikely to achieve substantially the same result. Id.
Finally, the court must find the administration of the drugs to be “medically appropriate.”
This means that the administration of the drugs is in the patient’ s best medical interest in light of the
patient’s medical condition Id. b
Section 574.106 of the Texas Health and Safety Code states:
(a) the court may issue an order authorizing the administration of one or more classes of
psychoactive medication to a patient who:
(1) is under a court order to receive inpatient mental health services;
or l
(2) is in custody awaiting trial in a criminal proceeding and was ordered to receive inpatient
mental health services in the six months preceding a hearing under this section.
(a-l) The court may issue an order under\this section only if the court finds by clear and convincing
evidence after the _hearing:
(1) that the patient lacks the capacity to' make a decision regarding the administration of the
proposed medication and treatment with the proposed medication is in the best interest of the
patient; or
(2) if the patient was ordered to receive inpatient mental health services by a criminal court
with jurisdiction over the patient, that:
(A) the patient presents a danger to the patient or others in the inpatient mental
health facility in which the patient is being treated as a result of a mental disorder or
mental defect as determined under section 574.106_5; and
(B) treatment with the proposed medication is in the best interest of the patient.
lt is not necessary for a court to consider whether to allow forced medication to render a
defendant competent to stand trial if the medication is warranted for a purpose Such as rendering the
defendant non-dangerous to himself or others or where the defendant’s refusal of drugs puts his
health at risk. State ex rel. F.B. 2007 Tex. App. Lexis 605 8, *7 (Tex. App.-Tyler 2007). Where no
evidence of such other purpose is presented, the court must apply the Sell standard Id. at *8.
Additionally, in reviewing a legal sufficiency or no evidence complaint, the appellate court
must consider only the evidence and inferences that tend to support the challenged findings and
disregard all evidence and inferences`to the contrary. Holt Atherton Industries, Inc. v. Hel`ne, 835
SW2d 80, 84 (Tex. 1992); The State of T exas For the Best Interest and Protection of C. O. ,65 SW3d _
175, 178 (Tex. App. - Tyler, 2001 no writ). If there is more than a scintilla of evidence to support
the findings, the no evidence challenge fails. Id. However, in the context of the State’s heightened
burden of proof in a temporary commitment case, a no evidence challenge will be sustained if the
evidence is insufficient to produce in the mind of the fact-finder a firm belief or conviction as to
the truth of the facts. Id; In Re Breeden, 4 SW3d 782, 785 (Tex. App. -San Antonio 1999, no writ);
Johnstone v. State, 961 SW2d 385, 388 (Tex. App. - Houston [l`°`t Dist.] 1997, no vwrit_).
ln reviewing the factual sufficiency of the evidence, the appellate court must consider all
the evidence and will set aside the judgment only if it is so contrary to the overwhelming weight
of the evidence that it is clearly wrong and manifestly unjust. Garza v. Alviar, 395 SW2d 821, 823
(Tex. 1965); The State of T exas For the Best Interest and Protection of C. O., 65 SW3d 175 (Tex.
App. - Tyler, 2001 no writ). Without findings of fact and conclusions of law, the reviewing court
must presume that the trial court resolved all questions of fact in support of the judgment. Holt
Atherton Industries v. Heine, 835 SW2d supra at 83.
Bench Trial
A bench trial on the Application For Order to Administer Psychoactive Medication-
Forensic was held on January 13; 2015. (R. R. Vol. l of l) The State relied on the Application and
testimony of Dr. Lee to present its case, (R. R. at 4-10, 1 3-14). Following presentation of evidence
and arguments _of counsel, the trial court found that Appellant lacked the capacity to make a decision
regarding the administration of medication; that Appellant presented a danger to himself or others
in the in-patient mental health facility; and that treatment with the proposed medication was in the
best interest of the Appellant. (R. R. at 14; Cl. R. at 11).
A review of the evidence reflects that the State presented sufficient evidence to support the
findings of the trial court. While the State presented evidence on each prong of the standard
established in Sell, it is arguable that the State failed to establish an important governmental
interest since the only testimony on this item is that Appellant was at RSH under an order for
court-ordered mental health services pursuant to Article 46B of the Texas Code of Criminal
Procedure due to “[c]harges related to robbery.” (R.R. at 5-6). lt is unclear exactly what charge
Appellant was facing. Therefore, the testimony arguably did not clearly establish an important
government interest.
Nevertheless, based on the findings of the trial court, the trial court was not`obligated to
apply the standard established in Sell due to the trial court’s finding that Appellant presented a
danger to himself or others. See Sell v. United States, 539 U.S. 166, 178, 123 S.Ct. 2174, 156
L.Ed. 2d 197 (2003); and also, State ex rel. F.B. 2007 Tex. App. Lexis 6058, *7 (Tex. App`.-Tyler
2007).
The trial court was within its discretion to enter the Order Authorizing Psychoactive
Medication pursuant to Texas Health and Safety Code § 574.106 based on the testimony from Dr.
Lee indicating the following: that Appellant was in custody awaiting trial in a criminal proceeding
and was ordered to receive inpatient mental health services under Article 46B of the Texas Code
of Criminal Procedure; that Appellant presented a danger to himself or others in the facility based
on thetestimony that Appellant was placed on MSU due to being deemed dangerous by the
“dangerous review board” and the testimony that Appellant had attacked another patient at the
facility within the week; and that treatment with the proposed medication was in the best interest
of Appellant. (R. R. at 6, 13) More than a scintilla of evidence was presented on each of these
elements and the findings of the court were not so against the great weight of the evidence as to
be manifestly unj ust. j n
Assistance of Counsel
Appellant was appointed counsel on January 9, 2015, which was the same date as the
Application for Order to Administer Psychoactive Medication-Forensic was filed. Appellant’s
counsel attended and participated in the bench trial, cross examined the State’s witness and
examined Appellant. Reviewing the record in its entirety, counsel provided “reasonably effective
assistance” to Appellant (Ex Parte Bratchett, 513 S.W. 2d 851, 853 (Tex. Crim. App. 1974)), and there
does not appear to be grounds for review for ineffective assistance of counsel.
Summg:
Following review and consideration-of trial activities before the Trial Court, there are no
points of reversible error found.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Counsel for Appellant, Keith Taylor,
respectfully requests and prays that this matter be considered by the Court and that appointed
counsel be allowed to withdraw here form and that this appeal be dismissed following the
Appellant’s opportunity to respond hereto; and further, Counsel respectfully requests and prays
for any and all other relief, at law or in equity, to which he may show himself justly entitled.
-10
Respectfully submitted,
Moak & Kesler, PLLC
Z%//%
Michael Kesler
State Bar No. 24049074
318 Neches Street
Jacksonville, Texas 75766
Tel: (903) 589-7800
Fax: (903) 589-7833
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and foregoing
document has been served on the County Attorney for Cherokee County, Texas in accordance with
the applicable Rules of Civil Procedure on this the f § day of February, 2015.
M%//
Michael R. Kesler
ll
No; 4/¢302
l
THE srA'rE 01= TExAs IN THE PRoBATE couR'r
FoR THE BEsr IN'rEnEsr couNrY, TExAs
AND PRoTF.crIoN or
K. r.
unions only)
APPLICATION FOR ORDER TO ADlVIINISTER
PSYCHOACTIVE l\/IEDICATION - FORENSIC
Robert Lee M.D./D.O. (“Applicant”), files this Application, pursuant to
Texas Health & Safety Code §574.104, seeking an order to authorize the administration of
psychoaetive medication to Keith Ta lor (“Patient") and respectfully shows
that:
I.
Patient is subject to an order, date j¢, / ;7 20 _}SE for court-ordered in-patient mental
h th services issued under (select one): "
Chapter 46B (Incompetency to Stand Trial) Code of Criminal Procedure
g Chapter 46C (Not Guilty by Reason of Insanity) Code of Criminal Procedure
m Chapter 55, Family Code
II.
Applicant has diagnosed the Patient with the following condition(s):
gay r¢m~=..` s 1 net 011/tm ~1/~‘ § 6 ?'/’€G i`» 171
III.
A list of medications within each class, as detemiined by the Texas Department of State Health
Services, is attached hereto as Exhibit “A”. Each medication the Applicant wants the court to
' compel the Patient to take 1s designated by an “X". The proposed method for administering the
medication is:
EI/Oral E/lntramuscular ~Q/Subcutaneously Mnsdermal
IV.
E/This 1s the customary method for administering the medication(s). _
l:l This is n_o_t the customary method for administering the medication(s). The reason for using
non-customary methods is
03/1 l Puge l of 3 RSH 274~1~`
Application For Order 'I`o Administer Psychoactive Medication - Forensic (Continued)
V.
Wauent (select one):
verbally, or
[:l by other indication, refuses to take the medication voluntarily.
VI.
Applicant believes Patient lacks the capacity to make a decision regarding administration of
psychoactive medication for the following reasons:
foier APl~kS"o*'\/l ahw.i'h= S Me»\.`cdf@'~\ ana
'M§d`¢'(»g}( Sani/F
Poo v ms.‘»/\A‘Q» '/ gov V Jud fed
VII.
The applying physician has determined that the medication is the proper course of treatment for
the Patient.
VIII.
Applicant believes that if Patient is treated with the class(es) of psychoactive medication
specified in Paragraph III above, Patient’s prognosis is:
Fo\~` \f
IX.
Applicant believes that if Patient is not administered the class(es) of psychoactive medication
specified in Paragraph IIl above, the consequences will be:
M@n-‘f'a_/Q\ ¢JJ 1"€ rr g r,n'/'O’>/\
X.
Applicant has considered medical alternative(s) to psychoactive medication to treatment of
Patient and has determined that the medical alternatives will not be as effective as administration
of psychoactive medication
Xl.
Applicant believes that the benefits of the psychoactive medication outweigh the risks of such
medication in relation to present medical treatment and best interest of the Patient.
03/1 l Pagc 2 of 3 RSH 274-F
Application For Order To Administer Psychoactive Medication ~ Forensic (Continued)
' Xll.
Applicant has considered less intrusive treatments likely to secure Patient’s agreement to take the
psychoactive medication
XIII.
Altematively, Applicant requests that should the court find that the Patient has the capacity to
make a decision regarding administration of psychoactive medication that Applicant believes
that Patient, unless medicated, presents a danger to self or others in the mental health facility in
which patient is being treated, as set forth Texas Health & Safety Code §574.1065, and treatment
with the proposed medication is in the best interest of Patient.
WHEREFORE, Applicant request that the Court: §§ §
v §§ 35
l. Appoint an Attorney to represent Patient; §§ §
` mg 2
. nw '
2. Set a hearing on this Application to be held not later than the seventh ay a§;&§thédat
this Application is tiled; §§ >
. o ~ ,_, 2
lime - *` ;" w
3. Direct the Court Coordinator of the tate Hospital, orS\er §§ , to_“
after the
deliver a Notice of Hearing and copy of this Application to Patient imm`§dia
time of the hearing is set;
regardless of Patient’s refusal.
DATE:?AA,AM\¢‘$,NL§./ _
"\ _erNATURE oF PFLTrrlo
Sworn to and subscribed before me this f day of WG g
G. COPLEV
i¢, store or texas
s\on E!p“es
Mg°c°mb,, 1¢, 2013
03/1 l Page 3 of 3 RSH 274-F
noosz 1101
Upon hearing, enter an order, pursuant to Texas Health &. Safety Code §574.106,
authorizing the Texas Department of State Health Services to administer the class(es) of
psychoactive medication specified in Paragraph III of the Application to Patient,
l
" §m§ Public, State of Texasv
03le
""V~
“EXH|B|T A’
§!gsses of Medlcatlons Freggengy Used fgt Mhlatrle lndtutlons
Consent rs required tor any mdieation that ls used ln the treatment of a psychiatric magnesis or symptorn, whether or not the medication' ts included' 111 this list. Refer to
physician order for detenninatton of indrcatlon for use.
The classification of psychotropic medicat|on ls fairly standard but medications den be used for treatment of tl|nesses that wotdd be considered listed under a different
classification For example some medrsations antipsychoties maybe used as a mood stabilizer.
The Executive Formuhry Committee does endorse of nonformulary drugs
13
L'.l
Metadate
St
Mr. Keith Taylor, TDCJ
J ester lV Unit
4 lester Road _
Richmond, TX 77406
CONFIDENTIA
- Re: Status Update
Mr. _Taylor:
l hope this letter f
the telephone l am writ
ate Counsel for Offenders
A Divt'sion of Texas Department of Criminal Justite
` P.Oi Box 4005
Huntsvi||e, TX 773424005
(936) 437-5203
August 28, 2013
#01784688
rL ATTORNEY CLIENT COMMUNICATION
inds you doing much better than the last time we spoke on
ling to update you on my review of your claims. l reached
out to the Clerk of the Court that convicted you to determine whether your plea
hearing was transcribed
transcribed l was hopin
showing the court and yc
Was questionable that c
admonishments the court
My next step in t
our agency to pursue yo
we almost always refra
by a court reporter. Unfortunately, the hearing was not
g there would be evidence from that day on the record
ur attorney should have been aware that your competency
lay. The Clerk did fax over the plea papers and the
f gave you at the hearing
his process is to request permission from the director of
ur claims for relief. Our resources are very limited, and
in from raising ineffective assistance of counsel claims
because our office cannot devote the necessary time, money, and resources to
meeting the very high
conference with our d
availability. After that
forward on your behalf.
burden for success in those types of cases l hope to
irector within the next two weeks, depending on his
l will be able to finally tell you whether l can move
lf you have additional questions or concerns, please feel free to contact me
by Writing to the address listed above Please continue to keep SCFO informed if
your address changes so We can keep you up to date.
Sincerely,
Q-r/.)- L_,
Jennifer J. Furrow
Appellate Attorney