The State Of Tex. v. K.E.W

• Decision Date: 02 July 2010
• Docket Number: No. 09-0236.,09-0236.
• Citation: 315 S.W.3d 16
• Parties: The STATE of Texas, Petitioner, v. K.E.W., Respondent.
• Court: Texas Supreme Court

315 S.W.3d 16

The STATE of Texas, Petitioner,

v.K.E.W., Respondent.

No. 09-0236.

Supreme Court of Texas.

Argued Feb. 18, 2010.

Decided July 2, 2010.

Donald S. Glywasky, Barry C. Willey, Galveston County Legal Dept., Galveston, TX, for Petitioner.

Richard Hugh Branson, Attorney at Law, League City, TX, Thomas W. McQuage, Attorney at Law, Galveston, TX, for Respondent.

Beth Mitchell, Advocacy, Inc., Austin, TX, for amicus curiae Advocacy, Inc.

Justice JOHNSON delivered the opinion of the Court.

In this case we consider whether the evidence supporting a court order requiring a mentally ill person to undergo mental health services is legally sufficient. The trial court found that K.E.W. was mentally ill and as a result of that mental illness was likely to cause serious harm to others, and the court ordered him to submit to temporary inpatient mental health services. The court of appeals reversed. It held there was no evidence of a recent overt act lending to confirm that K.E.W. was likely to cause serious harm to others. We conclude the evidence is legally sufficient to support the trial court's order and reverse the court of appeals' judgment. We remand to the court of appeals for review of K.E.W.'s factual sufficiency issues.

I. Background

On April 17, 2008, K.E.W., who had previously been diagnosed with schizophrenia and was a regular patient of the Gulf Coast Mental Health and Mental Retardation Center (Center), went to the Center for an appointment. While he was there he told his treating physician at the Center, Dr. Pugh, that he had been assigned to impregnate multiple women. K.E.W. would not cooperate with the staff. He paced around the building smoking cigarettes, stated that he wanted to impregnate some of the Center's female staff, and repeatedly asked for a particular female employee. The staff became concerned enough about his behavior that they isolated the female employee. Dr. Pugh called the police because he believed K.E.W. might be a danger to others. K.E.W. refused to cooperate with the police, and they took him to the emergency room at the University of Texas Medical Branch at Galveston. There, K.E.W. told the treating physicians that he had been chosen to help populate a new and better race of humans. He said there was a group of women he planned to find and impregnate, including his adult stepdaughter. He had written plans detailing his mission and papers with the names of several women whom he believed he needed to impregnate. He expressed his belief that some of the women he was seeking had been at or near the hospital when he was brought there, but they had departed by plane and time travel. He became agitated and angry and accused the hospital staff of withholding information about the women's whereabouts. He insisted that he needed to leave the hospital to accomplish his mission.

The State sought court orders to commit K.E.W. for temporary mental health services and to administer psychoactive medication. See Tex. Health & Safety Code § 574.034. Section 574.034 of the Texas Health and Safety Code is entitled "Order for Temporary Mental Health Services" and provides, in relevant part:

(a) The judge may order a proposed patient to receive court-ordered temporary inpatient mental health services only if the judge or 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.

....

(c) If the judge or jury finds that the proposed patient meets the commitment criteria prescribed by Subsection (a), the judge or jury must specify which criterion listed in Subsection (a)(2) forms the basis for the decision.

(d) 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 (emphasis added).

At the non-jury hearing on its commitment motion, the State presented K.E.W.'s medical records, testimony from two Center employees, and testimony from two doctors who examined him at the hospital. K.E.W. presented no evidence.

The trial court committed K.E.W. to Austin State Hospital for inpatient care not to exceed ninety days. The court found by clear and convincing evidence that K.E.W. was mentally ill and as a result of that mental illness he (1) was likely to cause serious harm to others and (2) was suffering severe and abnormal mental, emotional, or physical distress; was experiencing substantial mental or physical deterioration of his ability to function independently, which was exhibited by his inability, except for reasons of indigence, to provide for his basic needs, including food, clothing, health, or safety; and was unable to make a rational and informed decision as to whether to submit to treatment. See 276 S.W.3d 686, 691-92.

Immediately following the commitment hearing, the trial court heard and granted the State's application for an order to administer psychoactive medication. The trial court based its order on findings that K.E.W.'s mental illness rendered him incapable of making medical treatment decisions and that such treatments would be in K.E.W.'s best interest.

K.E.W. appealed. The court of appeals determined that the evidence was legally sufficient to support the trial court's finding that K.E.W. was mentally ill but reversed the order for mental health services. Id, at 699-700. It held there was no evidence of an overt act or continuing pattern of behavior that tended to confirm either deterioration of K.E.W.'s ability to function independently, id. at 697, or that he was likely to cause serious harm to others. Id. at 699; see Tex. Health & Safety Code § 573.034(d). Because the order authorizing the administration of psychoactive medications depended on the existence of a valid order for mental health services, the court of appeals also reversed the order to administer psychoactive medication. 276 S.W.3d at 700.

We granted the State's petition for review.

The State urges that the evidence was legally sufficient to support the trial court's findings and orders. Specifically, it argues that (1) the court of appeals erred by applying an elevated standard of evidentiary review; (2) the evidence was legally sufficient to support the trial court's finding that K.E.W. committed an overt act that tended to confirm the likelihood he would cause serious harm to others; and (3) because the evidence was legally sufficient to support the commitment order, both the trial court's commitment order and its order that K.E.W. be administered psychoactive medication should be affirmed.

K.E.W. does not challenge the finding that he is mentally ill. He urges us to affirm the court of appeals' decision as to the standard of review and the legal insufficiency of the evidence. K.E.W. agrees that disposition of the commitment order controls disposition of the order to administer psychoactive medications.

II. Discussion

A. Jurisdiction

The ninety-day period for which K.E.W. was ordered to receive services has expired. Nevertheless, we have jurisdiction. The expiration of the time for which he was ordered to receive services does not require the appeal to be dismissed for mootness. State v. Lodge, 608 S.W.2d 910, 912 (Tex.1980).

B. Standard of Review

The State argues that Section 574.034's clear and convincing evidence requirement does not alter the appropriate standard of review. It urges that the evidence was legally sufficient so long as there was more than a scintilla of evidence to support the trial court's challenged finding. We disagree.

Clear and convincing evidence is "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) (per curiam). Evidence that merely exceeds a scintilla is not legally sufficient when the bur-den of proof is clear and convincing. See In re J.F.C., 96 S.W.3d 256, 264-65 (Tex.2002); see also Sw. Hell Tel Co. v. Garza, 164 S.W.3d 607, 627 (Tex.2004). In evaluating evidence for legal sufficiency under a clear and convincing standard, we review all the evidence in the light most favorable to the finding to determine whether a reasonable faetfinder could have formed a firm belief or conviction that the finding was true. See In re J.FX',., 96 S.W.3d at 266. 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. City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex.2005); In re J.F.C., 96 S.W.3d at 266.

C. Order for Temporary Civil Commitment

1. Proof required

In regard to the issue urged by the State, the trial court, to commit K.E.W., was required to find by clear and convincing evidence that as a result of his mental illness, K.E.W. was likely to cause serious harm to others. Tex Health & Safety Code § 574.034(a)(2)(B). The statute does not prescribe what evidence the State nrust present to carry its burden, except that it must include expert testimony and evidence of a recent overt...