## NO. 12

- 0 8

- 00 344

- CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE STATE OF TEXAS FOR § APPEAL FROM THE

THE BEST INTEREST AND § COUNTY COURT AT LAW

PROTECTION OF W.G. § CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION
W.G . appeals from an order authorizing the Texas Department of State Health Services (the

A Department @ ) to administer psychoactive medication

- forensic. In one issue, W.G . asserts the evidence is legally and factually insufficient to su pport the trial court = s order. We reverse and render.

B ACKGROUND On August 12 , 2008, Gary Paul Kula, M.D. signed an application for an order to administer psychoactive medication

- forensic to W.G . In the application, Kula stated that W.G . was subject to an order for inpatient mental health services issued under c hapter 46B (incompetency to stand trial)
of the Texas Co de of Criminal Procedure. Kula stated that W.G . had been diagnosed with bipolar disorder type 1, manic, with psychosis , and requested the t rial court to compel W.G . to take five psychoactive medications: an antidepressant, an anxoilytic/sedative/hypnotic, an antipsychotic, a mood stabilizer , and a miscellaneous psychoactive drug

. According to Kula , W.G . refused to take
the medications volunt arily a nd, in his opinion, W.G . lacked the capacity to make a decision regarding administration of psychoact ive medications becau se he displayed prominent mania and psychosis interfering with rational judgment.
Kula concluded that these medications were th e proper course of treatment for W.G . and that,
if he were treated with the medication s, his prognosis would be fair. Kula believed that, if W.G

.2

were not administered the medications , the consequences would be prolonged hospitalization and
escalation of aggression

. Kula considered other medical alternatives to psychoactive medication, but
determined that those alternatives would not be as effective. He believed the benefits of the psychoactive medications outweighed the risks in relation to present medi cal treatment and W.G

. = s best interest. Kula also considered less intrusive treatments likely to secure W.G

. = s agreement to take psychoactive medication.
On August 19 , 2008, the trial court held a hearing on the application. Kula testified that he

was W. G

. = s treating physician and that W.G . was currently under a c hapter 46B order for inpatient
mental health services. He understood that W.G. was charged with a felony grade offense of driving
while intoxicated. He stated that W.G . had verbally, or otherwi se, refused to accept medication voluntarily. According to Kula , he believed that W.G . lacked the capacity to make a decision regarding the administration of psychoactive medicati on. He also stated that he completed the application for an order to admini ster psychoactive medication

- forensic and swore that all the statements in the application were true and correct

. Kula stated that W.G. suffered from bipolar disorder, type 1, manic , with psychosis

. He testified that treatment with the medications set fo rth in
the exhibit attached to the application was the proper course of treatment for W.G . and was in his
best interest. Kula stated that if these medications were used, the benefit to W.G. would outweigh
the risks. Further, he stated that W.G

. = s hospita lization would likely be shortened and his competency restored faster if these medications were used. He doubted if W.G. would be able to have his competency restored without the use of psychoactive medications. Kula did not believe that any of these med ications would interfere with W.G.’s ability to communicate with his attorney regarding the underlying criminal charge. Kula stated that W.G. is “classic” bipolar. According to Kula, W.G. is manic and makes outrageous statements, such as claiming that h e is going to drink and drive whenever he wants to and plans to do so in the future. Kula stated that W.G. did not realize how his behavior, or statements, affect other people. Although Kula stated that W.G. ha d been on psychoactive medications in the

pa st, he wa s not sure if W.G. ha d been on the requested medications. He wa s un aware of any side
effects W.G. had suffered from medications in the past. Kula admitted that he was able t o discuss
these medications with W.G. Further, Kula stated that W.G. wa s not “demented by any stretch.”3

According to Kula, W.G. is manic and psychotic, but does not have any cognitive problems. Kula
stated that W.G. “ clearly ” understands the benefits of psychoactive medications.
W.G. testified that he understood Kula’s tes timony regarding psychoactive medications. However, W.G. stated that he was, and is, refusing to take psychoactive medi c ation, and that he had the right to refuse. He testified that he did not have a reason to refuse these medications, but also
stated tha t he i s not psychotic. According to W.G., it was Kula’s opinion that he was psychotic, but that did not make it true, just “ a theory. ” When W.G. was asked if he had experienced any negative
side effects from these medications in the past , he stated that he ha d taken medication as needed. He testified that if he is not in a stressful situation, his blood pressure i s fine, even if it i s not normal for the average person. He did not know why Kula was worried about it. At the close of the evidence, the tria l court grante d the application. On August 19 , after considering all the evidence, including the application and the expert testimony, the trial court found that the allegations in the application were true and correct and supported by clear and convincin g evidence. Further, the trial court found that treatment with the proposed medication was in W.G. = s best interest and that W.G . lacked the capacity to make a decision regarding administration of the medication. The trial court authorized the Department t o administer p sychoactive medications to W.G. , including antidepressants, antipsychotics, mood stabilizers, and anxiolytics/sedatives/hypnotics. This appeal followed.

S UFFICIENCY OF THE E VIDENCE In his sole issue, W.G . argues that the evidence is legall y and factually insufficient to support
the trial court = s order to administer psychoactive medication

- forensic. More specifically, W.G

. contends that the State failed to prove, by clear and convincing evidence, that he lacked the capacity
to make a decisi on regarding administration of medication and that treatment with the proposed
medications was in his best interest.
Standard of Review In a legal sufficiency review where the burden of proof is clear and convincing evidence, we
must look at all the eviden ce in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its findings were true. In4

re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the fact finder set tled disputed facts in favor of its finding if a reasonable fact finder could do so and disregard all evidence that a
reasonable fact finder could have disbelieved or found incredible. Id

. This does not mean that we are required to ignore all evidence no t supporting the finding because that might bias a clear and convincing analysis. Id

.The appropriate standard for reviewing a factual sufficiency challenge is whether the

evidence is such that a fact finder could reasonably form a firm belief or convic tion about the truth of the petitioner = s allegations. In re C.H. , 89 S.W.3d 17, 25 (Tex. 2002). In determining whether the fact finder has met this standard, we consider all the evidence in the record, both that in support of and contrary to the trial co urt = s findings. Id

. at 27

- 29. Further, we must consider whether disputed evidence is such that a reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C. , 96 S.W.3d at 266. If the disputed evidence is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id

. Order to Administer Psychoactive Medication A trial court may issue an order authorizing the administrati on of one or more classes of psychoactive medications to a patient who is under a court order to receive inpatient mental health
services. T EX

. H EALTH & S AFETY C ODE A NN

. ' 574.106(a) (Vernon Supp. 200 9 ). The court may issue an order if it finds, by clea r 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. Id

. ' 574.106(a

- 1). A Clear and convincing
evidence @ means the measure or degree of proof that 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). A Capacity @ means 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. T EX

. H EALTH & S AFETY C ODE A NN

. ' 574.101(1) (Vernon 2003). In making its findings, the trial court shall consider (1) the patient = s expressed preferences regarding treatment with psychoactive medication, (2) the patient = s religious beliefs, (3) the risks and benefits, from the perspective of the patient, of taking psychoactive medication, (4) the consequences to the patient if the psychoactive medication is not administered, (5) the prognosis for the patient if the patient is treated with psychoactive medicati on, and (6) alternatives to treatment with psychoactive medication. T EX

. H EALTH & S AFETY C ODE A NN

. ' 574.106(b) (Vernon Supp. 200 9 ). Analysis In the application, Kula stated that he believed W.G . lacked the capacity to make a decision regarding administra tion of psychoactive medications because he exhibited prominent mania, and psychosis interfering with rational judgment

. He determined that if W.G . were not administered these medications, the consequences would be prolonged hospitalization and escalation of aggression

. He also believed the benefits of the psychoactive medications were in W.G

. = s best
interest. At the hearing, Kula stated that W.G . refused to accept medication voluntarily

. W.G.6

testified that he refused to tak e psychoactive medication an d that he did not have a reason, but also stated that he was not psychotic. Kula testified that treatment with the medications listed in the
exhib it attached to the application wa s the proper course of treatment for W.G . and in his best interest. Further, he stated that i f these medications were used, the benefits to W.G. would outweigh
the risks. Kula testified that he doubted W.G. would be able to have his competency restored without the use of psychoactive medications. Although Kula stated that W.G . la cked the capacity to make a decision regarding the administration of psychoactive medication, he did not explain why W.G lacked such capacity. In fact, he stated that W.G. i s not “demented by any stretch,” even though he i s manic, psychotic, and ma kes out rageous statements without understanding the ir effect on others. He
denied that W.G. suffer s from any cognitive problems and stated that W.G. “clearly” understood the
benef its of psychoactive medication. We note that nothing in the Texas Health and Safet y Code regarding court ordered administration of psychoactive medication authorizes a trial court to base its findings solely on the physician = s application. See T EX

. H EALTH & S AFETY C ODE A NN

. ' 574.101

- .110 (Vernon 2003 & Supp. 200 9 ). Pleadings, such as the physician = s application here, are not evidence that the statutory
standard has been met. See id

. ' 574.031 (Vernon 2003) (stating that the Texas Rules of Evidence apply to the hearing for court ordered mental health services unless the rules are inco nsistent with the subtitle); In re E.T. , 137 S.W.3d 698, 700 (Tex. App.

B San Antonio 2004, no pet.); see also Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer , 904 S.W.2d 656, 660 (Tex. 1995) (noting that, generally, pleadings are not competent evidence, even if sworn or verified). Here, th ere was no evidence from Kula at the hearing to explain why he believed W.G . lacked the capacity to make a decision regarding administration of pyschoactive medications. See In re E.G. , 249 S.W.3d 728,
731

- 32 (Tex. Ap p. B Tyler 2008, no pet.). In fact, Kula admitted that W.G. “clearly” understood the benefits of psychoactive medications and did not suffer from any cognitive problems. Further, a conclusory statement by Kula in the application, without any testimony or e xplanation from him at the hearing, cannot 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. See Addington , 588 S.W.2d at 570 ; see also In re E.G. , 249 S.W.3d at 731

- 32. Thus, considering all the evidence in the light most favorable to the findings, we conclude
that a reasonable trier of fact could not have formed a firm belief or conviction that W.G . lacked the capacity to make a decision regarding administration of the propos ed medications and that treatment with the proposed medications w as in his best interest. See T EX

. H EALTH & S AFETY C ODE A NN

. ' 574.106(a

- 1); In re J.F.C. , 96 S.W.3d at 266. Consequently, the evidence is legally insufficient to support the trial court = s f

indings based upon section 574.106 of the Texas Health and Safety Code.7

Having determined that the evidence is legally insufficient, it is u nnecessary for us to address W.G

. = s argument that the evidence is factually insufficient to support the trial court = s findings. See T EX

. R.
A PP

. P. 47.1. We sustain W.G

. = s sole issue.

C ONCLUSIO N Based upon our review of the record, we have conclude d that the evidence is legally insufficient to support the trial court = s order authorizing the administration of psychoa ctive
medication

- forensic. Therefore, we reverse the trial court = s order authorizing the administration of psychoactive medication

- forensic and render judgment denying the State = s application for an order to administer psychoactive medication

- forensic.
S AM G RIFFITH Justice Opinion delivered November 12 , 2009. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)