NO. 12-13-00113-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 H.M.R. § CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

H.M.R. appeals from the trial court’s order for extended inpatient mental health services. 

In one issue, he argues that the evidence is legally insufficient to support the trial court’s order. 

We reverse and render.

BACKGROUND

On April 1, 2013, an application for court ordered extended mental health services was 

filed requesting the trial court to commit H.M.R. to the Rusk State Hospital (the Hospital) for a 

period not to exceed twelve months. At the time the application was filed, H.M.R. was a patient 

at the hospital. The application was supported by two physician’s certificates of medical 

examination for mental illness.

On March 28, 2013, George Howland, M.D. evaluated and examined H.M.R. and 

diagnosed him with schizophrenia paranoid type, polysubstance dependence, and depressive 

disorder not otherwise specified (nos). According to Howland, H.M.R. had been under his care 

for one year. He stated that on March 8, H.M.R. believed “gay black Russians” were trying to do 

things to him. On March 22, H.M.R. told Howland that he felt the Russians make him choke and 

“control[ed]it.” Later, on March 28, H.M.R. stated that he had parasites, that “gay Russians did 

it,” that he experienced shortness of breath, and that he did not want the heart procedure. 

According to Howland, H.M.R. had no insight into his mental illness, and that his condition was 

expected to continue for more than ninety days because he had no insight into his mental illness 
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and was psychotic. Finally, Howland stated that H.M.R. was mentally ill, and that as a result of 

that mental illness was likely to cause serious harm to others, was suffering severe and abnormal 

mental, emotional or physical distress, was experiencing substantial mental or physical 

deterioration of his ability to function independently, and was unable to make a rational and 

informed decision about whether to submit to treatment.

On April 1, 2013, Joe Bates, M.D. evaluated and examined H.M.R. and diagnosed him 

with schizophrenia. On that date, H.M.R. told Bates that the “Russians” were making themselves 

a part of his body and choked him, causing him to vomit. Bates also stated that H.M.R. was 

experiencing paranoid delusions. Bates stated further that H.M.R. had poor insight and judgment, 

and expressed disappointment at “how far they let the Russians go.” Finally, Bates stated that 

H.M.R. was mentally ill, and that as a result of that mental illness was suffering severe and 

abnormal mental, emotional or physical distress, was experiencing substantial mental or physical 

deterioration of his ability to function independently, and was unable to make a rational and 

informed decision as to whether or not to submit to treatment.

On April 2, 2013, the trial court heard the State’s application for court ordered extended 

mental health services. At the conclusion of the hearing, the trial court granted the application. 

On the same date, the trial court signed an order for extended mental inpatient mental health 

services. The trial court found by clear and convincing evidence that H.M.R. was mentally ill 

and as a result of that mental illness was likely to cause serious harm to himself; was likely to 

cause serious harm to others; 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 H.M.R.’s 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 or not to submit to treatment. Further, the trial court 

found that H.M.R. needed court ordered inpatient mental health services for a period of not more 

than twelve months. Thus, the trial court ordered that H.M.R. be committed for court ordered 

inpatient extended mental health services for a period not to exceed twelve months. This appeal 

followed.
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SUFFICIENCY OF THE EVIDENCE

In his sole issue, H.M.R. argues that the evidence is legally insufficient to support the 

trial court’s order. More specifically, he contends there is no evidence that he is likely to cause 

serious harm to himself or others, that he was experiencing substantial mental or physical 

deterioration of his ability to function independently, or that he was unable to make a rational 

and informed decision as to whether to submit to treatment.

Standard of Review

In a legal sufficiency review where the burden of proof is clear and convincing evidence, 

we must look at all the evidence 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. 

In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the fact finder settled 

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 not supporting the finding because that 

might bias a clear and convincing analysis. Id. 

Extended Inpatient Mental Health Order

The trial judge may order a proposed patient to receive court ordered extended inpatient 

mental health services only if the jury, or the judge if the right to a jury is waived, finds, from 

clear and convincing evidence, that (1) the proposed patient is mentally ill; (2) as a result of that

mental illness, he (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 his ability to function 

independently, which is exhibited by his inability, except for reasons of indigence, to provide for 

his 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; (3) his condition is expected to 

continue for more than ninety days; and (4) he has received court ordered inpatient mental health 

services under this subtitle or under Chapter 46B, Code of Criminal Procedure, for at least sixty 

consecutive days during the preceding twelve months. TEX. HEALTH & SAFETY CODE ANN. 

§ 574.035(a) (West Supp. 2012).

To be clear and convincing under this statute, the evidence must include expert testimony 

and evidence of a recent overt act or a continuing pattern of behavior that tends to confirm the 
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likelihood of serious harm to the proposed patient or others, or the proposed patient's distress and 

the deterioration of his ability to function. TEX. HEALTH & SAFETY CODE ANN. § 574.035(e) 

(West Supp. 2012). The statute requires evidence of a recent act by the proposed patient, either

physical or verbal, that can be objectively perceived and that is to some degree probative of a 

finding that serious harm to the proposed patient is probable if the person is not treated. See State 

v. K.E.W., 315 S.W.3d 16, 24 (Tex. 2010). “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). The statutory requirements for an involuntary commitment are strict because it is a 

drastic measure. In re C.O., 65 S.W.3d 175, 182 (Tex. App.—Tyler 2001, no pet.).

Hearing on Application

At the hearing on the application, Howland testified that he examined H.M.R. on March 

28, 2013, and diagnosed him as suffering from schizophrenia, paranoid type. According to 

Howland, H.M.R. was originally hospitalized because he was charged with indecency with a 

child and possession of cocaine, was found incompetent to stand trial, and the forensic 

commitment was changed to a civil commitment. He believed that H.M.R. was likely to cause 

serious harm to others, and was suffering severe and abnormal mental, emotional or physical 

distress. Howland also determined that H.M.R. was also likely to cause serious harm to himself 

because he had been suffering from extreme shortness of breath and chest pains for the last eight 

months. Although he has spoken to H.M.R. “multiple times” regarding a recommendation from 

the cardiologist about a heart catheterization procedure, Howland stated that H.M.R. is worried 

about the procedure. According to Howland, H.M.R. believes that “parasites will get into the 

vessels and get him.” He stated that it was critical for H.M.R. to undergo the heart procedure 

because he could suffer a myocardial infarction. 

Further, Howland testified that H.M.R. believes he has parasites, does not have any 

insight into his mental illness, does not believe he has a mental illness, and is afraid about 

“Russian” parasites at times. He stated that these behaviors indicate that H.M.R. has a mental 

illness. Howland did not believe that H.M.R. can provide for his basic needs, such as food, 

clothing, health, and safety, outside a hospital setting. He also did not believe H.M.R. was able to 

make a rational and informed decision whether or not to submit to treatment, and that his 

condition is likely to deteriorate if he does not remain in the hospital to obtain treatment. 
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Howland testified that H.M.R. has a history of mental illness; that his diagnosis was 

based on his personal observations, his review of H.M.R.’s medical records, and reasonable 

medical probability; and that the Hospital is the least restrictive available treatment at this time. 

He stated that H.M.R. would need to be at the Hospital at least one year before a reassessment, 

and would be released as soon as medically appropriate. However, Howland did not believe that 

an assisted living or nursing home would be more appropriate due to H.M.R.’s psychosis. He 

admitted that H.M.R.’s prescribed medications were capable of being taken outside a hospital 

setting. However, Howland testified that although H.M.R. was on a “good dose” of Clozaril, he 

was not responding as well as Howland would like. 

H.M.R. testified that he believed he was of “sound mind.” He stated that if he were 

released from the hospital, he would go the veteran’s administration, receive a V.A. pension, and 

obtain housing. He stated that he was a veteran, served in the United States Air Force between 

1967 and 1968, and obtained a medical honorable discharge. H.M.R. stated that he was not 

currently on a V.A. pension, but received one when he was at Kerrville State Hospital. He would 

like to be released and to be in the care of the V.A., “people that work for the federal 

government.” If so, they “will investigate [his] claim that [he] is suffering from Russian parasites 

taking over [his] body.” H.M.R. testified that he would take his medications and attend 

outpatient counseling at the V.A. hospital.

Analysis

On appeal, H.M.R. does not dispute that he is mentally ill, that his condition is expected 

to continue for more than ninety days, and that he has received court ordered inpatient mental 

health services for at least sixty consecutive days during the preceding twelve months. See TEX.

HEALTH & SAFETY CODE ANN. § 574.035(a). Thus, we will consider whether the evidence is 

legally sufficient to support a finding that he is likely to cause serious harm to himself, is likely 

to cause serious harm to others, is experiencing substantial mental or physical deterioration of his 

ability to function independently, and is unable to make a rational and informed decision as to 

whether or not to submit to treatment. See id.

In the application, Howland stated that H.M.R. was experiencing shortness of breath, but 

did not want the heart procedure. At the hearing, he testified that H.M.R. was likely to cause 

serious harm to himself because he had been suffering from extreme shortness of breath and 

chest pains for the last eight months. However, Howland stated, H.M.R. refused to consider a 
6

recommendation from a cardiologist to undergo a heart catheterization. He testified that H.M.R. 

is worried that “parasites will get into the vessels and get him.” 

The information regarding H.M.R.’s health is not placed in any meaningful context in 

order to determine whether his shortness of breath or chest pains necessitated a heart 

catheterization. Howland merely testified that H.M.R. “could” suffer a myocardial infarction. 

Further, the cardiologist referred to by Howland did not testify regarding H.M.R.’s heart 

condition, diagnosis, or general health, or the risk to H.M.R.’s health if he did not undergo the 

heart catheterization. None of this testimony shows evidence of a recent overt act or a continuing

pattern of behavior that tends to confirm the likelihood of serious harm to H.M.R. See id. 

§ 574.035(e). 

Further, there was no expert testimony from Howland or evidence of a recent overt act or 

a continuing pattern of behavior at the hearing that tended to confirm the likelihood of serious 

harm to others or the deterioration of H.M.R.’s ability to function. See id. § 574.035(e). Nor was 

there any testimony from Howland at the hearing that H.M.R. was unable to make a rational and 

informed decision as to whether or not to submit to treatment. See id. § 574.035(a)(C)(iii). We 

note that nothing in the Texas Health and Safety Code regarding an order for extended mental 

health services authorizes a trial court to base its findings solely on the physician’s certificates. 

See TEX. HEALTH & SAFETY CODE ANN. § 574.031-.037 (West 2010 & Supp. 2012). Pleadings, 

such as the physician’s certificates here, are not evidence that the statutory standard has been 

met. See id. § 574.031 (West 2010) (stating that the Texas Rules of Evidence apply to the 

hearing for court ordered mental health services unless the rules are inconsistent with the 

subtitle); In re E.T., 137 S.W.3d 698, 700 (Tex. App.—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, there was no evidence from Howland at the hearing regarding how H.M.R.’s 

behavior confirmed the likelihood that he was experiencing a deterioration of his ability to 

function, and why H.M.R. lacked the capacity to make a decision to submit to treatment. See In 

re E.G., 249 S.W.3d 728, 731-32 (Tex. App.—Tyler 2008, no pet.). Further, a conclusory 

statement by Howland in the application, without any testimony or explanation 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.
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Considering all the evidence in the light most favorable to the finding, we conclude a 

reasonable trier of fact could not have formed a firm belief or conviction that H.M.R. is likely to 

cause serious harm to himself, is likely to cause serious harm to others, is experiencing 

substantial mental or physical deterioration of his ability to function independently, and is unable 

to make a rational and informed decision as to whether to submit to treatment. See In re J.F.C., 

96 S.W.3d at 266. Thus, the evidence does not satisfy the statutory requirement for clear and 

convincing evidence in support of the order for extended inpatient mental health services. See

TEX. HEALTH & SAFETY CODE ANN. § 574.035(a). Therefore, the evidence is legally insufficient 

to support the trial court's order. Accordingly, we sustain H.M.R.’s sole issue.

DISPOSITION

Based upon our review of the record, we conclude that the evidence is legally insufficient 

to support the trial court’s order for extended inpatient mental health services. Therefore, we 

reverse the trial court’s order and render judgment denying the State’s application for court 

ordered extended mental health services.

BRIAN HOYLE

 Justice

Opinion delivered July 17, 2013.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)
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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 17, 2013

NO. 12-13-00113-CV

THE STATE OF TEXAS FOR THE BEST

INTEREST AND PROTECTION OF H.M.R.

_____________________________________________________________________________

 Appeal from the County Court at Law

 of Cherokee County, Texas. (Tr.Ct.No. 40,101)

_____________________________________________________________________________

THIS CAUSE came to be heard on the appellate record and the briefs filed 

herein, and the same being considered, because it is the opinion of this court that there was error 

in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court 

that the trial court’s order be reversed and judgment rendered denying the State’s application 

for court ordered extended mental health services; and that this decision be certified to the court 

below for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
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THE STATE OF TEXAS

M A N D A T E

*********************************************

TO THE COUNTY COURT AT LAW of CHEROKEE COUNTY, GREETING:

Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 17th 

day of July, 2013, the cause upon appeal to revise or reverse your judgment between

THE STATE OF TEXAS FOR THE BEST

INTEREST AND PROTECTION OF H.M.R.

NO. 12-13-00113-CV; Trial Court No. 40,101

Opinion by Brian Hoyle, Justice.

was determined; and therein our said Court made its order in these words:

“THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and 

the same being considered, because it is the opinion of this court that there was error in the 

judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court that 

the trial court’s order be reversed and judgment rendered denying the State’s application for 

court ordered extended mental health services; and that this decision be certified to the court 

below for observance.”

WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals 

for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly 

recognized, obeyed, and executed.

WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court 

of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of 

Tyler, this the ______ day of __________________, 201____.

CATHY S. LUSK, CLERK

By:_______________________________

 Deputy Clerk