NO. 12-12-00220-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 D.D. § CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

D.D. appeals from an order of commitment for temporary inpatient mental health services. 

After a hearing without a jury, the trial court ordered D.D. committed to Rusk State hospital for a 

period not to exceed ninety days. On the same day, the trial court rendered an order authorizing the 

Texas Department of Mental Health and Mental Retardation1to administer psychoactive medication 

to D.D. while she is committed to Rusk State Hospital. In five issues, D.D. asserts the evidence is 

legally and factually insufficient to support the order of commitment, and the trial court violated her 

constitutional rights to due process and equal protection. We affirm.

BACKGROUND

On June 6, 2012, an application for court-ordered temporary mental health services was filed 

requesting the court commit D.D. to Rusk State Hospital for a period not to exceed ninety days. 

The application was supported by two certificates of medical examination for mental illness. The 

first was prepared by a physician, Dr. Jon Guidry, who had examined D.D. on June 4. Dr. Guidry 

diagnosed D.D. with “psychosis nos.” He found that D.D. is mentally ill, likely to cause serious 

harm to herself, suffering severe and abnormal mental, emotional or physical distress, experiencing 

substantial mental or physical deterioration of her ability to function independently, which is 

 

1 The Texas Department of Mental Health and Retardation has been abolished and mental health and state 

hospital operations were transferred to the Texas Department of State Health Services. See Act of June 2, 2003, 78th

Leg., R.S., ch. 198, §§ 1.19, 1.26, 2003 Tex. Gen. Laws 611, 636, 641.
2

exhibited by her inability, except for reasons of indigence, to provide for her basic needs, and 

unable to make a rational and informed decision as to whether to submit to treatment. D.D. refused 

to talk to Dr. Guidry. She had been picked up by the police, who she alleged had beaten her. The 

record reviewed by Dr. Guidry contained allegations that she had jumped in front of a car to harm

herself. 

The second certificate was completed by Dr. Robert Bouchat, who examined D.D. on June 

5. He diagnosed her as being bipolar, but she refused treatment. Dr. Bouchat determined that D.D. 

is mentally ill, is likely to cause serious harm to herself, and is suffering severe and abnormal 

mental, emotional or physical distress, is experiencing substantial mental or physical deterioration 

of her ability to function independently, which is exhibited by her inability, except for reasons of 

indigence, to provide for her basic needs, and is unable to make a rational and informed decision as 

to whether or not to submit to treatment. The basis for his opinion was D.D.’s admission that she 

was walking about at 5:30 a.m. in the vicinity of traffic. Also, she was hyperkinetic, had 

disorganized thinking, and exhibited bizarre gestures. Further, on June 3, she had intentionally 

jumped into traffic in a suicide attempt. D.D. also had been labile, irritable, and depressed.

Dr. Bouchat testified at the hearing, repeating his determination that D.D. is bipolar. He 

stated that she will not be able to provide for her basic needs such as food, clothing, health, and 

safety, or be able to make a rational and informed decision about whether to submit to treatment. In 

his opinion, if she does not remain at the hospital for treatment her condition is likely to deteriorate. 

Dr. Bouchat explained that an overt act led to D.D.’s hospital admission. She was walking about at 

5:30 in the morning and walked near moving vehicles. The police were called and she got into an 

altercation with police. She was exhibiting disorganization of thinking, bizarre gesturing, and 

appeared to be hyperkinetic. He stated that “there was also the feeling that she had intentionally 

jumped in front of traffic to make a suicide attempt.” While at the hospital, she has been very 

irritable and uncooperative. She will not discuss her symptoms, she exhibits no insight into the 

behaviors that led to her admission, and she also appears to be labile. One of the social workers was 

concerned that she might physically be assaultive of another patient. Dr. Bouchat explained that 

D.D. had been hospitalized seven times in California and had been at Rusk State Hospital 

previously. He has not been able to have rational conversations with her. His interactions with her 

have been very superficial, ending with D.D. saying she has no illness and will not take medicine. 

He explained that D.D. is not connected with practical reality going on about her. She gets involved 

in side issues and trivia. He described her as preoccupied, guarded, and reluctant to give 
3

information. Dr. Bouchat testified that Rusk State Hospital is the least restrictive available treatment 

option for D.D. at this time and that she could probably be considered for release within two to 

three weeks of beginning medication.

On cross examination, Dr. Bouchat explained that Dr. Guidry probably obtained the 

information that she jumped in front of cars from police records. He also stated that he had no 

knowledge of D.D. assaulting anyone while at the hospital.

D.D. testified, describing her various physical ailments. She stated that the police gave her a 

concussion. She claimed to have been walking on her own property, which she does every morning 

at 5:30, and denied that there were any cars nearby. She explained that she has three homes, one in 

Arizona, one in California, and one in Texas. She testified that she has been an attorney for twentyfive years. When asked if her license was still in effect, she responded,

Yes, it’s in excellent standing. I’ve been at it for 25 years in the world and the case that’s 

been pending about all this –– and this gentleman knows it from the last time I was here –– is Rowe v. 

State, et al, about the entire thing about me being this and me being that and all these people are 

involved and they know about information that they refused to mail, that they refused to admit to 

because they don’t want to lose their licenses and they don’t want to lose their credibility, but it’s 

okay to destroy mine.

The trial court rendered an order for temporary inpatient mental health services after 

determining that D.D. is mentally ill, likely to cause serious harm to herself, and is suffering severe 

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

deterioration of her ability to function independently, which is exhibited by her inability to provide 

for her basic needs, and that she is unable to make a rational and informed decision as to whether or 

not to submit to treatment. 

The trial court immediately held the medication hearing. Dr. Bouchat testified as to the need 

for an order to administer medication. He explained that the requested medications would not 

conflict with the aspirin regimen she is on and he would monitor her closely for adverse side 

effects. D.D. testified, complaining that her Sixth Amendment right to counsel had been violated. 

She stated that she is not willing to take medication because she thinks it is dangerous. The court 

granted the State’s application for an order to administer psychoactive medication. It rendered an 

order authorizing the State to administer certain medication to D.D. during her stay at Rusk State 

Hospital.
4

SUFFICIENCY OF THE EVIDENCE

In her first issue, D.D. asserts the evidence is legally and factually insufficient to support the 

order of commitment. She contends that the State did not prove by clear and convincing evidence 

that she committed an overt act or exhibited a continuing pattern of behavior tending to confirm 

either the likelihood of serious harm to herself or her inability to care for herself. She argues there 

is no factual basis, only speculation by Dr. Bouchat.

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 we 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.

In addressing a factual sufficiency of the evidence challenge, we must consider all the 

evidence in the record, both that in support of and contrary to the trial court’s findings. In re C.H., 

89 S.W.3d 17, 27-29 (Tex. 2002). This court must give due consideration to evidence that the 

factfinder could reasonably have found to be clear and convincing. Id. at 25. We must determine 

whether the evidence is such that a factfinder could reasonably form a firm belief or conviction 

about the truth of the State’s allegations. Id. We must consider whether disputed evidence is such 

that a reasonable trier of fact could not have reconciled that disputed evidence in favor of its 

finding. In re J.F.C., 96 S.W.3d at 266. Appellate courts retain deference for the constitutional 

roles of the factfinder. In re C.H., 89 S.W.3d at 26. The trier of fact is the exclusive judge of the 

credibility of the witnesses and the weight to be given their testimony. See id. at 27; In re J.J.O., 

131 S.W.3d 618, 632 (Tex. App.–Fort Worth 2004, no pet.).

Applicable Law

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

mental health services if the judge or jury finds, from clear and convincing evidence, that the 

proposed patient is mentally ill and, as a result of the mental illness she is likely to cause serious 

harm to herself, is likely to cause serious harm to others, or is (i) suffering severe and abnormal 

mental, emotional, or physical distress, (ii) experiencing substantial mental or physical deterioration 
5

of her ability to function independently, which is exhibited by her inability, except for reasons of 

indigence, to provide for her 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. TEX. HEALTH 

& SAFETY CODE ANN. § 574.034(a) (West 2010). To be clear and convincing under the statute, 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 either the 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. § 574.034(d) (West 2010).

Discussion

The State provided expert testimony explaining that D.D. is mentally ill and describing an 

overt act by D.D. She was walking near moving vehicles at 5:30 in the morning, and it was 

reported that she had intentionally jumped in front of traffic in a suicide attempt. D.D. argues that 

the record does not show when this happened. However, Dr. Bouchat specifically stated that it was 

this act that led to this hospitalization. D.D. argues there is no evidence of the factual basis of the 

allegation that she attempted suicide. The record shows that D.D. was picked up by police because 

she was walking near traffic at 5:30 a.m. Dr. Bouchat explained that Dr. Guidry had access to the 

police records explaining why they picked her up. Further, the trial court could have determined 

that D.D. walked in front of traffic without determining that she was attempting suicide. Even in 

the absence of attempted suicide, that is an overt act tending to confirm the likelihood of serious 

harm to D.D. 

The record also supports the trial court’s finding that there has been a deterioration of D.D.’s 

ability to function. She exhibited disorganization of thinking, bizarre gesturing, and was 

hyperkinetic. She was irritable, uncooperative, and in denial about her illness. Dr. Bouchat also 

described her as labile, preoccupied, and not connected with practical reality. She had no insight 

into the behaviors that led to her admission to the hospital. This is evidence of D.D.’s distress and 

the deterioration of her ability to function. Thus, the evidence is legally sufficient to support the 

trial court’s order. See In re J.F.C., 96 S.W.3d at 266.

In addressing D.D.’s factual sufficiency complaint, we consider the evidence the factfinder 

could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. D.D. 

admitted taking a walk at 5:30 a.m. and having some sort of altercation with police. Further, her 

testimony was largely nonresponsive and indicated a lack of rationality. In light of the entire 

record, we cannot say that the trial court could not reasonably form a firm belief or conviction that 
6

D.D. committed an overt act and is distressed and her ability to function has deteriorated, thereby 

requiring inpatient mental health services. See id. Thus, the evidence is factually sufficient to 

support the trial court’s findings. We overrule D.D.’s first issue.

CONSTITUTIONAL VIOLATIONS

In her second and third issues, D.D. contends the trial court erred in rendering judgment in 

violation of state and federal guarantees of due process. She asserts that certain terms found in 

Section 574.034 of the Health and Safety Code are overly broad, vague, and ambiguous, making it 

violative of the due process clause of each constitution. In her fourth and fifth issues, D.D. argues 

that application of Section 574.034 results in a violation of her right to equal protection under both 

the state and federal constitutions.

In order to present an issue for appellate review, the record must show that a complaint was 

made to the trial court by a timely request, objection, or motion. TEX. R. APP. P. 33.1(a)(1). This 

requirement applies to constitutional claims a party wishes to raise on appeal. Dreyer v. Greene, 

871 S.W.2d 697, 698 (Tex. 1993). D.D. did not raise these constitutional complaints in the trial 

court. Therefore, D.D. has not preserved these complaints for review. Id. We overrule D.D.’s 

issues two, three, four, and five.

DISPOSITION

The evidence is legally and factually sufficient to support the trial court’s order for 

temporary inpatient mental health services. D.D.’s constitutional complaints have not been 

preserved.

We affirm the trial court’s order for temporary inpatient mental health services. 

BRIAN HOYLE

 Justice

Opinion delivered July 10, 2013.

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

(PUBLISH)
7

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 10, 2013

NO. 12-12-00220-CV

THE STATE OF TEXAS FOR THE BEST

INTEREST AND PROTECTION OF D.D.

 

 

 Appeal from the County Court at Law

 of Cherokee County, Texas. (Tr.Ct.No. 39,858)

 

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

herein, and the same being considered, it is the opinion of this court that there was no error in the

trial court’s order.

It is therefore ORDERED, ADJUDGED and DECREED that the trial 

court’s order for temporary inpatient mental health services be affirmed, 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.