# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 04

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- CV The STATE of Texas for the Best Intere st and Protection of G.O.R . Jr., a Mentally Ill Person From the Probate Court No
. 1, Bexar County, Texas Trial Court No. 2015

- MH

- 0403 Honorable Kelly Cross, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Delivered and Filed: June 19, 2015 REVERSED AND RENDERED Appellant G.O.R. was committed to the San Antonio State Hospital for the purpose of attaining competency to stand trial. While G.O.R. was committed, the trial cour t granted the State’s application for an order to authorize psychoactive medication. On appeal, G.O.R. argues

— and the State concedes

— the evidence is legally and fac tually insufficient under the statutory provision on wh ich the trial court relied. We also agree ; w e reverse the trial court’s order authorizing psychoactive medication and render judgment denying that application. B ACKGROUND G.O.R. was determined to be incompetent to stand trial by a Victoria County district court. The district court order ed G.O.R. committed to the San Antonio State Hospital for the purpose of attaining competency to stand trial. While G.O.R. was committed, he was treated by Dr. Vicky04

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- Litton, a hospital psychiatrist. At the hearing on the State’s application, Dr. Litton testified she
was G.O.R. ’s treating physician, and she had diagnosed him as having a psychotic disorder, not otherwise specified. She testified several times that G.O.R. was not a danger to himself or others, and G.O.R. “has not created any beh avioral difficulty whatsoever since he’s been here.” G.O.R. testified that he does not believe he is mentally ill, he has never had a previous diagnosis of mental illness, he has attended competency restoration classes at the hospital, and he wants to ret urn to Victoria County to address the criminal complaint. The trial court granted the State’s application and issued the order. G.O.R. appeals. A UTHORITY TO C OMPEL P SYCHOACTIVE M EDICATION A court may issue an order to compel psychoactive medications whil e the patient is awaiting trial in a criminal proceeding. T EX . H EALTH & S AFETY C ODE A NN . § 574.106 (West 2010 ) ; State ex rel. E.G. , 249 S.W.3d 728, 730 (Tex. App.

— Tyler 2008, no pet.) ; see In re E.T. , 137 S.W.3d 698, 699 (Tex. App.

— San Antonio 2004, no pe t.) . The relevant portion of the authorizing statute reads as follows: (a

- 1) 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 juris diction over the patient, that treatment with the proposed medication is in the best interest of the patient and either: (A) the patient presents a danger to the patient or others in the inpatient mental health facility in which the patient is being treate d as a result of a mental disorder or mental defect as determined under Section 574.1065; or (B) the patient: (i) has remained confined in a correctional facility, as defined by Section 1.07, Penal Code, for a period exceeding 72 hours while awaiting trans fer for competency restoration treatment; and04

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- (ii) presents a danger to the patient or others in the correctional facility as a result of a mental disorder or mental defect as determined under Section 574.1065. T EX . H EALTH & S AFETY C ODE A NN . § 574.106 (a

- 1) ; see E.G. , 249 S.W.3d at 730 ; see also Staley v. State , 420 S.W.3d 785, 799 (Tex. Crim. App. 2013) ; R.M. v. State ex rel. Travis Cnty
. Att ’ y , No. 03

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- 00317

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– 5 (Tex. App.

— Austin Sept. 26, 2008, no pet.) (mem. op.)
. If the fact

- finder makes such findings, the patient may challenge the sufficiency of the evidence pertaining to the findings. See E.G. , 249 S.W.3d at 730
. S TANDARD OF R EVIEW

“ In evaluating evidence for legal sufficiency under a clear and convincing standa rd, we review all the evidence in the light most favorable to the finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true.” State v. K.E.W. , 315 S.W.3d 16, 20 (Tex. 2010) (citing In re. J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002) ); see City of Keller v. Wilson , 168 S.W.3d 802, 817, 827 (Tex. 2005). We must “resolve disputed fact questions in favor of the finding if a reasonable factfinder could have done so, and we disregard all contrary evid ence unless a reasonable factfinder could not have done so.” K.E.W. , 315 S.W.3d at 20; accord City of Keller , 168 S.W.3d at 817. “ If, after conducting [our] legal sufficiency review of the record evidence, [we] determine [] that no reasonable factfinder c ould form a firm belief or conviction that the matter that must be proven is true, then [we] must conclude that the evidence is legally insufficient .” In re J.F.C. , 96 S.W.3d at 266; accord J.M. v. State , 178 S.W.3d 185, 192 (Tex. App.

— Houston [1st Dist.] 2005, no pet.) (quoting In re J.F.C. ). I NSUFFICIENT E VIDENCE In its order to compel psychoactive medications while awaiting trial in a criminal proceeding, the trial court cited and relied on Texas Health and Safety Code section 574.106 as its authority to issue the order. It found , inter alia, that G.O.R. “presents a danger to [himself] or04

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- others in the inpatient mental health facility in which [G.O.R.] is being treated as a result of a ment al disorder or mental defect as determined under Texas Health and Safety Code Section 574.1065. ” See T EX . H EALTH & S AFETY C ODE A NN . § 574.106(a

- 1) (2)(A) ; E.G. , 249 S.W.3d at 730
. At the hearing, only two witnesses testified: Dr. Litton and G.O.R. Dr. L itton testified several times that G.O.R. was not a danger to himself or others, and G.O.R. “has not created any behavioral difficulty whatsoever since he’s been here.” G.O.R. testified “ I’ ve never been disruptive to any civilians or society.” Neither witness testified that G.O.R. was a danger to himself “ or others in the inpatient mental health facility in which [G.O.R.] is being treated .” Contra T EX . H EALTH & S AFETY C ODE A NN . § 574.106(a

- 1)(2)(A); E.G. , 249 S.W.3d at 730
. In fact, b oth testi fied to the contrary. Having reviewed the evidence in the light most favorable to the trial court’s ruling, see K.E.W. , 315 S.W.3d at 20 , we agree with G.O.R. and the State that there is no evidence that G.O.R. was a danger to himself or others , and the trial court could not have found by clear and convincing evidence that he was. T he evidence is legally insufficient

— and thus also factually insufficient

— to support an essential statutory element required to order psychoactive medications
. See T EX . H EALTH & S AFETY C ODE A NN . § 574.106(a

- 1)(2)(A); E.G. , 249 S.W.3d at 730
. C ONCLUSION W e reverse the trial court’s order to compel psychoactive medication and render judgment denying the State’s application for an order to compel psychoactive medication. Patricia O. Alvarez, Justice