COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THE STATE OF TEXAS

FOR THE BEST INTEREST

AND PROTECTION OF A.R.C. §

§

§

§

§ No. 08

- 22

- 00149

- CV

Appeal from the

Probate Court No. 2

of El Paso County, Texas

(TC# 2022

- CMH00771)

MEMORANDUM OPINION

This case returns to us on remand from the Texas Supreme Court. On original submission,

we vacated the probate court ’ s order committ ing Appellant A.R.C. for temporary inpatient mental

health treatment. 1 State for A.R.C.

, 657 S.W.3d 585, 595 ( Tex. App.

— El Paso 2022)

, rev ’ d and

remanded sub nom. In re A.R.C

., 685 S.W.3d 80 ( Tex. 2024)

. Based on our earlier disposition of

the appeal, we only reached the first of A.R.C. ’ s two issue s challenging the commitment order.

However , t he Texas Supreme Court reversed our judgment and remanded the cause to this Court

for us to consider A.R.C. ’ s second issue on appeal

. I d. at 86

. In that issue

, A.R.C. challenges the

1 A.R.C. initially brought two issues on appeal. Our ruling on the first issue disposed of the appeal without need to

reach the second issue. A.R.C. challenged the qualifications of the two physicians who had filed certified medical

examinations (CMEs) in support of the State ’ s application for court

- ordered inpatient treatment. See Tex. Health &

Safety Code Ann. § 574.009(a) (providing that, in counties where a “ psychiatrist ” is available, that a “ psychiatrist ”

must complete at least one of two required “ certificates of medical examination for mental illness. ” ). The Texas

Supreme Court reversed our judgment after it concluded the physicians at issue were qualified as “ psychiatrists ” within

the meaning of the applicable statute. In re A.R.C.

, 685 S.W.3d 80, 86 ( Tex. 2024)

.2

legal and factual sufficiency of the evidence support ing the probate court ’ s commitment order.

Finding no error, we affirm.



### P ROCEDURAL AND 

### F ACTUAL 

### B ACKGROUND

The State filed a motion for order of protective custody to detain A.R.C., a proposed

patient. Accompanying the motion, Ferney Paez, M.D., included an application for A.R.C. to

receive temp orary court

- ordered mental health services. T he application asserted that

, because of

mental illness

, A.R.C. : (1) was likely to cause serious harm to himself; (2) was likely to cause

serious harm to others; and (3) was experiencing severe and abnormal mental, emotional, or

physical distress, as well as substantial mental or physical deterioration of his ability to function

independently to provide for his basic needs

, and to make rational, informed decisions as to

whether or not to submit to treatment. The pleading was supported by two certificates of medical

examination ( CME s )

, the first signed by applicant, Dr. Paez, and the second signed by Roberto

Kutcher

- Diaz, M

. D. Dr. Paez certified he had diagnosed A.R.C. with bipolar disorder

accompanied by a current manic episode, while Dr. Kutcher

- Diaz certified he had diagnosed him

with bipolar disorder with psychotic features. In opposition, A.R.C. filed a motion to dismiss the

application

, asserting the statutory requirements for detaining A.R.C. and ordering services had

not been met.

The case proceeded to a final hearing held on A ugust 1, 2022

, which took place via Zoom

.

A.R.C. appeared along with his appointed attorney ad litem. The State called Dr. Kutcher

- Diaz

,

who testified he was a psychiatry resident working on the consult

- liaison service at UMC trauma

hospital. 2 Dr. Kutcher

- Diaz recommended A.R.C. ’ s commitment for inpatient treatment for a

2 At the start of testimony, A.R.C. ’ s attorney ad litem stipulated on the record that Dr. Kutcher

- Diaz was an expert in

clinical psychiatry.3

period not to exceed forty

- five d ays and forced medications

. The trial court asked A.R.C. whether

he agreed or disagreed

. A.R.C. responded that he disagreed.

Dr. Kutcher

- Diaz next provided testimony in support of his recommendation

. He noted that

A.R.C. had continued to present with “ psychotic symptoms. ” He also presented with tangential

,

disorganized speech

. Dr. Kutcher

- Diaz further described that A.R.C. had “ bizarre delusions

. ” For

example, A.R.C. had reported to him that he had an “ E

- ray in his chest

. ” As of that morning,

A.R.C. had made “ bizarre statement s, ” stating he did not “ need to be in the prison as a devil ; and

regarding his E

- Ray, saying that he would open himself up to us if we would help reorient it

. ”

Regarding treatment, Dr. Kutcher

- Diaz described that A.R.C. had felt he did not need

medications

. He so far had refus ed medications. Dr. Kutcher

- Diaz described that he had developed

a working diagnosis of bipolar disorder with psychotic features. He described the psychotic

features as stemm ing from A.R.C. ’ s disorganized speech and reporting of bizarre delusions

. He

noted, these features showed he was actively psychotic. Regarding delusions, Dr. Kutcher

- Diaz

testified : “ [A.R.C.] said that

. . . he ’ s followed by Cain, as in Cain and Abel

. ” Moreover, “ [h] e

would make statements saying that he doesn ’ t need to ma s ter manifest, that he just needs Adam

and Eve[.] ”

Dr. Kutcher

- Diaz further described that A.R.C. d id not have any insight into his mental

illness. He explained that a lack of insight of one ’ s own mental illness could affect a person ’ s

ability to understand what they we re going through

, which could cause a person to refuse

medication. In turn, the longer a person refuse d medication, the baseline of the mental illness

would progressively worse n

. Dr. Kutcher

- Diaz thus testified he was concern ed that

, if A.R.C. were

released without treatment, he would not be able to care for himself and he might act on his

delusions.4

Dr. Kutcher

- Diaz described that he also relied on A.R.C. ’ s medical record s in forming his

opinion

. On arrival at the hospital, the records indicated that A.R.C. complained he was

dehydrated. At first

, A.R.C. said he had been walking for days or for a week

. Yet, prior to the

hearing, A.R.C. described that “ he was getting hydration for his feet and for his wings. ”

Dr. Kutcher

- Diaz said the timeline of A.R.C. ’ s condition remained unclear due to the difficulty he

encountered in obtaining a reliable history from him. He attributed the difficulty to A.R.C. ’ s level

of psychosis and his disorganized th inking

.

For example, A.R.C. first said he was trying to get in touch with his family. But m ore

recently he said he did not want anyone calling his family. Dr. Kutcher

- Diaz did not know whether

A.R.C. had a support system

. And no information was known about his living conditions

. A.R.C.

only reported that he had been walk ing from place to place. Dr. Kutcher

- Diaz believed that A.R.C.

was currently experiencing severe physical, emotional, and psychological distress. As a result, he

believed A.R.C. was not able to function independently

. A.R.C. ’ s treatment records noted he had

needed medication for agitation

.

On cross

- examination, Dr. Kutcher

- Diaz confirmed that A.R.C

. had initially sought

medical care for an injury to his foot when he first arrived at the hospital

. He further confirmed

that, as far as he knew, A.R.C. ha d n ot been violent towards himself or to others. When asked to

elaborate on what “ overt action ” had reflected that A.R.C. was a danger to himself, Dr. Kutcher

Diaz explained:

It ’ s the fact that he has poor insight into his mental illness and has poor insight into

even the situations that occurred that brought him to the hospital. So [,] if he says

that he ’ s been walking for days and days and has no real explanation for it, then

that tells me that if he were to get discharged, then more than likely he would

deteriorate to the point that he would be at risk of harm to himself.5

Dr. Kutcher

- Diaz explained that overt acts could be shown through A.R.C. ’ s delusions and his

express ed intent to act on them. Dr. Kutcher

- Diaz repeated that A.R.C. had stated he ha d “ an E

ray in his chest ” and he asked staff whether they want ed “ to open it to reorient it [.] ” Dr. Kutcher

Diaz described that if A.R.C. were “ to open himself up ” he would bleed out if not in a medical

setting. Finally, the trial court asked Dr. Kutcher

- Diaz, in his medical opinion, if A.R.C. is released,

could he “function and take care of himself outside in the real world?” Dr. Kutcher

- Diaz responded

“No.”

In addition to the doctor ’ s testimony, A.R.C. also testified at the hearing. During

questioning, t he following dialogue ensued:

THE STATE: How are you feeling []?

A.R.C.: Needing a shower and some change of clothes.

THE STATE: Okay. And do you recall why you were brough t into the hospital?

A.R.C.: I do. Brought myself. I was brought in by myself. I walked in here by

myself.

THE STATE: And why is it that you were walking for a couple of days?

A.R.C.: I don ’ t have a car.

THE STATE: And where were you walking to and from?

A.R.C.: I was walking from detention

-- a facility from a trespassing zone, and I

went to the trespassing orient. And I went to go see if I can get a car, and I couldn ’ t,

so I had to stay walking from there.

THE STATE: Okay. I ’ m sorry. So if I understand correctly, you were at the jail

facility?

A.R.C.: I was a trespasser at my own grandparents ’ house.

THE STATE: Okay

. So you were at your grandparents ’ house without their

permission?

A.R.C.: No. I went to go drop off food.6

THE STATE: Okay. And you were trying to get their car?

A.R.C.: Did I say that?

. . .

THE STATE: And so, [A.R.C.], maybe this is a point of confusion because I ’ m

not understanding. So let ’ s start. You were at your grandparents ’ house?

A.R.C.: I wasn ’ t at my grandparents ’ house. I didn ’ t start with that.

THE STATE: Okay. Where were you?

A.R.C.: I was in my mother ’ s womb.

THE STATE: You were in your brother ’ s room?

A.R.C.: No. You can ’ t hear me. Do you want me to step up?

THE STATE: Oh, you were in your mother ’ s womb?

A.R.C.: I was in my mother ’ s womb.

THE STATE: Okay. And then what happened?

A.R.C.: What do you mean? I came out in this beautiful hospital.

Following the hearing, the trial court entered an order finding A.R.C

. was likely to cause

serious harm to himself and to others; that he was suffering severe and abnormal mental,

emotional, or physical distress ; that he was experiencing substantial mental or physical

deterioration of the ability to function independently; and that he was incapable of making a

rational and informed decision as to whether or not to submit to treatment. Consequently, the trial

court granted the application for temporary court

- ordered mental health services for a period of 45

days. 3 This appeal followed.

3 The trial court al so entered an order to administer psychoactive medications

, which we addressed in a separate appeal.

See State for A.R.C.

, 656 S.W.3d 396, 398 ( Tex. App.

— El Paso 2022, no pet.)

. There, we reversed the trial court ’ s

order, holding it was null and void because the contemporaneous order for temporary mental health services was

invalid. Id. The State did not seek review of that decision by the Texas Supreme Court. Accordingly, we do not address

here the trial court ’ s order to administer psychoactive medications.7 

### D ISCUSSION

A.R.C. contends the evidence in the record is legally and factually insufficient to support

by clear and convincing evidence the statutory grounds of danger to self

, danger to others

, or

deterioration. See Tex. Health & Safety Code Ann. § 574.03 4 (a)(1)

– ( 2 )

.

A. Applicable law

Section 574.034 of the Texas Health and Safety Code is titled

, “ Order for Temporary

Inpatient Mental Health Services

. ” In relevant part, this provision states as follows :

(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 a person with mental illness;

(2) as a result of that mental illness the proposed patient:

(A) is likely to cause serious harm to the proposed patient;

(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;

Tex. Health & Safety Code Ann. § 574.03 4 (a)(1)

– ( 2 )

. If the trial court finds that the proposed

patient meets subsection (a) ’ s criteria, the court must specify which criterion forms the basis for

the decision.

Additionally, § 574.03 4 ( d ) provides:

(d) To be clear and convincing under Subsection (a), the evidence must include

expert testimony and 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; or8 (2) the proposed patient ’ s distress and the deterioration of the proposed

patient ’ s ability to function.

Id. § 574.03 4 ( d )

.

B. Standard of r eview

The State bears the burden of establishing by clear and convincing evidence the statutory

requisites for a commitment order. See Tex. Code Crim. Proc. Ann. art. 46B.102(b) ; Tex. Health

& Safety Code Ann. § 574.03 4 ; State v. K.E.W.

, 315 S.W.3d 16, 20 ( Tex. 2010)

. Clear and

convincing evidence is defined as “ 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 burden of proof is clear and convincing.

See In re J.F.C.

, 96 S.W

. 3d 256, 264

– 65 ( Tex. 2002) ; see also Sw. Bell 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

fact

- finder could have formed a firm belief or conviction that the finding was true. See In re J.F.C.

,

96 S.W.3d at 266

. We resolve disputed fact questions in favor of the finding if a reasonable fact

finder could have done so, and we disregard all contrary evidence unless a reasonable fact

- finder

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

.

I n determining whether the evidence is factually sufficient to establish the required

elements by clear and convincing evidence, we must determine whether the evidence permits a

fact

- finder to reasonably form a firm belief or conviction about the truth of the State ’ s allegations.

In re J.F.C.

, 96 S.W.3d at 266 ; In re C.H.

, 89 S.W.3d 17, 25 (Tex. 2002)

. In a factual sufficiency9

review, a court of appeals must give due consideration to evidence that the fact

- finder could

reasonably have found to be clear and convincing. In re J.F.C.

, 96 S.W.3d at 266

. In contrast with

legal sufficiency review, our focus is not simply upon the undisputed evidence that supports the

verdict, but the disputed evidence as well. I d. at 266

. We must consider whether disputed evidence

is such that a reasonable fact

- finder could not have resolved that disputed evidence in favor of its

finding. Id. If, in light of the entire record, the disputed evidence that a reasonable fact

- finder could

not have credited in favor of the finding is so significant that a fact

- finder could not reasonably

have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

C. Analysis

(1) The trial court ’ s judgment

As a result of A.R.C. ’ s mental illness, the trial court ’ s judgment concluded that : (1) he is

likely to cause serious harm to self, (2) he is likely to cause serious harm to others, and (3) if not

treated, he will continue to suffer severe and abnormal mental, emotional or physical distress and

will continue to experience deterioration of the ability to function independently and is unable to

make a rational and informed decision as to whether or not to submit to treatment. To this extent,

the judgment determined that A.R.C. ’ s condition met all three of the criteria included in

§ 574.03 4 (a)(1)

– ( 2 )

.

Proceeding i n reverse order, we begin our review by focusing on the third criteria

authorizing court

- ordered inpatient mental health treatment, or § 574.03 4 (a)(2) (C) (i)

– (iii)

.

(2) Distress, d eterioration, and m edical d ecision

– m aking

A proposed patient may be committed for treatment based on the “ deterioration ground. ”

See St ate ex rel. D.L.S.

, 446 S.W.3d 506, 517 ( Tex. App.

— El Paso 2014, no pet.)

. To prevail on

this ground, the State must show that the proposed patient is:

(i) suffering severe and abnormal mental, emotional, or physical distress;10

(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.

Tex. Health & Safety Code Ann. § 574.034(a)(2)(C)

. “ [T] he State must prove all three subpart

conditions are met before the trial court may order involuntary commitment on this ground. ” State

ex rel. D.L.S.

, 446 S.W.3d at 518

. Here

, A.R.C. does not contest his diagnosis of mental illness.

As for the first of the three subparts, h e neither contests that he suffered from severe and abnormal

mental, emotional or physical distress. Tex. Health & Safety Code Ann. § 574.034(a)(2)(C)(i)

. To

this extent, then, the center of th is dispute centers on the second and third elements, or subparts

(ii) and (iii) of § 5 74.034(a)(2)(C)

.

Re cord evidence established that A.R.C. went to the hospital

, on his own, reporting he felt

dehydrated

, and he sustained a foot injury

. Once there, he told his treating physician that he had

been walking in the El Paso heat for several days. Dr. Kutcher

- Diaz testified that

, if A.R.C.

continued walking for days at a time, h e could be at risk of harm if left without food or water.

Dr. Kutche r

- Diaz also testified that A.R.C. expressed delusions that he had an “ E

- Ray ” device in

his chest and

, he offered

, they could open his chest if they desired

. A.R.C. also reported other

delusions, biblical in nature. If left untreated, Dr. Kutcher

- Diaz noted the delusions could cause

A.R.C. harm should he decide to act on them. Dr. Kutcher

- Diaz also believed that A.R.C. could

not care for himself if released from inpatient care at that point.

Relying on this Court ’ s precedent, the State argues the evidence is sufficient to support

temporary court

- ordered inpatient mental health treatment

. See State ex rel. R.P.

, 511 S.W.3d 71,

77 ( Tex. App.

— El Paso 2014, no pet.)

. In State ex rel. R.P.

, the expert psychiatrist testified that11

the patient

, R.P., was diagnosed with schizophrenic disorder and a possible cognitive disorder. Id.

at 74

. The doctor further described that R.P. ’ s mental illness caused him to have disorganized

thinking

. Id. at 77

. As a result, R.P. was unable to make the decisions necessary to ensure his own

safety. Id. In discussing the events leading up to the State ’ s request, the doctor testified that the

patient was wandering on foot at a park on the outskirts of El Paso. Id. He noted that R.P. reported

he “ wanted to see the desert and perhaps travel to Brownsville [

, ] ” but he did not know where he

was or which direction he traveled. Id. Additionally, R.P. did not have any food or water with him

at the time

. Id. When h e began experiencing heart palpitations

, he was transported by ambulance

to the hospital. Id. Based on his examination and reported history

, the doctor testified that he

believed that R.P. remained “ at risk of getting lost and dying of dehydration or starvation , and

without treatment

, he [would be] at high risk of his mental disorder getting worse.” Id. at 74. The

doctor believed R.P. “could not provide for his basic needs of food, water, and safety as a direct

result of severely disorganized thinking.” Id. at 79.

Based on the record e vidence, t his Court held that the evidence was sufficient for the

probate court to conclude that the patient

, as a result of his mental illness, wa s likely to cause

serious harm to himself

. Id. The decision further detailed that the patient was unable to support

himself and remained homeless. Id. at 79

. Evidence also showed th e patient had voluntarily left a

shelter before embarking on a journey without basic necessities such as food and water

. Such

conduct was attributed to his severe disorganized thinking. Id. Lastly, the record demonstrated the

patient could not logically answer questions that were put to him. Id. For these reasons, the Court

held there was sufficient evidence for the trial court to find

, by clear and convincing evidence

, that

the patient was : (1) experiencing substantial mental or physical deterioration of his ability to

function independently

, which was exhibited by his inability to provide for his basic needs,12

including food, clothing, health, or safety ; and (2) he was not able to make a rational and informed

decision on whether or not to submit for treatment. Id. at 79

– 80

. Relying on that precedent, and

b ecause A.R.C. similarly showed signs of dehydration

, disorganized thinking, and a lack of ability

to care for himself

, the State contends the re was sufficient evidence here to support the trial court ’ s

commitment order based on deterioration

.

Opposing, A.R.C. asserts the facts in State ex. rel. R.P. are distinguishable

. Rather, A.R.C.

contends : (1) there was evidence that A.R.C. was walking because he did not have a vehicle

, not

that he had planned to walk to another city ; (2) there was no evidence that A.R.C. was in poor

physical condition ; (3) that A.R.C. mentioned he had grandparents, and (4) that A.R.C. went to the

hospital on his own to seek medical treatment for his injured foot. Based on these distinctions,

A.R.C. argues his case is more similar to a nother precedent of this Court. See State ex rel. D.L.S.

,

446 S.W.3d at 518

. I n State ex. rel. D.L

. S.

, this Court concluded that, although the patient had

bipolar disorder and exhibited severe mental, physical, or emotional distress, there was no

evidence that his ability to care for himself ha d deteriorated from his diagnosis. Id. There

, the

record included evidence that the patient provided his own shelter by “ car camping ” in his vehicle,

used his social security disability money to procure food and supplies, and showered at local g yms

and campgrounds. Id. The Court thus determined that the only deterioration shown by the State

was caused by appellants physical injury and not his mental illness. Id. In State ex rel. D.L.S

. , the

proposed patient also provided his consent to emergency surgery and explained his reason s for

refusing certain medications. Id. Additionally, he had represented himself at trial

, largely pro se

,

and asked mostly relevant questions

, successfully bringing out information beneficial to his case

.

Id. at 519

.13

After reviewing both precedents, w e disagree with A.R.C. ’ s contention that his case falls

in line with State ex rel. D.L.S. Rather, in this instance the trial court heard Dr. Kutcher

- Diaz ’ s

testimony describing A.R.C. ’ s expressed delusions and disorganized thinking

. For example,

A.R.C. mentioned he had “ an E

- ray ” in his chest that could be opened and reoriented ; he believed

he could hydrat e from his “ feet and wings ; ” and he brought up certain biblical delusions. From

th ese conditions

, and because A.R.C. could not clearly explain why he had been walking for days

or weeks in excessive heat, Dr. Kutcher

- Diaz opined that A.R.C. lacked insight into his mental

illness to such a degree that he could not properly care for his basic needs. Having viewed the

record as a whole, we conclude the evidence is both legally and factually sufficient to support the

trial court ’ s findings that the criteria of § 574 .034(a)(2)(C) was met. Because § 574.034(a)(2) lists

the statutory grounds of (A), (B), and (C) in the disjunctive

, we need not address grounds (A) and

(B)

. Tex. R. App. P. 47.1

.

We overrule A.R.C. ’ s sole remaining issue on appeal.



### C ONCLUSION

We affirm the trial court ’ s order temporarily committing A.R.C. for temporary inpatient

mental health treatment.

GINA M. PALAFOX, Justice

Ju ly 18

, 2024

Before Alley, C.J., Palafox and Soto, JJ.