In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-13-00023-CV

THE STATE OF TEXAS FOR THE BEST INTEREST 

AND PROTECTION OF S.K.

On Appeal from the County Court at Law

Cherokee County, Texas

Trial Court No. 40233

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Carter
2

MEMORANDUM OPINION

S.K. was ordered to undergo temporary inpatient mental health treatment at Rusk State 

Hospital. On appeal1 from this involuntary commitment, S.K. argues that the evidence was 

legally and factually insufficient to support the judgment, which was issued on the court’s 

finding that S.K. was likely to cause serious harm to himself. We agree with S.K. and reverse 

the trial court’s judgment. 

Pam Mumphrey filed an application for temporary court-ordered mental health services 

for S.K. after he allegedly threatened suicide. Dr. Stephen Poplar, M.D., filed a physician’s 

certificate of medical examination for mental illness in support of the application after evaluating 

S.K. Poplar described S.K. as “suicidal” because he “told MHMR [(Mental Health Mental 

Retardation)] hotline he wanted to bash his head into a wall” and “complain[ed] of multiple 

stressors contributing to his recent mood states.” S.K. confessed that “he was very depressed.”

In the certificate, Poplar diagnosed S.K. with bipolar and anxiety disorders and determined that 

S.K. was likely to cause serious harm to himself. 

Dr. Robert Bouchat, M.D., also examined S.K. and filed a physician’s certificate of 

medical examination for mental illness. In the certificate, Bouchat likewise determined that S.K. 

suffered from bipolar disorder. Bouchat wrote that S.K. “admit[ted] to being in [a] recent manic 

state and feeling that he wanted to bash his head into a wall,” “admit[ted] to being . . . manic and 

needing prompt med[ical] treatment,” was “frequently irritated with peers,” “t[ook an] inordinate 

 1

Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme 

Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are 

unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant 

issue. See TEX. R. APP. P. 41.3.
3

amount of time in responding to simple, direct questions,” and was “impatiently demanding to be 

discharged.”

At a hearing on March 5, 2013, the trial court heard the testimony of Bouchat and S.K.2

Bouchat testified that S.K. suffered from bipolar disorder. Although S.K. did not make a 

statement about suicide to Bouchat, he “admitted to having had suicidal thoughts before he came 

here.” Bouchat explained, “There was a pattern for symptoms that was apparently prompted 

primarily by his entering into a homeless state and subsequently becoming suicidal and feeling a 

resurgence of manic symptoms, which he told me when I spoke with him he felt needed 

treatment.” S.K. had previously “been seen at the Tri-County MHMR for treatment.” Bouchat 

did not recommend outpatient treatment because “[S.K.] may [still be] manic to the point where 

he’s not very well able to deal with delay or frustration of impoliteness on the outside and 

become demanding and thwart his own best interest.” Bouchat added, “It appears that [S.K.] had 

a significant degree of irritability and impatience and manic symptoms right now that would 

warrant a little bit more time in the hospital.” 

During cross-examination, Bouchat admitted that S.K.’s symptoms of irritability and 

impatience could also be related to his presence in the hospital. He testified, “At this point I 

believe his suicidal thinking has resolved.” Bouchat also stated, “I don’t think he had any 

particular plan worked out or had been on the verge of actually harming himself.” He testified 

that certain members of the Rusk State Hospital staff felt that S.K.’s prior claim of suicide was 

 2

The trial court took testimony at a prior probable cause hearing, and Hearing Officer Cheryl Martin noted in the 

record that S.K. “stated [he] was physically emotional and sexual abuse from stepfather & a recent visit home 

brought back memories of the abuse.” 
4

made simply for the purpose of receiving treatment. Bouchat also optimistically stated, “I would 

hope we could give serious consideration to discharging [S.K.] as early as this week.”

S.K. testified that he “was told by MHMR that the only way that [he] would be able to 

receive medication was under the condition that suicidal gestures be made.” S.K. stated that he 

“told them that [he] was frustrated to the point that [he] just felt like bashing [his] head into a 

wall. It was not in any way intended as a suicidal statement. It was interpreted that way because 

it was required that suicidal gestures be made in order to be admitted to an inpatient facility.” 

S.K. testified that he was living with his parents who were “waiting impatiently for [him] to get 

home,” had a job lined up at Walmart, and had arranged for outpatient treatment. S.K. assured 

the court that he would continue to seek treatment, and Bouchat testified that S.K. “c[ould] make 

that decision rationally” as to whether to submit to treatment. After hearing the testimony, the 

trial court committed S.K. to temporary inpatient mental health treatment. 

S.K. believes this evidence was insufficient to support his involuntary commitment. “[A] 

State cannot constitutionally confine without more a nondangerous individual who is capable of 

surviving safely in freedom by himself or with the help of willing and responsible family 

members or friends.” State ex rel S.W., 356 S.W.3d 576, 579 (Tex. App.—Texarkana 2011, no 

pet.) (citing O’Connor v. Donaldson, 422 U.S. 563, 576 (1975)). “The requirements for an 

involuntary commitment are strict because an involuntary commitment is a drastic measure.” 

Id.; see In re Interest and Protection of C.O., 65 S.W.3d 175, 182 (Tex. App.—Tyler 2001, no 

pet.); In re Breeden, 4 S.W.3d 782, 789 (Tex. App.—San Antonio 1999, no pet.). “The 
5

evidentiary standards for involuntary commitment are high.” State ex rel. E.E., 224 S.W.3d 791, 

794 (Tex. App.—Texarkana 2007, no pet.).

In reviewing legal sufficiency, we analyze ‘“whether the evidence at trial would enable 

reasonable and fair-minded people to reach the verdict under review.”’ State ex rel. L.T., 386 

S.W.3d 271, 274 (Tex. App.—Texarkana 2012, no pet.) (quoting Williams v. Nationstar Mortg., 

349 S.W.3d 90, 92–93 (Tex. App.—Texarkana 2011, pet. denied) (citing City of Keller v. 

Wilson, 168 S.W.3d 802, 827 (Tex. 2005))). We are to consider all of the evidence in the light 

most favorable to the verdict, indulging every reasonable inference that would support it. Id. 

(citing Wilson, 168 S.W.3d at 822). The fact-finder is the only judge of witness credibility and 

weight to give to testimony. Id. We ‘“cannot substitute [our] judgment for that of the trier-offact, so long as the evidence falls within this zone of reasonable disagreement,”’ but when the 

evidence allows only one inference, ‘“the reviewing court may [not] disregard it.”’ Id. (quoting 

Wilson, 168 S.W.3d at 822). 

In reviewing factual sufficiency challenges, we review all the evidence in the record, both 

in support of and contrary to the trial court’s findings. Id. (citing State ex rel. L.H., 183 S.W.3d 

905, 910 (Tex. App.—Texarkana 2006, no pet.); In re C.H., 89 S.W.3d 17, 27–29 (Tex. 2002)). 

‘“Under the clear and convincing standard, we determine whether the evidence is such that the 

trier of fact could reasonably form ‘a firm belief or conviction’ as to the truth of the allegations 

sought to be established by the State.”’ Id. (quoting L.H., 183 S.W.3d at 910.) We consider 

whether the disputed evidence is such that a reasonable trier of fact could not have reconciled 
6

that disputed evidence in favor of its finding. Id.; see In re J.F.C., 96 S.W.3d 256, 266 (Tex. 

2002).

A court may order a proposed patient to receive temporary inpatient mental health 

services only if the fact-finder concludes from clear and convincing evidence that the proposed 

patient is mentally ill and also meets at least one of the additional criteria set forth in Section 

574.034(a) (2):

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

(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 

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) (West 2010). 

The trial court’s finding was based solely on the belief that S.K. was a danger to himself 

under Section 574.034(a) (2) (A).3 

In this involuntary commitment proceeding, the State had the burden of establishing that 

S.K. was likely to cause serious harm to himself by clear and convincing evidence. L.H., 183 

S.W.3d at 909. To be clear and convincing, the evidence must include expert testimony. TEX.

HEALTH & SAFETY CODE ANN. § 574.034(d) (West 2010). 

 3

S.K. does not challenge the finding that he was mentally ill. 
7

The evidence established that S.K. was irritable, impatient, and depressed as a result of 

bipolar disorder. Evidence of psychosis, hallucinations, or delusions, without more, cannot 

justify involuntary commitment. S.W., 356 S.W.3d at 579, 583; State ex rel. C.B., No. 12-11-

00089-CV, 2011 WL 3918686, at *3 (Tex. App.—Tyler Sept. 7, 2011, no pet.) (mem. op). 

While Bouchat specifically testified during direct examination that he believed S.K. was likely to 

harm himself, an expert diagnosis, without more, is insufficient to confine a patient for 

compulsory treatment, and the State must present evidence of the behavior of the proposed 

patient that provides the factual basis for the expert opinion. S.W., 356 S.W.3d at 583 (citing 

Mezick v. State, 920 S.W.2d 427, 430 (Tex. App.—Houston [1st Dist.] 1996, no writ); see C.B., 

2011 WL 3918686, at *3; E.E., 224 S.W.3d at 794; C.O., 65 S.W.3d at 181. 

Unless waived, the evidence must also include a recent overt act or a continuing pattern 

of behavior that tends to confirm the likelihood of serious harm to self. TEX. HEALTH & SAFETY 

CODE ANN. § 574.034(d) (1); State ex rel. E.R., 287 S.W.3d 297, 299 (Tex. App.—Texarkana 

2009, no pet.); see C.B., 2011 WL 3918686, at *3; E.E., 224 S.W.3d at 794. S.K. called the 

MHMR hotline to report thoughts of suicide. While Bouchat testified that there was a pattern of 

behavior caused by S.K.’s entry into a “homeless state,” he failed to describe a pattern of 

behavior relating to feelings of suicide as opposed to a pattern of behavior simply indicating 

mental illness. See S.W., 356 S.W.3d at 580 (“The expert should describe the patient’s specific 

behaviors on which his or her opinion is based.”); see C.B., 2011 WL 3918686, at *4.

“A threat of harm . . . must be substantial.” See E.R., 287 S.W.3d at 303; State ex rel. 

B.M., No. 12-04-00365-CV, 2005 WL 3489591, at *5 (Tex. App.—Tyler Dec. 21, 2005, no pet.) 
8

(mem. op). Evidence that a proposed patient might cause serious harm is insufficient. See E.R., 

287 S.W.3d at 305; State ex rel. L.C.F., 96 S.W.3d 651, 657 (Tex. App.—El Paso 2003, no pet.). 

S.K.’s testimony, which the trial court was admittedly free to reject, established that the call to 

the MHMR hotline was made in order for S.K. to receive benefits free of charge. However, 

Bouchat’s testimony confirmed S.K.’s statement. Bouchat’s testimony established doubt as to 

whether the suicide report was serious, and Bouchat concluded that “[a]t this point I believe his 

suicidal thinking has resolved.”

We hold, as we did in S.W., that the State did not meet its burden to show a recent overt 

act or pattern of behavior that would indicate that S.K. was “likely to cause serious harm to 

himself” by clear and convincing evidence. TEX. HEALTH & SAFETY CODE ANN. § 574.034(a) 

(2) (A) (emphasis added).4

 Accordingly, we find the evidence legally insufficient to support the 

trial court’s commitment order. See S.W., 356 S.W.3d at 582. 

 4

No brief on the State’s behalf has been filed despite this Court’s April 5, 2013, order scheduling an April 25, 2013, 

deadline for receipt of the appellee’s brief. 
9

We reverse the trial court’s judgment and order S.K.’s immediate release from 

involuntary commitment. See id. at 584 (citing TEX. HEALTH & SAFETY CODE ANN. § 

574.033(b) (West 2010); TEX. R. APP. P. 43.2(c)). 

Jack Carter

Justice

Date Submitted: April 30, 2013

Date Decided: May 3, 2013