Opinion issued June 30, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00784-CV

———————————

THE STATE OF TEXAS FOR THE BEST INTEREST 

AND PROTECTION OF E.S.R.

On Appeal from Probate Court No. 4

Harris County, Texas

Trial Court Case No. I218340

MEMORANDUM OPINION

E.S.R. appeals from an order temporarily committing him for in-patient 

mental-health services and a second order authorizing the administration of 

psychoactive medication to him during his commitment.

1

In two issues, E.S.R. 

 

1 The ninety-day period for which the trial court ordered E.S.R. to receive in-patient 

services and psychoactive medication has expired. The Supreme Court of Texas has 
2

challenges the legal and factual sufficiency of the evidence supporting each order. 

We affirm.

Background

E.S.R. is a fifty-nine year old male with a documented history of mental 

illness. Although he had been living in the Austin area and supporting himself with 

disability payments, the record reflects that E.S.R. returned to Houston in August 

2015 and began living with his parents in their home. E.S.R.’s father filed a sworn 

application for emergency detention on August 25, 2015, and an application to 

temporarily commit E.S.R. for mental-health services two days later.2 An order and 

warrant to apprehend and detain E.S.R. were issued on August 25, 2015, and E.S.R. 

was taken to Methodist Hospital for evaluation that same day.

E.S.R. was examined by psychiatrist Ashley Smith, M.D. on August 26, 2015.

In her certificate of medical examination, Dr. Smith stated that E.S.R. was brought 

to Methodist Hospital by police the previous day “after becoming paranoid and 

delusional at home” and that he had “attempted to get a gun and threatened to kill 

 

held that the expiration of the period stated in these orders does not render an appeal 

of such order moot. See State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010); J.M. v. 

State, 178 S.W.3d 185, 189 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

2

In his sworn affidavit in support of his application to temporarily commit E.S.R. for 

mental-health services, E.S.R.’s father averred that on August 24, 2015 he heard 

E.S.R. “rant and yell and threaten” to kill his parents if they attempted to get him 

psychiatric care, E.S.R. had repeatedly asked his parents to return his gun to him, 

and that E.S.R. claimed that he was being stalked and being “attacked thru locked 

doors.” 
3

his parents.” Dr. Smith diagnosed appellant with “unspecified, psychosis” and 

opined that he met all of the requirements for involuntary commitment (i.e., that he 

was likely to cause harm to himself and others, and that he is suffering from severe 

and abnormal mental, emotional or physical distress). Among other conduct 

identified in the certificate, Dr. Smith noted that E.S.R. had been attempting to 

“break through doors at home” and “made several threats towards [his] parents.” Dr. 

Smith concluded that, in her medical opinion, E.S.R. posed an “acute risk to himself 

and others. He owns a gun and [he] threatened to use it to kill [his] parents.” 

E.S.R. was also examined by psychiatrist Alric Hawkins, M.D. on August 26, 

2015. In his certificate of medical examination, Dr. Hawkins diagnosed E.S.R. with 

“schizophrenia” and concluded that E.S.R. was mentally ill and that he met two of 

the three requirements for involuntary commitment (i.e., that E.S.R. was likely to 

cause harm to others, and is suffering from severe and abnormal mental, emotional 

or physical distress). Among other conduct identified in the certificate, Dr. Hawkins 

noted that E.S.R. had threatened to kill his parents.3

On September 3, 2015, the court held hearings on E.S.R.’s father’s application 

to temporarily commit E.S.R. for mental-health services, and Dr. Hawkins’s petition 

 

3 The State filed both Dr. Hawkins’s and Dr. Smith’s certificates with the court as 

required by the Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN.

§ 574.009 (West 2010) (requiring State to file two certificates of medical 

examination).
4

for an order to administer psychoactive medication to E.S.R. while he was 

committed. At that hearing, Dr. Hawkins testified that he had diagnosed E.S.R. with 

schizophrenia or schizoaffective disorder, and that he had been treating E.S.R. at 

Methodist Hospital for a little over a week. According to the doctor, E.S.R. routinely 

refused to take his mediation or cooperate with medical personnel while at the 

hospital, and he regularly “took the 5th” when Dr. Hawkins asked him questions. 

Dr. Hawkins described E.S.R.’s behavior over the past week as “pretty irritable,” 

“agitated,” and “very argumentative.”

As a result of E.S.R.’s uncooperativeness, Dr. Hawkins’s testimony at the 

hearing was based in part upon information he received from E.S.R.’s family, 

including E.S.R.’s father’s applications and supporting affidavit, as well as the 

medical staff’s observations of E.S.R. during the past week. Specifically, Dr. 

Hawkins testified:

Well I think some of [E.S.R.’s] behaviors would be described as 

disorganized and outside the norm. The biggest thing, I think, are his 

paranoid delusions. He has fear that people are hurting him. That’s what 

brought him in, to the best of our understanding. Per his family, he’s 

concerned that folks are shooting [at him]. The family became 

concerned after he requested they bring a firearm.

He also has made threats against the family, or reported allegedly, that 

if a statement would come to the effect if they had him committed to 

the psychiatric hospital that he would kill them or harm them in some 

way—that’s what led to my understanding of what sort of all the things 

that led.
5

And in the hospital, we’ve seen paranoia, believing things are 

happening that the staff are not observing, things of that nature.

When asked if E.S.R. was likely to cause serious harm to others as a result of his 

mental illness if he were released without treatment, Dr. Hawkins testified that he 

had a “big concern” for the safety of E.S.R.’s family because he believed that E.S.R. 

was capable of acting on his threat to kill them if they attempted to get him 

psychiatric care.

E.S.R. testified that he had been living in Austin until a few weeks before the 

September 3rd hearing. According to E.S.R., someone had been “stalking” him for 

over two years and when he was assaulted in Austin and he tried to get medical help, 

the hospital had him “committed.” Afterwards, E.S.R. moved to Houston, where he 

hoped to get help with his “stalker.” E.S.R. testified that he believed that his 

problems were the result of a neurological condition, not a psychiatric disorder. 

E.S.R. claimed that he needed to consult with a neurologist, not psychiatric care. 

Although he denied threatening to harm his parents or himself, E.S.R. acknowledged 

that he had “attempt[ed] to get a gun” but he claimed that he only did so for reasons 

of “self defense.” E.S.R. explained: “I’ve been stalked and assaulted . . . a number 

of times. I reported out to five police forces and gotten no actual response or help 

from them.”
6

At the end of the hearing, the trial judge stated that “the information that’s in 

the two doctors’ letters4is very compelling, and . . . I wouldn’t feel comfortable with 

myself if I did not commit you based upon the second and third criteria for 

commitment.” he court then proceeded to hear testimony from Dr. Hawkins and 

E.S.R. with regard to the petition for an order to administer psychoactive medication 

to E.S.R. during his commitment. At the conclusion of that hearing, the trial court 

ordered E.S.R. temporarily committed for mental-health services and authorized 

administration of psychoactive medication to E.S.R. during his commitment. E.S.R. 

is appealing both orders.

Sufficiency of the Evidence Supporting Commitment Order

In his first issue, E.S.R. argues that there is legally and factually insufficient 

evidence to support the trial court’s order temporarily committing him for in-patient 

mental-health services.

A. Standard of Review

To obtain an order for temporary commitment, the State must prove its case 

by clear and convincing evidence. See TEX. HEALTH & SAFETY CODE ANN.

 

4

 Although sworn to and filed with the court, neither Dr. Smith’s nor Dr. Hawkins’s

certificates of medical evaluation were formally admitted into evidence. We note, 

however, that E.S.R.’s counsel did not object when the trial court expressly stated 

on the record that it was going to order E.S.R. to be temporarily committed for 

mental-health services based in part upon these documents. The court’s judgment 

also states that “considering all of the evidence, testimony, and Certificates filed 

herein,” the court found that E.S.R. met all of the statutory requirements for 

temporary commitment.
7

§ 574.034(a), (West Supp. 2015), § 574.106(a-l) (West 2010). In this context, “clear 

and convincing evidence” means “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).

Because the State’s burden of proof is clear and convincing evidence, we 

apply a heightened standard of review to sufficiency-of-the-evidence challenges. See 

In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). When reviewing the legal sufficiency of 

the evidence in a case requiring proof by clear and convincing evidence, we 

determine whether the evidence is such that a factfinder could reasonably form a 

“firm belief or conviction as to the truth of the allegations sought to be established.” 

State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010) (K.E.W. I) (quoting Addington, 588 

S.W.2d at 570). We examine all evidence in the light most favorable to the finding, 

including every reasonable inference in favor of those findings, and assume that the 

factfinder resolved any disputed facts in favor of its finding, so long as a reasonable 

factfinder could do so. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); see 

generally In re T.N., 180 S.W.3d 376, 382 (Tex. App.—Amarillo 2005, no pet.) 

(concerning appellate review of judgment rendered on clear-and-convincing proof, 

providing, “The reviewing court must recall that the trier of fact has the authority to 
8

weigh the evidence, draw reasonable inferences therefrom, and choose between 

conflicting inferences.”).

Likewise, the higher burden of proof alters the appellate standard of review

for factual sufficiency. C.H., 89 S.W.3d at 25–26. In reviewing the evidence for 

factual sufficiency under the clear and convincing standard, we inquire “whether the 

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

about the truth of the State’s allegations.” See id. at 25. We consider whether 

disputed evidence is such that a reasonable factfinder could not have resolved that 

disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266; K.E.W. v. 

State, 333 S.W.3d 850, 855 (Tex. App.—Houston [1st Dist.] 2010, no pet.) 

(remanded from Supreme Court of Texas) (K.E.W. II). In so doing, we must give 

“due consideration to evidence that the factfinder could reasonably have found to be 

clear and convincing.” See In re J.F.C., 96 S.W.3d at 266. We examine the entire 

record to determine whether “the disputed evidence that a reasonable factfinder 

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

not reasonably have formed a firm belief or conviction”; if it is, the evidence is 

factually insufficient. Id.; K.E.W. II, 333 S.W.3d at 855.

B. Statutory Requirements for Temporary Commitment

Texas Health and Safety Code subsection 574.034(a) provides that the judge 

may order a proposed patient to receive court-ordered temporary in-patient mental 
9

health services only if the judge or a jury finds, from clear and convincing evidence, 

that:

(1) the proposed patient is mentally ill; and

(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).

Subsection 574.034(c) requires that, if the judge or a jury finds that the 

proposed patient meets the commitment criteria prescribed by subsection (a), the 

judge or the jury must specify which criterion listed in subsection (a)(2) forms the 

basis for that decision. Id. § 574.034(c). The Health and Safety Code further requires 

that, to be clear and convincing under subsection 574.034(a), the evidence must 
10

include expert testimony and, unless waived, 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; 

or

(2) the proposed patient’s distress and the deterioration of the 

proposed patient’s ability to function.

Id. § 574.034(d).

The Supreme Court of Texas has concluded that the term “overt act,” found 

in subsection 574.034(d), is not limited to physical conduct but may be any action 

objectively perceivable, including verbal statements. K.E.W. I, 315 S.W.3d at 22. 

More specifically, the court determined that “a proposed patient’s words are overt 

acts within the meaning of Section 574.034(d).” Id. A proposed patient’s statements 

“can be relevant both to determining whether he is mentally ill and also to predicting 

what actions he might or will take in the future as a result of mental illness.” Id. The 

statute permits “the law’s intervention to prevent serious injury to others” when a 

person with a mental illness makes statements that foreshadow violence. Id.

The statutory language does not require evidence of a recent overt act that, by 

itself, proves the likelihood that a proposed patient will cause serious harm to others. 

Id. at 22. Rather, the statute requires evidence of an overt act that “tends to confirm” 

the “likelihood” of serious harm to others. Id. at 23 (citing TEX. HEALTH & SAFETY 

CODE ANN. § 574.034(d)(1)). “[A] recent overt act by a proposed patient ‘tends to 
11

confirm’ that the patient poses a likelihood of serious harm to others within the 

meaning of Section 573.034(d) if the overt act is to some degree probative of a 

finding that serious harm is probable. . . .” K.E.W. I, 315 S.W.3d at 24. This is true 

even though the overt act itself may not be dangerous. Id. The court determined that 

the statutory language is sufficiently broad to allow commitment regardless of 

whether the person’s threat actually causes physical harm. See id. at 22.

Here, the trial court indicated that it based the commitment order on two of 

the statutory criteria listed in subsection (a)(2), namely, that E.S.R.: (1) was likely 

to cause serious harm to others, TEX. HEALTH & SAFETY CODE ANN.

§ 574.034(a)(2)(B), and (2) is suffering severe and abnormal mental, emotional, or 

physical distress and experiencing substantial mental or physical deterioration of his 

ability to function independently, which is exhibited by his inability to provide for 

his basic needs, including food, clothing, health, or safety, and that he is not able to 

make a rational and informed decision as to whether or not to submit to treatment. 

Id. § 574.034(a)(2)(C). E.S.R., who does not dispute the trial court’s finding that he 

is mentally ill, argues on appeal that there is legally and factually insufficient 

evidence to support both of these findings.

We will affirm the trial court’s commitment order if there is legally and 

factually sufficient evidence supporting any finding under section 574.034(a)(2). See

Mezick v. State, 920 S.W.2d 427, 431 (Tex. App.—Houston [1st Dist.] 1996, no pet.) 
12

(citations omitted) (finding that because one statutory criterion was met, reviewing 

court was not required to decide whether second criterion met).

C. Harm to Others – Section 574.034(a)(2)(B)

E.S.R. argues that there is legally and factually insufficient evidence to 

support the trial court’s finding that he was likely to cause serious harm to others if 

he was not committed for temporary inpatient treatment because Dr. Hawkins’s

testimony only establishes that E.S.R. “might” cause harm to someone else, and Dr. 

Hawkins never testified as to the date that E.S.R. allegedly threatened to kill his 

family. E.S.R. also points to his testimony denying that he threatened to harm his 

parents.

1. Legal Sufficiency

To support commitment in this case, the State needed to present clear and 

convincing evidence of a recent act by E.S.R., either physical or verbal, that can be 

objectively perceived, and that is to some degree probative of a finding that serious 

harm to others is probable if E.S.R. is not treated. See K.E.W. I, 315 S.W.3d at 24. 

Here, the evidence of E.S.R.’s verbal threat to kill his parents if they had him 

committed for psychiatric care is such an act.

Specifically, at the September 3, 2015 hearing, Dr. Hawkins testified that 

E.S.R. had been receiving in-patient psychiatric care for the past week because his

family had reported that E.S.R. was acting paranoid and delusional, he believed that 
13

people were shooting at him, and he had requested the return of his gun and 

threatened to kill his family members if they had him committed to a psychiatric 

hospital. The court could also take judicial notice of the fact that E.S.R.’s father had 

filed an application for E.S.R.’s emergency detention on August 25, 2015, and an 

application to temporarily commit E.S.R. for mental-health services on August 27, 

2015—approximately one week before the hearing.

At that hearing, E.S.R. testified that he did not move to Houston until August 

2015. He admitted that he had attempted to get a gun, as his family claimed, but he 

argued that he did so for “self defense” because someone was stalking him. Dr. 

Hawkins testified that he was concerned about E.S.R.’s family’s safety if E.S.R. was 

released without treatment, because he believed that E.S.R. was capable of acting on 

his threat to kill them. In her August 26, 2015 certificate of medical examination 

which was expressly relied upon by the court, Dr. Smith also opined that E.S.R. 

posed an “acute risk to himself and others. He owns a gun and [he] threatened to use 

it to kill [his] parents.” Although there is no testimony as to the exact date on which 

E.S.R. allegedly threatened to kill his parents, the trial court could reasonably infer 

from the testimony and the certificates that the threats had been made recently. See 

TEX. HEALTH &SAFETY CODE ANN. § 574.034(d) (requiring evidence of recent overt 

act that tends to confirm likelihood of serious harm to others); see generally G.H. v. 

State, No. 01–13–000422–CV, 2013 WL 5613457, at *6 (Tex. App.—Houston [1st 
14

Dist.] Oct. 10, 2013, no pet.) (holding evidence sufficient to support finding that 

patient was likely to cause serious harm to others because, even though witness did 

not testify as to when verbal threats were allegedly made, it was apparent from 

context that threats had recently occurred). Cf. In re T.N., 180 S.W.3d at 382 

(recognizing factfinder’s right to draw reasonable inferences from evidence).

Citing to State ex rel. E.R., 287 S.W.3d 297, 305 (Tex. App.—Texarkana 

2009, no pet.), E.S.R. argues that evidence that he “might” cause harm to others is 

insufficient. State ex rel. E.R. is factually distinguishable. Unlike the present 

situation, the doctor in State ex rel. E.R. testified that if E.R. was not treated, she 

could become withdrawn and paranoid, and stop eating, and, in the unlikely

worst-case scenario, her refusal of treatment could lead to her death by starvation. 

Id. The appellate court determined that such testimony did not tend to confirm the 

likelihood of serious harm to E.R., stating: “While we recognize this scenario as a 

compelling possibility that should cause concern, it remains just that, a possibility. 

There is no evidence that would suggest that E.R. has suffered any of the effects of 

starvation and no evidence that starvation or other ill effects were likely.” Id.

Unlike the doctor in State ex rel. E.R. who testified that it was unlikely that 

E.R.’s rejection of treatment would lead to her death by starvation, Dr. Smith opined 

that E.S.R. posed “an acute risk” to his parents because he had threatened to kill 

them with his gun, and Dr. Hawkins testified that he believed that E.S.R. was capable 
15

of acting on his threat to kill his family and he was concerned for their safety if 

E.S.R. was released without treatment. Thus, unlike in State ex rel. E.R., the record 

in this case “tends to confirm” the “likelihood” of serious harm to others if E.S.R. is 

released without treatment, not merely the unlikely possibility that such harm might 

occur.

We conclude that the State introduced legally sufficient evidence to prove an 

overt act by E.S.R. that tended to confirm the likelihood of serious harm to others; 

that is, after examining all of the evidence in the light most favorable to the finding, 

including all reasonable inferences in support of the finding, we conclude that a 

reasonable trier of fact could have formed a firm belief or conviction that it was 

probable that E.S.R. was likely to cause serious harm to others if not treated. See

TEX. HEALTH & SAFETY CODE ANN. § 574.034(a)(2)(B); see also id. § 574.034(d). 

Accordingly, we hold that the evidence is legally sufficient to support the trial 

court’s order for temporary inpatient mental health services.

2. Factual Sufficiency

Having determined that the evidence is legally sufficient to support the order, 

we address factual sufficiency and consider all the evidence, both that in support of 

and contrary to the trial court’s findings. In re C.H., 89 S.W.3d at 25. Although 

E.S.R. denied threatening to harm his parents, in light of the entire record, including 

both doctor’s statements to the contrary and E.S.R.’s repeated claims to be the victim 
16

of a stalker, his denial of having any need for psychiatric care, and his admission 

that he attempted to acquire a gun, we cannot say that E.S.R.’s testimony is so 

significant that a reasonable trier of fact could not have reconciled this evidence in 

favor of its finding and formed a firm belief or conviction that E.S.R. was mentally 

ill and, as a result of that illness, was likely to cause serious harm to others if not 

treated. See TEX. HEALTH & SAFETY CODE ANN. §§ 574.034(a)(2)(C), (d); In re 

J.F.C., 96 S.W.3d at 266. Accordingly, we hold that the evidence is factually 

sufficient to support the trial court’s order for temporary inpatient mental health 

services.

Having determined that there is legally and factually sufficient evidence 

supporting the trial court’s finding under section 574.034(a)(2)(B), we need not 

consider E.S.R.’s challenge to the sufficiency of the evidence supporting the court’s 

finding under section 574.034(a)(2)(C). See Mezick, 920 S.W.2d at 431.

We overrule E.S.R.’s challenge to the sufficiency of the evidence supporting 

the temporary commitment order.

Sufficiency of the Evidence Supporting Medication Order 

In his second issue, E.S.R. argues that there is legally and factually insufficient 

evidence to support the trial court’s order authorizing the administration of

psychoactive medication. Specifically, E.S.R. contends that because the trial court’s 

order for involuntary commitment is not supported by sufficient evidence, there is 
17

no underlying predicate commitment order authorizing the medication order. See

TEX. HEALTH & SAFETY CODE ANN. § 574.106(a)(1) (order authorizing 

administration of psychoactive medication may be entered only if patient is under 

valid order for temporary or extended mental health services). Because we have 

concluded that the involuntary commitment order is supported by legally and 

factually sufficient evidence, we overrule E.S.R.’s challenge to the sufficiency of 

the evidence supporting the medication order. See K.E.W. II, 333 S.W.3d at 858–59 

(affirming order to administer psychoactive medication when only argument offered 

challenging order was that evidence was insufficient to support commitment order).

Conclusion

We affirm the trial court’s order committing E.S.R. for temporary inpatient 

mental health services and its order authorizing the administration of psychoactive 

medication to E.S.R.

Russell Lloyd

Justice

Panel consists of Justices Bland, Brown, and Lloyd.