## In the Court of Appeals Second Appellate District of Texas at Fort Worth

_________ __________________ No

. 02

- 19

- 00262

- C V

_____________ ______________

On Appeal from Co unty Court at Law No. 1 Wichita Coun ty, Texas T rial Court No. 5 0576

- LR

- D

Before Sudderth, C.J.; Kerr and Birdwell , JJ. Memorandum Opinion by Justice Birdwell 

### I N THE 

### M ATTER OF 

### N.S.2 MEMORA ND UM OPINION Appellant N.S. appeal s from the trial court ’ s order authorizing the
admini str ation of psychoactive medications

. S ee T ex. He alth & Safe ty Code Ann. § 574.106 (a) (2)

. We affirm

. Bac k ground On July 1 3 , 2019, w hil e awaiting trial on a charge of misde me anor assault , N.S. was found incompe tent to stand trial

. The trial court or dered her committ ed to a

men tal

- health facility for inpatient mental

- health treatment un der code of criminal procedure chapter 46B with the specific ob jective of achie ving compete ncy . See Tex.
Code Crim. Pro c . Ann. art
. 46B.073

. On July 12, 2019 , Dr. Charlene Shero , N.S. ’ s attending ph ysi cian a t the facility , filed an application under health and safety code section 574.104 for an order to
authorize the involuntary administration o f psychoactive medication to N.S. In the application , Dr. Shero stated that if N.S. wer e tr eated wit h the psychoactive medic ine specified in the application, N.S. ’ s prognosis would be “ [m]uch improved, ” the “ [r]isk of further ag gression w [ould] decline, ” “ [c]ompetency m [ight] be restored , [ an d N.S

. would ] no longer suffer para no ia. ”
The tri al co urt hel d a hearing on the application on July 15, 2019. Dr. Shero
testified that N.S. has s chizo phrenia, paranoid type

. The doctor stated that a team at the facility had met with N.S. that morning and th e previous week, and “ [o] n each

o cca sion, she [was] very diso rganized. She denie [d] mental illness. She ha [d] odd and3 illogical speech. . . . [S] he [ was] quite guarded to the point of paranoia. ” Dr. Shero
characterized N.S. as “ quite disorganized ” and st at ed that N.S. had expressed that she
wanted to “ visit various places in the worl d and get ‘ chava , ’ ” which N.S. said was “ a psychostimulant of some importance. ” Dr. S hero further explained, Initially, [N.S.] would not sp eak to us for a p rotracted pe riod of time, stating she was b usy with Homela nd Se curity business. She was, prior to admission here, arrested for assault on a security officer and when they became aware of her mental status, they dropped that down to a misde meanor, realizin g at that t im e that it may be due to other
r easons. But she wa s originally ass aultive on a security officer.
Dr. Shero testified that N.S. was a danger to others , as evidenced by the fact
that she had assaulted a security officer. N.S. had not , h owever, acted ag gressively toward any staff o r other patient s at the hospital

. Dr. S hero did not know if N.S. was
ag gressive while at the jail, although she was “ blanket ly uncooperative and defensive

. ”
Dr . Shero further “ argue [ d] very strongly that [ N.S. ’ s] p at tern of traveling about the country withou t any mean s of suppor t or other peopl e and then breaking into cars for
shelter place [d] her at a tremendous risk of assault by others, of unsafe housing, [and
demonstrated ] just very, very poor judgmen t. ”
Dr. Sh e ro stated that N.S. had refused medic ations other th an agreeing to “ a compl etely ineffective dose of Haldol that

. . . wo uld n ot even be enough for a pediatric case, to help organize her thoughts. ” The basis of N.S. ’ s refus al was that she

“ d [id] n ’ t do med s. ” Dr. Shero stated that N. S. need ed antipsychoti cs and possibly a
mood stabilizer and anxiolytics

. D r. Sh ero believe d that on the proper medications,4 N.S. wou ld improve; “ she is natively quite intelligent, and

. . . with even a week of

t rea tment,
. . . s he would be found competen t
. ” Wi thout the medicatio n s, on the other hand, Dr. Shero “ could n ot at any time c all [N.S.] competent with her delusions and her inability to cooperate with people that disagree with her. ”
Asked ab out N.S. ’ s capacity t o m ake a decision about taking me dication, Dr.
Shero sta ted that N.S. “ [was] crippled by her parano ia to allow that intrusion ” and

“ [was] hyper

- aware of every possible [medication] side effe ct that could possibly happen, but not in a r eal istic perspective. ” D r. Shero te s tified that tak ing medication

was “ absolute ly ” in N.S. ’ s best interest. Th e alternative to medications for N.S. ’ s condition is e lectroconvulsive therapy, which D r. She ro characte rized as “ impractical ,

nonsu sta inable [,] and frightening. ”
N.S. te stifie d about why she wanted to negotiate her own treatment

. She
exp lained, “ I ’ m an individual human being and that ’ s my right to be able to do that,
the r ight t o refuse, t o negotiate, to not agree with the c our se of care. ” When asked if
she wanted th e tri al court to deny the application, she initially responded that sh e was

“ not necessarily asking for that ” and that she “ f eel [s] anxious sometimes due t o large

amo unts of work and burnout, uh, tons of w ork

. ” But she testified th at it would up s et her if she w ere a dministered medication that she had not c onsented to take. N.S. disputed Dr. Shero ’ s diagnosis of her. Asked if she u nderst ood th at sh e had been d iagnosed with s chizophrenia, pa ranoi d type , N.S. explained that h er understandi n g was that5 that dia gnosis was put on there in question becau se of all the different medications from before and it had never been substantiated and it st ill [was n ’ t ] t o [her] knowledge. So that would be one of th e problematic

— the diagnosis was depression and that was due to se vere psychological abuse and n ot understa nding the medications during that time and side effects and any and all of that and wor king w ay too much

. Asked if s he heard Dr. Shero te stify about her diagnosis, N.S. stat ed , Yeah, and then that ’ s where then that sepa rate piece, you can provide me medicine for that, and as you do so, then I ’ ll take that further to state and feder al cou rt, because that was not my diagnosis.

. . . . I ’ ll a ccept that you ’ re going to provide m e medicine for something that I d o not have. Bu t, unfortunately, la rge am ounts of different people were provided medicine for different diagnoses that were not presen t and can b e created by different abuse.
In clos ing arguments, N.S. ’ s attorne y stated that f or an order for t he
administration of medicat ion under health and safety code section 574.106 , the State

was required to show that N.S. presented a danger to her self or to others in the inpatient mental

- heal th fa cility or that she had remain ed confined in a corre ctional
fa c i lity for seventy

- two hours and present ed a danger there , but i t had failed to do so

. In response, t he State ’ s attorney argued that s ection 574.106 “ give [s] an either/or option ” ; t he tri al court may also issue an or der under the s ection if the pat ient “ lacks the capacity to make a d ecision regarding the administration of the proposed
medication and

. . . the treatment with the proposed medication is in the best interest
of the pati en t
. ”6 The trial court si gned a “ Notifi c ation of Court ’ s D eter mination

— Forensic ” stating that it had dete rmined that N.S. di d not have the capacity to make a proper
determination re garding the administration of the proposed medications and that

tr eatment with antipsychotics, mood stabilizers, a n d anxiol ytics was in her best
interest. The notice stated that “ [ t] he rea sons for the court ’ s determination are that the
Court believes the benefits to be obtained by tr eatment are greater than any r isks tha t may be encountered by tr eatment with t h e proposed medi cation(s), and there is no
suitable alternative at this ti me. ”
In a separate order, the trial court granted the applica tion for medication
administration. In this or der, the trial cou rt found by clear an d convincing e vidence
that
1. [N.S.] lack [ed] the ca pacity to make a decision regarding the administration of t he proposed medication;
2. treatment with the proposed medication [would be] in the best interest of [N.S.] ; and
3. either:
A

. [N.S.] prese n t [ed] a danger to [herself] or others in the inpatient
m ental he alth facili ty in which [she] [was] being treated as a resu lt of a mental disorder or mental defe [ct] as determined under [s] ection 574.106 5 of the Texas Mental Health Code ; or B. [N .S.] : i. ha [d] re m aine d confined in a cor rectional facility, as defined b y Sectio n 1.07, Texas Penal Code , for a period exceedi ng 72 ho urs while awaiting transfer for competency restoration treatme nt; and7 ii. pres ent [ed] a danger to [herself or ] others in the
co rrectional faci l ity as a result of a me ntal disorder or mental defect a s determ ined under [s] ection 574.1065 of the Texas Mental Hea lth Code

. N.S. now appeals.
Discussion
In her sole i ss ue, N.S. argues that evidence was legally and factually ins ufficient

to su p port authori zing the administ ration of psychoactive med ications over her
refusal

. I. Psychoactive

- medica tion orders
Trial c ourts may authorize the administration of one or mo re c l a sses of psychoactive medication to a patient who is in cust ody awaiting tr i al i n a criminal proceeding and was ordered to receive inp atien t mental

- health services preceding a hearing. Tex. H e alth & Safe ty Code Ann. § 574.106 (a) (2). In order to do so, t h e t rial

cou r t must find by clear and convincing evidence (1) that the patien t l acks the capacity to make a de cision regarding the administ ration of the prop osed medication and treatment with the proposed medication is in the best interest of the pat ient; or (2) if t he patient was ordered to rec eive inpatient mental health servic es by a criminal court with jurisdiction over the p atien t, that treatment with the proposed medication is in the best in terest of the patient and . . . : (A) the patient prese nts a dan ger to t he patient or others in the inpatient mental health facility in wh i ch the patient is being treated as a result of a ment al dis or der or mental defect as determined under Section 574. 106 5

. . . .8 Id. § 574.106 (a

- 1)

. Clear and convi ncing evide nce is t h at m easure o r degree of proof that will produce in the mind of the trier of fa c t a firm belief or conviction as to the
truth of the allegat ions sou ght to be establish ed

. In re S.P. , 444 S.W.3d 299, 302 (Tex. App.

— Fort Worth 2014, no pet.). While the proof must b e of a heavier weight than merely the greater weight of the credible evide n ce, there is no requirement that the
evide nce be u nequivoc al or undisputed. Id.
In weigh ing the evidence , the t rial court is required to consider: ( 1) the patient ’ s expresse d pref er ences regarding treatment with psychoactive medication; (2) the patient ’ s r eligious b eliefs; (3) the risks a nd benefits, fro m the pe rs pective of the patient of taking psychoactive medic a tion; (4) the cons equences to the patient if the psychoactive medi c at ion is not administered; (5 ) the prognosis for the patient if the patient i s treated with psychoactive medica tion; (6) altern ative, l ess intru sive treatments that are likely to produce t h e same results as treatment with psychoactive medication; and (7) l es s intr usive treatments likely to secure the pati ent ’ s agree ment to take th e psychoactive medication.
Tex

. Health & Safety Co de Ann. § 5 74.106(b).
II. Standard of re view
When evalua ting the legal sufficiency of the evidence, we determine whether
the e vi dence is such that a factfinder could re asonably form a fir m belief o r9 c onv i ction that its f inding was true. S.P. , 444 S.W.3d a t 302

. We re view all of t he evidence in the light mo st favorab le to the finding , resolve any dispute d facts in favor
of the fin di ng if a rea s onable fact finder could have done so , disregard all eviden ce th a t a factfinder could have dis believed, and consider undisputed evide nce even if it is contrary to the find ing. Id

. The factfinder, not this court, is the sole judge o f the
credib il ity an d d e meanor of the witnesses. Id

. When evaluating th e factual suffic i ency of the evidence, we determine whether , on the entire record, a factfi nder could reaso nably form a f irm conv ict ion or belief that its finding was true. Id. at 303. If the di s pu ted ev i d ence that a reasonable
factfinder could not have cr edited in favor o f the finding is so significant that a
factfinder could not h ave reasona bl y formed a firm belief or co nviction in t he truth of its finding, then the evidence is factually insuffi ci ent. Id

. We must not supplant the
trial court ’ s judgment wi th ou r own. Id.
I II. Application
N.S. ’ s single issue comprises two parts , both relying on the United States
Su prem e Court ’ s opinion in Sell v. United States : a constitutional challenge to sect io n 574.1 0 6 and a sufficiency challenge to the evidence suppo rtin g the trial c ourt ’ s findings of lack of capacity and best interest

. See 539 U.S. 166, 1 80

– 81 , 123 S. Ct. 2174, 2184

– 85 (2003)

.10 A
. N.S. ’ s c onstituti onal c hallenge to section 574.106

“ [A] n indi vi dual has a ‘ significant ’ constitutionally protected ‘ liberty i nte rest ’ in

‘ avoid i ng the unwanted administration of antipsychotic drug s . ’ ” Id. at 178, 123 S. Ct.

at 2183 ( quoting Washington v. Har per , 494 U.S. 210, 221, 110 S. Ct. 102 8 , 1036 (1990) ).
A cou rt m ay ord er the involuntary admini stration of medication to a c riminal
defenda nt to render the def e ndant competent to stand trial, “ but only if t he treatment
is medically appropriate, is subst antially unlikely t o have side effects that may
undermine the f ai rness of the trial, and, taking account of less intrusive alternatives, is necessary significantl y to further imp o rtant governmental trial

- relat ed interests. ” Id. at 179, 123 S. Ct. at 2184.
S ell s et s out a four

- part test for involuntary administration o f drugs s olely for trial competence purposes

. 1 Id. at 1 80

– 81 , 123 S. Ct. at 2184

– 85

. N.S. argue s that
section 574

. 106 “ wholly fails to meet this four [

- ]p art test ” and that applying that
section to “ a non

- dan gerous 46B patient is an [u] nconstitutional vio la tion of t hat patient ’ s due process rights. ” In response, t he State asserts that “ N.S . wholly failed t o

1 T he four parts are that (1) “ a court must find that im portant go v ernmental interests are at stake ” ; (2) “ the court mu st conclude that involunta ry medication will signific an tly further th ose concomitan t state interests ” ; (3) “ the court must conclude that in v oluntary medi cation is necessary to further those interests ” ; a n d (4) “ the court must conclude that administration of the dr ugs is medically appropria te, i.e., in the pa ti ent ’ s best med ical interest in light of his [or her] medical condition

. ” Id. at 1 80

– 8 1 , 123 S. Ct. at 2184

– 85 (emphasis in original)

.11 raise this complai nt in the trial court, and she therefore did not preserve the complaint
fo r this court ’ s review. ”
C hall en ges to the constitutionality of a statute may be w aived

. In re R.B. , 225 S.W.3d 798, 801 (Te x. Ap p.

— Fort Worth 20 0 7, no pet.)

. We presume that

statut es enacted by our legislature are constitutional , and attacks on that pres umption should generally be rai se d as an af firmative defense to enforcement of the statu te. Id.
In the absence o f s uch a c omplaint in the trial co u rt, we are without authority to
consid er it. Id. In her reply brief, N.S. contends t hat in her closing argume nt in the trial court,

“ coun se l for N.S. d irectly addressed

. . . that the stat ute relied upon by the State was unsatisfactory to force medicatio n s upon [her] without a showi ng of dangerous
cond uct , and this squarely place d the [trial court] on notice tha t the due proce ss

a fforded by t he statute w as challenged

. ” We disagree. Counsel ’ s argument was that the

matter “ falls squarely u n der [s] ection 574.106 (a

- 1)(B) ” and that the S tate had failed to
meet its burden under that section. This argument did not put t he trial cou rt on notice
of a constitutional challenge. B y neglecting to raise her constitu tional comp laint in the trial court, N. S

. failed to preserve it for o ur review. See Tex. R. App. P. 33.1 ( a ) (1)(A) ; see also Bushell v. Dean , 803 S .W.2d 71 1, 712 (T e x . 1991) (o p. on reh ’ g).
We overrule this po rtion of N.S

. ’ s issue

.12 B
. Capa city and best interest
1. Suf f

ic iency of evidence to s uppo rt finding Capacity is de fined in the health and safety code as an ability to “ understand
the nature and conse qu ences of a p roposed treatment, including the benefits, risks, and alternatives to the proposed trea tment ” and to “ m a ke a decision whether to
und ergo the proposed treatme nt. ” Tex. Health & Safety Code Ann. § 574.101(1)

. N.S. cha llenges the trial court ’ s fi nding of lac k of capacity by first arguing that a ph y s i cian “ would invariably say ” that a patient l acks capacity to ma ke a decision about
pr opos ed treatment “ if th at pati ent disagrees with the physician ’ s professional opinion. ” N.S. likewise ch allenges the best

- interes t finding by arguing that “ [l]ogic
would also lead one to believe that a p hysic ian, charge d with taking care of a pati ent, would believe that t heir decision was in the best interest of the patient

. ” But N.S. does

no t discuss th e evidence supporting the tri al court ’ s finding.
N.S. ’ s testimony sho wed that she did not understand h er diagnosis

. Dr. Shero
also testifi ed that N.S. d i d not acknowledge her mental illness

. Dr. Shero further
testified that as fa r as N.S. ’ s cap acity to make a d ecision about her medi ca tion, she was

“ crippled by her paranoia ” in th at regard, wa s unrealisti c ab out possible side effects o f
the medication , and want ed to travel the world to get supposedly “ natural ” psychostimulants

. Th e test imony was sufficient for the trial court to reasona bly form
a firm belie f that N.S

. did not have t h e ability to understand the nature and13 consequences of the proposed medications or to make a decision whether to take
the m . As far a s N.S. ’ s best i nterest, the trial court had evidence that she did not want

t o take the proposed medicat io ns becaus e she disagreed that they fit her diagnosis;
that if she took the me dication s , she would improve ; that w ithout the m , N.S. show ed
poor judgmen t and h er lifestyle place d her “ at a tremendous risk of assault by others ” ;

a nd that t he alternati ve t r eatment was “ impractical , nonsustainable [,] and frightening ”

e lectroconvulsive th erapy
. Dr. Shero testified that medication was “ a b so lutely ” in
N. S. ’ s best interest. This testimony wa s sufficient for the trial court to ha ve re ason ably
fo r m ed a firm belief o r conviction that administration of the proposed medica tions

wa s in N.S. ’ s best interest. In sum, e xamining the entire reco rd , the evidenc e is legally and factually sufficient to support the trial court ’ s fin ding s t ha t N .S. lacke d th e c a pacity to make a decision regarding the proposed medication and that medication was in he r best
interest. See In re K.S. , No. 11

- 19

- 00064

- CV, 20 19 WL 1841894 , at *2 (Tex. App.

— Eastland Apr. 25, 2019, no pet.) (mem. op.) (holding eviden ce s ufficient to sup p ort lack

- of

- capacity and best

- interest findings when patient with delusional disorder
denied her illness and did not understand the necessity of the medicati ons ) ; In re C.S. , 208 S.W.3d 77, 84

– 85 (Tex. App.

— Fort Worth 2006, pet. denied ) (h olding ev ide nce legally s uff icient to support lack

- of

- capacity finding whe n patient ’ s physician testif ied14 that medication could imp rove patient ’ s quality of life by a ll eviating delu sions and that patient ’ s condition had previously improved whil e taking medi ca tion )

. 2. W het her t h e evidence must satisfy Sell
The main focus of N.S. ’ s challenge to the lack

- of

- capac ity and best

- i nterest finding s is her contention that befo re a trial cour t may order medications administered to her, t he State must satisfy not only secti on 574.106( a

- 1 )( 1 ) but al so Sell ’ s four

- part

test
. See Sell , 539 U.S. at 1 80

– 81 , 123 S. Ct. at 2184

– 85

. The State responds that Sell applies only wh en ( 1) the so le purpose for which
the State seeks involuntari ly ad ministrati on of medicat ion of a person is to r ender the person competent to stand trial and (2) the person is charged with a nonv iolent
offense. Because N.S. is charged with assaulting a s ec urity officer , and because t he
trial court authorized her me dication on the basis that medi cati ng he r was i n he r best
interest and that she did not have the capacity to make decision s about her medication, the State conten ds that Sell ’ s four

- part test is i napplicable. We agree that Sell does not apply when the S tate seeks involuntary medi cation
administr ation f o r s ome purpose other than restoring competency. See id. at 181

– 82,
123 S. Ct. at 2185 ; State ex rel. S.O. , No. 04

- 13

- 00 812

- CV, 2014 WL 39 28665, at
*6 (Tex. App.

— San Antonio Aug. 13, 2014, no pe t .) (mem. op.)

. Sell st ates that it s test applies w h e n a court “ is seeking to determine whether involuntary administration of drugs is necessary significantly to further a particular governmental in te rest, namely, the interest in rendering the defendant competent to stand tri al

, ” but “[a] c ourt need not15 co n s ider whether to allow forced medication for that kind of purpose, if forced
medication is warranted for a diffe rent purpose , ” such a s the person ’ s dangerousness or whe n the person ’s refusal to take drugs puts the person ’s h eal th at risk

. Sell , 539 U.S.
at 181

– 82, 123 S . Ct. at 2185 (emphasis in original). As Sell reco g nizes, “ There a re often strong reasons for a court to determine whether forced administration of drugs can be justified on t hese alternat ive grounds before turning to the trial compet ence question. ” Id. (e mphasis in original). Here, Dr. Sh e ro te stified about the effect medicati o n would have on N.S. ’ s competency
. But Dr. Shero ’ s testimony als o reflects her belief that it was “ ab solutely ”
in N.S. ’ s best interest to administer medication to her

. See S.O. , 2014 WL 3928665, at
*6

. Dr. Shero explained that she felt strongly th a t N.S. ’ s untreated mental illness presented a danger to N.S. because o f her “ pattern of traveling ab ou t the country without any mean s of support or other peopl e and then breaking into cars f o r shelter [,
wh ich] place [d] her at a tremendous risk of assault b y others

. ” And the trial cou rt specifically found that medicat i ng N.S. was in her best intere st
. Thus, becau se involuntary administration of the proposed medications is justified on an alter nati ve ground aside from rest oring competency , Sell d o es not apply. See id.
We overrule the remainder of N.S. ’ s issue.
Con clusion Having overruled N .S. ’ s sole i ssue, we affi rm the tria l court ’ s order.16 /s/ Wade Birdwell Wade Birdwell Justice
Delivered: August 29, 201 9