Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-14-00720-CV

No. 04-14-00724-CV

THE STATE OF TEXAS FOR THE BEST INTEREST AND PROTECTION OF N.D.

From the Probate Court No. 1, Bexar County, Texas

Trial Court Nos. 2014-MH-3263 & 2014-MH-3242

Honorable Polly Jackson Spencer, Judge Presiding1

Opinion by: Sandee Bryan Marion, Chief Justice

Sitting: Sandee Bryan Marion, Chief Justice

Karen Angelini, Justice

Luz Elena D. Chapa, Justice

Delivered and Filed: March 4, 2015

AFFIRMED

On September 30, 2014, having found that appellant was mentally ill and met the criteria 

for court-ordered temporary mental health services, the trial court ordered appellant to be 

temporarily committed for inpatient mental health services pursuant to section 574.034 of the 

Texas Health and Safety Code. By separate order, the court authorized treatment with 

psychoactive medication during appellant’s temporary commitment. Appellant appeals from both 

orders, challenging the legal and factual sufficiency of the trial court’s findings. We affirm.

1 The Honorable Oscar Kazen conducted the hearings.

 
04-14-00720-CV & 04-14-00724-CV

STANDARD OF REVIEW

To obtain either an order for temporary commitment or an order to administer psychoactive 

medication, the State must prove its case by clear and convincing evidence. See TEX. HEALTH &

SAFETY CODE ANN. § 574.034(a) (West Supp. 2014), § 574.106(a-l) (West 2010). 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. 

Addington, 588 S.W.2d 569, 570 (Tex. 1979); State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010) 

(quoting Addington, 588 S.W.2d at 570). 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. Id. We resolve disputed fact questions in favor of the finding 

if a reasonable factfinder could have done so, and we disregard all contrary evidence unless a 

reasonable factfinder could not have done so. Id.; City of Keller v. Wilson, 168 S.W.3d 802, 817 

(Tex. 2005).

Likewise, the higher burden of proof alters the appellate standard of factual-sufficiency 

review. 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 256, 266 (Tex.

2002). In so doing, we must give “due consideration to evidence that the factfinder could 

reasonably have found to be clear and convincing.” Id. We examine the entire record to determine 

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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.

COMMITMENT ORDER

In its commitment order, the trial court found that appellant is mentally ill and 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.

See TEX. HEALTH & SAFETY CODE § 574.034(a)(1) & (a)(2)(C).

“To be clear and convincing under Subsection (a), the evidence must 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). Expert testimony recommending involuntary temporary commitment must be 

supported by a factual basis; “a bald diagnosis alone is insufficient to support commitment.” In re 

Breeden, 4 S.W.3d 782, 784 (Tex. App.—San Antonio 1999, no pet.).

Here, the State sought the temporary commitment of appellant to University Hospital. At 

the hearing, the evidence presented consisted of the testimony of Dr. Kelin Ogburn, a psychiatrist 

with the hospital, and the testimony of appellant. Ogburn testified she was familiar with appellant 

and, based on her personal knowledge as well as appellant’s history and medical records, Ogburn

diagnosed appellant with schizo-affective disorder. She agreed this diagnosis was an illness, 

disease or condition that substantially impaired appellant’s thought perception of reality, emotional 

process, or judgment. When asked what facts went into her diagnosis, Ogburn said appellant was 

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“quite paranoid, delusional, responding to internal stimuli, and her hyper-religiosity that makes 

her quite delusional.” Ogburn said appellant was brought to the hospital after a CD caught fire 

when appellant lit a nearby candle. She said appellant assumed the fire was a mistake, but 

appellant’s family was very concerned because the flame was big and appellant was in danger of 

setting the entire house on fire. As a result, appellant’s sister had appellant admitted under a mental 

health warrant.

Ogburn also testified to other information contained in the mental health warrant that were 

of concern to appellant’s family. Ogburn said appellant was not performing her “activities of daily 

living” at home, she had not been eating “for a while,” she had been fasting extensively, she did

not shower because she believes there are cameras in her shower and people are spying on her, she 

believes her brother-in-law is setting up cameras all over the house, and she punched holes in the 

walls because she believed she heard her former boyfriend’s voice through the walls and she was 

trying to get rid of him. Ogburn said everything in the warrant was consistent with the psychosis 

portion of her diagnosis.

Ogburn testified that, while in the hospital, appellant needed a lot of encouragement at first 

to begin eating, but that has improved in the seven days since appellant was admitted. However, 

she believed appellant was eating because she was being supervised. Since being in the hospital, 

appellant has been polite, but not cooperative, during interviews, and appellant denies most of her 

problems. Ogburn said appellant told her there were cameras in the house, her brother-in-law had 

been spying on her, and she was hearing voices through the walls.2

 Ogburn said appellant was 

also breaking things with her own hands in an attempt to “just destroy property.” Ogburn said 

2 At this point in Ogburn’s testimony, appellant interjected, “No, I did not.”

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appellant was “extremely religious” to the point of being almost delusional, she believes she has a 

special relationship with Jesus, and she believes she can see Jesus’ eyes moving on her icons. 

Based on what she observed, Ogburn did not believe appellant could function 

independently because she would not eat or shower unless told to do so, she only showers in the 

dark because she believes there are cameras in the shower, she would not interact with anyone, 

and “she is always kind of by herself, talking to herself or praying or whatever she was doing in 

her room.” Ogburn believed appellant’s deterioration is exhibited by her inability, except for 

reasons of indigence, to provide for her own basic needs, including food, clothing, health and 

safety. Ogburn did not think appellant was capable of making rational and informed decisions 

about whether to submit to treatment, and her delusions indicate a “disconnect from reality.”

Ogburn said appellant’s behavior had been progressively getting worse over the past nine years. 

She did not believe appellant had the ability to safeguard herself from various risks and dangers 

because “she is quite a calm person and maybe easy to manipulate in a way.”

When asked whether she believed University Hospital is the least restrictive appropriate 

setting for appellant, Ogburn said she believed appellant needed a different place, somewhere she 

can stay for a prolonged period and be offered different services, for example, going outside. 

However, Ogburn agreed University Hospital was the least restrictive option for appellant. Ogburn 

admitted appellant had not threatened to hurt herself or expressed a suicidal tendency, and the only 

verbal altercation occurred when Ogburn told appellant she had to come to court. Ogburn said

appellant has not manifested any behavior that she is likely to cause serious harm to others.

Next, appellant testified, first about the fire. Appellant explained she had two religious

icons, one of which was on a CD cover and the other was made of paper. She also had two candles

on a window sill: a beeswax in a glass candle holder and an olive oil candle with a cotton wick. 

She had slanted the glass candle holder sideways so she could burn incense on the glass. She said 

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she asked God’s assistance in lighting the olive oil candle when the entire top surface of the candle 

started to burn. She said usually only the wick burns when the candle is lit. At some point,

appellant left the room and when she returned, about fifteen minutes later, the CD cover was on 

fire. The fire spread and melted part of the encasement window. Appellant said the fire was an 

accident, she had never before started a fire by burning candles, and “it wasn’t a house fire.” 

However, appellant admitted that, at some point in the past, she had been burning a candle at her 

sister’s house when the candle overheated, melted, and caused a countertop to “bubble up.”

Appellant’s testimony was often disjointed:

Q. Okay. I’m done talking about the fire so I’m going to go on to something else.

A. Which I had kept them, but my mother threw them away; I don’t know where 

she put them.

Q. And how old is your mother?

A. And there was also a small — there were three small kind of cheap crosses. 

Those you get in the mail, I don’t know from different places.

Q. Well, again, let’s not talk about —

A. But they did not — this is part of the fire. They did not melt because they were 

right there.

Q. Okay.

A. But the heavier metal of the crank, the window crank, melted completely.

Q. Do you think that was God’s touch, he saved the crosses but melted the metal, 

is that what you’re saying?

A. Yeah, because those crosses were right there where all the rest of it was burning.

. . .

Q. . . . Can you tell me a little bit about the fasting that we heard about. What kind 

of fasting diet is it that you’re on?

A. Usually it’s Wednesdays or Fridays, but you can also fast on Monday too, if 

you want to. It’s no meat, no dairy, no olive oil, no wine.

Q. And you do that every week?

A. No fish.

Q. How often do you fast?

A. Shellfish is ok.

Appellant denied hearing voices or punching holes in the walls, but she admitted showering 

in the dark for “privacy . . . [from] [s]urveillance cameras.” Appellant said she was not compliant 

with taking her medication because she did not need the medicine.

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04-14-00720-CV & 04-14-00724-CV

On appeal, appellant asserts that because there was no eye-witness testimony about her 

punching holes in the walls, hearing voices, or details of the fire, there was no direct evidence of 

any overt act or continuing course of behavior upon which to conclude she was unable to function 

independently. Therefore, appellant argues the evidence is legally and factually insufficient to 

support the trial court’s commitment order. We disagree.

As stated above, expert diagnosis alone is not sufficient to confine a patient for compulsory 

treatment, and the expert’s opinion and recommendations must be supported by a showing of the 

factual basis on which they are grounded. See In re Breeden, 4 S.W.3d at 784. However, although 

the proof must be more than merely the greater weight of the credible evidence, there is no

requirement the evidence be unequivocal or undisputed. Addington, 588 S.W.2d at 570. Nor is 

there a requirement that the factual basis be direct evidence. Lopez v. State, 775 S.W.2d 857, 859 

(Tex. App.—San Antonio 1989, no writ), disapproved on other grounds, Campbell v. State, 85 

S.W.3d 176, 183 (Tex. 2002).

In addition to the medical records reviewed by Ogburn, the record reflects appellant 

admitted to showering in the dark because she believed surveillance cameras were present, she 

engaged in sometimes extensive fasting while on her own, while at the hospital she ate only when 

told to do so, she caused a fire at her home while her elderly mother was present, and she did not 

believe she needed medication. Although appellant disputed Ogburn’s version of some of the 

underlying events, the trial court was the sole judge of credibility. On this record, we conclude 

the evidence is both legally and factually sufficient to support the trial court’s commitment order.

ADMINISTRATION OF PSYCHOACTIVE MEDICATIONS

“The court may issue an order authorizing the administration of one or more classes of 

psychoactive medication to a patient who . . . is under a court order to receive inpatient mental 

health services . . . .” Id. § 574.106(a)(1). Here, after issuing the commitment order, the trial court 

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held a hearing on and granted the State’s application for an order to administer psychoactive 

medication. On appeal, the only basis on which appellant challenges the trial court’s medication 

order is that the evidence is legally and factually insufficient to support the trial court’s 

commitment order. Because we have determined the evidence is sufficient to support the trial 

court’s commitment order, the evidence is also sufficient to support the trial court’s order to 

compel psychoactive medications.

CONCLUSION

We overrule appellant’s issues on appeal and affirm the trial court’s orders.

Sandee Bryan Marion, Chief Justice

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