COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00209-CV

NO. 02-14-00210-CV

IN THE MATTER OF S.P.

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FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY

TRIAL COURT NOS. 38616-L, 38620-L-D

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OPINION

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In one issue in each cause, Appellant S.P. contends that the evidence is 

legally and factually insufficient to support the trial court’s temporary health 

commitment order and subsequent order authorizing psychoactive medication. 

Because we hold that the evidence is legally and factually sufficient to support 

both orders, we affirm both orders.

Statement of Facts

In June 2014, Appellant was admitted to North Texas State Hospital (the 

hospital) after she was found lying naked on the floor of her home; all utilities in 
2

the home had been turned off. She had previously been diagnosed with bipolar 

disorder and had been a patient at the hospital on and off since she was a 

teenager. The testifying physician’s (the physician’s) preliminary diagnosis was 

schizoaffective disorder, but the physician explained that the two diagnoses are 

very similar and that after she gained access to more records and background 

information, she believed that the historical diagnosis of bipolar disorder was the 

correct diagnosis.

According to the physician, after Appellant’s admission to the hospital, she

had

[n]o sleep; she[ was] up pretty much all night every night, dancing 

and singing. She[ was] nonsensical; when she sp[oke] she[ was] not 

coherent. She [did not] give any kind of logical explanation of why 

she [thought] she[ was in the hospital] or even where she [was]. So 

[the hospital personnel could not] really make any heads or tails of 

what she[ was] saying.

Appellant also did not appear to process information.

The physician testified that the doctor who had admitted Appellant to the 

hospital had prescribed lithium, risperdal, and klonopin, as well as therapy, but 

Appellant refused to cooperate, so the treatment was discontinued. The 

physician requested the trial court to order antipsychotics, mood stabilizers, 

sedatives, and possibly antidepressants.

The physician believed that with medication, Appellant would begin 

sleeping through the night, have normal sleep and wake cycles, be able to 

communicate with others, be more coherent and logical, and eventually function 
3

in an outpatient setting. But the physician believed that without medication, 

Appellant would probably continue in her current state until her body became 

exhausted. The physician testified that the benefits and side effects of the 

medications had been explained to Appellant, and the physician also testified 

about the side effects psychoactive medications could cause:

The antipsychotic medications can cause tremors or muscle 

stiffness. The mood stabilizer, Lithium, has very few side effects, but 

some people do get tremors, or dry mouth, or excess urination. And 

the sedative hypnotics can be oversedating, so somebody would be 

sleeping when you want them to be awake. Those are probably the 

major side effects.

The physician nevertheless believed that the benefits of the medication 

outweighed the potential side effects and believed that ordering medication 

would be in Appellant’s best interest. The physician believed that no alternative 

would likely produce the same results and no less intrusive treatment would likely 

secure Appellant’s agreement to take the psychoactive medications.

The physician also testified that Appellant lacked the capacity to make a 

decision regarding the administration of medication because there was no 

evidence that she understood or processed what she heard, and she was 

incoherent. Even on the day of the hearing, Appellant’s counsel told the trial 

court that when asked whether she wanted to appear at the hearing, Appellant 

would just “look at [the person] and smile and start singing.” The physician 

testified that she believed that treatment with medication would improve 

Appellant’s quality of life.
4

The trial court mistakenly named the admitting doctor and not the 

physician as the testifying expert in the “Notification of Court’s Determination.”

Standard of Review

Clear and convincing evidence must support temporary commitment 

orders and orders authorizing medication.1

 Clear and convincing evidence is that 

measure or degree of proof that 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.2

 

This intermediate standard of proof falls between the preponderance standard of 

proof in most civil proceedings and the reasonable doubt standard of proof in

most criminal proceedings.3

 While the proof must be of a heavier weight than 

merely the greater weight of the credible evidence, there is no requirement that 

the evidence be unequivocal or undisputed.4

In evaluating the evidence for legal sufficiency, we must determine 

whether the evidence is such that a factfinder could reasonably form a firm belief 

 1

Tex. Health & Safety Code Ann. § 574.034(a) (West Supp. 2014), 

§ .106(a-1) (West 2010); In re P.E.J., Nos. 02-13-00099-CV, 02-13-00100-CV, 

2013 WL 4121081, at *1, *6 (Tex. App.—Fort Worth Aug. 15, 2013, no pet.)

(mem. op.).

2

Tex. Civ. Prac. & Rem. Code Ann. § 41.001(2) (West 2008); Tex. Fam. 

Code Ann. § 101.007 (West 2008); U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 

137 (Tex. 2012); State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010).

3

In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); State v. Addington, 588 

S.W.2d 569, 570 (Tex. 1979).

4

Addington, 588 S.W.2d at 570.
5

or conviction that its finding was true.5

 We review all the evidence in the light 

most favorable to the finding.6

 We resolve any disputed facts in favor of the 

finding if a reasonable factfinder could have done so.7

 We disregard all evidence 

that a reasonable factfinder could have disbelieved.8

 We consider undisputed 

evidence even if it is contrary to the finding.9

 That is, we consider evidence 

favorable to the finding if a reasonable factfinder could, and we disregard 

contrary evidence unless a reasonable factfinder could not.10 The factfinder, not 

this court, is the sole judge of the credibility and demeanor of the witnesses.11

In evaluating the evidence for factual sufficiency, we determine whether, 

on the entire record, a factfinder could reasonably form a firm conviction or belief 

that its finding was true.12 If, in light of the entire record, 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 

 5

K.E.W., 315 S.W.3d at 20; Columbia Med. Ctr. of Las Colinas, Inc. v. 

Hogue, 271 S.W.3d 238, 248 (Tex. 2008) cert. denied, 290 S.W.3d 873 (2009).

6

Waldrip, 380 S.W.3d at 138; Hogue, 271 S.W.3d at 248.

7

K.E.W., 315 S.W.3d at 20; Hogue, 271 S.W.3d at 248.

8

Hogue, 271 S.W.3d at 248.

9

Id.; City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).

10See K.E.W., 315 S.W.3d at 20; Hogue, 271 S.W.3d at 248.

11In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

12In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
6

conviction in the truth of its finding, then the evidence is factually insufficient.13 

We must not supplant the trial court’s judgment with our own.14 The factfinder is 

the sole judge of the credibility of witnesses and the weight to be given their 

testimony.15

Temporary Commitment Order

Section 574.034 governs orders for temporary mental health services and 

provides,

(a) The judge may order a proposed patient to receive courtordered temporary inpatient mental health services only if the 

judge or 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 

 13Id.

14Id.; see also Barker v. Eckman, 213 S.W.3d 306, 314 (Tex. 2006).

15H.R.M., 209 S.W.3d at 109; Golden Eagle Archery, Inc. v. Jackson, 116 

S.W.3d 757, 761 (Tex. 2003).
7

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.

. . . .

(c) If the judge or jury finds that the proposed patient meets the 

commitment criteria prescribed by Subsection (a), the judge or 

jury must specify which criterion listed in Subsection (a)(2) 

forms the basis for the decision.

(d) 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.

. . . .

(g) An order for temporary inpatient or outpatient mental health 

services shall state that treatment is authorized for not longer 

than 90 days. The order may not specify a shorter period.16

In its order committing Appellant to the hospital for no more than ninety 

days, the trial court found that

[Appellant] is mentally ill and that as result of that mental 

illness[, Appellant] will[,] if not treated[,] continue to suffer severe and 

abnormal mental[,] emotional[,] or physical distress and will continue 

to experience deterioration of [her] ability to function 

independently[,] which is exhibited by [her] inability except for 

 16Tex. Health & Safety Code Ann. § 574.034 (West Supp. 2014).
8

reasons of indigence to provide for [her] basic needs including 

food[,] clothing[,] health[,] or safety; and is unable to make a rational 

and informed decision as to whether or not to submit to treatment.

Appellant contends that there is no or insufficient evidence of “a recent 

overt act or continuing pattern of behavior that tended to confirm a deterioration 

of [her] ability to function.” We disagree. Taken together, Appellant’s inability 

before her admission to the hospital to ensure that she had utilities in the Texas 

summer, her not sleeping, her dancing and singing “all night[,] every night,” her 

inability to process or communicate in the approximately two weeks between her 

admission to the hospital and the hearing, and the physician’s testimony that 

Appellant’s behaviors left unchecked would exhaust her body amount to 

evidence from which the trial court could have reasonably formed a firm belief or 

conviction that she exhibited “a continuing pattern of behavior that tended to 

confirm . . . [a] deterioration of [Appellant’s] ability to function,”

17 whether we view 

all the evidence in a light favorable to the finding or with due deference to the trial 

judge.18 We therefore hold that the evidence is legally and factually sufficient to 

support the temporary commitment order, and we overrule Appellant’s sole issue 

challenging that order.

 17See id. § 574.034(d)(2).

18See Waldrip, 380 S.W.3d at 138; Hogue, 271 S.W.3d at 248; H.R.M., 

209 S.W.3d at 108.
9

Order Authorizing Medication

Section 574.106(a) of the health and safety code provides in relevant part 

that the trial “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.”19 Subsection (a-1) provides in 

relevant part that to issue such an order, the trial court must “find[] by clear and 

convincing evidence after the hearing . . . that the patient lacks the capacity to 

make a decision regarding the administration of the proposed medication and 

[that] treatment with the proposed medication is in the best interest of the 

patient.”

20 Subsection (b) provides that in determining the patient’s best interest, 

the trial court shall consider:

(1) the patient’s expressed preferences regarding treatment with 

psychoactive medication;

(2) the patient’s religious beliefs;

(3) the risks and benefits, from the perspective of the patient, of 

taking psychoactive medication;

(4) the consequences to the patient if the psychoactive 

medication is not administered;

(5) the prognosis for the patient if the patient is treated with 

psychoactive medication;

 19Tex. Health & Safety Code Ann. § 574.106(a) (West 2010).

20Id. § 574.106(a–1).
10

(6) alternative, less intrusive treatments that are likely to produce 

the same results as treatment with psychoactive medication; 

and

(7) less intrusive treatments likely to secure the patient’s 

agreement to take the psychoactive medication.21

“‘Capacity’ means a patient’s ability to . . . understand the nature and

consequences of a proposed treatment, including the benefits, risks, and

alternatives to the proposed treatment; and [to] make a decision whether to 

undergo the proposed treatment.”

22

Appellant initially challenges the legal and factual sufficiency of the 

evidence supporting the trial court’s finding that she lacked capacity to make a 

decision regarding the administration of the proposed medication. But the 

evidence that Appellant was found in June, lying nude on the floor in her Texas 

home, with all the utilities cut off; she was up “pretty much all night[,] every night”

singing and dancing during her approximate two-week stay at the hospital before 

the hearing; she did not sleep; she demonstrated an inability to process or 

communicate by speaking nonsensical, incoherent language; and when asked 

whether she wanted to attend the hearing, she smiled and began singing is such 

that the trial court could reasonably have formed a firm belief or conviction that 

Appellant lacked capacity, whether we review all of the evidence in the light most 

 21Id. § 574.106(b).

22Id. § 574.101(1).
11

favorable to the finding23 or merely show proper deference to the trial court.

24 

We therefore hold that the evidence is legally and factually sufficient to support 

the trial court’s finding of incapacity.

Appellant also contends that the evidence is legally and factually 

insufficient to show that treatment with the proposed medication is in her best 

interest because no specific medication was proposed during the hearing; the 

State presented no specific therapeutic benefits of any one of the four classes of 

drugs discussed at the hearing—antipsychotics, mood stabilizers, sedatives, and 

antidepressants; and there was no evidence as to the side effects of 

antidepressants from Appellant’s perspective. According to Appellant, “The trial 

court, therefore, had no evidence at all before it of ‘the risks . . . from the 

perspective of the patient[]’ of taking the antidepressant medication [that the 

physician] might prescribe from that class, in violation of the [section] 

574.106(b)(3) requirement that it consider same.” We disagree on all counts.

As the State points out, the health and safety code does not require a 

medication to be specifically named.25 Further, while the physician did not parse 

her testimony about the benefits of each class of medication, she testified 

adequately about the benefits of the requested medications. She testified that 

 23See Waldrip, 380 S.W.3d at 138; Hogue, 271 S.W.3d at 248.

24See H.R.M., 209 S.W.3d at 108.

25See Tex. Health & Safety Code Ann. § 574.106 (West 2010).
12

with the requested medications, Appellant would start sleeping all night and

having normal sleep and wake cycles, would have the ability to communicate 

with others and have logical, coherent speech, and would eventually receive 

outpatient treatment instead of being confined in the hospital.

As to the absence of the evidence of “the risks . . . , from the perspective of 

the patient, of taking” antidepressants, the statute does not require the trial court 

to make findings on the subsection (b) factors.26 Further, we see nothing in the 

statute requiring the State to offer evidence from the proposed patient’s 

perspective.27 Appellant did not personally appear or testify at the hearing, nor 

 26Id. § 574.106(a–1), (b); In re R.S.C., 921 S.W.2d 506, 514 (Tex. App.—

Fort Worth 1996, no writ).

27See Tex. Health & Safety Code Ann. § 574.106; State ex rel. W.W., No. 

12-13-00045-CV, 2013 WL 3156312, at *6 (Tex. App.—Tyler June 19, 2013, no 

pet.) (mem. op.) (“Because W.W. presented evidence to the trial court of his 

preference to avoid an increased dose . . . based upon its side effects and 

ineffectiveness, it is presumed that the trial court gave his preferences due 

consideration.”); In re T.O.R., No. 02-12-00376-CV, 2013 WL 362747, at *5 (Tex. 

App.—Fort Worth Jan. 31, 2013, no pet.) (mem. op.) (“T.O.R. did not present any 

evidence to dispute Sobiesk’s testimony about the medications’ benefits and the 

ineffectiveness of alternative treatments.”); M.H. v. State ex rel. M.H., No. 01-09-

00205-CV, 2009 WL 2050988, at *4–5 (Tex. App.—Houston [1st Dist.] July 16,

2009, no pet.) (mem. op.) (holding evidence sufficient to support trial court’s best 

interest finding when patient did not present any evidence to dispute physician’s 

testimony about benefits of treatment with psychoactive medications and lack of 

alternative treatments); State ex rel. A.R.F., No. 12-03-00294-CV, 2004 WL 

1123832, at *3 (Tex. App.—Tyler May 19, 2004, no pet.) (mem. op.) (“Dr. Plyler’s 

testimony encompassed the factors in Section 574.106 except A.R.F.’s religious 

beliefs. A.R.F. presented no testimony on that factor.”); State ex rel. D.P., No. 

12-03-00005-CV, 2003 WL 21998759, at *7 (Tex. App.—Tyler Aug. 20, 2003, no 

pet.) (“Dr. Srinivasan’s testimony encompassed the factors in Section 574.106, 

except for D.P.’s religious beliefs. D.P. did not offer evidence of her religious 
13

did her counsel call any witnesses or cross-examine the physician regarding the 

risks of antidepressant use from Appellant’s perspective. Finally, the physician 

summarized the risks she presented with the statement, “Those are probably the 

major side effects.” The trial court could have properly inferred that the physician 

believed that no major side effects other than “tremors or muscle stiffness” would 

result from antidepressant use should they in fact be prescribed for Appellant.

28

We likewise reject Appellant’s contention that the physician’s best interest 

opinion is conclusory. The physician opined that the medications are in 

Appellants best interest after testifying about the pros and cons of the 

psychoactive medication; the opinion is not a bare statement lacking foundation

in the record.

29

Other than Appellant’s religious preferences and specific, direct evidence 

regarding the risks of antidepressants from her perspective, the trial court had 

 

beliefs. D.P. did express her preference to be free of medications . . . .”); R.S.C., 

921 S.W.2d at 514 (“The evidence in the record, which we have discussed 

already, clearly demonstrates that in determining the need for Appellant’s 

psychoactive medication, the court considered all of the factors except 

Appellant’s religious beliefs, on which she offered no evidence.”).

28See Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993) (noting a fact 

may be proved by circumstantial evidence when the fact may be fairly and 

reasonably inferred from other facts).

29See Arkoma Basin Exploration Co. Inc. v. FMF Assocs. 1990-A, Ltd., 249 

S.W.3d 380, 389 & n.32 (Tex. 2008); Concentra Health Servs., Inc. v. Everly, No. 

02-08-00455-CV, 2010 WL 1267775, at *10 n.45 (Tex. App.—Fort Worth April 1, 

2010, no pet.).
14

evidence before it regarding all the factors, and we presume that the trial court 

considered it.30 Examining the evidence detailed above, we hold that the trial 

court could have reasonably formed a firm belief or conviction that treatment with 

psychoactive medication—antipsychotics, mood stabilizers, sedatives, and 

antidepressants—was in Appellant’s best interest under both the legal31 and the 

factual32 sufficiency standards of review. We therefore hold that the evidence is 

legally and factually sufficient to support the trial court’s best interest finding.

In her last subissue, Appellant complains that the written document entitled 

“Notification of Court’s Determination” wrongly indicates that the doctor who 

admitted her to the hospital testified. The notification requirement in section 

574.106(g) is met by the trial court’s order to compel psychoactive medication.33

From this order, Appellant could ascertain what evidence was relied upon and 

the reasons for the trial court’s findings.34 Further, Appellant appeared at the 

hearing through counsel, counsel cross-examined the physician, and counsel’s 

 30See Tex. Health & Safety Code Ann. § 574.106(b); W.W., 2013 WL 

3156312, at *6.

31See Waldrip, 380 S.W.3d at 138; Hogue, 271 S.W.3d at 248.

32See H.R.M., 209 S.W.3d at 108.

33See In re M.E.S., No. 04-02-00614-CV, 2003 WL 1240002, at *4 (Tex. 

App.—San Antonio Mar. 19, 2003, no pet.) (mem. op.); R.S.C., 921 S.W.2d at 

515.

34See M.E.S., 2003 WL 1240002, at *4; R.S.C., 921 S.W.2d at 515.
15

knowledge is imputed to Appellant.

35 Finally, Appellant timely filed a brief 

complaining of the order. Thus, she can show no harm from this clerical mistake

in a notice document.

36

Conclusion

Having rejected all arguments raised in Appellant’s sole issue in each 

cause, we affirm the trial court’s temporary health commitment order and 

subsequent order authorizing the hospital to administer psychoactive medication.

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER

DELIVERED: August 29, 2014

 35See Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 584 (Tex.

2006); In re D.K., No. 02-09-00117-CV, 2009 WL 5227514, at *2 (Tex. App.—

Fort Worth Dec. 31, 2009, no pet.) (mem. op.).

36See M.E.S., 2003 WL 1240002, at *4; R.S.C., 921 S.W.2d at 515.