### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00631- CV
Carolyn Barnes, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 368 TH JUDICI AL DISTRICT NO. 10- 663- K3 68, H ONO RAB LE LLOY D DOUGLAS S HAVER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Caroly n Ba rnes appea ls the district court’s civil-commitment-rene wal order that was ultimately vacated befor e her trial on a felony offe nse of ag g rava ted assault with a deadly

wea pon. See Tex. Hea lth & Safety Code § 574.070; Tex. Penal Code § 22.02. The State contends that this appea l is moot beca use Ba rnes alre ady rec eived the relief she soug ht and beca use rec og nized exceptions to the mootness doctrine do not apply in this context. Ba rne s fi l ed no response to the mootness arg ument. We will dis miss thi s appea l as moot.
BACK GR OUND 1 Caroly n Ba rnes was conv i ct ed o f ag g rava ted assault with a deadly wea pon afte r she pointed a g un at and shot in the direc tion of a 6 8 -y ea r- old census worke r who approa ched

The backg round is summar ized from testimony and evidenc e in the rec ord of this a ppeal 1 and the appea l from Ba

rnes’ s criminal conviction. The parties’ briefing also relied on both rec ords.Ba

rnes’ s proper

ty while canva ssing for the 2010 census. See Tex. P en al C o d e § 22.02; Barnes

v. State , No
. 0 3 -1 3 -00434-CR, 2016 Tex. App. L EXI S ____ (Tex. App.—Austin J uly 13, 2016,

no pet. h.) (mem. op.). When uniformed sheriff ’s office rs arr ived to investiga te, Ba rnes called 9-1-1 repor ting that people wer e outside her ho m e intending to kill her. Upon Ba rnes’ s initial intake into jail, a mag istrate judge soug ht an assessment for mental i l l ness. See Tex. Code Crim. Proc. art. 16.22 (authorizing mag istrate to see k mental-he alth evalua tion when there is r easona ble cause to believe—ba sed on information including defe ndant’s behavior immediat el y befor e, during , and afte r arr est—that defe n d an t h as m ental illness). The State later filed a simil ar motion for appointment of experts to examine Ba rnes for competenc y . S

ee i d

. art. 46B.021. Ba

rnes was examined and initially

found compe tent to stand trial. Howeve r, the court order ed another examination approximately ten months later when defe nse counsel noted that Ba rnes seeme d to hav e h ad a “substantial decline in psy chiatric condition.” After mental-he alth experts issued repor ts diag nosing Ba

rnes with delusional disorder (par anoid/perse cutory ty

p e) and mood disorder and concluding that she was incompetent to stand trial, the court order ed Ba rnes’ s commitment to a mental-he alth fac ility for restora tio n t o competenc y . See id

. art. 46B.073. During her commitment, Ba rnes expressed her belief that other patients wer e stalking her and that hospital staff m em b ers wer e delibera tely inciting patients to assault her. Reports to the court from mental-he alth experts diag nosed Ba rnes wi t h psy chotic d i s o rder , mood disorder, persona lity disorder, and major depre ssive disorder. Rely ing o n t h es e repor ts , the court signe d a twelve- month extension and then a twelve- month rene wal of Ba rnes’ s civil commitment. See id

. arts. 46B.102, 46B.104; Tex. He alth & Safety Code §§ 574.035, .066. Only the latter order

is at issue here

. That unexpired order was eff ectively vacated when the court 2signe d an order finding , based on new repor ts from mental-h e a lt

h e xp e r ts, that Ba rnes was competent to stand trial. The c ase pr ocee ded to trial, and the jury convicted B arne s. This appea l followed.
DISCUSSIO N A case become s moot whe n a court’s action on the merits cannot aff ect the parties’ rig hts or interests. Hec kman v. W illiamson Cty ., 369 S.W .3d 137, 162 (Tex. 2012). The State arg ues that this appea l is moot beca use Ba rnes alre ady rec eived the relief she soug ht—i.e. , having her

rene wal order for extended mental-he alth service s set aside—a nd beca use rec og nized exceptions to mootness do not apply

in this contex t. We ag ree .
Rec ognized m ootness exc eptions

One rec og nized exception to the mootness doctrine is the “ca pable- of-r epetition-y etevading -re view” exception. State v. Lodge , 608 S.W .2d 910, 912 (Tex. 1980). Und e r this exception, whi ch ap p lies only in rar e circ umstances, W illiams v. Lara , 52 S.W .3d 171, 184 (Tex. 2001), the ch al l en ged act is of such short duration that appellants cannot obtain revie w befor e the issue become s moot and there is a rea sonable expectation that the same action will occur ag ain if the issue is not considered. In re Ure sti , 377 S.W .3d 696, 696 (Tex. 2012). Another r ecog nized ex ception to mootness is the “collate ral-c onsequenc es” exception. Lodge , 608 S.W .2d at 912. The collater al

c o n s e q u e n c e s e xc e p ti o n applies only in narr ow circ umstances, when adver se consequ e n c e s s u s ta in e d by appellant will not be cure d by vaca ting the underly

ing judgme nt. Marshall v

. Housing Auth. of San Antonio , 1 9 8 S
. W.3d 782, 785 (Tex. 2006); see Lodge , 608 S.W .2d at 912 (conc luding that short-term or ders a

nd sentenc es pre clude a

ppellants from e x onera ting themse lves by appea l).

3Bo t h m o o t n ess exceptions wer e applied in State v. Lodge to allow revie w of

temporar y mental-he alth-commitment order s that, unlike this order , would not exceed 90 day s. See Lodge , 608 S.W .2d at 911-12. The cour t fo u n d t h at such short-term order s allowed insufficient time for appellate revie w and for the remova l of collater al co nsequenc es of a mental-he alth

co m m itment throug h a favor able decision. Id

. at 912; see State v. K.E.W

. , 315 S.W .3d 16, 2 0 (Tex. 2 0 1 0 ) ( c it in g Lo dge in concluding that expired temporar y -commitment order for mental-he alth service s was not moot). The holdi ng in Lodge was e x tended without analy sis to case s addre ssing long- term commitment order s wh er e, unlike here , appellants rema ined subject to further courtorder ed mental-he alth service s and supervision. See, e.g. , Marroquin v. State , 112 S.W .3d 295, 304 n.6 (Tex. App.—El Paso 2003, no pet.) (noting possibili ty of subsequent commitment proce eding s ag ainst appellant) ; Campbell v. State , 68 S.W .3d 747, 754 (Tex. App.—Houston [14t h Dist.] 2001) (noting that challeng ed commitment order expired during appea l but was repla ced by new commitment order for appellant who was acquitted by rea son of insanity ), aff’d , 85 S.W .3d 176, 180 (Tex. 2002) ; cf. L.S. v

. State , 867 S.W .2d 838, 840 n.1 (Tex. App.—Austin 1993, no writ) (noting t h at mootness exception applied by ag ree ment of parties to case involving appellant with mental reta rdation).
Mootness e xceptions inap plicabl e

Neither mootness exception applies here. The “capa ble-of- repe titio n -y et-evading

revie w” ex ception does not apply beca use t he “capa

b l e- o f-r epetition” element is not met. Ba rnes is not confine d in a mental-he alt h h o s pital, she is not subject to the vacated rene wal order , and there is no i n d i ca t i o n that in the future she will be subject to the rene wal of a civil-commitment
4order pending her competenc y to stand trial for another felony offe nse. See Lara , 52 S.W .3d at 184-

85 (re jecting “ca

pable- of-r epetition” element beca use it would be specula tive and u n re asonable for court to expect that appellants, for mer inmates, would be char g ed with future crime leading to their inca rce ration in jail); id . at 185 (re cog nizi ng former inmates wer e leg ally

require d to preve nt their own rec idivism ); see also In re M.C

. , No. 11-98-00310- CV, 1999 WL 33748086, at *1 (T ex . App.—Eastland May 6, 1999, no pet.) (not desig nated for publ ication) (dismi ssing as m o o t appea l of order for extended inpatient mental-he alth service s beca use t h er e wa s n o rea sonable expectation that appellant would ag ain be involuntarily committed to mental hospital and kept afte r she no long er me t statutory criter ia for he r commitment). The “collate ral consequence s” exception to the mootness doctrine does not apply beca use t here is no exoneration or removal of stigma that would be re dresse d by this appea l. The

m o otness doctrine is inapplicable when the stigma of a mental-he alth-commitment order will no t be redr essed by appea l. See State ex rel. E.C. , No. 14-15-00362- CV, 2015 Tex. App. L EXI S 12641, at *5-6 (Tex. App.—Houston [14t h Dist.] Dec
. 15, 2015, no pet.) (mem. op.) (conc luding that appea l

was moot and any s t igma attache d to involuntary commitment would not be redr essed by appea l beca use appellant challeng ed only his place ment in one mental-health facility instead of another );

see also In re M.C. , 1999 WL 33748086, at *1 (conc luding that appea l wa s m o ot and any stigma attache d to in

v o lu n ta r y c o mm it me n t would not be redr essed by reve rsing order for extended inpatient mental-he alth service s when pree x isting order committing appellant to state mental-he alth hospital

rema ined). Ba

rnes’ s appea l here challenges only the rene wal order for her civil commitment, not any prior commitment order

. Fur ther, Ba rnes’ s only

alterna tive to rec eipt of inpatient mentalhealth service s while criminal char g es wer e pending was to stand trial for th e felony offe nse 5of ag g rava ted assault with a deadly wea pon. See Tex. Code Crim. P ro c. ar t
. 46B.116 (“I f the defe ndant is found competent to stand trial, the proce eding s on the criminal char g e may proce ed.”)

. Standing trial for that crime would itself car ry a st igm a, which would be unaffec ted by any ruling

on this vacated order rene wing her civil commitment. See Thrif t v. Hubbard , 974 S.W
. 2 d 7 0, 81 (Tex. App.—San Antonio 1 9 9 8, pet. denied) (noting “g ross social stigma” attache d to pending criminal cha

rg es).
CONCLUSION We dismi ss this appeal as moot.

J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices Pemberton a nd Bour land Dismissed as Moot Filed: Jul y

13, 2016

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