                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00160-CV


IN THE MATTER OF M.H.




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          FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY
                     TRIAL COURT NO. 39564-LR-D

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                           MEMORANDUM OPINION1

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      Appellant M.H. appeals from an order authorizing the administration of

psychoactive medication. In his sole issue, M.H. argues that the evidence is

legally and factually insufficient to support the order. We affirm.

                                      Background

      By an order signed on April 6, 2016, and pursuant to code of criminal

procedure article 46B.073, Wise County Court at Law No. 1 ordered M.H.

      1
          See Tex. R. App. P. 47.4.
committed to an inpatient mental health facility (the North Texas State Hospital)

for the purpose of attaining competency to stand trial for the misdemeanor

offense of criminal trespass.2 See Tex. Code Crim. Proc. Ann. art. 46B.073(b)(1)

(West Supp. 2016).     On May 5, 2016, Dr. Diana Isachievici, M.D., filed an

application in Wichita County Court at Law No. 2 seeking an order to authorize

the   administration   of   psychoactive       medication   to   M.H.,   specifically,

antipsychotics,   mood      stabilizers,   and     “anxiolytics/sedatives/hypnotics,”

regardless of M.H.’s refusal. See Tex. Health & Safety Code Ann. § 574.104(a)

(West 2010). Among other things, Dr. Isachievici indicated in the application that

she had diagnosed M.H. with schizoaffective disorder and that M.H. had refused

to take the proposed medications voluntarily. Dr. Isachievici also stated in her

application that she believed that M.H. lacked the capacity to make a decision

regarding the administration of psychoactive medication because he “has no

insight into his mental illness and the need for pharmacological treatment. [He]

has no insight and appreciation of the consequences of his decision to refuse

psychotropics.”

      The trial court appointed counsel for M.H., and after a hearing at which Dr.

Isachievici and M.H. testified, the trial court granted the relief requested in the

application and signed an order authorizing the administration of psychoactive

medication to M.H., finding by clear and convincing evidence in part as follows:

      2
       M.H. had received mental health treatment at the North Texas State
Hospital on seventeen previous occasions.


                                           2
    “[M.H.] is under a court order to receive inpatient mental health services”;
     and

    “[M.H.] lacks the capacity to make a decision regarding the administration
     of the proposed medication and treatment with the proposed medication is
     in the best interest of [M.H.]”

See id. § 574.106(a)(1), (a–1)(1) (West 2010).           M.H. appealed.       See id.

§ 574.108(a) (West 2010) (permitting appeal of order authorizing psychoactive

medication).

                     Burden of Proof and Standard of Review

      Clear    and   convincing    evidence    must    support   orders    authorizing

administration of psychoactive medication regardless of the patient’s refusal. Id.

§ 574.106(a–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. Tex. Civ. Prac. & Rem.

Code Ann. § 41.001(2) (West Supp. 2016); Tex. Fam. Code Ann. § 101.007

(West 2014); 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).

      In evaluating the evidence for legal sufficiency, we must determine

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

or conviction that its finding was true. 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). We review

all the evidence in the light most favorable to the finding. Waldrip, 380 S.W.3d at

138; Hogue, 271 S.W.3d at 248. We resolve any disputed facts in favor of the



                                          3
finding if a reasonable factfinder could have done so. K.E.W., 315 S.W.3d at 20;

Hogue, 271 S.W.3d at 248.          We disregard all evidence that a reasonable

factfinder could have disbelieved. Hogue, 271 S.W.3d at 248. We consider

undisputed evidence even if it is contrary to the finding. Id.; City of Keller v.

Wilson, 168 S.W.3d 802, 817 (Tex. 2005).            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. See K.E.W., 315

S.W.3d at 20; Hogue, 271 S.W.3d at 248. The factfinder, not this court, is the

sole judge of the credibility and demeanor of the witnesses. In re J.O.A., 283

S.W.3d 336, 346 (Tex. 2009).

      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. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). 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 conviction in the truth of its finding, then

the evidence is factually insufficient. Id.

                                 Requisite Findings

      Section 574.106 authorizes a trial court to issue an order for the

administration of one or more classes of psychoactive medications to a patient

who is under a court order to receive inpatient mental health services or is in

custody awaiting trial in a criminal proceeding and was ordered to receive


                                              4
inpatient mental health services in the six months preceding a hearing under the

section. Tex. Health & Safety Code Ann. § 574.106(a). The court may issue the

order if it finds, by clear and convincing evidence, that (1) the patient lacks the

capacity to make a decision regarding the administration of the proposed

medication and (2) treatment with the proposed medication is in the best interest

of the patient. Id. § 574.106(a–1)(1). Further, the court may issue the order if (1)

the patient was ordered to receive inpatient mental health services by a criminal

court with jurisdiction over the patient, and (2) if the court finds, by clear and

convincing evidence, (a) that treatment with the proposed medication is in the

best interest of the patient and (b) the patient presents a danger to the patient or

others in the inpatient mental health facility in which the patient is being treated

as a result of a mental disorder or mental defect. Id. § 574.106(a–1)(2)(A).

                                     Analysis

      In his only issue, M.H. argues that the evidence is legally and factually

insufficient to support the trial court’s order because the State failed to prove, by

clear and convincing evidence, that he presented a danger to himself or others in

the inpatient mental health facility and that treatment with the proposed

medications is in his best interest. See id.

      M.H. asserts that the State was required to prove under section

574.106(a–1)(2)(A) that M.H. presented a danger to himself or others in the

inpatient mental health facility. “Sections 574.106(a–1)(1) and 574.106(a–1)(2)

provide alternative bases for court ordered administration of psychoactive


                                         5
medications.” State ex rel. A.S., No. 12-13-00300-CV, 2013 WL 6798153, at *2

(Tex. App.—Tyler Dec. 20, 2013, no pet.) (mem. op.). Here, the trial court found,

as required by section 574.106(a–1)(1), that M.H. lacked the capacity to make a

decision regarding administration of medications3 and that treatment with the

proposed medications was in M.H.’s best interest. See Tex. Health & Safety

Code Ann. § 574.106(a–1)(1). Because the trial court made these findings, there

was no need to determine whether M.H. presented a danger to himself or others

as required by section 574.106(a–1)(2)(A). See A.S., 2013 WL 6798153, at *2.

Thus, we need not address M.H.’s arguments concerning section 574.106(a–

1)(2)(A). See In re C.P., No. 02-14-00246-CV, 2014 WL 5409107, at *6 n.7 (Tex.

App.—Fort Worth Oct. 23, 2014, no pet.) (mem. op.); A.S., 2013 WL 6798153, at

*2 (holding trial court was not required to make a danger-to-self-or-others finding

under 574.016(a–1)(2) because it made a lack-of-capacity finding under

574.016(a–1)(1) in case where patient was subject to an order of inpatient mental

health services issued under chapter 46B); see also Tex. R. App. P. 47.1.

      M.H. also challenges the sufficiency of the evidence to support the trial

court’s best-interest finding.     Regarding the best-interest inquiry, section

574.106(b) states the following:




      3
      M.H. does not challenge the trial court’s finding that he lacked capacity to
make a decision regarding the administration of the proposed medications. See
Tex. Health & Safety Code Ann. § 574.106(a–1)(1).


                                        6
            In making the finding that treatment with the proposed
      medication is in the best interest of the patient, the 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;

           (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.

Tex. Health Safety Code Ann. § 574.106(b).          M.H. argues the evidence was

insufficient to prove that treatment with the proposed medications was in his best

interest because he raised concerns regarding the first, second, third, and fourth

best-interest considerations that Dr. Isachievici failed to consider. M.H. contends

that had Dr. Isachievici discussed M.H.’s concerns with him, “a mutually

agreeable plan between doctor and patient was certainly possible.”

      Dr. Isachievici, a psychiatrist at the North Texas State Hospital,4 testified

that M.H. was under a 46B court order to receive inpatient mental health services


      4
       M.H. stipulated that Dr. Isachievici was an expert in the field of psychiatry,
and the trial court recognized Dr. Isachievici as such.


                                           7
and that she was treating M.H. for schizoaffective disorder, a form of mental

illness in which a patient has symptoms of both schizophrenia and a mood

disorder, such as bipolar or depressive disorder. She further testified that M.H.

exhibited psychosis and bipolar symptoms, “specifically manic symptoms, hyper

talkativeness, racing thoughts, irritability, looseness of association, and

paranoia.”

      Dr. Isachievici recommended that M.H. be treated with antipsychotics,

mood stabilizers, anxiolytics, sedatives, and hypnotics. She testified that M.H.

refused to take medications voluntarily and that M.H. told her that he was off

medication for three years and that he did not need to take medications because

they were not necessary.        M.H. thought that her “impression over what he’s

experiencing is not true and [that she] need[ed] to be re-educated.”          Dr.

Isachievici believed that medication would restore M.H.’s competency to stand

trial. She stated that she was not aware of any alternatives to court-ordered

medications that were likely to produce the same results and that there were no

less-intrusive treatments.

      Dr. Isachievici testified that she had attempted to discuss with M.H. the

benefits and side effects of the proposed medications but that M.H. was not

interested in hearing what she had to say and was “very intrusive, difficult to

interrupt.” Dr. Isachievici believed that M.H. lacked the capacity to make his own

decisions regarding the administration of medications and that the medications

were in M.H.’s best interest.


                                          8
      Dr. Isachievici further testified that hospital staff documented in M.H.’s

progress notes that he stated that he needed to leave the hospital and would kill

people if needed or if God told him to do so. He declared, “If God wants . . . he

uses me as an instrument to kill people and then that is right and that feels good.

They are after me[,] and I need to get out of here, I will kill people.” A nurse also

noted that when she tried to redirect M.H., he threatened to urinate in a cup and

throw it at her. Dr. Isachievici admitted on cross-examination that the notes did

not say that M.H. had attempted to carry out these threats or had taken any effort

or actions towards causing injury or danger to another person because staff

intervened.   M.H. was never given emergency medication for his behavior.

However, Dr. Isachievici viewed M.H.’s threats as a risk that he might possibly

harm someone, and she very much believed that medications were likely to

alleviate the risk of threats or any future harm that might result from threats.

      Dr. Isachievici attempted to talk to M.H. about the risks associated with the

proposed medications, but she could not “get that far with him” because he would

not let her talk, kept talking over her, and kept interrupting her. She did inform

him that the medications would benefit him because they would help him regain

competency to stand trial even though M.H. disagreed that he lacked

competency. When Dr. Isachievici attempted to discuss the medications with

M.H., he did not express any objections to the proposed medications, much less

religious objections or concerns that he might become addicted to them. M.H.

did not ask Dr. Isachievici any questions about the medications.            The only


                                          9
response she received from M.H. was that he had been off medications for three

years and that he did not need them. Dr. Isachievici admitted that during her

testimony that M.H. never interrupted her, shouted out, or impulsively responded

to her testimony.

      M.H. testified that he did not want to take the medications that Dr.

Isachievici wanted to give him. M.H. stated that Dr. Isachievici did not discuss

the risks associated with the medications and that he did not have the

opportunity to discuss his concerns and objections to them with her even though

he wanted to do so. He felt that his complaints and input were ignored, and he

wanted them heard. He further testified that he had concerns regarding the

addictive qualities of the drugs:

            I don’t need to lose time by going into meals and have Dr.
      Malone[5] step me off of Zyprexa or Klonopin. Klonopin is horrible. I
      don’t want any sleep disrupts. I’m not much of a sleeper anyway. I
      don’t need a lot of sleep or like it a lot of times but I do need some,
      and Klonopin withdrawals immediately would be something that
      would have me sleepless and then I wouldn’t make decisions good.

M.H. stated that he had taken some of the proposed medications before and

when asked if he had suffered any bad reactions to them before, he said,

“[e]xtreme in some cases to the Haldol tranquilizers, extreme.” According to

M.H., he wanted to talk with Dr. Isachievici about this drug reaction, but he was

not able to do so for the reason that “[s]he overrode [him] because she had a

posse.”

      5
          The record does not reflect who Dr. Malone is.


                                          10
      M.H. stated that he was a religious person and that he had religious

objections to hypnotics:

            It takes the -- the pharmacological aspects of it to a control
      bordering -- tearing up the mind down and overriding my will. My will
      shouldn’t be violated. My will is violated if it was a direct hypnosis,
      post hypnosis command; that equates in the [B]ible to witchcraft.
      Death penalty crime for the [T]orah circumstances. You don’t
      remove people’s will in a way right there where they don’t know their
      thoughts and somebody else’s thoughts commanding them. So
      hypnotics scare me because I don’t like hypnosis.

M.H. stated that he did not have the opportunity to discuss his religious concerns

with Dr. Isachievici.

      M.H. also stated that he had preferences regarding which medications he

took and that he did not feel that mood stabilizers were in his best interest. He

was only able to talk to the nurses about his preferences because he only saw

his doctor in “treatment team.” He wanted to talk to Dr. Isachievici regarding his

preferences.

      When asked if Dr. Isachievici discussed the consequences of taking and

not taking of the medications, M.H. responded:

            No. Really kind of more an announcement to the whole
      treatment team, looking around for someone to back her in the
      affirmation. She was looking for affirmation from everybody there
      that she’s the professional and I’ll benefit and that I’ll become
      competent.

             I’m sitting there going I’m competent enough to plead no
      contest as I already had, and they’re using the system to throw me
      up here, so that when I come back, I’ll gather up my stuff and leave.
      Done deal. Done deal. I can’t fight all of them there. If they’re that
      racist, I don’t want to be in that community.



                                        11
      M.H. complained that he felt like his complaints and input had been

ignored and that he wanted his complaints and input to be heard. He also stated

that he was willing to consider lesser and greater alternatives as to his

medications and treatment.

      On cross-examination, when M.H. was asked which of the proposed

medications he had experience with, M.H. responded,

             As negative experiences? Depakote, valproic acid, Lithium. I
      don’t have a Bipolar disorder is my reason for not wanting them. I
      exhibit, because for sometimes being in jail cells for -- in isolation for
      several months, when I come out –

      ....

             -- I’m like frantic in my speech seems pressured

      ....

             -- and I want to override everyone and just get my say up
      because I’ve not been heard by anybody except bang, bang, let me
      out of the jail.

M.H. admitted, however, that he did not have experience with all of the

medications in each proposed class of medications and could not say that they

all affected him negatively.

      M.H. confirmed that he had not hurt anyone since being admitted to the

hospital, but he admitted that he threatened to throw urine at a nurse, even

though he never actually did so. M.H. stated that he had the capability to hurt

others if needed and was trained by the “Israeli defense forces” and “the Nobel

system self defense.”



                                         12
      Viewing the evidence in the light most favorable to the trial court’s best-

interest finding, we hold that the trial court could have reasonably formed a firm

belief or conviction that treatment with psychoactive medication was in M.H.’s

best interest. The trial court found that M.H. lacked the capacity to make a

decision regarding the administration of the proposed medications. “Capacity”

means a patient’s ability to (1) understand the nature and consequences of a

proposed treatment, including the benefits, risks, and alternatives to the

proposed treatment, and (2) make a decision whether to undergo the proposed

treatment. Tex. Health & Safety Code Ann. § 574.101(1) (West 2010). In light of

the trial court’s finding regarding M.H.’s lack of capacity—which M.H. does not

challenge on appeal—and M.H.’s disjointed and sometimes rambling testimony,

the trial court could have considered but disregarded M.H.’s preferences

regarding treatment with psychoactive medication, his religious beliefs, and the

risks and benefits of taking the medications from his perspective.

      Further, Dr. Isachievici testified that the proposed medications were in

M.H.’s best interest, would help him regain competency to stand trial, and would

alleviate the risk that he might harm someone. She also testified that there were

no alternative, less-intrusive treatments likely to produce the same results as

psychoactive medication and no less-intrusive treatments likely to secure M.H.’s

agreement to take the medications. Applying the applicable standards of review,




                                        13
we conclude the evidence was legally and factually sufficient to support the trial

court’s best-interest finding. We therefore overrule M.H.’s only issue.6

                                    Conclusion

      Having overruled M.H.’s sole issue, we affirm the trial court’s order

authorizing psychoactive medication.



                                                    /s/ Anne Gardner
                                                    ANNE GARDNER
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: August 19, 2016




      6
        M.H. further argues that the trial court should not have granted Dr.
Isachievici’s application because it was insufficient on its face for the reason that
it was signed and filed before the order committing M.H. to an inpatient mental
health facility was signed. The record shows that the order committing M.H. to
an inpatient mental health facility was signed on April 6, 2016, and the
application was signed and filed on May 5, 2016. Thus, the application was not
insufficient on its face.


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