Opinion
No. 04-15-00500-CV No. 04-15-00505-CV
01-06-2016
THE STATE OF TEXAS FOR THE BEST INTEREST AND PROTECTION OF S.W.
MEMORANDUM OPINION
From the Probate Court No. 1, Bexar County, Texas
Trial Court Nos. 2015-MH-2596 & 2015-MH-2544
Honorable Kelly Cross, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
In these accelerated appeals, appellant S.W. challenges the probate court's judgment committing her for temporary inpatient mental health services and its order compelling the administration of psychoactive medications. In her first issue, S.W. contends the trial court abused its discretion by shifting the burden of proving the qualifications of the State's expert witness to S.W. In her second and third issues, S.W. contends the evidence is legally and factually insufficient to order her temporary commitment under the first commitment criteria, and because the evidence is insufficient to support her commitment, the probate court could not order compelled medication. We affirm the probate court's judgment and order.
PROVING QUALIFICATIONS OF EXPERT WITNESS
In her first issue, S.W. contends the trial court impermissibly shifted the burden of proving that the State's expert, Dr. Kelin Ogburn, was qualified. S.W. is correct that the State, as the proponent of Dr. Ogburn's testimony, had the burden to show Dr. Ogburn was qualified to testify. Broders v. Heise, 924 S.W.2d 148, 152-53 (Tex. 1996) (internal citations omitted); Russell Equestrian Ctr., Inc. v. Miller, 406 S.W.3d 243, 247 (Tex. App.—San Antonio 2013, no pet.). In support of her contention, S.W. relies on the following exchange that occurred at the conclusion of the cross-examination of Dr. Ogburn by S.W.'s attorney:
[S.W.'s attorney]: I pass the witness.
THE COURT: [State's attorney], were you going to qualify this doctor as an expert in this area?
[State's attorney]: Yes, Your Honor. I apologize. The State would move to have this witness qualified as an expert witness in mental illness by way of stipulation.
THE COURT: I believe that counsel has already said no to that, is that not true?
[State's attorney]: I just understood that as to the medical certificates, which are not being offered for proof of the matter asserted, merely that the Court would take judicial notice of two valid certificates on file, which allows us to proceed with this hearing today.
THE COURT: [S.W.'s attorney], did you accept this witness as an expert?
[S.W.'s attorney]: No, Your Honor. You heard it correctly. I did not accept her as a witness, nor would I accept the certificates.
THE COURT: Would you like to take her on voir dire for that moment?
[S.W.'s attorney]: Yes, I would, Your Honor. Thank you. May I proceed?
THE COURT: Yes.
After this exchange, S.W.'s attorney briefly questioned Dr. Ogburn regarding her qualifications. At the conclusion of the questioning by S.W.'s attorney, the following exchange occurred:
[S.W.'s attorney]: I pass the witness.The State's attorney then further questioned Dr. Ogburn regarding her qualifications. At the conclusion of the questioning by the State's attorney, the following exchange occurred:
[State's attorney]: I stipulate to this doctor's expertise, Your Honor.
THE COURT: I'm sorry, but — I know you do. Do you have any further questions for your witness in order for the Court to make that decision?
[S.W.'s attorney]: I don't have any —
[State's attorney]: Your Honor, the State would argue that this witness has a valid medical license in the State of Texas and has been practicing for two years. She's been involved in numerous psychiatric cases before this Court and has testified before this Court on any number of occasions. The doctor — the State feels she has more than satisfied the requirements to be an expert in psychiatry.
[S.W.'s attorney]: Your Honor, I rest on the record regarding the doctor's expertise.
THE COURT: The Court is going to find that this is a practicing psychiatrist and will accept her testimony as an expert in this case.
From the foregoing exchanges, the record establishes the probate court was placing the burden on the State to prove Dr. Ogburn's qualifications. Therefore, S.W.'s first issue is overruled.
In the body of her argument, S.W. also states the probate court abused its discretion by "demonstrating a lack of neutrality" in reminding the State's attorney of his burden to prove Dr. Ogburn's qualifications. Because S.W. does not separately brief this issue or present any authority in support of this argument, the issue is waived. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (holding appellate court may use its discretion to find issues waived due to inadequate briefing). Furthermore, S.W.'s attorney did not object at trial to the probate court's reminder; therefore, this complaint was not preserved for our review. TEX. R. APP. P. 33.1 (requiring complaint to be presented to trial court by timely request, objection or motion). --------
We note that even if the probate court somehow erred in allowing S.W.'s attorney to initially question Dr. Ogburn on voir dire, S.W.'s attorney did not object to being allowed to voir dire Dr. Ogburn or otherwise contend such voir dire would be improper until after the State questioned Dr. Ogburn regarding her qualifications. Accordingly, any complaint about the probate court first allowing S.W.'s attorney to voir dire Dr. Ogburn has not been preserved for our review. TEX. R. APP. P. 33.1 (requiring complaint to be presented to trial court by timely request, objection or motion).
SUFFICIENCY OF THE EVIDENCE
Under section 574.034(a) of the Texas Health and Safety Code, "[a] judge may order a proposed patient to receive court-ordered temporary inpatient mental health services only if the judge or jury finds, from clear and convincing evidence, that:
(1) the proposed patient is a person with mental illness; and
(2) as a result of that mental illness the proposed patient:TEX. HEALTH & SAFETY CODE ANN. § 574.034 (West Supp. 2015).
(A) is likely to cause serious harm to the proposed patient;
(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 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."
In her second issue, S.W. asserts the evidence is legally and factually insufficient to support her temporary commitment "under the first criteria because she was likely to cause serious harm to herself." Accordingly, S.W. challenges the sufficiency of the evidence to support the probate court's finding under section 574.034(a)(2)(A). The probate court's order, however, was based on its findings under section 574.034(a)(2)(A) and section 574.034(a)(2)(C). "Once the State proves the person is mentally ill, it need prove only one of the three listed statutory alternatives — (A), (B), or (C) above — to support a probate court's judgment ordering temporary mental health services." State ex rel. D.P., Nos. 04-14-00719-CV & 04-14-00723-CV, 2015 WL 3616169, at *3 (Tex. App.—San Antonio June 10, 2015, no pet.) (mem. op.). Because S.W. does not challenge the sufficiency of the evidence to support the probate court's finding under section 574.032(a)(2)(C), which is a sufficient, independent basis to affirm the probate court's order, we need not address the sufficiency of the evidence to support the probate court's finding under section 574.032(a)(2)(A). See In re A.C., No. 13-13-00278-CV, 2014 WL 1370117, at *2 (Tex. App.—Corpus Christi Apr. 3, 2014, no pet.) (holding appellant waived review where he failed to challenge all of the bases on which trial court rendered its order for temporary involuntary commitment) (mem. op.). Therefore, S.W.'s second issue is overruled.
COURT-ORDERED MEDICATION
In her final issue, S.W. challenges the probate court's order compelling her to take medication. The only basis on which S.W. challenges the medication order, however, is that the evidence is legally and factually insufficient to support the trial court's judgment of commitment. See TEX. HEALTH & SAFETY CODE ANN. § 574.104(a)(3) (West 2010) (requiring patient to be under an order for inpatient mental health services before physician may file application for court-ordered medication). Because we have determined the evidence is sufficient to support the probate court's judgment with regard to commitment, we overrule S.W.'s third issue. See State ex rel. D.P., 2015 WL 3616169, at *5.
CONCLUSION
The probate court's judgment committing S.W. for temporary inpatient mental health services and its order compelling the administration of psychoactive medications are affirmed.
Marialyn Barnard, Justice