Opinion
No. 14-05-00687-CV.
December 7, 2006.
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 877,816.
Panel consists of Justices Hudson, Frost, and Seymore.
SUBSTITUTE OPINION
We overrule appellant's motion for rehearing. We withdraw our opinion dated October 24, 2006 and issue this substitute opinion in its place. We are presented with an accelerated appeal from an order extending inpatient mental health services for a period of one year. Appellant, Robert Louis Martin, was indicted for aggravated assault after he stabbed a cab driver multiple times in the chest and back with a knife. Following a bench trial on March 7, 2002, the trial court found appellant not guilty by reason of insanity, and he was committed to the maximum security unit at the North Texas State Hospital. The trial court subsequently extended appellant's commitment order five times. See Martin v. State, No. 14-04-00689-CV, 2005 WL 2787033, at *1 (Tex.App.-Houston [14th Dist.] Oct. 27, 2005, no pet.) (mem. op.). The most recent extension, in June 2005, forms the basis for this appeal. In three issues, appellant contends (1) the recommitment order is void because it does not specify which statutory criteria formed the basis for recommitment, (2) the evidence is legally insufficient to support the order, and (3) the evidence is factually insufficient to support the order. We address only appellant's second issue because it is dispositive.
In April 2006, the trial court released appellant from inpatient care and entered an order for outpatient services. However, under the collateral consequences exception, this appeal is not moot. See Johnstone v. State, 22 S.W.3d 408, 409 n. 1 (Tex. 2000) (per curiam) (applying mootness doctrine's collateral consequences exception to temporary mental health commitment orders); Campbell v. State, 68 S.W.3d 747, 753B54 (Tex.App.-Houston [14th Dist.] 2001), aff'd 85 S.W.3d 176 (Tex. 2002). Furthermore, while appellant is in the outpatient services, the committing court will continue to have jurisdiction over appellant. Act of May 25, 1983, 68th Leg., R.S., ch. 454, 1983 Tex. Gen. Laws 2640, 2646 (repealed 2005) (current version at TEX. CRIM. PROC. CODE ANN. art. 46C.261 (Vernon Supp. 2005)). If appellant fails to comply with his required "regime or if [appellants'] condition so deteriorate[s] that out-patient care is no longer appropriate" the director of the outpatient facility shall notify the committing court and appellant will be brought to the committing court to determine by hearing whether appellant should be remanded to an inpatient program. Id.
I. APPLICABLE STATUTORY PROVISIONS
Commitment proceedings concerning persons who have been found "not guilty by reason of insanity" are civil in nature. Campbell v. State, 85 S.W.3d 176, 180 (Tex. 2002). Former article 46.03 of the Texas Code of Criminal Procedure, applicable to this case, provides the procedure for the insanity defense in criminal prosecutions, hearings, and other procedures relating to appellant's acquittal by reason of insanity. See Act of May 25, 1983, 68th Leg., R.S., ch. 454, 1983 Tex. Gen. Laws 2640, 2640B46 (repealed 2005) (current version at TEX. CRIM. PROC. CODE ANN. art. 46C.261 (Vernon Supp. 2005)). Under former article 46.03, section 4(d)(5), recommitment hearings for persons found not guilty by reason of insanity must be conducted pursuant to the Texas Mental Health Code. See id.; Campbell, 85 S.W.3d at 181B82 (holding that article 46.03, section 4(d)(5) recommitment hearing was required to be conducted pursuant to the Texas Mental Health Code).
Mental Health Code section 574.066 generally governs renewal of an order for extended mental health services. TEX. HEALTH SAFETY CODE ANN. § 574.066 (Vernon 2003). Under subsection (e), the patient, the patient's attorney, or other individual may request a hearing on an application or the court may set a hearing on its own motion. Id. _ 574.066(e). "An application for which a hearing is requested or set is considered an original application for court-ordered extended mental health services." Id. (emphasis added). Therefore, an application for a recommitment hearing for a person found not guilty by reason of insanity is treated as an original application under section 574.035 of the Mental Health Code, which governs an original order for extended mental health services. Campbell v. State, 118 S.W.3d 788, 802 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (holding that section 574.035 applies to recommitment hearing of defendant found not guilty by reason of insanity under former Texas Code of Criminal Procedure art. 46.03).
Under section 574.035(a), the trial court may order extended inpatient mental health services if the trier of fact finds, by clear and convincing evidence, that the proposed patient meets, among other requirements, the following criteria:
(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 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
TEX. HEALTH SAFETY CODE ANN. § 574.035(a) (Vernon 2003).
Clear and convincing evidence is "that measure or degree of proof which 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." State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). To be "clear and convincing" under section 574.035(a), the evidence also must include expert testimony and 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) proposed patient's distress and the deterioration of his ability to function. See TEX. HEALTH SAFETY CODE ANN. § 574.035(e) (Vernon 2003).
If the trial court determines that a patient meets the criteria under section 574.035(a), then the trial court must specify the criterion or criteria in section 574.035(a)(2) that form the basis for that decision. See TEX. HEALTH SAFETY CODE ANN. § 574.035(c) (Vernon 2003). Further, the trial "court may not make its findings solely from certificates of medical examination for mental illness but shall hear testimony." Id. TEX. HEALTH SAFETY CODE ANN § 574.035(g) (Vernon 2003) (emphasis added). The trial court may not recommit a patient unless appropriate findings are made and are supported by testimony taken at the hearing. Id. The testimony must include competent medical or psychiatric testimony. Id.
II. ANALYSIS
In his second issue, appellant asserts the trial court's order violates section 574.035(g), which requires the trial court's findings to be based on evidence other than certificates of medical examination for mental illness and to be based on testimony taken at the hearing. See id. The reporter's record from the State's case-in-chief at the recommitment hearing is less than one page. The State offered no oral testimony. The State offered only one exhibit which it described as follows:
I offer State's Exhibit No. 1 which is the Physician's Certificate for mental examination and mental illness signed by David R. Baker, M.D.
Furthermore, in the reporter's record of the recommitment hearing, the court reporter certified that the trial court admitted into evidence an attached four-page State's Exhibit No. 1, "which comprises all of the medical evidence in said [h]earing." Therefore, the only evidence the State introduced was a single, four-page certificate of medical examination for mental illness.
The form for such a certificate is set forth by statute, which provides that the certificate "must include the detailed reason for each of the examining physician's opinions [section 574.011]." See TEX. HEALTH SAFETY CODE ANN. § 574.011(e) (Vernon 2003). As part of his attempt to fulfill these statutory requirements, Dr. Baker states in the certificate that the factual basis for his opinions is "set forth in detail in the attached Exhibit'A' which is incorporated herein by reference as if fully set out verbatim herein." The attached affidavit is labeled Exhibit A, and it comprises two pages of the State's four-paged Exhibit No. 1. Therefore, the incorporated document was part of the medical certificate. It is not a distinct document and has no independent significance. Although the State's Exhibit No. 1 contains two notarized signatures of Dr. Baker, these dual signatures do not transform this single exhibit into two separate documents. Furthermore, the State, the trial court, and the court reporter all treated these four pages as a single document and a single exhibit. The record and the unambiguous language of the State's sole exhibit show that the only evidence the State offered at the recommitment hearing was one four-page certificate of medical examination for mental illness.
The trial court is not permitted to make its findings solely from certificates of medical examination for mental illness. See TEX. HEALTH SAFETY CODE ANN. § 574.035(g). Yet, the only evidence in the record is a certificate of medical examination for mental illness. Therefore, the evidence is legally insufficient to support the trial court's order. See Whitaker v. State, Nos. 01-03-00576-CV, 01-03-00577-CV, 2003 WL 22413511, at *2 n. 1 (Tex.App.-Houston [1st Dist.] Oct. 23, 2003, no pet.) (mem. op.) (stating, as to a second commitment order for a defendant who had been found incompetent to stand trial for assault, trial court could not make its findings under applicable section 574.035 based solely on certificates of medical examination for mental illness) (mem. op.). We sustain appellant's second issue.
Accordingly, we reverse the trial court's order renewing its prior order for inpatient extended mental health services and render an order denying the application for renewal of the prior order for extended mental health services.
Justice