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In re T.B.

Court of Appeals of Texas, Tenth District

December 18, 2019

IN THE INTEREST OF T.B., AN ADULT

          From the 272nd District Court Brazos County, Texas Trial Court No. 16-03580-CRF-272

          Before Chief Justice Gray, Justice Davis, and Justice Neill

          OPINION

          TOM GRAY CHIEF JUSTICE

         T.B. appeals from the trial court's Order for Extended Mental Health Services wherein he was directed to receive in-patient mental health treatment for one year. Because his due process rights were not violated, the trial court did not abuse its discretion in limiting voir dire or in refusing a requested jury instruction, and T.B.'s complaint regarding a compelled invocation of his Fifth Amendment right was not preserved, the trial court's Order is affirmed.

         Background

         T.B. was indicted for stalking. See Tex. Penal Code Ann. § 42.072. On July 12, 2018, the trial court found T.B. to be incompetent to stand trial and ordered that he be committed for restoration to competency. On March 26, 2019, based on the final report from Austin State Hospital, the trial court determined that T.B. continued to be incompetent to stand trial and was not likely to regain competency in the foreseeable future. With the felony charge still pending, a civil commitment jury trial was held. Following the trial, the jury determined that T.B. was a person with mental illness and met the criteria for court-ordered mental health services. Based on the jury's findings, the trial court ordered extended mental health services for T.B.

         Due Process

         In his first issue, T.B. contends he was denied due process of law when the commitment proceeding was conducted in violation of his right to be present. Specifically, T.B. contends the 14th Amendment[1] required his presence at all the judicial proceedings conducted for commitment purposes, the Mental Health Code codifies that right, and neither T.B. nor his counsel waived that right.

         Law

         Involuntary mental health commitment proceedings are civil, rather than criminal, in nature, and all the procedural requirements of a criminal hearing are not strictly applicable. See Campbell v. State, 85 S.W.3d 176, 180 (Tex. 2002); In the Interest of K.C., 563 S.W.3d 391, 397 (Tex. App.-Houston [1st Dist.] 2018, no pet.); In re G.D., 10 S.W.3d 419, 422 (Tex. App.-Waco 2000, no pet.); see also Addington v. Texas, 441 U.S. 418, 428, 99 S.Ct. 1804, 1810, 60 L.Ed.2d 323 (1979). Nevertheless, commitment proceedings remain subject to the Due Process Clause which, generally, requires a person be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine witnesses, and to offer evidence of his own. See Specht v. Patterson, 386 U.S. 605, 608, 610, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). Claims regarding deprivation of constitutional rights present questions of law which we review de novo. State v. Hodges, 92 S.W.3d 489, 494 (Tex. 2002); In the Interest of K.C., 563 S.W.3d 391, 396 (Tex. App.-Houston [1st Dist.] 2018, no pet.); Scally v. Tex. State Bd. of Med. Exam'rs, 351 S.W.3d 434, 446 (Tex. App.-Austin 2011, pet. ref'd).

         Due process is a flexible concept, and the due process right of a party to be present at a civil trial is not absolute. In re M-I L.L.C., 505 S.W.3d 569, 576 (Tex. 2016); United States Gov't v. Marks, 949 S.W.2d 320, 326 (Tex. 1997). Courts have discretion to exclude parties in limited circumstances when countervailing interests overcome a presumption in favor of participation. In re M-I L.L.C., 505 S.W.3d at 575. At a minimum, due process requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 930 (Tex. 1995). What process is due depends on a consideration of three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. United States Gov't v. Marks, 949 S.W.2d 320, 326 (Tex. 1997); Than, 901 S.W.2d at 930.

         Facts

         The record reflects that T.B. was disruptive even before his trial began. At two pretrial hearings, he talked back to the trial court and interrupted his attorney when his attorney tried to speak. Before voir dire, at another pretrial hearing, the trial court warned T.B.:

You're not going to be permitted to disrupt this trial. And if you start doing it, if you start speaking when you're not supposed to speak, I'm going to warn you. And if you keep doing it, I'm going to have to remove you from the courtroom. You understand that?

         Later, when T.B.'s counsel tried to address the court, T.B. stated, "Do not interrupt." The trial court counted that response as the first incident and warned T.B. that, "If you continue to make that statement and talk over your attorney, I'm going to have to remove you from the courtroom." Nevertheless, T.B. talked over his attorney whenever the attorney tried to speak. T.B. was removed from the courtroom for the remainder of the pretrial hearing.[2]

         At the beginning of voir dire, before the panel was brought into the courtroom, the trial court admonished T.B. that if he continued to try to disrupt the hearing in front of the jury, he would be removed again and placed in the conference room. T.B. then refused to sit down in the courtroom. At the urging of counsel for both parties, T.B. was allowed to remain in the courtroom and remain standing until the jury was brought in. Once the jury panel was seated, T.B. was instructed by the trial court to not be disruptive. However, T.B. began addressing the panel. The trial court warned T.B. that he would be removed from the courtroom if he continued to be disruptive. T.B. again addressed the panel. T.B. was removed. At this time, T.B.'s attorney objected to T.B.'s removal from the courtroom pursuant to "Article 1, Section 19 of the Texas Constitution; Article 1.05 of the Texas Code of Criminal Procedure; Article 1, Section 10 and 15 of the Texas Constitution, the Sixth and Fourteenth Amendments of the United States Constitution ensuring trial and effective counsel; and the Fifth and Fourteenth Amendments of the United States Constitution regarding due process." Counsel was given a running objection to the removal.[3]

         Disruptions by T.B. necessitating his removal occurred throughout voir dire. T.B. would be brought into the courtroom when his presence, with or without the jury present in the courtroom, was believed to be necessary. When T.B. was disruptive, the trial court would warn about removal. When T.B. continued to be disruptive, only then was he removed from the courtroom. The next day, the same procedure occurred. T.B. was brought into the courtroom when his presence was deemed necessary, [4] warned, was disruptive, and was removed. The third day, again the same procedure occurred.[5]

         Application

         In this case, there is no question that T.B. had a significant interest in being present during his involuntary commitment hearing. His liberty was at stake. However, because T.B. potentially could be a danger to himself or others if not committed, the State's interest in proceeding with the commitment hearing was substantial. Further, the procedures used by the trial court protected T.B.'s interest as much as possible given T.B.'s refusal to follow the court's instructions and the need for an efficient and orderly hearing. At every stage of the hearing, T.B. was given an opportunity to follow the court's instructions and remain in the courtroom. When he did not, T.B. was removed to an adjacent room where he could see and hear the proceedings. No other safeguards were suggested which would protect T.B.'s interest as much as or more than ...


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