text:
    ROSA’S CAFÉ, INC.; Bobby Cox Companies, Inc.; and the Bobby Cox Companies Employee Injury Benefit Plan, Appellants, v. Mitch WILKERSON, Individually and as Surviving Spouse and Representative of the Estate of Johnna Jean Wilkerson, Deceased; and David Medlin, as Next Friend and Natural Father of Jonathan David Medlin, a Minor, Appellees.
    No. 11-05-00144-CV.
    Court of Appeals of Texas, Eastland.
    Dec. 21, 2005.

      Gary D. Sarles, Sarles & Ouimet, L.L.P., Dallas, for appellants.
    Steven L. Clack, Kerrville, Phillip God-win, Odessa, Michael C. Tighe, McKinney & Tighe, L.L.P., Midland, for appellees.
    Panel consists of: WRIGHT, C.J., and McCALL, J., and McCLOUD, S.J.

       Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.

   OPINION

AUSTIN McCLOUD, Senior Justice (Retired).

This appeal involves the enforcement of a subrogation provision contained in a settlement agreement executed in conjunction with the payment of death benefits under an ERISA benefit plan. See Employee Retirement Income Security Act, 29 U.S.C. § 1001-1461 (2005). The parties executed the settlement agreement after a fatal automobile accident which caused the death of the plan participant. Under the terms of the settlement agreement, the benefit plan was entitled to recover reimbursement for all of the death benefits paid under the plan from any recovery obtained by the plan beneficiaries from the third-party tortfeasor. The trial court did not enforce the reimbursement provision of the settlement agreement. We reverse and render in part and remand in part.

Background Facts

Johnna Jean Wilkerson died as a result of an automobile accident alleged to have been caused by the negligence of Lois Hesser. The decedent was an employee of Rosa’s Café, Inc. at the time of the accident (May 10, 2002). As an employee, the decedent was a participant in a benefit plan provided by her employer. Under the terms of the plan, the decedent’s surviving spouse and minor child were entitled to death benefits as a result of the decedent’s death occurring during the course of her employment.

The First Lawsuit and Resulting Settlement Agreement

In order to facilitate the payment of the death benefit to Wilkerson and the minor child, appellees filed suit in the 385th District Court of Midland County on November 14, 2002, against Rosa’s Café, Inc. The parties, including a guardian ad litem appointed to represent the minor child, executed a document entitled “Settlement, Indemnification, and Subrogation Agreement” (the settlement agreement) in conjunction with the friendly suit on November 21, 2002. With respect to the right of appellants to obtain reimbursement for the death benefits paid to appellees under the plan, the settlement agreement provided as follows:

8. Each of the undersigned signatories for the Releasors acknowledges that he has read the subrogation provisions in Section V.C. of the Plan, which Section V.C. is incorporated by reference into this Agreement the same as if it were set forth here in full. Mr. Wilkerson, both individually and as Independent Executor of the Will and Estate of Johnna J. Wilkerson, Deceased, and Jonathan David Medlin, each agrees, represents and warrants that he will perform all of the obligations set forth in Section V.C. of the Plan, and each of them agrees and acknowledges that the Plan, Bobby Cox Companies, Inc. and Rosa’s Café, Inc. have all of the rights set forth in Section V.C. of the Plan and that they are entitled to subrogate and to recover the full amount of $230,280, without any offsets or reductions to that amount, from any recovery, by settlement or judgment, that Mr. Wilkerson, Mrs. Wilkerson’s estate and/or Jonathan David Medlin may make on any claim or in any lawsuit against Mrs. Lois lies ser, based on Mrs. Wilkerson’s death or fatal injuries, or otherwise arising out of the Automobile Accident, excepting only Social Security benefits and life insurance proceeds that they may receive as a result of Mrs. Wilkerson’s death. Mr. Wilkerson, both individually and as Independent Executor of the Will and Estate of Johnna J. Wilkerson, Deceased, and Jonathan David Medlin each agrees, represents and warrants that he will permit and assist the Bobby Cox Companies Employee Injury Benefit Plan to intervene in any lawsuit against Mrs. Hesser, that he will cooperate in all respects with the Plan in exercising in such lawsuit its subrogation rights in this paragraph, and that, through his counsel, he will provide pri- or notice to counsel for the Plan of all settlement negotiations, hearings, medi-ations, trial settings and depositions. (Emphasis added)

In addition to the foregoing provision, the signature pages for Wilkerson, Medlin, and the minor’s guardian ad litem contained the following language which the respective signatories swore to under oath before a notary:

I also understand that the Bobby Cox Companies Employee Injury Benefit Plan will be entitled to receive the first $230,230, without offset or reduction, from any settlement with or judgment against anyone else in connection with [my wife’s/my son’s mother’s/Mrs. Wilkerson’s] death and fatal injuries.

The trial court entered a judgment in the first lawsuit which incorporated the terms of the settlement agreement and expressly approved its terms. None of the parties appealed the judgment.

The Second Lawsuit

This appeal arises from the suit appel-lees filed against Hesser in the 142nd District Court of Midland County. Appellees reached, an agreement with Hesser wherein Hesser confessed judgment in the amount of $2,000,000. However, appellees agreed to accept the sum of $255,000 from Hesser in settlement for the confessed judgment amount. Appellants filed a plea in intervention in order to obtain reimbursement from the recovery obtained by appellees from Hesser. Appellants asked the trial court to enforce the terms of the settlement agreement by requiring appel-lees to reimburse them for the death benefits paid under the plan from the $255,000 paid by Hesser to appellees.

The parties submitted their contentions to the trial court on an informal basis. After hearing arguments and receiving post-submission briefs from the parties, the trial court denied in part appellants’ intervention claim. The trial court apportioned the settlement funds received from Hesser in three equal shares of $85,000 between Wilkerson, the minor child, and the decedent’s estate. The trial court awarded the $85,000 apportioned to the decedent’s estate to appellants under the court’s interpretation of the benefit plan’s terms. Appellants challenge the trial court’s judgment in two issues.

Issues on Appeal

Appellants assert in their first issue that the trial court erred by ignoring the express terms of the settlement agreement requiring complete reimbursement for the $230,230 paid in plan benefits. In their second issue, appellants argue that the judgment entered in the first lawsuit prevents appellees from raising any defenses to the enforcement of the settlement agreement. Each of appellants’ issues are premised on the assertion that the trial court should have enforced the terms of the settlement agreement as written.

Analysis

In the absence of formal findings of fact and conclusions of law, the trial court’s judgment will be upheld on any legal theory that finds support in the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). The briefs filed in this appeal address two legal theories which would support the trial court’s judgment. The first theory relates to the trial court’s informal statement that the ruling was based on its interpretation of the terms of the benefit plan rather than the terms of the settlement agreement. The second theory involves appellees’ contention both at trial and on appeal that appellants were not entitled to complete reimbursement of their subrogation claim under the “made whole” doctrine. See Ortiz v. Great S. Fire & Cos. Ins. Co., 597 S.W.2d 342, 344 (Tex.1980),

The Express Terms of the Settlement Agreement

Appellants assert that the trial court erred by ignoring the express terms of the settlement agreement requiring complete reimbursement of the $230,230 paid in plan benefits. In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). If the written instrument is worded so that it can be given a certain or definite legal meaning or interpretation, then the instrument is not ambiguous; and the court will construe the contract as a matter of law. Id. at 393. The terms of the settlement agreement which we have previously quoted at length expressly provide that appellants are entitled to full reimbursement for the $230,230 in death benefits paid to Wilkerson and the minor child from any recovery they obtained from Hesser without offset or reduction.

The trial court implicitly rejected the terms of the settlement agreement by utilizing a construction of the origina] benefit plan’s terms in reaching its decision. The trial court erred in this regard. The subsequently executed settlement agreement contained the following provision:

This Agreement contains the entire agreement between the parties to this Agreement, reduced to writing, and supersedes and cancels any and all prior agreements and arrangements as to the matters covered herein or relating hereto.

This provision is typically referred to as a “merger clause.” In general, a merger clause is a contractual provision to the effect that the written terms of the contract may not be varied by prior agreements because all such agreements have been merged into the written document. See IKON Office Solutions, Inc. v. Eifert, 125 S.W.3d 113, 125 n. 6 (Tex.App.-Houston [14th Dist.] 2003, pet. denied)(citing Black’s Law Dictionary 989 (6th ed.1990)). To the extent the terms of the original benefit plan might have contradicted the terms of the settlement agreement, the terms of the settlement agreement prevail under the merger clause. Appellant’s first issue is sustained.

In their second issue, appellants argue that the incorporation of the settlement agreement into the judgment entered in the first lawsuit prevents ap-pellees from collaterally attacking the enforcement of the settlement agreement in this proceeding. Appellants are correct in this regard. When an agreement between parties has been approved by a court and made a part of its judgment, the agreement is no longer merely a contract between private individuals but is the judgment of the court. Ex parte Gorena, 595 S.W.2d 841 (Tex.1979). Parties may not raise contractual defenses to an agreement incorporated into a judgment because such defenses constitute impermissible collateral attacks on the prior judgment. Id. Appellants’ second issue is sustained.

The Made Whole Doctrine

Appellees contend that appellants are not entitled to recover full reimbursement for the $230,230 paid in plan benefits because they were not “made whole” by Hesser for their losses resulting from the decedent’s death. Under the made whole doctrine, an insurer is not entitled to subrogation if the insured’s loss is in excess of the amounts recovered from the insurer and the third party causing the loss. Ortiz, 597 S.W.2d at 344. The made whole doctrine is an equitable theory based upon the concept that if either the insurer or insured must go unpaid, the insurer should bear the loss. Esparza v. Scott & White Health Plan, 909 S.W.2d 548, 551-52 (Tex.App.-Austin 1995, writ denied). The doctrine has been applied in a variety of contexts to reduce or eliminate an insurer’s subrogation claim. See Fortis Benefits v. Cantu, 170 S.W.3d 755 (Tex.App.-Waco 2005, pet. filed)(contraetual subrogation); Texas Ass’n of School Boards, Inc. v. Ward, 18 S.W.3d 256 (Tex.App.-Waco 2000, pet. denied)(statutory subrogation); Esparza, 909 S.W.2d at 551-52 (contractual subrogation). Since appellants’ subrogation claim arises from contractual provisions, we focus our attention on the cases discussing contractual subro-gation.

Appellees contend that the recent holding in Fortis Benefits is dispositive. For-tis Benefits involved a subrogation claim of an insurer that provided health insurance benefits. The insurer asserted that the made whole doctrine does not apply to a contractual subrogation claim. Relying upon the holding in Esparza, the court rejected the insurer’s contention. Fortis Benefits, 170 S.W.3d at 758. In Esparza, the court held that the application of the made whole doctrine cannot be summarily overcome by a boiler-plate provision in an insurance contract that purports to entitle the insurer to subrogation out of the first monies received by the insured. Esparza, 909 S.W.2d at 551-52. The court ruled that, “[w]hile an insurance contract providing expressly for subrogation may remove from the realm of equity the question of whether the insurer has a right to subrogation, it cannot answer the question of when the insurer is actually entitled to subrogation or how much it should receive.” Esparza, 909 S.W.2d at 551. (Emphasis in original)

Fortis Benefits and Esparza would be analogous to the facts in this case if appellants were only relying upon the subrogation provision contained in the original benefit plan. In this regard, we do not question the propriety of applying the made whole doctrine to an insurance contract written before the insurer and insured have knowledge of the circumstances which will cause the payment of benefits under the policy. The facts in this appeal are much different. Here, the subrogation claim arises from a settlement agreement executed after the event which triggered the payment of benefits giving rise to the subrogation claim. The parties, aided by counsel, presumably had knowledge of the loss sustained by the insured and of the third-party tortfeasor’s financial wherewithal to compensate the insured for its loss. The settlement agreement expressly provides that appellants are entitled to complete reimbursement from the recovery obtained from Hesser without any reduction or offset. We conclude that the parties contractually waived the application of the made whole doctrine by executing the settlement agreement under these circumstances.

This Court’s Ruling

The judgment of the trial court is reversed. Judgment is rendered that Rosa’s Café, Inc.; Bobby Cox Companies, Inc.; and the Bobby Cox Companies Employee Benefit Plan recover $230,230 from the $255,000 paid by Hesser to appellees. All remaining issues are remanded to the trial court.

      . Appellants are the decedent’s employer, Rosa's Café, Inc; the benefit plan, the Bobby Cox Companies Employee Injury Benefit Plan; and the sponsor and administrator of the benefit plan, Bobby Cox Companies, Inc.

      . Appellees are Mitch Wilkerson (Wilkerson), the decedent's surviving husband, and David Medlin (Medlin), the father of her surviving minor child, Jonathan David Medlin. Wilkerson filed suit in both his individual capacity and as representative of the decedent’s estate. Medlin filed suit solely in a representative capacity on behalf of the minor.

        . Section V.C. of the plan provided in relevant part as follows:
      1. If a Participant (or if the Participant’s Death Beneficiaries, spouse, heirs, parents or legal representatives) seeks, becomes entitled to, or receives Plan benefits for any injury or death caused by the negligent or wrongful act or omission of any person, entity or organization other than the Company or an Employer, and is entitled to or recovers any damages or other compensation (in any form) on account of the injury or death, whether by insurance, litigation, arbitration, settlement or otherwise, the Participant (or his or her Death Beneficiaries, spouse, children, heirs, parents or legal representatives) shall:
      a. subrogate his or her right to and reimburse the Plan out of said damages or other compensation (including, if necessary, all such damages or other compensation received by the Participant including, without limitation, punitive or exemplary damages and any interest awarded and any portion awarded or paid to the Participant as attorney’s fees or to otherwise compensate the Participant’s attorney for pursuing the claim against the person, entity or organization) to the full extent (i.e. 100%) of the Plan benefits paid to and on behalf of the Participant and without regard to whether said damages or other compensation fully compensate the Participant for his or her injuries and claims against the person, entity or organization, without regard to whether the Participant was able to recover the full amount of his or her claims against the person, entity or organization, and without regard to the nature of the damages or other compensation recovered by the Participant.
      2. A Participant, by participation in this Plan, agrees that his or her Death Beneficiaries, spouse, children, heirs, parents and legal representatives shall be obligated to comply will all of the Participant’s obligations under this Paragraph with regard to any claim arising from an injury to or the death of the Participant, and the receipt and acceptance of all or part of a Death Benefit shall constitute agreement and acceptance by the accepting person or entity of all the terms and conditions of the Plan, including those of this Paragraph.

      . The trial court did not enter formal findings of fact and conclusions of law. However, the trial court sent a letter to the parties which explained the rationale for its ruling. The trial court based its determination on its interpretation of the plan’s terms. The court concluded that, under the terms of the benefit plan, appellants were only entitled to recover reimbursement for benefits paid directly to a plan participant but not a beneficiary of a death benefit paid under the plan.

      . As a result of our holding in this appeal, we do not review the trial court’s interpretation of the original benefit plan’s terms.


source: Caselaw Access Project

author: CHARLES W. SEYMORE, Justice. RICHARD H. EDELMAN, Justice,

license: Public Domain

text:
    In re F.M.
    No. 14-04-00981-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 22, 2005.

      Richard H. Branson, League City, for appellant.
    Donald Glywasky, Robert V. Shattuck Jr., Galveston, for appellee.
    Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
   OPINION

CHARLES W. SEYMORE, Justice.

Appellant, F.M., appeals from an order of commitment for temporary inpatient mental health services and an order to administer psychoactive medication. In three issues, F.M. challenges the sufficiency of the evidence to support the trial court’s orders. We reverse and render.

I. Background

On September 8, 2004, F.M. was taken by ambulance to the University of Texas Medical Branch (“UTMB”) from her group home where she had stayed up all night drawing. F.M. had announced that she would become a doctor and buy a red truck, and was cheerleading, jumping, and laughing.

Approximately two weeks later, a psychiatrist at UTMB filed an application for court-ordered temporary mental health services. The application stated that F.M. was “irritable and easy to anger” and “refusing to take medications.” Following a hearing on September 29, 2004, the trial court ordered that F.M. be committed to Austin State Hospital for inpatient care not to exceed 90 days. Also on September 29, 2004, following a separate hearing, the trial court signed an order authorizing the Department of Health and Human Services to forcibly administer the following classes of psychoactive medication: antidepressants, antipsychotics, aniolyt-ics/sedatives/hypnotics, mood stabilizers, and stimulants.

II. Statutory Requirements for Commitment

A trial court may order a mentally ill patient to receive court-ordered temporary inpatient mental health services if the State proves, by clear and convincing evidence, that the proposed patient is mentally ill, and 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. § 574.034(a) (Vernon 2003).

The statute further provides:

To be clear and convincing ... the evidence must include expert testimony and, unless waived, 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) the proposed patient’s distress and the deterioration of the proposed patient’s ability to function.

Tex. Health & Safety Code ANN. § 574.034(d) (Vernon 2003) (emphasis added).

The judge or jury must specify which criterion under the Texas Health and Safety Code forms the basis for the commitment order. Tex. Health & Safety Code Ann. § 574.034(c) (Vernon 2003). In addition, the overt act or continuing pattern of behavior “must relate to the criterion on which the judgment is based.” See J.M. v. State, 178 S.W.3d 185, 193 (Tex.App.-Houston [1st Dist.] 2005, no pet. h.) (citing In re C.O., 65 S.W.3d 175, 181 (Tex.App.-Tyler 2001, no pet.)).

Here, the trial court found that F.M. is mentally ill, and as a result of that mental illness, the following two statutory criteria were satisfied: (1) F.M. was likely to cause serious harm to herself; and (2) F.M. was suffering severe distress; experiencing substantial deterioration of her ability to function independently; and unable to make a rational and informed decision about whether to submit to treatment. See Tex. Health & Safety Code Ann. § 574.034(a)(2)(A), (C).

III. Legal Sufficiency

In her first and third issues, F.M. contends the evidence is legally insufficient to support the order for temporary mental health services and the order to administer psychoactive medication.

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) (per curiam). When the burden of proof is heightened to a clear and convincing standard, the standard of review for legal sufficiency of the evidence is also heightened. City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex.2005); see Campbell v. State, 68 S.W.3d 747, 758-59 (Tex.App.-Houston [14th Dist.] 2001), aff'd 85 S.W.3d 176 (Tex.2002) (noting the heightened standard is required to protect the rights of the individual). We must consider all evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a belief or conviction that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). We must also assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, and disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible. Id.

F.M. does not challenge the finding that she is mentally ill, but contends the evidence is legally insufficient to support the finding that she meets either of the two additional criteria. Specifically, she contends the State failed to show a recent overt act or continuing pattern of behavior that tends to confirm either (1) the likelihood of serious harm to herself, or (2) her distress and the deterioration of her ability to function. See Tex. Health & Safety Code ANN. § 574.034(d).

A. Likelihood of Serious Harm

Dr. Michael O’Boyle, a board-certified psychiatrist at UTMB, was the sole witness to testify on behalf of the State at the commitment hearing. Based on his evaluation, Dr. O’Boyle determined that F.M. was mentally ill, and related her diagnosis as bipolar manic. During the hearing, the State asked Dr. O’Boyle if, as a result of her mental illness, F.M. was likely to cause serious harm to herself. Dr. O’Boyle replied, “I believe so, yes.” The State then asked Dr. O’Boyle if there were any recent overt acts or continuing patterns of behavior that tended to confirm his testimony. In response, Dr. O’Boyle testified as to F.M.’s refusal to submit to medical treatment and her “mood ability.”

1. Refusal to Submit to Medical Treatment

We will first address the State’s argument that F.M.’s refusal to submit to medical treatment constitutes an overt act or a continuing pattern of behavior tending to show a likelihood of serious harm under the Texas Health and Safety Code. At the hearing, Dr. O’Boyle testified that F.M. had been “pretty consistently” refusing her medication. He further testified that his main concern was that F.M. had a history of breast cancer. Dr. O’Boyle explained that he had planned to recommend that F.M. be committed to UTMB for her to receive radiation treatment. However, he changed his recommendation to commitment to Austin State Hospital because F.M. refused to submit to the treatment.

This court has previously held that testimony concerning a proposed patient’s refusal to take prescribed medications together with unspecified “actions at home” and “bizarre behavior at the emergency room” constituted legally and factually sufficient evidence to support an involuntary commitment order. See In re G.H., 94 S.W.3d 115, 115-17 (Tex.App.-Houston [14th Dist.] 2002, no pet.). The dissent expressed concern that the majority declined to follow the preponderance of Texas authority holding a patient’s refusal to take medication is insufficient evidence of a recent overt act or continuing pattern of behavior. See id. at 117; see also, G.H. v. State, 96 S.W.3d 629, 635 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (disagreeing with the analysis of this court’s majority opinion in In re G.H.). The In re G.H. majority relied on three cases in which other courts indicated that refusal to take medication may affect a proposed patient’s ability to function and make rational decisions about treatment under the third criterion of commitment. See In re G.H., 94 S.W.3d at 117 n. 2 (citing In re K.D.C., 78 S.W.3d 543, 550 (Tex.App.-Amarillo 2002, no pet.); D.J. v. State, 59 S.W.3d 352, 356-57 (Tex.App.-Dallas 2001, no pet.); Mezick v. State, 920 S.W.2d 427, 430 (Tex.App.Houston [1st Dist.] 1996, no writ)). Accordingly, In re G.H. should not be cited to support the contention that refusal to take medication, without more, is an overt act or continuing pattern of behavior as contemplated by the Health and Safety Code.

Both a medical and legal determination of the grounds for involuntarily committing a person to a mental hospital are required before the State is justified in depriving a mentally ill person of his or her liberty. Moss v. State, 539 S.W.2d 936, 950 (Tex.Civ.App.-Dallas 1976, no writ); see O’Connor v. Donaldson, 422 U.S. 563, 575, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (“A finding of ‘mental illness’ alone cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement.”); Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972) (noting that the jury serves the “critical function” in a commitment proceeding of introducing a lay judgment “concerning the kinds of potential harm that justify the State in confining a person for compulsory treatment”). Evidence of an overt act or continuing pattern of behavior is specifically required by the Texas Health and Safety Code in addition to expert opinion. Tex. Health & Safety Code Ann. § 574.034(d). Evidence establishing that an individual is mentally ill and in need of treatment alone does not satisfy the statutory standard. In re K.D.C., 78 S.W.3d at 550.

If we were to adopt the State’s position and hold that refusal of medication or medical treatment per se can constitute an overt act or continuing pattern of behavior sufficient to fulfill the clear and convincing standard, the medical and legal determination would become conflated. A person diagnosed with mental illness could be forced to submit to treatment based on nothing more than the very fact that he or she did not wish to be treated. See J.M., 178 S.W.3d at 195 (noting a similar tautology in discussing evidence regarding a proposed patient’s refusal to cooperate with treatment). By this circular reasoning, the State would have carte blanche to involuntarily commit anyone who had been diagnosed with mental illness and either preferred to pursue alternative means of treatment, or determined, contrary to psychiatric advice, that the negative side-effects and other risks of available medication outweighed the benefits. This reasoning poses a grave concern, especially for those relying on State psychiatric advice who are unable to afford the luxury of obtaining an independent second opinion.

The State relies on Johnson v. State, in which the San Antonio Court of Appeals reasoned that an individual who cannot make a rational decision to receive treatment poses a threat to his own well being. 693 S.W.2d 559, 563 (Tex.App.-San Antonio 1985, no writ) (emphasis added). However, the appellant in Johnson did not challenge the sufficiency of the evidence to support the commitment order; rather, she challenged the constitutionality of the commitment statute. Id. Johnson’s argument was based on the United States Supreme Court’s holding in O’Connor v. Donaldson that there is no constitutional basis for confining the mentally ill if “they are dangerous to no one and can live safely in freedom.” 422 U.S. at 575, 95 S.Ct. 2486. She argued that the third criterion for commitment in Texas was overbroad because it allowed nondangerous individuals to be involuntarily committed. Johnson, 693 S.W.2d at 563. The San Antonio Court of Appeals held that the third criterion incorporated a dangerousness standard in keeping with due process requirements because an individual who cannot make a rational decision concerning treatment poses a threat to his own well being. Id. In a subsequent opinion, the court clarified that the act of refusing medication was not an overt act sufficient to support a finding of clear and convincing evidence under the third criterion, but was instead relevant to the inquiry concerning a proposed patient’s ability to make a rational and informed treatment decision. In re Breeden, 4 S.W.3d 782, 789-90 (Tex.App.-San Antonio 1999, no pet.).

The present case illustrates the danger of divorcing the proposed patient’s underlying rationale from the decision to refuse treatment itself. It is not clear from the record which medication(s) F.M. refused. It is also not clear when or how often F.M. refused the medication(s). According to F.M.’s medical records, she was refusing 30 m.g. dosages of a drug, trade name Abilify, for very specific reasons concerning possible side effects. One note indicated that she would accept a different drug, trade name Seroquel, and the plan was to “titrate Seroquel up” if she continued to refuse Abilify. There was no further indication as to whether the treatment plan was carried out or whether she was given the option to switch to Seroquel or to a lower dosage of Abilify.

During the hearing, Dr. O’Boyle testified that when he asked F.M. about taking Abilify, F.M. became angry and said the medication caused her cancer, causes her to drink alcohol and caffeine, and “just makes things worse.” F.M.’s medical records also reflect her concern that Abilify played a role in causing her cancer. However, the record contains no reference to carcinogenicity studies concerning the medication. Nor is there any indication as to whether F.M. was attempting to use alcohol and caffeine as self-help mechanisms to combat other side effects of the drug. The record does not reflect any inquiry into the reasons behind F.M.’s statements, and there is no evidence to discredit her explanation.

Dr. O’Boyle also testified at the hearing that F.M. was “pretty consistently refusing medications.” However, it is not clear whether Dr. O’Boyle was testifying that F.M. was refusing to take all of her medications, or whether he was specifically referring to her refusal to take Abilify. F.M.’s medical records indicate that she was accepting medications to help her sleep and for pain and anxiety. Further, while the record reflects that F.M. had become delusional, there is no indication that her delusions were related to or had an effect on her reasons for refusing medical treatment. See Protection of S.E.W., Nos. 14-02-00602-CV, 14-02-00603-CV, 2002 WL 31599910, at *3 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (not designated for publication) (holding evidence sufficient to support commitment order under third criterion when appellant refused medicine because she was convinced her medicine was poisonous and caused bladder infections, but repeated tests revealed no physical evidence of appellant’s perceived infections and appellant was found wandering in a church). According to F.M.’s medical records, she complained that Abilify caused insomnia, gave her nightmares, made her angry, caused muscle cramps in her left calf, and caused her to wet the bed and make involuntary visits to the toilet with urine running down her legs. However, the record does not indicate whether insomnia, muscle cramps, hostility, urinary incontinence, or any other adverse events complained of were known to be side-effects of Abilify. Nor is there any indication as to whether F.M. was actually suffering from these side-effects, or whether the side-effects were paranoid figments of imagination brought on by her mental illness.

The significance of a refusal to accept, not only psychiatric medication, but any other kind of medication or medical procedure, cannot be assessed in the absence of expert opinion concerning recommended treatment, risks, alternatives, and consequences. With respect to cancer treatment, Dr. O’Boyle testified that F.M. had a “history of breast cancer,” and that she complied with a biopsy, but had recently refused to undergo a radiation treatment. F.M.’s medical records indicate that the results of that biopsy were negative. F.M. also testified at the hearing and responded to questions about her refusal to receive radiation treatment. She said that according to her nurse, she needed to take calcium for her cancer. She also stated her initial reason for refusing the radiation treatment was that it would cause “so much fatigue.” Her further explanation was rambling and incoherent, but she concluded that she “[felt] fine about it.” An entry in her medical records on the day before the hearing notes that she “initially refused then later agreed to go to radiation oncology for breast radiation and went running down the hallway to catch transportation personnel.”

The refusal of one radiation treatment is not, without more, indicative of an irrational decision. F.M. might have needed more time to assess her treatment options, or as her testimony suggests, she might simply have not felt well enough to submit to an exhausting treatment procedure that particular day. F.M. also testified that her nurse had told her that she needed to take calcium. However, F.M.’s nurse did not testify at the commitment hearing, nor was there testimony from F.M.’s oncologist or other treating physician. We therefore do not know if F.M. misinterpreted dietary advice, or was, in fact, informed by a nurse of legitimate studies suggesting that calcium might be effective in the prevention or treatment of breast cancer.

We do not find enough information in this record for a fact finder to evaluate whether F.M. was able to make treatment decisions on a rational basis. If her refusal of psychiatric medication and a radiation treatment alone were overt acts sufficient to meet the clear and convincing standard under the first criterion, the strict requirements of the third criterion concerning the proposed patient’s ability to function and make a rational treatment decision would be undermined.

Although psychiatric treatment has advanced significantly from the days of the lobotomy, there is still much art and guesswork involved. See, e.g., Addington v. Texas, 441 U.S. 418, 430, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (noting that psychiatric diagnosis is “to a large extent based on medical ‘impressions’ drawn from subjective analysis and filtered through the experience of the diagnostician”); O’Connor, 422 U.S. at 584, 95 S.Ct. 2486 (Burger, J., concurring) (noting that “despite many recent advances in medical knowledge, it remains a stubborn fact that there are many forms of mental illness which are not understood ... ”). The inherent uncertainties in diagnosis as well as the se vere side-effects and sometimes questionable efficacy of psychoactive medication have been judicially recognized. See Washington v. Harper, 494 U.S. 210, 229-30, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (noting that the purpose of antipsychotic drugs is “to alter the chemical balance in a patient’s brain” but “the drugs can have serious, even fatal, side effects.”); see also Addington, 441 U.S. at 429-30, 99 S.Ct. 1804; Moss, 539 S.W.2d at 950-51. There is “a significant liberty interest in avoiding the unwanted administration of antipsy-chotic drugs under the Due Process Clause of the Fourteenth Amendment.” Harper, 494 U.S. at 220, 110 S.Ct. 1028. In fact, the “forcible injection” of any medication “into a nonconsenting person’s body represents a substantial interference with that person’s liberty.” Riggins v. Nevada, 504 U.S. 127, 134-35, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992) (citing Harper, 494 U.S. at 229, 110 S.Ct. 1028). We- hold that the mere assertion of a person’s liberty interest in refusing medication or other medical treatment cannot be considered an overt act sufficient to meet the clear and convincing standard for involuntary commitment.

2. “Mood Ability”

During the hearing, Dr. O’Boyle testified that he had noticed F.M.’s “mood ability.” He said that she could get “very angry very quickly,” and although she had never struck him, she had been “in his face” a few times and he felt it wise to back off. The State argues that Dr. O’Boyle’s testimony as to F.M.’s “mood ability” is evidence of an overt act sufficient to meet the clear and convincing standard. We disagree. Dr. O’Boyle’s testimony described a general trait or disposition, and not a specific overt act or pattern of behavior. Although he said that F.M. had been “in my face a few times,” he did not provide any further factual elaboration as to the dates, times, and circumstances surrounding such incidents. Even if there was evidence of a specific overt act or pattern of behavior showing violence or hostility toward a third person, that evidence would tend to show that F.M. was a danger to others, not herself. See J.M., 178 S.W.3d at 193 (holding that aggressive behavior toward family did not tend to confirm the likelihood that the proposed patient would cause serious harm to herself); but see Taylor v. State, 671 S.W.2d 535, 538 (Tex.App.-Houston [1st Dist.] 1983, no writ) (holding that evidence of provocative and hostile behavior toward family and third parties “could foreseeably result in someone acting in a more violent manner toward appellant in the future”). The recent overt act or continuing pattern of behavior proven by the State must be related to the criterion supporting the trial court’s judgment. J.M., 178 S.W.3d at 193. Here, Dr. O’Boyle testified he did not believe that F.M. was a danger to others, and the trial court did not find that F.M. posed a danger to others as a basis for commitment. To the extent that hostile and provocative behavior may foreseeably result in an increased risk of retaliation by a third party, this potential risk alone is not legally sufficient to show that F.M. is likely to cause serious harm to herself.

Because we find no evidence of an overt act tending to confirm that F.M. was likely to cause serious harm to herself, the evidence is legally insufficient to support a commitment order under the first criterion of the Texas Health and Safety Code.

B. Inability to Function

Alternatively, the State argues that the evidence was sufficient to meet the third criterion for commitment: severe distress and substantial deterioration in ability to function. See Tex. Health & Safety Code Ann. § 574.034(a)(2)(C). The State, tracking the language of the Texas Health and Safety Code, asked Dr. O’Boyle: (1) whether F.M. was “suffering severe and abnormal mental, emotional or physical distress”; (2) whether she was “also experiencing substantial mental or physical deterioration of her ability to function independently”; (3) whether that deterioration was “exhibited by her inability except for any reasons of indigence to provide for her basic needs like food, clothing, health or safety”; and (4) whether she “was able at all times to make a rational and informed decision about whether or not to submit to treatment.” Dr. O’Boyle answered, “yes” to the first three questions, and “no” to the fourth. With respect to acts or patterns of behavior tending to confirm F.M.’s “distress and deterioration and inability to function,” Dr. O’Boyle referred to her refusal to take Abilify.

Expert opinions recommending involuntary commitment must be supported by a showing of the factual basis on which they are grounded. In re J.S.C, 812 S.W.2d 92, 95 (Tex.App.-San Antonio 1991, no writ). It is not enough to merely recite the statutory criteria, but the expert should describe the specific behavior of the proposed patient which forms the basis for his or her opinion. J.M., 178 S.W.3d at 193; Broussard v. State, 827 S.W.2d 619, 622 (Tex.App.-Corpus Christi 1992, no writ); Moss, 539 S.W.2d at 950. As discussed above, because the significance of refusal to take medication cannot be logically separated from an expert’s bare opinion regarding diagnosis and recommended treatment, the mere refusal to take medication is not an overt act or continuing pattern of behavior sufficient to support a finding of clear and convincing evidence. There must be a further showing, by expert testimony or other evidence, that the refusal “tends to confirm” the relevant criterion for commitment. Absent this showing, we conclude that F.M.’s refusal to take medication is not evidence of an overt act or continuing pattern of behavior sufficient to support commitment under the third criterion.

The State also points to notes contained in F.M.’s medical records wherein a member of the staff reports that F.M. had “too much interference from family and friends,” did not want staff “to talk about her to anyone,” and had yelled at her ex-husband over the phone and told him not to call her again. The State argues that there is a continuing pattern of behavior demonstrating F.M.’s inability to provide her own shelter because F.M. refuses contact with family members on whom she would rely to place her in an apartment. However, the State’s mere speculation that F.M. will not be able to provide her own shelter because she yelled at her ex-husband and thought her family and friends were interfering too much is not sufficient to meet the clear and convincing standard for involuntary commitment.

Not only is there no evidence of an overt act or continuing pattern of behavior to support the third criterion for commitment, but there is also no evidence of a “substantial deterioration” in F.M.’s “ability to function independently.” See Tex. Health & Safety Code Ann. § 574.034(a)(2)(C)(ii). No testimony was introduced at the commitment hearing with respect to F.M.’s ability to function on a day-to-day basis. Notes in F.M.’s medical records to this effect indicate that she maintained positive oral hygiene and “dressed appropriately,” although a note on one occasion indicated that she appeared “mildly disheveled.” In fact, the only evidence suggesting that F.M. was impeded in everyday functioning is from F.M.’s own complaints regarding, for example, the insomnia and urinary incontinence caused by her medication.

Finally, the State relies on evidence of F.M.’s delusional thoughts about talking with ghosts, working for President Bush, and building a bed and breakfast. However, this evidence of delusional behavior merely confirms that F.M. is mentally ill. It does not rise to the level of an overt act or continuing pattern of behavior necessary to support a commitment order. See T.G. v. State, 7 S.W.3d 248, 250-52 (Tex.App.-Dallas 1999, no pet.) (holding evidence of patient’s delusion that she was in military and mail carrier was responsible for her welfare not sufficient to support commitment order); Broussard, 827 S.W.2d at 622 (holding evidence of patient’s six or seven prior hospitalizations, psychotic and hostile behavior, and repeated refusals to take medication insufficient to support commitment order).

We find no evidence of a recent overt act or continuing pattern of behavior tending to confirm F.M.’s distress and deterioration in ability to function. Further, as discussed above, there is no evidence to support the findings that F.M. was unable to provide for her basic needs and unable to make a rational and informed decision as to whether to submit to medical treatment. Accordingly, we hold the evidence legally insufficient to support an order for involuntary commitment under the third criterion of the Texas Health and Safety Code.

IV. ORDER to Administer Psychoactive Medication

F.M. also contends that the evidence is legally insufficient to support the trial court’s order to administer psychoactive medication. A trial court may issue an order authorizing the administration of psychoactive medication only if the proposed patient is under a valid order for temporary or involuntary mental health services. Tex. Health & Safety Code Ann. § 574.106(a)(1). Because we find the evidence legally insufficient to support the trial court’s order of temporary commitment, we also find the evidence legally insufficient to support the order to administer psychoactive medications. See K.T. v. State, 68 S.W.3d 887, 894 (Tex.App.-Houston [1st Dist.] 2002, no pet.). We sustain appellant’s first and third issues.

We reverse the Order For Temporary Inpatient Mental Health Services and the Order to Administer Psychoactive Medication, and we render judgment denying the State’s applications to commit F.M. for court-ordered temporary mental health services and to administer psychoactive medications.

EDELMAN, J., dissenting.

GUZMAN, J., concurs in result only without an opinion.

RICHARD H. EDELMAN, Justice,

dissenting.

Among other things, F.M.’s doctor testified, and the trial court found, that she is mentally ill (bipolar manic) and that, as a result of that mental illness, she is: suffering severe and abnormal mental or emotional distress; experiencing substantial mental deterioration of her ability to function independently, as exhibited by her inability to provide for her basic needs, including safety; and unable to make a rational and informed decision as to whether or not to submit to treatment. The evidence at the hearing included her doctor’s testimony that: (1) she can get very angry very quickly; (2) she had refused at least one cancer radiation treatment; (3) when asked by her doctor about taking a medication called Ability, which she had previously told him was “really good medicine,” she became angry and told him that it had caused her cancer and caused her to drink alcohol and caffeine; (5) immediately after her previous release from the treatment facility, she was brought back; (6) she had been inconsistent in following through with treatment after agreeing to it; that is, she had told her doctor in the past that she would follow a suggested course of action, but then refused for reasons that made sense to her; (7) she doesn’t believe she has bipolar illness; and (8) if she is not treated with psychoactive medications, she will continue to deteriorate. In addition, F.M.’s own testimony included the following:

Q. [B]ut you’re telling me now and you’ve told the doctor that you would be agreeable to not only start but continue and stay with the radiation treatments or whatever medications they wanted to give you for your cancer; is that correct?
A. For my cancer?
Q. Right. Let’s start with that first because that’s why this all changed around because you were refusing treatment for your cancer.
A. The only thing I need for my cancer is calcium according to my nurse.
Q. Well, okay, but the doctor thinks you may need something more than that and you’re not taking that and he can’t do anything about it which is why he’s recommending you be sent to Austin.
A. Well, the reason I don’t take that is because it’s on my allergy strap considered by the gentleman in the biopsy room, okay, and I have to stay away from caffeine because I’m an LSD victim. Caffeine, alcohol, marijuana, stress, blinking lights and the mercury drug report fatigue. And the reason I initially denied the radiation was because I was afraid I would fall into so much fatigue but I saw Dr. Hatch on TV yesterday at dinner time and then the next day at lunch time with the names of Dr. Hoff and a gentleman that I saw there the other day, and she told me it’s five days perfected and that it’s truly state of the art as my surgeon said. Everything was state of the art.
Q. Is there anything else that you want to tell the judge?
A. I’m not bipolar or manic depressive. I am an LSD victim which appears that way which I told Dr. Early. I told the signs. I even had blinking lights in the fire drill the other day and a “blink, blink” fluorescent light this morning in my bathroom.... And I am Post Traumatic Stress Disorder because of my soldier in Cambodia missing in action.

Because I believe this evidence is legally sufficient to show recent overt acts and/or a continuing pattern of behavior that tended to confirm F.M.’s distress and deterioration of her ability to function, I would affirm the judgment of the trial court.

      . Although the ninety-day period has expired, F.M.’s challenge to the sufficiency of the evidence to support her commitment is not moot. See Johnstone v. State, 22 S.W.3d 408, 409 n. 1 (Tex.2000) (per curiam).

      . Although Dr. O’Boyle testified that his main concern was F.M.'s refusal to submit to a radiation treatment, on cross-examination, he testified that he did not know if Austin State Hospital had the capabilities to provide F.M. with radiation treatment. Thus, it is not clear why Dr. O’Boyle changed his commitment recommendation to the Austin State Hospital where F.M. might not have had any opportunity for the treatment.

      . The First Court of Appeals in Houston, and the San Antonio, Corpus Christi and Tyler Courts of Appeals have held that refusal to take medication is not an overt act or continuing pattern of behavior sufficient to meet the clear and convincing standard under the Texas Health and Safety Code. See J.M. v. State, 178 S.W.3d 185, 194 (Tex.App.-Houston [1st Dist.] 2005, no pet. h.) (holding that the refusal to take medication is not evidence of an overt act or continuing pattern of behavior); In re Breeden, 4 S.W.3d 782, 789-90 (Tex.App.-San Antonio 1999, no pet.) (finding refusal to take psychiatric medication was not evidence of an overt act under the third criterion, but not addressing whether the refusal to take medication was evidence of an overt act under the first criterion); Broussard v. State, 827 S.W.2d 619, 622 (Tex.App.-Corpus Christi 1992, no writ) (finding repeated refusal to take psychiatric medication was evidence that patient could not make a rational and informed decision regarding treatment, but was not evidence showing an overt act or continuing pattern of behavior); In re B.S., No. 12-02-00217-CV, 2003 WL 21260028, at *5 (Tex.App.-Tyler 2003, no pet.) (not designated for publication) (finding patient’s refusal to take medication for hypertension was not an overt act as contemplated by the Texas Health and Safety Code).
      The Amarillo and Dallas Courts of Appeals have discussed the refusal to take medication in the context of the third criterion of commitment, but have not specified whether the refusal could be considered evidence of an overt act or continuing pattern of behavior. See In re K.D.C., 78 S.W.3d 543, 550 (Tex.App.-Amarillo 2002, no pet.) (finding no evidence of an overt act when patient refused medication out of a concern she was pregnant despite the fact that patient knew she previously had a hysterectomy); D.J. v. State, 59 S.W.3d 352, 356 (Tex.App.-Dallas 2001, no pet.) (finding no evidence of an overt act when evidence concerning patient's refusal to take medication was "confused at best”).
      The Fort Worth Court of Appeals has found that refusal to take medication is evidence that "as a whole, 'tends to confirm' the likelihood of serious harm ... as well as the deterioration of his [the proposed patient's] ability to function,” but has not held that the refusal to take medication is an overt act or continuing pattern of behavior. Roland v. State, 989 S.W.2d 797, 802 (Tex.App.-Fort Worth 1999, no pet.); see Matter of R.S.C., 921 S.W.2d 506, 509-12 (Tex.App.-Fort Worth 1996, no writ) (holding that the "totality of the evidence” regarding a patient’s bizarre delusional system tended to confirm the proposed patient’s likelihood to cause serious harm and tended to confirm the proposed patient’s distress, inability to function, and inability to make a rational treatment decision).

      . Two certificates of mental examination for mental illness are required to support an application for court-ordered mental health services. Tex. Health & Safety Code Ann. § 574.009(a) (Vernon 2003). In this case, certificates were filed by Drs. James Given and Michael O’Boyle of UTMB. Both cited the patient’s irritability and refusal to take medication as the basis for commitment.

      . When Johnson was decided in 1985, the third criterion for commitment under the Texas Mental Health Code required proof that a person "will, if not treated, continue to suffer severe and abnormal mental, emotional, or physical distress and will continue to experience deterioration of his ability to function independently and is unable to make a rational and informed decision as to whether or not to submit to treatment." Johnson, 693 S.W.2d at 562 (citing Tex.Rev.Civ. Stat. Ann art. 5547-1 et seq. (Vernon Supp.1985)). The most recent revisions in 1997 included the additional requirement that the deterioration of the proposed patient’s ability to function must be exhibited by an "inability, except for reasons of indigence, to provide for the proposed patient's basic needs, including food,
      clothing, health or safety.” Tex. H.B. 1039, 75th Leg., R.S. (1997). The House Committee on Public Health described the background for the 1997 revisions as follows:
      In 1983, the Texas Mental Health Code was rewritten to set up a mental illness commitment standard that required one of three alternative grounds as basis for the imposition of courtordered (sic) mental health services. To order commitment, a mental health court has to find, by clear and convincing evidence, that a mentally ill person is likely to cause serious harm to self or others or must be in such a deteriorated condition as to be considered "dangerous.” The lack of guidelines for the court when requiring out-patient services and lack of clarity as to the meaning of the language in the deterioration may allow in-patient commitment of mentally ill persons who are not dangerous. Thus, the current commitment procedure structure has been criticized for causing persons to be placed into in-patient settings when out-patient treatment would be more appropriate.
      House Comm, on Public Health, Bill Analysis, Tex. H.B. 1039, 75th Leg., R.S. (1997).

      . In light of our holding, it is unnecessary to address appellant’s second issue regarding factual insufficiency.

      . See Tex Health & Safety Code Ann. § 574.034(a)(1), (a)(2)(C) (Vernon 2003).


author: TERRIE LIVINGSTON, Justice.

text:
    John Willie TUCKER, Appellant, v. The STATE of Texas, State.
    No. 2-03-471-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 29, 2005.

      William A. Bratton III, Dallas, for appellant.
    Bruce Isaacks, Criminal District Attorney, Erin B. Healey, Debra Bender, Anthony James Paul, Assistant Criminal District Attorneys, Denton, Matthew Paul, State Prosecuting Attorney, Austin, for state.
    PANEL B: LIVINGSTON, GARDNER, and WALKER, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Appellant John Willie Tucker appeals from his jury conviction of a lesser included offense of possession of cocaine in an amount of four grams or more but less than two hundred grams of cocaine. The trial court assessed his punishment at five years’ confinement. In his first and second points, appellant contends that the trial court erred by denying his motion to suppress the evidence obtained from the search of the vehicle in which he was a passenger and by granting the State’s challenge for cause to one juror. In his third and fourth points, appellant also contends that the evidence is legally and factually insufficient to support the finding of guilt against him. We affirm.

Background

Denton County detectives notified patrol Officer Chris Plank to be on the look-out for a green 1996 Oldsmobile Cutlass, with license plate number TYK86T, that they believed would be holding felony parole violator Donald Gulley. When Officer Plank saw the vehicle commit a traffic offense, he pulled the vehicle over. The driver was Ivory Gober; the front-seat passenger was Donald Gulley, the person being sought; and the back seat passenger was appellant. Officer Plank gave the driver a warning ticket for failing to use his turn signal one hundred feet before a turn and asked dispatch to check all three of the vehicle’s occupants for outstanding warrants. Both Ivory, the driver, and Donald, the front-seat passenger, had outstanding warrants for their arrests.

When Officer Plank instructed Donald to get out of the car so that he could be handcuffed, Officer Plank saw appellant— the back seat passenger — stuff something down into the car seat to his left. Another officer also saw appellant doing something. At that point, Officer Plank instructed appellant to step out of the vehicle. Officer Plank could see a plastic baggie sticking out of the rear seat and removed it, believing it to contain crack cocaine. He handcuffed appellant at this time and continued his search of the vehicle, in which he found a pill bottle containing twelve rocks of crack cocaine from the front seat where Donald had been seated.

At trial, appellant testified that his cousins, Donald and Larry Gulley, picked him up from the airport the day that he arrived in Texas from Arizona and took him to his sister’s house. The next day, appellant and Donald were going to Arkansas to see their grandmother. Donald, driving his girlfriend’s car, and Donald’s girlfriend picked up appellant, and they ran some errands. Later, they drove to some apartments to pick up Ivory. While they were waiting on Ivory, Duane Lawson came out to the car and sat in the back seat until Ivory showed up. Duane got out of the car and Ivory got in so that Ivory and appellant were in the back seat, and Donald and his girlfriend were in the front. They eventually dropped off Donald’s girlfriend, and at the time they were stopped, Ivory was driving, Donald was the front seat passenger, and appellant remained in the back alone. Appellant testified that he did not hide anything or take anything out of his pocket. He also testified that he did not know that anyone had possession of any drugs or any drug paraphernalia, and in fact, that he really did not even know the people his cousin had picked up in the car.

The Suppression Issue

In one multifarious point, appellant claims that the trial court erred by denying his motion to suppress the warrantless search of the vehicle in violation of the Fourth and Fourteenth Amendments to the United States Constitution; he appears to challenge both the stop of the vehicle and his search and arrest. In his initial argument under his first point, appellant contends that the officer could not have seen the driver’s failure to use a right turn signal because he was “not in a position to see the vehicle one-hundred (100) feet before the stop sign.” Also, he argues that the officer did not have reasonable suspicion to believe that appellant was engaged in criminal activity that would justify the further investigation or detention of him.

Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court’s decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). Therefore, we give almost total deference to the trial court’s rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002); State v. Ballman, 157 S.W.3d 65, 68 (Tex.App.-Fort Worth 2005, pet. ref'd); Harrison v. State, 144 S.W.3d 82, 85 (Tex.App.-Fort Worth 2004, pet. granted); Best, 118 S.W.3d at 861-62. However, when the trial court’s rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court’s rulings on mixed questions of law and fact. Johnson, 68 S.W.3d at 652-53.

When the trial court does not file findings of fact, we are to view the evidence in the “light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.” Ross, 32 S.W.3d at 855; Guzman, 955 S.W.2d at 89; State v. Maldonado, 176 S.W.3d 419, 421 (Tex.App.-Houston [1st Dist.] 2004, no pet.). When the sole witness at the motion to suppress hearing is the officer and the trial court filed findings of fact and conclusions of law, as in this case, the only question before us is whether the trial court properly applied the law to the facts it found. Ballman, 157 S.W.3d at 69; see also Carmouche, 10 S.W.3d at 327-28; Guzman, 955 S.W.2d at 86-87, 89.

Probable Cause to Stop Vehicle for Traffic Violation

Before addressing the merits of appellant’s complaint regarding the initial traffic stop, we must first determine whether appellant has standing to challenge the initial stop of the vehicle.

Proof of “a reasonable expectation of privacy” is at the forefront of all Fourth Amendment claims. Any defendant seeking to suppress evidence obtained in violation of the Fourth Amendment must first show that he personally had a reasonable expectation of privacy that the government invaded. He must prove that he was a “victim” of the unlawful search or seizure. He has no standing to complain about the invasion of someone else’s personal rights. Only after a defendant has established his standing to complain may a court consider whether he has suffered a substantive Fourth Amendment violation. Although we defer to the trial court’s factual findings and view them in the light most favorable to the prevailing party, we review the legal issue of standing de novo.

Kothe v. State, 152 S.W.3d 54, 59 (Tex.Crim.App.2004) (footnotes omitted); Matthews v. State, 165 S.W.3d 104, 110-11 (Tex.App.-Fort Worth 2005, no pet.).

A passenger generally has no standing to contest the search of a vehicle. Stone v. State, 147 S.W.3d 657, 659 (Tex.App.-Amarillo 2004, pet. ref'd); Carroll v. State, 56 S.W.3d 644, 650 (Tex.App.-Waco 2001, pet. ref'd); see also Morfin v. State, 34 S.W.3d 664, 666-67 (Tex.App.-San Antonio 2000, no pet.) (holding passenger has no legitimate expectation of privacy in a vehicle without a possessory interest in it but does have standing to challenge seizure of his or her person). A passenger has no standing to complain about the invasion of someone else’s personal rights but retains the right to show that “he personally had a reasonable expectation of privacy that the government invaded.” Kothe, 152 S.W.3d at 59. As Kothe explains, a defendant must show that “he was a ‘victim’ of the unlawful search or seizure.” Id. Generally, a stop results in a seizure of the passenger and driver alike, so we will address appellant’s complaint regarding the initial stop. Id. at 61 n. 19. However, it is critical that the “precise police conduct being objected to be properly identified, for this may itself turn out to be determinative on the standing issue.” Id. at 60.

Appellant appears to challenge the initial stop for the driver’s failure to signal a turn. When a traffic violation is committed in an officer’s presence, the officer has probable cause to lawfully stop and arrest or detain the violator. Tex.Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005); Tex. Transp. Code Ann. § 543.001 (Vernon 1999); Williams v. State, 726 S.W.2d 99, 101 (Tex.Crim.App.1986); Tyler v. State, 161 S.W.3d 745, 748 (Tex.App.Fort Worth 2005, no pet.).

Appellant challenged the officer’s ability to observe the driver’s failure to signal for the one hundred feet before the turn. See Tex. Transp. Code Ann. §§ 545.104,545.106. Appellant says that because the officers did not have a clear view of the car from the entire one hundred feet before the stop, there is no evidence to support the stop. Appellant points to the driver’s testimony as well as defense exhibit one to controvert the officer’s testimony. However, the officer’s testimony was clear that at least at the time the car reached the stop sign the driver had not signaled to turn. Only after the driver saw the officer, did he signal to turn, according to the officer. While Ivory’s testimony conflicts with the officer’s because Ivory states that he always signaled before he made a turn at an intersection, this is a fact determination made by the trial court to which we give great deference. Because these findings are therefore supported by the record and we view them in favor of the trial court’s ruling, we conclude that the trial court properly determined that there was probable cause to stop the vehicle due to a traffic violation. Therefore, we hold that any challenge appellant is making relative to the preliminary stop and detention of the car is overruled. This portion of his first point is overruled, and we now address his challenge to his detention and investigation.

Reasonable Suspicion to Detain and Investigate Appellant

Once Officer Plank stopped the vehicle, he first identified all occupants of the vehicle. He returned to his patrol car to write a warning ticket for Ivory and to run all the names of the occupants for warrants. He determined that there were outstanding warrants for both the driver, Ivory, as well as the front seat passenger, Donald. He placed both of them under arrest. While handcuffing Donald, Officer Plank saw appellant making movements as if he was shoving something under his seat with his left hand. Officer Plank then asked appellant to exit the car. As soon as appellant got out, the officer could see a plastic baggie sticking out of the back seat of the car where the seat and the back upholstery meet, right next to where appellant had been sitting. The officer retrieved the baggie, which appeared to contain crack cocaine, and then arrested appellant. During his testimony, Officer Plank testified that he stopped the vehicle for the failure to properly use the turn signal and to see if Donald, who was wanted for a parole violation, was in the previously identified car. The officer’s videotape of the stop, detention, and investigation supports the officer’s testimony. However, appellant contends that Officer Plank did not have authority to request identification or check for outstanding warrants of the passengers in the car based upon this information relying primarily on this court’s recent opinion in St. George v. State. Nos. 02-03-00421-CR and 02-03-00422-CR, 2004 WL 1944779 (Tex.App.-Fort Worth Aug. 31, 2004, no pet. h.). However, this court’s opinion in St. George has been withdrawn this month and therefore may no longer be relied upon.

Temporary investigative detentions are appropriate when officers have “specific articulable facts, which, premised upon [the officer’s] experience and personal knowledge, when coupled with the logical inferences from those facts would warrant the intrusion on the detainee.” Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App.1997). Officers have authority to stop and briefly detain persons who are suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Id. To satisfy the Fourth Amendment and Terry v. Ohio, we know that we review the reasonableness of the stop by looking to the justification for the stop and also consider the reasonableness of the scope of the detention. 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). The duration of the stop is reviewed by determining whether the police “diligently pursued a means of investigation that was likely to dispel or confirm their suspicions quickly.” Cisneros v. State, 165 S.W.3d 853, 859 (Tex.App.-Texarkana 2005, no pet.) (citing Davis, 947 S.W.2d at 245).

In a traffic stop situation, the police may ask for identification, a valid driver’s license, and proof of liability insurance. Police may also check for outstanding warrants. During the stop, however, an officer must use “the least intrusive means reasonably available to verify or dispel [the officer’s] suspicion in a short period of time.”

Id. (citing Davis, 947 S.W.2d at 245) (citations omitted).

Reasonable suspicion exists when an officer has specific, articulable facts that would cause him to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005). This determination is made by considering the totality of the circumstances. Id. at 492-93. In evaluating the totality of the circumstances, we apply a bifurcated standard of review, giving “almost total deference to the trial court’s determination of historical facts and review de novo the trial court’s application of law to facts not turning on credibility and demeanor.” Id, at 493.

In the present case, one of the specific purposes of the stop was to also determine whether anyone in the vehicle was the suspected parole violator, Donald Gulley. Consequently, it was necessary for the officer to identify all the people in the vehicle, especially because the first person he necessarily identified, the driver, was not Donald.

Also, as the State points out, appellant does not complain about being asked for identification or the warrant check. Moreover, the officers did not detain appellant for the purpose of running the warrant check; instead they ran the check simultaneously with the check on the driver and did not extend the time for the initial detention. We conclude, therefore, that the officer’s detention and investigation was handled in a reasonably limited manner. Further, because new reasonable suspicion arose during Officer Plank’s limited investigation relating to appellant and his movements in the back seat, we cannot say that the officer’s removal of appellant from the back seat and his resulting search of the back seat and the rest of the vehicle was unreasonable. We overrule the remainder of appellant’s first point challenging the trial court’s suppression ruling.

Sufficiency of Evidence: Possession

In appellant’s third and fourth points, he challenges the legal and factual sufficiency of the evidence to support the “possession” prong of his possession of cocaine conviction. Appellant points to the sole evidence of any potential possession by him—that the cocaine was found in a plastic baggie sticking out of the back seat near where he had been sitting—and contends that because he did not own the vehicle and because he was not driving or solely occupying the vehicle, the evidence is both legally and factually insufficient to support the judgment.

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex.Crim.App.2005).

This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex.Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484.

To prove unlawful possession of a controlled substance, the State must prove that the accused exercised control, management, or care over the substance and that he knew the matter possessed was contraband. Tex. Health & Safety Code Ann. § 481.002(38) (Vernon Supp.2005); Joseph v. State, 897 S.W.2d 374, 376 (Tex.Crim.App.1995); Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988). The evidence “must establish, to the requisite level of confidence, that the accused’s connection with the drug was more than just fortuitous. This is the whole of the so-called ‘affirmative links’ rule.” Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995); Garrett v. State, 161 S.W.3d 664, 671-72 (Tex.App.-Fort Worth 2005, pet. ref'd):

The “affirmative links rule” is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs. This rule simply restates the common-sense notion that a person— such as a father, son, spouse, roommate, or friend — may jointly possess property like a house but not necessarily jointly possess the contraband found in that house. Thus, we have formulated the rule that “[w]hen the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband.”

Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App.2005) (footnotes omitted); McQuarters v. State, 58 S.W.3d 250, 259 (Tex.App.-Fort Worth 2001, pet. ref'd). Factors we consider include (1) the defendant’s presence when the search warrant was executed, (2) whether the contraband was in plain view, (3) the defendant’s proximity to and the accessibility of the narcotic, (4) whether the defendant was under the influence of narcotics when arrested, (5) whether the defendant possessed other contraband or narcotics when arrested, (6) whether the defendant made incriminating statements when arrested, (7) whether the defendant attempted to flee, (8) whether the defendant made furtive gestures, (9) whether there was an odor of the contraband, (10) whether other contraband or drug paraphernalia were present, (11) whether the defendant owned or had the right to possess the place where the drugs were found, (12) whether the place where the drugs were found was enclosed, (13) whether the accused was the driver of the automobile in which the contraband was found, (14) whether the defendant was found with a large amount of cash, and (15) whether the conduct of the accused indicated a consciousness of guilt. McQuarters, 58 S.W.3d at 259.

Officer Plank testified that he observed appellant appearing to stuff something down in between the back seats. At the time of the stop, appellant was the only person sitting in the back seat, and neither of the front seat passengers could have reached the drugs from their positions. Additionally, as Officer Plank testified, the drugs were in plain view within the baggie, which was found near where appellant had been seated. Appellant admitted that he had been in the ear in the back seat during the entire car ride. More importantly, the videotape of the arrest, which was included in the appellate record, substantiates the officer’s testimony and shows appellant’s movements in the back seat of the car. It also shows how quickly Officer Plank reached into the back seat and immediately recovered the baggie containing the drugs. As noted by the State in its brief, appellant’s testimony was the only testimony that potentially controverted the State’s evidence. The trier of fact, as the sole judge of the credibility of the witnesses, was entitled to believe or disbelieve such testimony. Poindexter, 153 S.W.3d at 406 (“In deciding whether the evidence is sufficient to link the defendant to contraband, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony.”).

Applying the appropriate standards of review and the affirmative links rule, we conclude that the evidence was legally and factually sufficient to support appellant’s possession of the cocaine and the resulting jury’s verdict. We overrule appellant’s third and fourth points.

Challenge for Cause

In appellant’s second point, he contends that the trial court erred by granting the State’s challenge for cause as to venireperson Hansen. The code of criminal procedure allows parties to challenge a juror for cause when the challenging side can show that the juror is incapable or unfit to serve on the jury. Tex. Code Crim. Proc. Ann. art. 35.16 (Vernon Supp.2005); Lydia v. State, 117 S.W.3d 902, 905 (Tex.App.-Fort Worth 2003, pet. ref'd). There are many specific challenges, but the rule also allows a juror to be challenged for cause if either side can show “[t]hat the juror has a bias or prejudice in favor of or against the defendant.” Tex.Code Crim. Proo. Ann. art. 35.16(a)(9).

The court of criminal appeals has held that a member of the venire may be properly challenged for cause and removed “if he cannot impartially judge the credibility of a witness.” Ladd v. State, 3 S.W.3d 547, 560 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). Potential jurors “must be open-minded and persuadable, with no extreme or absolute positions re garding the credibility of any witness.” Id. While a defendant does not have a right to have a particular juror sit on his jury, he does have the right “not [to] have a particular venire member on the jury if the venire member is challengeable for cause or the defendant exercises one of his peremptory challenges.” Johnson v. State, 43 S.W.3d 1, 6-7 (Tex.Crim.App.2001).

We review a trial court’s ruling on a challenge for cause with “considerable deference” because the trial court is in the best position to evaluate the venire-member’s demeanor and responses. Newbury v. State, 135 S.W.3d 22, 32 (Tex.Crim.App.), cert. denied, 543 U.S. 990, 125 S.Ct. 496, 160 L.Ed.2d 376 (2004); Colburn v. State, 966 S.W.2d 511, 517 (Tex.Crim.App.1998); Guzman, 955 S.W.2d at 89 (appellate courts afford “almost total deference” to a trial court’s resolution of factual and legal issues that turn on an evaluation of credibility and demeanor). We reverse a trial court’s ruling on a challenge for cause “only if a clear abuse of discretion is evident.” Newbury, 135 S.W.3d at 32 (citing Colburn, 966 S.W.2d at 518); Moore v. State, 54 S.W.3d 529, 535 (Tex.App.-Fort Worth 2001, pet. ref'd). “[T]o show error in the trial court’s grant of the State’s challenges for cause, an appellant must show either that the trial court applied the wrong legal standard in sustaining the challenge or that the trial court abused its discretion in applying the correct legal standard.” Moore, 54 S.W.3d at 585. Further, in cases in which the venireperson is vacillating, almost total deference is given to the trial court’s decision. See Clark v. State, 929 S.W.2d 5, 9 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1116, 117 S.Ct. 1246, 137 L.Ed.2d 328 (1997); Brown v. State, 913 S.W.2d 577, 580-81 (Tex.Crim.App.1996). To preserve trial court error in granting a State’s challenge for cause, the defense must object. Tex. R.App. P. 33.1(a).

Venireperson Hansen disclosed that she had been charged with public intoxication in Denton and would be very careful in reviewing any evidence coming from a police officer due to her pending public intoxication charge. She stated that she thought illegal drugs should be legalized and taxed like other legal substances. When asked about potential bias, she stated, “I’d have to look at the facts, because I never thought of myself as somebody who would get arrested until it happened.” She continued, “I would think that I wouldn’t [be biased], but there is a tendency to see it from the other side, which I’ve never had that perspective until now.” On further individual questioning by the State, she answered “yes” when asked if she would be biased against the State. She also stated, “I feel like I’m more critical now that I have gotten into the system than I would have been two or three months ago before interaction with the officers.” And on whether she would believe police officers, she said that she would believe them and follow the law. She did not think that she would be less trusting just because they were Denton officers but that she would definitely be more critical towards officers than she would have been prior to her experience with the officer in her case. Appellant objected once the trial court granted the State’s challenge.

We conclude that venireperson Hansen’s disclosures are sufficient to support the trial court’s grant of the State’s challenge for cause. Her vacillation, if any, is more than sufficient for us to conclude that there was no clear abuse of discretion on the trial court’s part by granting this challenge. We overrule appellant’s second point.

Conclusion

Having overruled all of appellant’s points, we affirm the judgment of the trial court.

      . The parties stipulated that the stop was made without a search warrant.


author: RICHARD H. EDELMAN, Justice.

text:
    Liana S. SMITH, Appellant, v. LANDRY’S CRAB SHACK, INC. d/b/a Joe’s Crab Shack, Appellee.
    No. 14-04-00354-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 3, 2006.

      Thomas L. Hunt, Toni Lynn Thompson Sharretts, Houston, for appellant.
    Richard Grimes, Houston, for appellee.
    Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
   OPINION

RICHARD H. EDELMAN, Justice.

Liana Smith (“Smith”) appeals a take-nothing summary judgment entered in favor of Landry’s Crab Shack, Inc. d/b/a Joe’s Crab Shack (“Landry’s”) on the grounds that: (1) there is legally sufficient evidence that Smith suffered food poisoning from food she ate at a Landry’s restaurant (the “restaurant”); and (2) her expert’s testimony should not have been stricken. We affirm.

Smith’s suit against Landry’s alleged causes of action for strict liability, breach of warranties, deceptive trade practices, and negligence. Landry’s filed a motion to strike Smith’s expert causation evidence for lack of reliability and a motion for summary judgment, asserting that there was no cause in fact evidence that the food Smith ate at the restaurant caused her illness. The trial court granted both.

A no-evidence motion for summary judgment must be granted if: (1) the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial; and (2) the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. See Tex.R. Civ. P. 166a(i). In reviewing a no-evidence motion for summary judgment, we view all of the summary judgment evidence in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. City of Keller v. Wilson, 168 S.W.3d 802, 823-25 (Tex.2005).

As applied to this case, the test for cause in fact is whether the illness would not have occurred if Smith had not eaten at the restaurant. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003). A finding of cause in fact may be based on circumstantial evidence, but cannot be supported by mere conjecture, guess, or speculation. Id. Similarly, a fact may not be inferred from circumstantial evidence that could support multiple inferences if none are more probable than the others. Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex.2001). In addition, an inference drawn only from other inferences (rather than direct evidence) is not legally sufficient evidence. Marathon Corp., 106 S.W.3d at 728.

To constitute evidence of medical causation, an expert opinion must rest on reasonable medical probability. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex.1995). Reasonable probability is determined by the substance and context of an expert opinion, rather than the use of any particular words. Id. Thus, where the substance of an expert’s testimony establishes only a mere possibility, rather than a reasonable probability, of causation, it is no evidence of causation. See Schaefer v. Tex. Employers’ Ins. Ass’n, 612 S.W.2d 199, 204-05 (Tex.1980).

Smith’s first issue contends that a fact issue was raised on cause in fact by the testimony of her medical expert witness, Dr. Al-Assi, that Smith had food poisoning and, based on the incubation period, it was caused by the meal. We do not agree.

Smith provided testimony that: (1) the food she ate at the restaurant was the only food she had consumed within the 20 hours preceding the onset of her illness; and (2) the meal she had eaten prior to the one at the restaurant had also been eaten by her entire family without incident. Her medical expert witness, Dr. Al-Assi, testified that: (1) none of the circumstances of Smith’s illness or treatment was inconsistent with a diagnosis of gastroenteritis; (2) gastroenteritis can be caused by bacteria in food; (3) many foods can be a carrier for such bacteria; (4) different bacteria have different incubation periods before a person begins to experience symptoms; (5) starting to experience symptoms within five hours of a meal and getting sick enough to be admitted to a hospital within about ten hours of a meal would, in reasonable medical probability, be “consistent with” food-borne gastroenteritis; (6) the “most common” time period in which symptoms of food-borne gastroenteritis “normally’ manifest is within the first 24 hours and it can be as fast as a couple of hours; and (7) although it was possible that Smith had gastroenteritis from some other source than food poisoning, it was “more likely” that she had food poisoning considering “the clinical history and the set up.”

However, Al-Assi did not express any ultimate opinion (in reasonable medical probability or otherwise) that Smith’s gastroenteritis was caused by food she ate at the restaurant. Moreover, because his opinion that Smith’s gastroenteritis was caused by food rather than another source was not stated as being in reasonable medical probability, but only as being more likely, and because he provided no factual basis or explanation for why the clinical history and set up showed this to be the case, this opinion was not sufficient to raise a fact issue. Therefore, Smith provided evidence only that she had gastroenteritis that could have been caused by food and that the only food she had eaten before experiencing those symptoms and within the period in which food poisoning symptoms most commonly occur was the meal she ate at the restaurant. Without inferring: (1) that Smith’s gastroenteritis was caused by food; and either that (2) it occurred within the maximum (versus most common) incubation period for food-borne gastroenteritis; or (3) it was a type of food-borne gastroenteritis that occurs within the most common incubation period, none of which are supported by evidence in this case, it does not logically follow that her illness was caused by food she ate at the restaurant. Under these circumstances, the evidence does not raise a fact issue whether Smith’s illness was, in reasonable medical probability, caused by food she ate at the restaurant. Therefore, Smith’s issues are overruled, and the judgment of the trial court is affirmed.

SEYMORE, J. concurring in result only.

      . All of Al-Assi’s testimony that Smith attached to her summary judgment response, including that referred to in this opinion, was stricken by the trial court.

        . See, e.g., Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997) ("Conclusory statements by an expert are insufficient to support or defeat summary judgment.”). There was also no evidence that any bacteria was actually found in Smith’s system that could have caused food poisoning, let alone any evidence of its source.

      . Because the testimony of Smith’s expert witness did not raise a fact issue on cause in fact, we need not address its admissibility.