author: LAURA CARTER HIGLEY, Justice.

text:
    J.M., Appellant, v. The STATE of Texas, Appellee.
    Nos. 01-05-00146-CV, 01-05-00147-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 7, 2005.

      Lois McCarnes, Galveston, TX, Richard H. Branson, League City, TX, for Appellant.
    B. Warren Goodson, Jr., Asst. Dist. Atty., Galveston, TX, for Appellee.

      Panel consists of Justices TAFT, ALCALA, and HIGLEY.
   OPINION

LAURA CARTER HIGLEY, Justice.

In these two accelerated appeals, appellant, J.M., raises three issues challenging the trial court’s separate orders (1) that J.M. be involuntarily committed for temporary inpatient mental health services and (2) that she be administered psychoactive medications. J.M. contends that the evidence presented by the State at her commitment hearing is legally and factually insufficient to support the findings on which the order for temporary inpatient treatment is based. Concomitantly, J.M. also contends that the trial court’s order to administer psychoactive medication must be reversed because such an order cannot stand unless a proper order for inpatient mental health services is also in place.

Because the evidence was legally insufficient to support the commitment order, we reverse and render judgment in both appeals.

Background

On December 7, 2004, J.M. was brought to the University of Texas Medical Branch Hospital (“UTMB”) in Galveston by her sister, with whom J.M. lived. The sister reported that J.M. suffered from bipolar disorder and that J.M. had not been taking her medication. The sister also reported that J.M. had been aggressive, attempting to kick family members, including some children. According to the sister, J.M. also had threatened suicide. The sister further reported that J.M. had been neglecting her personal hygiene by neither bathing nor brushing her teeth. At that point, J.M. was admitted to UTMB for inpatient care.

On December 21, 2004, Dr. Mireya Silva signed an application for court-ordered temporary mental health services, which was filed with the trial court. As applicant, Dr. Silva requested the trial court to involuntarily commit J.M. to the Austin State Hospital for a period not to exceed 90 days. The application was supported by two certificates of medical examination: one prepared by Dr. Silva and one by Dr. Waheedul Haque. Both doctors stated that they had examined J.M. and diagnosed her with bipolar disorder and depression with psychotic factors. With regard to the specific factual bases underlying J.M.’s need for commitment, both doctors referred to J.M.’s aggression toward her family and her refusal to take a bath or brush her teeth. Drs. Silva and Haque also stated that, while at UTMB, J.M. refused medication, refused to get out of bed, and remained mute for several days.

J.M.’s commitment hearing was held on December 29, 2004. Dr. Haque testified for the State. He restated his diagnosis that J.M. is mentally ill, suffering from “bipolar disorder mixed with psychotic features.” Dr. Haque testified that his opinion is based on his personal knowledge of J.M. and from her medical records. J.M.’s medical records from her UTMB inpatient stay were also admitted into evidence.

When asked whether J.M. was likely to cause harm to herself, Dr. Haque responded affirmatively. He also responded affirmatively when asked whether J.M. (1) was “suffering from severe and abnormal mental, emotional, or physical distress” and (2) was “experiencing substantial mental or physical deterioration of her ability to function independently.” Dr. Haque agreed that J.M.’s “deterioration” was exhibited by her inability to provide “for basic needs like food, clothing, health, or safety.” Dr. Haque also agreed that J.M. was not able “to make a rational and informed decision about whether or not to submit to treatment.”

According to Dr. Haque, J.M. was also a danger to others. Dr. Haque based this opinion on the information provided by J.M.’s sister that J.M. had been violent at home before her admission. Dr. Haque testified that J.M. had not shown any violent, aggressive, or threatening behavior while hospitalized.

Dr. Haque acknowledged that J.M. alleges that the sister who brought her to the hospital was trying to steal from her and had been abusing her. J.M. told Dr. Haque that her family had brought her to the hospital because she would not give them money. Dr. Haque stated that he did not believe J.M., but agreed that it was possible that the allegations against J.M.’s family were true. Dr. Haque also acknowledged that the sister against whom J.M. made the allegations of abuse was the source of much of the information on which he relied regarding J.M.’s mental health history.

J.M. also testified at the commitment hearing. She stated that, for the past 10 years, she had been treated with medication on an outpatient basis for depression and bipolar disorder. She testified that, during that time, she had worked as a nurse and led a normal life. J.M. stated that she had helped her family financially during that time and had made her sister’s car payments. J.M. testified that she had not been working recently but that she was living from her savings. J.M. admitted that she had been previously hospitalized but would not directly admit that it had been for psychiatric care.

J.M. had moved from Houston to La Marque the previous year because her 16-year-old daughter was not doing well in school. J.M. and her daughter lived in her sister’s house along with another sister and both sisters’ children. Once at La Marque High School, her daughter excelled, and J.M. decided to stay in La Marque.

J.M. testified that she paid the utility bills and spent $400 a month on groceries while living in her sister’s home. J.M. also testified that she cooked all the meals and babysat her sister’s daughter while her sister attended school.

J.M. claimed that she never struck any of her family members; rather, J.M. testified that her sister had struck her when J.M. refused to give the sister money. According to J.M., the sister had told her, “Either you give us money or I will have you locked up.” J.M. told the. trial court that she was in the process of finding another place to live with her daughter when she was hospitalized at UTMB.

At the conclusion of the commitment hearing, the trial court, as factfinder, found that J.M. was mentally ill. It also found that J.M. was “likely to cause serious harm to herself and that at this time she is suffering from a mental, emotional, or physical distress and is unable to function independently.” As a result, the trial court signed an “Order For Temporary Inpatient Mental Health Services,” in which the trial court ordered J.M. committed to the Austin State Hospital for a period not to exceed 90 days.

Immediately following the commitment hearing, the trial court conducted a hearing on the State’s application to administer psychoactive medication, which had been filed at the same time as the commitment application. Dr. Haque testified that the administration of psychoactive medication was in J.M.’s best interest and was the proper course of treatment for her. According to Dr. Haque, J.M.’s condition would deteriorate if she did not take psychoactive medication. At the conclusion of the hearing, the court signed an “Order to Administer Psychoactive Medication,” providing that certain classes of psychoactive medications could be administered to J.M. for the duration of her temporary commitment.

J.M. appeals both the “Order For Temporary Inpatient Mental Health Services” and the “Order to Administer Psychoactive Medication.”

Appeals from Orders are Not Moot

As a preliminary matter, we discuss our jurisdiction to decide these two appeals. This issue arises because the specified term of both orders — a period not to exceed 90 days — has expired. Thus, the question becomes whether J.M.’s appeals are moot. In State v. Lodge, the supreme court held that the doctrine of mootness does not apply to appeals from involuntary commitments for temporary hospitalization. 608 S.W.2d 910, 912 (Tex.1980); see Johnstone v. State, 22 S.W.3d 408, 409 n. 1 (Tex.2000) (citing Lodge for this proposition). In reaching its holding, the Lodge court concluded that the “collateral consequences” exception to the mootness doctrine applies to temporary commitment orders. Lodge, 608 S.W.2d at 912. The collateral consequence in this context is the stigma that attaches to a mental health commitment. See id. The Lodge court explained that a “commitment to a mental hospital can engender adverse social consequences to the individual whether it is labeled a stigma or if it is called something else.” Id. at 912 (internal quotation omitted). Such a stigma continues even after release is obtained. See id. For this reason, the Lodge court summarized as follows:

[W]e cannot agree that the reversal of the lower court judgment and dismissal of the cause as moot removes the collateral consequences of a commitment for mental health to the same extent as the reversal of the judgment after appellate review and the pronouncement in writing of the considerations impelling the decision favorable to the aggrieved party.

Id.

The next logical question is whether the underlying reasoning of the supreme court’s holding in Lodge can be extended to J.M.’s appeal from the order to administer psychoactive medication. We conclude that it can be.

Only two other Texas courts of appeal have determined whether an appellate court has jurisdiction to decide an appeal from an order to administer psychoactive medication when the term of the order has expired. In this regard, the San Antonio Court of Appeals discussed in a footnote that the analysis found in Lodge extends to an order compelling psychoactive medication and concluded that an appeal from such an order is not moot. See In re R.M., 90 S.W.3d 909, 910 n. 1 (Tex.App.San Antonio 2002, no pet.).

In contrast, the Beaumont Court of Appeals held, in a per curiam opinion, that such an appeal is moot and dismissed the appeal for lack of jurisdiction. See In re E.B., 962 S.W.2d 304, 305 (Tex.App.-Beaumont 1998, no pet.) The E.B. court recognized that Texas Health and Safety Code section 574.108 provides that a patient may appeal an order authorizing the administration of psychoactive medication in the same manner as provided for an appeal of an order requiring court-ordered mental health services. Id. (citing Tex. Health & Safety Code § 574.108). Following this recognition, the court observed, “Though § 574.108 appears to offer appellant some form of due process, in actual practice, however, it does not, for by the time appeal is perfected and briefs filed, the commitment order most likely has expired by its own terms.” Id. Without further reasoning or discussion, the E.B. court concluded that the appeal was moot and dismissed it accordingly, without mentioning or expressly considering the apposite opinion in Lodge. Id. Because E.B. does not consider Lodge, which squarely addresses the very concern raised in E.B., we decline to follow E.B. ⅛ holding.

In this case, the trial court’s order to administer psychoactive medication states, inter alia, that J.M. is subject to court-ordered inpatient mental health services and that J.M. has been determined by the trial court to be “mentally ill.” The order also states that J.M.’s “mental illness renders [her] incapable of making medicinal decisions.” The order provides that the State could administer the following classes of psychoactive medication to J.M.: antidepressants, antipsychotics, anxiolyt-ics/sedatives/hypnotics, mood stabilizers, and stimulants. Given this language, we conclude that the reasoning of Lodge applies equally to J.M.’s appeal of the medication order. See Lodge, 608 S.W.2d at 912. That is, the stigma attached to being subject to an order to administer psychoactive medication, like that of an order for inpatient mental health treatment, is a collateral consequence that continues even after the term of the order has expired. See id. Accordingly, we conclude that we have jurisdiction over J.M.’s appeal of the order to administer psychoactive medication.

. Having determined that we possess jurisdiction over these appeals, we turn to the merits of J.M.’s appellate challenges to the trial court’s order for temporary commitment and to the order to administer psychoactive medication:

Order for Temporary Commitment

A. Burden of Proof

We have recognized that “a person may not be deprived of his liberty by a temporary involuntary commitment unless there is a showing of a substantial threat of future harm to himself or others.” Taylor v. State, 671 S.W.2d 535, 538 (Tex.App.-Houston [1st Dist.] 1983, no writ). To obtain an order for temporary commitment, the Texas Legislature has mandated that the State must prove its case by clear and convincing evidence. See Tex. Health & Safety Code Ann. § 574.034 (Vernon 2003). In this context, “clear and convincing evidence” means “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). Specifically, Health and Safety Code subsection 574.034(a) provides that, on application for court-ordered temporary inpatient mental health services, the State must prove, by clear and convincing evidence, that the proposed patient is mentally ill. Tex. Health & Safety Code Ann. § 574.034(a). The State must also prove, by clear and convincing evidence, at least one of the following three criteria:

(2) as a result of that mental illness the proposed patient:
(A) is likely to cause serious harm to himself;
(B) is likely to cause serious harm to others; or
(C) is:
(i) suffering severe and abnormal mental, emotional, or physical distress;
(ii) experiencing substantial mental or physical deterioration of the proposed patient’s ability to function independently, which is exhibited by the proposed patient’s inability, except for reasons of indigence, to provide for the proposed patient’s basic needs, including food, clothing, health, or safety; and
(iii) unable to make a rational and informed decision as to whether or not to submit to treatment.

Id.

Subsection 574.034(c) requires that the trial court specify which of the three criteria found in subsection (a) forms the basis of the commitment order, and our review is limited to the one(s) actually identified. Tex. Health & Safety Code Ann. § 574.034(c); see Johnstone v. State, 961 S.W.2d 385, 388 (Tex.App.-Houston [1st Dist.] 1997, no writ). In this case, the trial court made findings under the first and third criterion. See Tex. Health & Safety Code Ann. § 574.034(a)(2)(A), (C)(i)-(iii). That is, the commitment order reflects that the trial court, as fact finder in this case, found that J.M. (1) is likely to cause serious harm to herself and (2)(i) is suffering severe and abnormal mental, emotional, or physical distress; (ii) is experiencing substantial mental or physical deterioration of her ability to function independently, which is exhibited by the proposed patient’s inability, except for reasons of indigence, to provide for her basic needs, including food, clothing, health, or safety; and (iii) is unable to make a rational and informed decision as to whether or not to submit to treatment. See id.

The Health and Safety Code requires that, to be clear and convincing under subsection 574.034(a), 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.”

Id. § 574.034(d). The trial court need not specify which basis for clear and convincing evidence listed in subsection 574.034(d) supports its subsection 574.034(a) findings. M.S. v. State, 137 S.W.3d 131, 135 n. 5 (Tex.App.-Houston [1st. Dist.] 2004, no pet.). J.M. contends that the evidence is neither legally nor factually sufficient to show an overt act or a continuing pattern of behavior of the type defined in subsection 574.034(d).

B. Standards of Review

Reaffirming its holding in In re J.F.C., 96 S.W.3d 256, 264-65 (Tex.2002), the Texas Supreme Court recently held in Southwestern Bell Telephone Co. v. Garza that whenever the burden of proof is heightened beyond a mere preponderance of the evidence, e.g., when a fact must be proved by clear and convincing evidence, then the standard for legally sufficient evidence will be correspondingly heightened. 164 S.W.3d 607, 627 (Tex.2004); accord Diamond Shamrock Refining Co. v. Hall, 168 S.W.3d 164, 170 (Tex.2005) (applying J.F.C. heightened standard of review when burden in trial court was by clear and convincing evidence). As detailed, the State in this case was required to prove at least one of the criteria listed in subsection 574.034(a) by clear and convincing evidence. Because the clear and convincing standard of proof in this case is the same as that involved in Garza and J.F.C., we must apply the elevated standard of review defined in J.F.C. to determine whether the State presented legally sufficient evidence to support J.M.’s temporary commitment. See Garza, 164 S.W.3d at 627. In this regard, we are guided by the following language from J.F.C.:

In a legal sufficiency review, a court should look at all the evidence in the fight most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the fact-finder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the fight most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.

96 S.W.3d at 266. If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient. Id.

Likewise, the higher burden of proof alters the appellate standard of factual sufficiency review. See In re C.H., 89 S.W.3d 17, 25-26 (Tex.2002) (holding that traditional factual sufficiency standard, in which court determines if finding is so against great weight and preponderance of evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates bias, is inadequate when finding must be based on clear and convincing evidence). In reviewing the evidence for factual sufficiency under the clear and convincing standard, we inquire “whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State’s allegations.” Id. at 25. In so doing, we must give due consideration to evidence that the factfin-der reasonably could have found to be clear and convincing. Id. at 25. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not. have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. J.F.C, 96 S.W.3d at 266.

C. Legal Sufficiency of Evidence to Support Temporary Commitment Order

J.M. does not contest' the trial court’s finding that she is mentally ill. Rather, J.M. first contends that the State did not present legally sufficient evidence to show “a recent overt act” or a “continuing pattern of behavior” that tends to confirm either (1) the likelihood that J.M. would cause serious harm to herself or (2) J.M.’s distress and the deterioration of her ability to function to provide for her own basic needs, as required by subsection 574.034(d). See Tex. Health & Safety Code AnN. § 574.034(d).

Undeniably, Dr. Haque’s testimony tracked the language found in section 574.034. However, an expert opinion recommending involuntary commitment must be supported by the factual bases on which it is grounded and not simply recite the statutory criteria. See K.T. v. State, 68 S.W.3d 887, 893 (Tex.App.-Houston [1st Dist.] 2002, no pet.); In re Breeden, 4 S.W.3d 782, 784 (Tex.App.-San Antonio 1999, no pet.). That is, the expert should describe the patient’s specific behaviors on which his or her opinion is based. See In re K.D.C., 78 S.W.3d 543, 550 (Tex.App.Amarillo 2002, no pet.). It is well-established that evidence establishing that an individual is mentally ill and in need of hospitalization is not evidence that the statutory standard for involuntary commitment has been satisfied. K.T., 68 S.W.3d at 892; Johnstone, 961 S.W.2d at 388-89.

With these principles in mind, we turn to the evidence offered by the State as clear and convincing proof that J.M. should be subject to temporary mental health services.

Dr. Haque testified that he had learned from J.M.’s sister that J.M. had exhibited aggressive behavior toward her family before J.M. was hospitalized. J.M.’s UTMB medical records confirm that this information was reported by the family. J.M.’s aggressiveness toward her family may be evidence of an overt act. However, the. recent overt act or continuing pattern of behavior proven by the State must relate to the criterion on which the judgment is based. In re C.O., 65 S.W.3d 175, 181 (Tex.App.-Tyler 2001, no pet). Here, the trial court did not find that J.M. is likely to cause harm to others. Such evidence of J.M.’s aggressiveness toward her family does not tend to confirm the likelihood that J.M. would cause serious harm to herself or J.M.’s distress and the deterioration of her ability to care for herself. See In re N.D, No. 12-04-00186-CV, 2004 WL 2955853, at *4 (Tex.App.-Tyler Dec. 22, 2004, no pet.) (mem. op.) (concluding that evidence of appellant’s threat to stab husband is not evidence supporting commitment when trial court, as factfin-der, made no finding that appellant was threat to others). Moreover, Dr. Haque testified, and her medical records indicate, that during her hospitalization J.M. exhibited no violent or aggressive behavior.

As pointed out by the State, J.M.’s medical records also indicate that J.M.’s family reported that she threatened suicide before her hospitalization. The records also reflect that J.M. was placed on suicide precautions during her hospitalization at UTMB. However, a threat of harm to the patient or others must be substantial and based on actual dangerous behavior manifested by some overt act or threats in the recent past. K.D.C., 78 S.W.3d at 547. Here, no specific details were provided about the purported threats of suicide made by J.M. before her admission to UTMB. The record does not reveal exactly when the threats were made, specifically to whom they were made, under what circumstances the threats were made, or their severity. Importantly, no evidence was presented that J.M. engaged in any recent overt act to actually harm herself at the time she made the threats or during her hospitalization. See Broussard, v. State, 827 S.W.2d 619, 622 (Tex.App.-Corpus Christi 1992, no writ) (concluding that expert opinion of “potential danger” to others is not sufficient to support commitment); In re P.W., 801 S.W.2d 1, 3 (Tex.App.-Fort Worth 1990, writ denied) (reversing commitment order despite evidence that, inter alia, appellant called cousin asking about how to hold pistol to kill herself without causing a lot of pain). In fact, J.M.’s medical records indicate that she neither engaged in harmful behavior toward herself nor exhibited suicidal ideation during her three-week hospitalization at UTMB.

J.M.’s medical records also indicate that J.M.’s failure to take her medication was one of the reasons given by thé family for bringing J.M. to UTMB. Dr. Haque testified that J.M. “often but not always” refused to take her medication. This was cited by Dr. Haque as a factual basis confirming J.M.’s distress and deterioration of her ability to function.

This Court has previously held that refusal of medication is insufficient evidence of an overt act or a continuing pattern of behavior that demonstrates the patient’s distress and the deterioration of the patient’s ability to function. Johnstone, 961 S.W.2d at 389. Other appellate courts have arrived at the same conclusion despite evidence of mental illness. See, e.g., In re I.H., No. 12-03-00222-CV, 2004 WL 527887, at *5 (Tex.App.-Tyler Mar. 17, 2004, no pet.) (mem. op.) (holding no evidence of overt act or continuing pattern of behavior that tended to confirm appellant’s distress and deterioration of her ability to function, even though evidence presented showed that appellant thought people lived in her attic that were trying “to get her,” appellant believed that her husband had artificially inseminated her, and appellant refused to take her medication because she believed it would harm baby); Breeden, 4 S.W.3d at 789 (reversing commitment order of schizophrenic patient who heard voices, refused medication, and was not eating properly); Broussard, 827 S.W.2d at 622 (concluding State presented no evidence of overt act or continuing pattern of behavior that demonstrated distress and deterioration of appellant’s ability to function, even though paranoid schizophrenic patient refused medication because she believed it was poisonous). But see G.H. v. State, 94 S.W.3d 115, 116-17 (Tex.App.Houston [14th Dist.] 2002, no pet.) (divided panel affirmed temporary commitment order when evidence showed appellant refused medication). Moreover, in this case, the State offered no evidence indicating what medication J.M. needed or what effect J.M.’s refusal to take the medication had on her ability to function. Like we did in Johnstone, we conclude that J.M.’s refusal to take her medication is legally insufficient evidence of an overt act or a continuing pattern of behavior that demonstrates J.M.’s distress and the deterioration of her ability to function. See 961 S.W.2d at 389.

Dr. Haque also testified that J.M.’s “refusal to cooperate with treatment” was an example of an overt act or a continuing pattern of behavior that demonstrated J.M.’s distress and the deterioration of her ability to function. Specifically, Dr. Haque cited J.M.’s refusal to allow the hospital staff to take her vital signs or to draw her blood for laboratory analysis. Dr. Haque testified that the vital signs and lab work were necessary to aid in J.M.’s diagnosis. However, the State never related — and it is not implicitly obvious — how this evidence showed a deterioration of J.M.’s ability to function independently to provide for her own basic needs. Although Dr. Haque’s opinion might be valid, the legislature has mandated that more than conclu-sory expert opinions are required before a person may be involuntarily committed for inpatient mental health services. Evidence that J.M. refused to have her vital signs taken and blood drawn, like her refusal to take medication, is not evidence of an overt act or continuing pattern of behavior that would generally affect J.M.’s ability to function independently on a day-to-day basis without the imposition of court-ordered mental health services.

In sum, Dr. Haque’s rebanee on J.M.’s refusal to cooperate with treatment as a basis for hospitalization employs tautological reasoning that is insufficient to support commitment. To employ such reasoning would be, in essence, to say that someone can be involuntarily committed and treated because the evidence shows that the patient will not be voluntarily treated. Evidence supporting such circular reasoning is not legally sufficient to support a deprivation of J.M.’s liberty by temporary involuntary commitment.

The State also asked Dr. Haque to give examples of J.M.’s behavior indicating a recent overt act or a continuing pattern of behavior that confirms the likelihood that J.M. will cause serious harm to herself. In response, Dr. Haque cited (1) J.M.’s refusal to bathe and brush her teeth, (2) J.M.’s refusal to get out of bed for several days at a time, and (3) J.M.’s refusal to talk to the staff at the hospital, i.e., remaining mute. We cannot agree that such conduct rises to the level of a sufficient act or pattern of behavior to support court-ordered mental health services.

No evidence was presented that J.M.’s behavior resulted in any harm to her. J.M.’s medical records, on which Dr. Ha-que testified that he rebed to form his opinion, indicate that J.M. was “seelusive” and “isolatory,” and that J.M. spent much time in bed or in her room. The nursing notes state that J.M. would come out of her room to eat and to take her medication. Dr. Haque testified, and the medical records show, that J.M. had no problem eating while in the hospital. A number of entries in the nursing notes state that J.M. was out of bed and sitting in the hospital’s “day room.”

The medical records indicate that J.M. refused to answer questions related to her condition when asked by the medical staff and was generally non-eommunicative. One entry described J.M. as “selectively” mute. Another entry in the progress notes indicates that J.M. told one of the staff members that she did not want to talk to the staff because she had nothing to say to them. Notes in the medical .records also contain • entries detailing comments made by J.M. during conversations that she had with the staff. However, what is lacking in the State’s evidence is how J.M.’s proclivity to stay in bed and her “muteness” tended to confirm either the likelihood that she would harm herself or the deterioration of J.M.’s ability to function independently to provide for her own basic needs. See In re R.L.I., 132 S.W.3d 539, 542-44 (Tex.App.-Tyler 2004, no pet.) (reversing temporary commitment order on legal insufficiency grounds where evidence showed, inter alia, that appellant was delusional, paralyzed by fear of dying, refused to get out of bed, and had difficulty communicating with people).

Dr. Haque testified that poor hygiene could result in infection. On cross-examination, Dr. Haque testified that not bathing is an indication that a person is “not taking care of themselves [sic].” According to Dr. Haque, not bathing can lead to “ill health” and “infections.” When questioned how that would happen, Dr. Haque responded, “By not taking a bath for six months, you will know what happens.” However, nothing in the record indicates that J.M. had not bathed for six months. To the contrary, nursing notes in J.M.’s medical records indicate that, while she did not engage in regular personal hygiene, J.M. took care of her own “oral hygiene” and “personal hygiene” on December 19 and 23, 2004. The nursing notes from the 19th stated that J.M. attended to her hygiene “without prompting” on that date. Moreover, even assuming that J.M.’s poor hygiene might result in physical problems at some point, to justify depriving an individual of her liberty, more than “potential” harm is necessary. See C.O., 65 S.W.3d at 181-82.

When faced with evidence very similar to the evidence presented in this case, i.e., poor hygiene and “oppositional behavior,” the Tyler Court of Appeals, in In re B.S., concluded that such evidence merely demonstrated the appellant’s mental illness, but did not rise to the level of being an overt act or pattern of behavior that demonstrated distress or tended to confirm a substantial deterioration of the appellant’s ability to provide for his own basic needs. No. 12-02-00217-CV, 2003 WL 21260028, at *5 (Tex.App.-Tyler 2003, no pet.) (mem. op.). Similarly, though the evidence adduced at the commitment hearing demonstrates J.M.’s mental illness, it is not clear and convincing evidence that J.M. was a serious danger to herself or that she could not provide for her own basic needs, as found by the trial court.

Considering the evidence as we must, we conclude that a reasonable trier of fact could not have formed a firm belief or conviction that J.M. was likely to cause serious harm to herself or that J.M. is experiencing substantial mental or physical deterioration of her ability to function independently to provide for her basic needs. See Tex. Health & Safety Code ANN. § 574.034(a)(2)(A),(C)(ii); see also id. § 574.034(d). Accordingly, we hold that the evidence is legally insufficient to support the trial court’s Order For Temporary Inpatient Mental Health Services.

J.M.’s first and third issues are sustained to the extent that they challenge the legal sufficiency of the temporary commitment order.

Order to Administer Psychoactive Medication

J.M. correctly contends that we must reverse the order to administer psychoactive medication to J.M. if the commitment order is reversed. An order authorizing the administration of psychoactive medication may be entered only if the patient is under a valid order for temporary or extended mental health services. See Tex. Health & Safety Code Ann. § 574.106(a)(1) (Vernon 2003). In the absence of a valid order for temporary or extended mental health services, the order authorizing the administration of psychoactive medication is not authorized by statute. See id. Therefore, because we reverse the trial court’s order of temporary commitment, we also reverse the order to administer psychoactive medications to J.M. See K.T., 68 S.W.3d at 894. We sustain J.M.’s issues to the extent that they challenge the medication order on this ground.

Conclusion

As well-stated by the Broussard court, “While we are reluctant to deny court-ordered treatment to a woman who is obviously ill, we cannot lower the requirements imposed under section 574.034(c) of the Texas Mental Health Code regarding proof by clear and convincing evidence.” Broussard, 827 S.W.2d at 622. The evidence offered in this case to support the commitment order was not clear and convincing evidence that J.M. would likely cause herself serious harm or that her condition had deteriorated to the point that she could not provide for her own basic needs. Accordingly, we reverse the Order For Temporary Inpatient Mental Health Services and the Order to Administer Psychoactive Medication signed by the trial court, and we render judgment denying the State’s applications to commit appellant for court-ordered temporary mental health services and to administer psychoactive medications to J.M.

      . Trial court cause no. 2428; appellate cause number 01-05-00146-CV.

      . Trial court cause no. 2428A; appellate cause number 01-05-00147-CV.

      . Interestingly, the Lodge court noted that the legislative purpose behind the statutory provision allowing for an appeal from an order of temporary commitment would be frustrated if the mootness doctrine were applied to such orders. State v. Lodge, 608 S.W.2d 910, 911 (Tex.1980).

      . No indication exists in the record that J.M. waived this requirement.

      . Other courts of appeal have adopted J.F.C. 's elevated standard of review when determining the legal sufficiency of the evidence supporting an order of temporary commitment. See In re J.M., No. 13-03-00479-CV, 2005 WL 428823, at ⅜1 (Tex.App.-Corpus Christi Feb. 24, 2005, no pet.) (mem. op.); M.T. v. State, No. 05-04 — 00647-CV, 2005 WL 225267, at *1 (Tex.App.-Dallas Jan. 31, 2005, no pet.) (mem. op.); In re S.D.F.-W., No. 14-03-01398-CV, 2004 WL 2381884, at *3 (Tex.App.-Houston [14th Dist.] Oct. 26, 2004, no pet.) (mem. op.); In re K.S., No. 02-03-00295-CV, 2004 WL 254267, at *2 n. 3 (Tex.App.-Fort Worth Feb. 12, 2004, no pet.) (mem. op.); In re W.F., No. 12-02-00321-CV, 2003 WL 22048072, at *5 (Tex.App.-Tyler, Aug. 29, 2003, no pet.) (mem. op.); In re M.E.S., No. 04-02-00614-CV, 2003 WL 1240002, at *3 (Tex.App.-San Antonio Mar. 19, 2003, no pet.) (mem. op.).

      . The patient history form in the UTMB medical records indicate that J.M.’s family reported that J.M. held a knife to herself in June 2004 and was hospitalized for a week following that threat. However, that was six months preceding her hospitalization at UTMB and would not qualify as a "recent” over act. This appears to be a separate suicide threat from the one at issue here. Moreover, Dr. Haque did not reference the earlier suicide threat in his testimony.

      . Dr. Haque testified that, in addition to his personal observations, he relied on J.M.’s medical records as a basis for his testimony. J.M.’s medical records indicate that, during her three-week hospitalization at UTMB, J.M. was compliant in taking her medications. The only exception indicated was when J.M.’s medication was changed. J.M.'s medical records reflect that J.M. was upset about the medication change, stating that the new medication had "too many side effects.” J.M. refused to take the new medication on December 17 and 18, 2004. Late on December 18, J.M. began taking her medication again. J.M.’s medical records indicate that she continued to take her medication until the commitment hearing.

      . This Court, in G.H. v. State, 96 S.W.3d 629, 635 (Tex.App.-Houston [1st Dist.] 2002, no pet.), pointed out the shortcomings of the majority opinion’s analysis found in In re G.H., 94 S.W.3d 115, 116-17 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

      . The following are cases in which this Court held the evidence to be legally sufficient to support an order of temporary commitment: Goldwait v. State, 961 S.W.2d 432, 435 (Tex.App.-Houston [1st Dist.] 1997, no writ) (presenting evidence that appellant appeared tired, requested suction supplies to "let" his blood, and jumped out of moving bus); Mezick v. State, 920 S.W.2d 427, 430-31 (Tex.App.-Houston [1st Dist.] 1996, no writ) (showing made that appellant had ongoing pattern of manic and depressive behaviors, had completely stopped eating, lost thirty pounds in one month, "steadfastly” refused all medications, and threatened suicide). In contrast, this Court has reversed commitment orders because the supporting evidence was legally insufficient in the following cases: M.S. v. State, 137 S.W.3d 131, 137 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (holding evidence that schizophrenic patient was combative, intrusive, and had "poor boundaries with others” was legally insufficient to show that patient is likely to cause serious harm to others); G.H., 96 S.W.3d at 635 (concluding doctor’s testimony that appellant refused to stop spitting on floor of hospital when admitted, walked around a common area of the hospital wearing wet clothes, began to disrobe in common area, and, in group therapy session, exhibited rapid, loud, and intense mood changes, was legally insufficient to support finding that of recent overt act or continuing pattern of behavior tending to confirm substantial deterioration of appellant’s ability to function independently to provide for her basic needs); K.T. v. State, 68 S.W.3d 887, 893 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (reversing commitment order when evidence showed that appellant suffered delusion that she was pregnant and had vaginal sutures, became verbally abusive to hospital staff, refused to eat while in hospital for fear that staff was putting medication in her food, and tried to escape from hospital); Johnstone v. State, 961 S.W.2d 385, 387-88 (Tex.App.-Houston [1st Dist.] 1997, no writ) (holding evidence of appellant’s schizophrenia, auditory hallucinations, paranoia, irritability, and refusal to take medication not legally sufficient to meet required statutory burden).

      . Because we have found the evidence to be legally insufficient, we need not reach J.M.’s factual sufficiency complaints.


source: Caselaw Access Project

author: KEM THOMPSON FROST, Justice.

license: Public Domain

text:
    BENCON MANAGEMENT & GENERAL CONTRACTING, INC., General Accident Insurance Company of America, and Pennsylvania General Insurance Company, Appellants, v. BOYER, INC., Appellee.
    No. 14-03-01199-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 21, 2005.
    Rehearing Overruled Sept. 29, 2005.

      Maurice L. Bresenhan, Jr., Pascal Paul Piazza, Houston, for appellants.
    Allison J. Snyder, William Westcott, Houston, for appellee.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   OPINION

KEM THOMPSON FROST, Justice.

This case arises out of a dispute between a general contractor and a subcontractor who performed work on a city project. The general contractor and the sureties on the payment bond appeal the trial court’s judgment in favor of the subcontractor on its breach-of-contract and bond claims and its claim for interest under Chapter 2251 of the Texas Government Code. The general contractor and sureties challenge the sufficiency of the evidence regarding (1) compliance with certain alleged conditions precedent in the subcontractor’s contract, (2) the subcontractor’s timely performance of its contract, and (3) the attorney’s fee award. The general contractor and the sureties also assert the trial court'erred in denying their motion for mistrial based on the subcontractor’s alleged violation of an order in limine. We conclude that the subcontractor did not need to prove compliance with the alleged conditions precedent, that the evidence as to the challenged issues is sufficient to support the judgment, and that the trial court did not err in denying the motion for mistrial. Accordingly, we affirm the trial court’s judgment.

I. Factual and Procedural Background

Effective February 2, 1999, appellant Bencon Management & General Contracting, Inc. (“Bencon”), as general contractor, entered into a construction contract with the Metropolitan Transit Authority of Harris County, Texas (“Metro”), as owner. Under this contract (the “Prime Contract”), Bencon promised to construct various roadway improvements on Louisiana Street from Lamar to Congress in downtown Houston, including but not limited to reinforced concrete pavement, storm sewers, sanitary sewers, waterlines, sidewalks, traffic signals, provisions for communication conduits, street lighting, tree preservation, tree planting, irrigation, electrical service, and transit amenities (the “Project”).

On February 3, 1999, Bencon sent a purchase order to appellee Boyer, Inc., accepting Boyer’s bid to be the subcontractor for the tunneling work for the storm-sewer part of the Project. This one-page purchase order and the attached one-page bid submitted by Boyer constitute the subcontract between Boyer and Bencon (the “Subcontract”). The Subcontract states that Boyer will “comply with the project’s plans, Specs [sic] and contract conditions issued by Metro to [Bencon] as applicable to [Boyer’s] work.” The Subcontract also states that Boyer’s “[w]ork will take approximately 160 working days to complete end to end, including manholes.”

Metro gave Bencon notice to proceed with its work on the Project, effective February 27, 1999. There is evidence that on March 4, 1999, Metro approved Boyer to be the tunneling subcontractor on the project and that, because of difficulties encountered with a live electrical line in a duct at Congress Street, Boyer could not break ground on its tunneling work until May 20, 1999. There is also testimony that Boyer finished its work on March 21, 2000. Because of unexpected problems with “tiebacks” encountered during the tunneling, Metro granted Bencon an extension of 84 calendar days.

Because Bencon had not timely paid Boyer amounts owed under the Subcontract, Boyer sent out statutory notices on the payment bond, as to which appellants General Accident Insurance Company of America (“General”) and Pennsylvania General Insurance Company (“Pennsylvania General”) are the sureties. Boyer filed this suit, alleging that the Bencon Parties had not paid it more than $200,000 due and owing under the Subcontract. Not long after Boyer filed suit, Bencon paid Boyer $126,686.80. Nonetheless, Boyer alleged that the Bencon Parties still owed Boyer $62,562 in retainage and $18,774.83 for work under a change order. In addition to asserting this breach-of-contract claim against Bencon and this payment-bond claim against the sureties, Boyer also asserted a claim for interest under Chapter 2251 of the Texas Government Code (“Prompt Payment Claim”). In response, Bencon asserted a counterclaim against Boyer, alleging that Boyer’s breach of the Subcontract by its alleged lengthy delay in performing its work thereunder resulted in $533,254.46 in damages to Bencon. The Bencon Parties have not alleged that Boyer failed to complete the work required under its Subcontract or that this work was not performed in a workmanlike manner. After a five-day jury trial, the jury unanimously found as follows:

• Bencon failed to comply with the Subcontract.
• Bencon’s failure to comply was not excused by any alleged failure of Boyer to comply with a material obligation of the Subcontract.
• Bencon’s failure to comply with the Subcontract resulted in actual damages of $81,336.83 to Boyer.
• A reasonable fee for the necessary services of Boyer’s attorneys for preparation and trial is $282,773.33. A reasonable fee for the necessary services of Boyer’s attorneys for an appeal to the court of appeals is $20,000. A reasonable fee for the necessary services of Boyer’s attorneys for an appeal to the Texas Supreme Court is $40,000.
• Boyer did not fail to comply with the Subcontract by failing to complete the contract within a reasonable time.

The Bencon Parties filed a motion to disregard jury answers and for judgment notwithstanding the verdict. Boyer filed a motion to disregard one jury finding regarding its Prompt Payment Claim. The trial court granted Boyer’s motion, denied the Bencon Parties’ motion, and except for one disregarded finding regarding the Prompt Payment Claim, the trial court rendered judgment on the jury’s verdict. The Bencon Parties’ motion for new trial was overruled by operation of law. On appeal, the Bencon Parties challenge the legal and factual sufficiency of the evidence to support some of the jury’s findings.

II. Standards op Review

In this case, the Bencon Parties preserved error as to their no-evidence issues by their motion for judgment notwithstanding the verdict and by their motion for new trial. Regardless of what motion a party uses to preserve a no-evidence challenge to fact findings, the same standard of review applies. City of Keller v. Wilson, 168 S.W.3d 802, 823, (Tex.2005). In analyzing a no-evidence issue, we must consider evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. See id. at 821. We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfin-der could not. See id. at 827. We must determine whether the evidence at trial would enable reasonable and fair-minded people to find the facts at issue. See id. The factfinder is the sole judge of the credibility of the witnesses and the weight to give their testimony. See id. at 819. This court must sustain a no-evidence challenge if the record shows one of the following: (1) a complete absence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. See id. at 810.

When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. v. Paseouet, 61 S.W.3d 599, 615-16 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). We may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Pascouet, 61 S.W.3d at 616.

In construing Boyer’s obligations under the Subcontract, our primary concern is to ascertain and give effect to the intentions of the parties as expressed in the Subcontract. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). To ascertain the true intentions of the parties to the Subcontract, we examine the entire agreement in an effort to harmonize and give effect to all of the provisions of the contract so that none will be rendered meaningless. MCI Telecomms. Corp. v. Texas Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex.1999). When a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous, and courts construe it as a matter of law. American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003). Whether a contract is ambiguous is a question of law for the court. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996). A contract is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation. Id. We cannot rewrite the Subcontract or add to its language under the guise of interpretation. See American Mfrs. Mut. Ins. Co., 124 S.W.3d at 162. Rather, we must enforce the Subcontract as written. See Royal Indem. Co. v. Marshall, 388 S.W.2d 176, 181 (Tex.1965).

III. Issues and Analysis

A. Did Boyer have to prove compliance with various alleged conditions precedent?

In their first and second issues, the Bencon Parties assert there is legally and factually insufficient evidence to prove that Boyer complied with various alleged conditions precedent in the Subcontract. Because Boyer pleaded that all conditions precedent to its recovery against the Ben-con Parties had been performed or had occurred, Boyer was required to prove only the conditions precedent that the Bencon Parties specifically denied. See Tex.R. Civ. P. 54; Community Bank & Trust v. Fleck, 107 S.W.3d 541, 542 (Tex.2002). The Bencon Parties’ Second Amended Answer does not contain any specific denials as to the alleged conditions precedent asserted by the Bencon Parties under their first and second issues. See Tex.R. Civ. P. 54; Coastal Terminal Operators v. Essex Crane Rental Corp., No. 14-02-00627-CV, 2004 WL 1795355, at *7 (Tex.App.-Houston [14th Dist.] Aug. 12, 2004, pet. denied) (holding that general statement by defendant denying that all conditions precedent have occurred or been performed is not sufficient under Rule 54 to require plaintiff to prove any alleged conditions precedent) (mem. op.). In their supplemental answer, the Bencon Parties assert the following:

Plaintiff erroneously now contends that the entire contract between Defendant Bencon (general contractor) and Metro (Owner) somehow applies to Plaintiff (subcontractor) in this case.
In such an unlikely event, Defendants plead that Plaintiff has failed to comply with the following conditions precedent to recovery in this case: [listing various alleged conditions precedent, some of which are asserted by the Bencon Parties under their first and second issues on appeal].

Unless this language constitutes a specific denial of the conditions precedent asserted under their first and second issues, Boyer did not have to prove compliance with these conditions precedent. See Tex.R. Civ. P. 54; Community Bank & Trust, 107 S.W.3d at 542. In this answer, the Bencon Parties assert that the entire Prime Contract does not apply to Boyer, but that, in the unlikely event that the entire Prime Contract does apply to Boyer, then the Bencon Parties allege Boyer has not complied with various conditions precedent. The trial court never ruled on this issue, and the jury charge takes no position as to how much, if any, of the Prime Contract applies to Boyer’s performance under the Subcontract. At trial, Mark Boyer’s testimony indicated that Boyer agreed in the Subcontract to comply with the specifications and contract conditions from the Prime Contract that apply to Boyer’s work under the Subcontract. On the other hand, under cross-examination, Tommy Mazingo, Boyer’s project manager during part of the Project, testified that the entire Prime Contract applied to Boyer. Notwithstanding this testimony, if the Subcontract is unambiguous, then its construction and interpretation are a question of law to be resolved by this court. See American Mfrs. Mut. Ins. Co., 124 S.W.3d at 157.

The Subcontract states, in pertinent part: “Subcontractor to comply with the project’s plans, Specs [sic] and contract conditions issued by Metro to the G.C. [Bencon] as applicable to the Subcontractor’s work.” After considering both the Subcontract and the Prime Contract, we conclude that, as a matter of law, under the unambiguous language of the Subcontract, Boyer promised to comply only with the parts of the Prime Contract that contain project plans, specifications, or contract conditions applicable to Boyer’s work. See Seale v. Roy M. Mitchell Contracting Co., 321 S.W.2d 149, 150-51 (Tex.Civ.App.-Austin 1959, writ refd) (holding, in Texas Supreme Court precedent, that subcontract did not incorporate dispute-resolution provision contained in prime contract, because subcontract incorporated only the provisions of the prime contract applicable to the performance of subcontractor’s work); LeBlanc, Inc. v. Gulf Bitulithic Co., 412 S.W.2d 86, 93 (Tex.Civ.App.-Tyler 1967, writ refd n.r.e.) (stating that subcontract that incorporated the provisions of prime contract only “insofar as they are applicable to this Subcontractor” did not incorporate warranty, repair, indemnity, and arbitration provisions of the prime contract into the subcontract); Patrick J. Ruane, Inc. v. Parker, 185 Cal.App.2d 488, 497, 8 Cal.Rptr. 379, 385 (1960) (holding that subcontract did not incorporate prime contract’s conditioning of right to payment upon issuance of certifícate of completion, because subcontract incorporated the conditions of the prime contract “insofar as they are applicable to this particular work”). Because parts of the Prime Contract do not fall into this category, the entire Prime Contract does not apply to Boyer. LeBlanc, Inc., 412 S.W.2d at 93 (stating that subcontract did not incorporate all provisions of the prime contract into subcontract because subcontract incorporated the provisions of the prime contract only “insofar as they are applicable to this Subcontractor”). Inasmuch as the Bencon Parties only pleaded failure to comply with certain alleged conditions in the Prime Contract in the event that the entire Prime Contract applies to Boyer, and because the entire Prime Contract does not apply to Boyer, the Bencon Parties have not specifically denied the alleged conditions precedent in question, and Boyer did not have to prove compliance therewith. See Tex.R. Civ. P. 54; Community Bank & Trust, 107 S.W.3d at 542. Accordingly, we overrule the Bencon Parties’ first and second issues.

B. Is there legally and factually sufficient evidence to prove that Boyer timely performed under the Subcontract?

In their third, fifth, and seventh issues, the Bencon Parties assert the evidence is legally and factually insufficient to prove that Boyer timely performed under the Subcontract. Neither in the trial court nor on appeal, have the Bencon Parties asserted that time is of the essence as a matter of law under the Subcontract; rather, they assert the evidence is legally and factually insufficient to prove that Boyer timely performed under the Subcontract. The jury charge did not require the jury to find that Boyer had timely performed the Subcontract to find Bencon liable under the Subcontract. Because some essential elements of Boyer’s breaeh-of-contract claim were submitted to and found by the jury and because, without request or objection, the jury charge did not require a finding as to the element of timely performance by Boyer, the trial court is deemed to have made a such a finding in support of the judgment if there is factually sufficient evidence to support such a finding. See Tex.R. Crv. P. 279; Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668-69 (Tex.1990); Jamar v. Patterson, 910 S.W.2d 118, 120-23 (Tex.App.-Houston [14th Dist.] 1995, writ denied). The Ben-con Parties assert that there is no evidence or, alternatively, factually insufficient evidence, to support such a finding. Similarly, the Bencon Parties assert that they proved liability on their counterclaim for delay as a matter of law or, alternatively, that the jury’s finding against such liability is against the great weight and preponderance of the evidence.

Because the Bencon Parties did not object to the articulation of what Boyer must do to timely perform the Subcontract as set forth in the jury charge, we measure the sufficiency of the evidence in this regard using the charge’s definition of timely performance. See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex.2000) (holding that appellate court must review sufficiency of evidence based on un-objected .to definitions or instructions in the jury charge, whether or not they accurately state the law). The relevant parts of the jury charge state that Boyer had to complete the Subcontract “within a reasonable time.” Therefore, we must determine whether there is legally and factually sufficient evidence to support a finding that Boyer completed the Subcontract within a reasonable time.

The Subcontract states that Boyer’s work “will take approximately 160 working days to complete end to end, including manholes.” The record contains evidence of the following:

• Five working days equals seven calendar days, so that 160 working days equals 224 calendar days.
• Bencon requested a 116-day extension from Metro based on delays in the tunneling work due to underground obstructions, stating that “[i]n assessing the delay encountered by our Subcontractor Boyer, Inc[.], we come to the conclusion that 116 working day extensions [sic] of time, and associated additional costs are warranted.”
• In response to this request, Metro granted an extension of 84 calendar days.
• The sum of 224 calendar days and 84 calendar days is 308 calendar days.
• Metro gave Bencon notice to proceed with the work on the Project effective February 27,1999.
• On March 4, 1999, Metro approved Boyer as a subcontractor on the Project.
• In March 1999, Boyer discovered that a live utility wire from Houston Lighting & Power Company (“HL&P”) was in a utility duct at Congress and Louisiana, and discussed this conflict with Metro.
• Boyer could not proceed with the tunneling until HL&P relocated the live electrical wire so that it did not pass through the duct in question.
• The purpose of Bencon hiring Boyer as the tunneling subcontractor was to have Boyer deal with utilities conflicts because of Boyer’s skill and experience in this regard.
• Despite Boyer’s prompt notice to HL&P of this utility conflict, HL&P did not complete the relocation until May 19,1999.
• HL&P’s failure to complete relocation of its electrical wire until May 19, 1999, was not Boyer’s fault.
• Boyer could not have started its tunneling work before May 20,1999.
• Boyer broke ground and began tunneling on May 20, 1999, and did not stop working until its work was complete on March 24, 2000.
• From May 20,1999 to March 24, 2000, is 309 calendar days.
• In July 1999, a representative of Ben-con wrote a letter to a representative of Metro regarding the Project. This letter states that “[a]ll activities remain on course and time.”
• When Boyer finished its work on March 24, 2000, Bencon was five blocks behind Boyer performing aspects of the Prime Contract that Ben-con performed itself.
• On March 29, 2000, Metro inspected and completely accepted Boyer’s work.
• Boyer demobilized and removed its personnel from the site of the Project by March 31, 2000.
• The first time Bencon ever indicated to Boyer that it believed Boyer may have delayed the Project was in a letter from Bencon to Boyer dated March 21, 2000.
• Bencon substantially completed the entire Prime Contract on January 31, 2001.
• Because Metro granted Bencon a second 84-day extension, unrelated to Boyer’s work, under these extensions, Bencon completed the Prime Contract on time, and Metro did not assess any delay damages against Bencon under the Prime Contract.
• Metro has paid Bencon for the part of Boyer’s work that Bencon has not paid. Metro had no complaints about Boyer’s work, which was very good.

Under the applicable standard of review, we conclude that the evidence is legally sufficient to support a fact finding that Boyer completed its obligations under the Subcontract in a reasonable time.

As to factual sufficiency, there is conflicting evidence on various issues. Further, Alex Baaklini, the President of Bencon, testified that, although Bencon did not tell Boyer to start work on February 3, 1999, the date of the Subcontract, and although Metro had not yet approved Boyer as a subcontractor, he expected Boyer to start working on February 3, 1999, which he considered the start date of Boyer’s performance. Baaklini also testified that Bencon wanted to increase its profits by completing the Prime Contract six months ahead of schedule and that, based on this desired completion date, Bencon finished the Prime Contract four months late. Baaklini testified that Boyer’s delay in starting and completing its work under the Subcontract caused a four-month delay. However, Baaklini admitted that he never gave Boyer a schedule for its work under the Subcontract and that he never told Boyer that Bencon wanted to complete the Prime Contract six months early. Though Baaklini did testify that Boyer did not timely perform the Subcontract, the jury is the sole judge of the credibility of the witnesses. See Pascouet, 61 S.W.3d at 615-16.

On this record, after considering and weighing all the evidence, we conclude the evidence that Boyer completed the Subcontract within a reasonable time is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Pool, 715 S.W.2d at 635. Accordingly, we deem the trial court to have made a finding that Boyer completed the Subcontract within a reasonable time. See Tex.R. Civ. P. 279; Ramos, 784 S.W.2d at 668-69; Jamar, 910 S.W.2d at 120-23. We likewise reject the Bencon Parties’ arguments that they conclusively proved as a matter of law that Boyer failed to complete the Subcontract within a reasonable time. We also conclude that the jury’s finding of no liability for Boyer as to the delay counterclaim is not against the great weight and preponderance of the evidence.

Having rejected both the legal and factual sufficiency challenges regarding the timeliness of Boyer’s performance under the Subcontract, we overrule the Bencon Parties’ third, fifth, and seventh issues.

C. Is the evidence legally and factually sufficient to support the jury’s findings as to reasonable and necessary attorney’s fees?

In their fourth issue, the Bencon Parties assert several challenges against the trial court’s rendition of judgment on the jury’s verdict as to attorney’s fees. First, they assert Boyer cannot recover attorney’s fees because it cannot recover on its contract claim for the same reasons asserted by the Bencon Parties in support of their first issue. This argument fails for the same reasons set forth in the foregoing discussion of the first issue.

The Bencon Parties also assert that Boyer had to segregate its proof as to the reasonableness of attorney’s fees among its various claims as well as between fees incurred in connection with affirmative claims and its fees for defending the Bencon Parties’ counterclaim. After an attorney’s fees expert testified, among other things, that the “inextricably intertwined” exception to the segregation requirement applies to Boyer’s proof of reasonable and necessary attorney’s fees in this case, the trial court properly addressed this issue as a matter of law, ruling that the “inextricably intertwined” exception applies. See Air Routing Intern. Corp. (Canada) v. Britannia Airways, Ltd., 150 S.W.3d 682, 687-88 (Tex.App.-Houston [14th Dist.] 2004, no pet.). However, when the trial court made this ruling, the Bencon Parties had not objected regarding the alleged necessity of segregating proof of attorney’s fees. The following day, during trial and out of the hearing of the jury, the Bencon Parties’ counsel asserted to the trial court that “as a matter of law they have to segregate their attorney’s fees ... I object to any fees going to the jury and I ask the [cjourt to rule that the attorney’s fees must be segregated.” The trial court took this objection under advisement but never ruled on it.

At the charge conference, the trial court’s proposed charge did not segregate the attorney’s fees as to Boyer’s various claims or as between its claims and its defense of the counterclaim. The trial court asked counsel for the Bencon Parties what objections the Bencon Parties had to the charge. Their counsel responded by asserting several objections, none of which involved segregation of attorney’s fees, and then stated, “That’s it, Judge. Those are my objections to the Charge.” Even if we presume for the sake of argument that the trial court, in submitting the jury charge without segregation of attorney’s fees, might have implicitly overruled the segregation objection lodged the day before, on this record, we conclude that the Bencon Parties waived error by representing to the trial court that they had listed all of their charge objections and by not including a segregation objection in this list. Because the Bencon Parties did not object to the lack of segregation of attorney’s fees in the charge, the Bencon Parties waived their complaint. See Green Intern., Inc. v. Solis, 951 S.W.2d 384, 389 (Tex.1997) (holding that parties waived error regarding failure to segregate attorney’s fees because they did not object when the court’s charge failed to segregate). Therefore, we reject the Bencon Parties’ challenge based on failure to segregate attorney’s fees.

The Bencon Parties’ main argument is that the evidence is legally and factually insufficient to support the jury’s finding that $282,773.33 is a reasonable and necessary fee for services rendered by Boyer’s attorneys at the trial-court level. In this regard, they first assert that the evidence is legally and factually insufficient to support an award based on the work of legal assistants. Boyer’s attorney’s fees expert was its lead attorney, and she discussed both the services of the legal assistants whose work formed part of the basis for the requested attorney’s fees award, and also her supervision of the legal assistants. She also testified that the hourly rates charged for work performed by the legal assistants in this case are reasonable and lower than the rates many law firms charge. The billing records submitted in evidence show the nature of the legal work the legal assistants performed, the hourly rate being charged for their services, and the number of hours worked by the legal assistants. Applying the relevant standards of review, we conclude that the evidence is legally and factually sufficient to support the jury’s finding as to reasonable and necessary attorney’s fees to the extent it was based on work performed for Boyer by legal assistants. See Moody v. EMC Servs., Inc., 828 S.W.2d 237, 248 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (listing factors to be considered in reviewing sufficiency of award to extent it is challenged based on ability to recover attorney’s fees regarding services of legal assistants); Stewart Title Guar. Co. v. Aiello, 911 S.W.2d 463, 474-75 (Tex.App.-El Paso 1995) (holding evidence was legally and factually sufficient to support award of reasonable attorney’s fees based in part on work of legal assistants), rev’d in part on other grounds, 941 S.W.2d 68 (Tex.1997).

The Bencon Parties also assert that the award of over $282,000 in attorney’s fees for work in the trial court is excessive because Boyer recovered only $81,336.83 in actual damages. Boyer originally sued for more than $200,000, although Bencon paid $126,686,80 shortly after Boyer filed suit. Furthermore, Bencon asserted a counterclaim against Boyer seeking more than $530,000 in damages. Boyer’s attorney’s fees expert testified as follows:

• Bencon’s counterclaim seeking more than $530,000 was a very serious claim, and $530,000 was a huge amount of money for Boyer.
• Boyer’s attorneys sent out various statutory notices to perfect Boyer’s payment-bond claim.
• Boyer was surprised that Bencon asserted a counterclaim based on delay, and Boyer was uncertain as to the basis of this claim.
• Although Boyer never had to obtain an order compelling discovery, Ben-con initially produced only one box of documents, and Boyer’s counsel had to make additional requests to Ben-con’s counsel to obtain production of more documents, thus generating more attorney’s fees.
• Because Bencon produced so few documents, Boyer had to propound significant requests and analyze large numbers of documents from Metro and HLc&P to try to piece together evidence regarding the whole Project and Boyer’s place in it.
• Boyer’s counsel also had to prepare for and take depositions of three Ben-con personnel, as well as prepare for and defend the depositions of three Boyer personnel.
• Invoices and fees summaries admitted in evidence show $252,778.33 in billed fees up to a week before counsel’s testimony. In the last week, at least $30,000 more in fees had been generated for a total of $282,773.33.
• There were a couple of prior trial settings in the case in which Boyer’s counsel did not know that the trial court was not going to reach this case until the last few days before the trial setting. This preparation for and delay of trial further increased the attorney’s fees.
• Boyer also hired an expert in this case, although the expert’s fees are not included in Boyer’s attorney’s fee request.

Boyer’s counsel testified as to the factors used to determine reasonableness of attorney’s fees, the hourly rates of the billers, and the reasonableness of these hourly rates. Mark Boyer also testified that the nature of Bencon’s delay claim was difficult to pin down, and Bencon’s legal theory changed frequently. Boyer testified that a judgment in Bencon’s favor for half a million dollars could have put Boyer out of business.

Controverting much of the testimony of Boyer’s attorney’s fee expert, counsel for the Bencon Parties testified as follows:

• A reasonable and necessary fee in this case would be $250 per hour for lawyers of twenty-two years’ experience.
• Counsel for the Bencon Parties will have billed 200 hours for work in the trial court in this case; therefore, a reasonable and necessary fee for this work would be $50,000.
• Counsel for the Bencon Parties does not charge the client for time worked by an associate or by legal assistants, and counsel has a flat-fee arrangement capping his compensation at $20,000, plus any additional amount Bencon may wish to pay, in its discretion, to counsel at the end of the case.

Under the applicable standards of review, we conclude the evidence is both legally and factually sufficient to support the jury’s findings as to reasonable and necessary attorney’s fees in the trial court. See Murrco Agency, Inc. v. Ryan, 800 S.W.2d 600, 606-07 (Tex.App.-Dallas 1990, no writ) (rejecting excessiveness challenge to attorney’s fees more than three times the actual damages recovered based on testimony of the attorney’s fees expert as to the time- spent, skill required, and nature of the case, which included defense of counterclaims for hundreds of thousands of dollars). Accordingly, we overrule the Bencon Parties’ fourth issue.

D. Did the trial court err in denying the Bencon Parties’ motion for mistrial?

In their sixth issue, the Ben-con Parties assert the trial court erred in denying their motion for mistrial based on Boyer’s alleged intentional violation of the trial court’s in limine rulings. Although the Bencon Parties attach the alleged in limine ruling on which they base this issue in the appendix to their appellate brief, this alleged ruling is not in our appellate record. With limited exceptions not relevant here, an appellate court may not consider matters outside the appellate record. Nguyen v. Interfax, Inc., 93 S.W.3d 288, 293 (Tex.App.-Houston [14th Dist.] 2002, no pet.). The attachment of documents as exhibits or appendices to briefs is not formal inclusion in the record on appeal and, therefore, the documents cannot be considered. See id. Because the alleged in li-mine ruling on which the Bencon Parties base their sixth issue is not in our record, we cannot consider it.

In any event, the Bencon Parties’ trial counsel did not object to the testimony in question — that the Bencon Parties’ trial counsel represents Bencon or its employees or officers in a criminal matter. Furthermore, the Bencon Parties’ counsel, acting as an expert witness as to attorney’s fees, was himself the source of the alleged incurably prejudicial testimony. After the Bencon Parties’ counsel made the statements, the trial court instructed the jury that Bencon, its officers, and its owners have never been convicted of a crime. The trial court’s instruction to disregard cured any prejudice to the Bencon Parties from the testimony of their trial counsel. See Weidner v. Sanchez, 14 S.W.3d 353, 363-65 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Accordingly, we conclude the trial court did not abuse its discretion in denying the Bencon Parties’ motion for mistrial, and we overrule their sixth issue.

IV. Conclusion

Boyer did not have to prove compliance with the alleged conditions precedent raised by the Bencon Parties because the Bencon Parties did not assert a specific denial as to these conditions. The only denial that refers to any of these alleged conditions does not take effect unless the entire Prime Contract applies to Boyer, and it does not. The evidence is legally and factually sufficient to support a deemed finding that Boyer performed under the Subcontract within a reasonable time. The evidence is also legally and factually sufficient to support the jury’s findings as to reasonable and necessary attorney’s fees. The trial court did not abuse its discretion in denying the Bencon Parties’ motion for mistrial.

We affirm the trial court’s judgment.

      . In this opinion, we refer to Bencon, General, and Pennsylvania General collectively as the "Bencon Parties.”

      . The jury also made various findings regarding perfection of the payment-bond claim and the Prompt Payment Claim, but those findings are not relevant to this appeal.

      . We also note that, even if the Bencon Parties' supplemental answer had sufficiently pleaded failure to comply with the alleged conditions precedent listed in that pleading, the result would not be different. In this event, we would have considered only the alleged conditions precedent that are both listed in the supplemental answer and asserted by the Bencon Parties on appeal. All of these alleged conditions precedent are based on article 8 of the Prime Contract, entitled “Invoicing and Payment.” The unambiguous language of this article deals with how Ben-con should invoice Metro and how and when Metro should pay Bencon. The unambiguous language of this article does not contain project plans, specifications, or contract conditions that apply to the work Boyer agreed to perform under the Subcontract. See Seale, 321 S.W.2d at 150-51; LeBlanc, 412 S.W.2d at 93; Patrick J. Ruane, Inc., 8 Cal.Rptr. at 385. Therefore, the Subcontract does not incorporate these alleged conditions precedent. We do not address Boyer’s assertion that satisfaction of any alleged conditions precedent is excused on the stated grounds that it would result in an inequitable forfeiture or penalty. See TA Operating Corp. v. Solar Applications Eng’g, Inc., No. 04-04-00180-CV, 2005 WL 712010, at *3 (Tex.App.-San Antonio March 30, 2005, no pet. h.); Lesikar Const. Co. v. Acoustex, Inc., 509 S.W.2d 877, 881-82 (Tex.Civ.App.-Fort Worth 1974, writ ref’d n.r.e.).

      . We note that, even if the Bencon Parties had not waived error in this regard, we still would conclude under our de novo review that the “inextricably intertwined” exception is satisfied. See Air Routing Intern. Corp. (Canada), 150 S.W.3d at 687-98 (discussing de novo standard of review and concluding that legal standard for '‘inextricably intertwined” exception was satisfied).

      . Even if the document in question were in our record, it would not support the Bencon Parties’ position because this document does not contain an in limine ruling of the trial court; rather, it contains an agreement by Boyer to approach the bench before mentioning any criminal convictions of Eddie Baakli-ni. The complained-of cross-examination of the Bencon Parties’ trial counsel did not mention any conviction of Eddie Baaklini, so there is no apparent violation of the purported in limine agreement.