*1 consequences and the of his or plea, plea knowingly her voluntarily. State,
Basham v. T.R.S., S.W.3d 321. (Tex.Crim.App.1980), the voluntariness of Conclusion plea presumed
the once the trial court substantially complies Reviewing light admonish the evidence most State, requirements,4 ment verdict, State, Lee v. 39 favorable to the Garrett v. (Tex.App. [1st 619 (Tex.Crim.App.1981), S.W.2d 172 we - Houston pet.); no see TEX. CODE conclude the trial court did not abuse its CRIM. PROC. ANN. art. 26.13 granting the State’s motion Supp.2004). proper Because admonish revoke Armstrong’s community supervi- ment prima the trial court creates a Accordingly, sion. we affirm the trial showing facie that a guilty plea was know judgment. court’s ingly voluntarily made, Crawford State, 944 (Tex.App . -San Antonio no pet.), heavy burden is
placed appellant on the to overcome the
presumption regularity judgment Lee,
and proceedings, 375.
Despite Armstrong’s claim that no rea- person record,
sonable examining past his history, and conduct could believe he was SCHNEIDER, In re Franz Emil M.D. sane at the time he committed the under- Rajendran, M.D., and Suresh lying offense when he entered into the Relators. plea agreement, ample there is evidence to No. 14-04-00169-CV. contrary. Armstrong’s may expert have testified that Armstrong was incom- Appeals Court of petent at the time he committed un- Dist.). (14th Houston offense, derlying plea entered into the agreement, allegedly failed to May 2004. community supervision, terms of but the expert State’s testified that Arm-
strong was not insane at the time of the
offense, trial, competent was to stand capable rationally
was discussing the him,
charges against possible penalties imposed,
that could be impact and the of a
possible plea agreement.5 As the sole tri- fact,
er of trial court reasonably could did, fact, Armstrong
conclude enter his Armstrong properly expert Armstrong admonished both each evaluated relative orally writing, responded and in he to all of plea. the time of the offense and The State's questions, the court’s stated he understood expert Armstrong evaluated on December consequences the admonishments and the grand jury day indicted after the plea, questions his and even asked for clarifi- days pled guilty him and six before he and the cation. judgment; Armstrong's trial court rendered Armstrong May on evaluated reviewing conflicting opinions, it is noting worth the time frame within which *2 P. Sheehy, A. Ann
Richard Watson Houston, Ferguson, Andrea Charmaine TX, appellants. for Doyle, Douglas,
Frank A. M. John Glenn O’Neal, Davis, Ann D. Melanie A. Kendall Norman, Eugene Rubinsky, Richard Boston, Luccia, N. James R. John Frank Myers, B. Rich- Gregory Adrogue, Lorena Law, Houston, A. ard M. Samuel Suzan Davis, Cardwell, R. T. Marc Cal- Steven Houston, vert, TX, appellees. consists
Panel of Chief Justice FROST HEDGES Justices GUZMAN.
OPINION
HEDGES,
ADELE
Chief Justice.
24, 2004, relators,
February
Franz
On
Schneider,
Rajen-
Emil
M.D. and Suresh
dran, M.D.,
writ of
court. See Tex. Gov’t
Supp.2004);
22.221
Code
Tex.R.App.
also
peti-
P. 52.
their
see
tion,
compel
Honor-
relators seek to
Wood,
Sharolyn
Judge of
able
County,
District Court
Harris
Judicial
order
aside her
to set
number
cause
entered
Botto,
et al. v. Juan
Phipps,
Curtis
styled
M.D.,
al.,
(Tex.1992).
Packer,
et
relátors’ motion to
dismiss. Relators seek
.
mandamus relief
party seeking
that a
the trial court to enter an order mandamus relief
lack
establish the
*3
dismissing
against
the claims
them with
adequate
remedy
appellate
is a “funda
prejudice. Relators assert that dismissal mental tenet” of
practice.
Id.
is
expert
report
mandated because the
at 840. Mandamus
is intended
be
by
parties
filed
the real
in interest did not
extraordinary remedy,
only in
available
4590i,
former
article
sections
limited circumstances.
Id. An
14.01(c)
13.01(d), 13.01(r)(6), 14.01(a), and
remedy
inadequate merely
is not
because
Liability
of the Medical
and Insurance Im-
may
expense
delay
it
involve more
or
than
provement Act.1
obtaining mandamus relief. See
Ltd.
CSR
physicians
Relators and other
were sued
Link,
(Tex.1996);
596
by
family
of Minnie
for dam-
Phipps
Walker,
Mandamus issues to correct denial of a motion adequate review the a clear or abuse the violation expert report to dismiss due to a deficient duty imposed by of a law there is no where Collom, adequate remedy by appeal. v. under former article 4590L2 In Walker claim, 3) August Leg., qualified 1. Act effective 65th is on the basis R.S., (as training expert opin- experience ch. 1977 Tex. Gen. Laws 2039 or to offer an amended) (former Tex.Rev.Civ. Stat. Ann. art. regarding accepted ion those standards of 4590i, (the Liability §§ 1.01-16.02 "Medical medical care. Former Ann. TexRev.Civ. Stat. Act,")), Improvement repealed 4590i, (2), (3). Insurance 14.01(a)(1), § art. & The stat- Act effective provides guidance ute also to determine 204, § ch. 2003 Tex. Gen. Laws qualified a whether witness is on the basis of Many provisions of the of former training experience. or Former TexRev.Civ. article 4590i are now codified at Tex. Civ. Prac. 4590i, 14.01(c). Stat. Ann. art. §§ 74.001-74.507 & Rem.Code Ann. Supp.2004). Watumull, Because this case was filed be- rely 2. Relators also on In re provisions fore (Tex.App.-Dallas, S.W.3d apply. Subsequent refer- orig. proceeding) (granting relief due to un repealed ences to the act will be cited as timely report); 4590i.” "former TexRev.Civ. art. (Tex.App.-El Paso Stat. statute, According proceeding) (granting inadequate to the former relief due to 1) Morris, report physician report); be is and In re must from who 2002, orig. proceeding) practicing (Tex.App.-Amarillo medicine at the time the is arose, 2) (denying the claim relief where no abuse of discretion rendered or the time extension), knowledge accepted all of has standards of medi- was shown in holding appeal diagnosis, cal care for the care or treatment which follow Collom's illness, inadequate analysis. injury, without further or condition involved 2003) J., dissenting) (Wittig, El Paso the trial court found (“[T]he trial legislature invested untimely, and that plaintiff instance, appel- not the the first with section compliance the lack of courts, authority to determine 13.01(d)’s late file a discretion, of a adequacy judicial days was not due to accident within 180 it 4590i, court noted the Collom report.”). article former mistake. the trial the merits of 30-day grace pe- could not review 13.01(g) (providing Collom, 62 findings not intention- on mandamus. noncompliance is court’s
riod where mistake). (Grant, J., concurring). accident or Never- al but due to at 930 theless, 30-day granted the trial court amended legislature *4 Id. at 927. extension. Practice of the Texas Civil section 51.014 that the trial court in- complained provide
Relators for an Remedies Code to plain- the duty to dismiss had a ministerial if a trial court denies terlocutory appeal Although the prejudice. liability case with tiffs a health care motion to dismiss 74.351(b) that the acknowledged Texarkana ex- when an claim under section designed of motions to trial court’s denial within has not been served pert’s report are generally or abate lawsuits terminate See Act of June the deadline. mandamus, it nonethe-
not reviewable R.S., § ch. 204 Leg., 78th In conditionally granted relief.3 con- (current less 847, 849 version Tex. Gen. Laws cluding appellate remedy was inade- PRAC. & Rem.Code Tex. Civ. the denial of a motion to quate to review 51.014(a)(9) Supp.2004)). found the
dismiss after a trial court has only to actions applies amendment deficient, rec- the Texarkana court report 2003. Act June after legislature’s pur- the stated ognized that 23.02(d), ch. 204 4590i to reduce pose enacting in article legis- 899. The 2003 Tex. Gen. Laws frivolous suits. Id. amend- apply to the expressly lature chose legislature Had the prospectively. ment decline to follow Collom and We interlocutory review provide intended to Collom, progeny. there is no com Unlike under the of motions to dismiss the denial plaint report this case that was article, so. it could have done former made no untimely. The trial court here predating un As for actions expert report was findings Supreme Court duty timely, and thus no ministerial denied, opinion, peti- ten written of whether without triggered. The determination seeking mandamus to tions for writs of faith effort plaintiffs have made inadequate expert due to satisfying compel dismissal provide reports.4 See In Re Woman’s judicial discretion rather requires statute (March 5, J. 318 S.Ct. ministerial act. than a See Horswell, 2004); 47 Tex. S.Ct. J. In re (Tex.App.- argu petitions, denial of these to the cited several instances where 3. The court including ing purpose of inappropriate, the de- mandamus only summary judgments, pleas quirements abate- nials of ment, In exceptions, to dismiss relief is available. special motions be served if mandamus Texas,Inc., Sup. 47 Tex. and other motions non conveniens re Woman's forum Collom, 5, 2004) (Owen, (March J. to dismiss. Ct. J. dissenting) (dissenting to the cases cited therein. considering after denial of three each). recognized Owen, Owen Justice joined by merits of Justices Hecht 4. Justice might lead Brister, in these cases dissenting concurring and filed a (March 5, 2004); deny Shapiro, 47 Tex. relators’ for writ of We (March 5, 2004); J. 319 In re Rodri- S.Ct. mandamus. (March 5, 2004);
guez, 47 Tex. S.Ct. J. 319 Inc., Hosp., Osteopathic In re Fort Worth FROST, concurring. (March 5, 2004); re 47 Tex. S.Ct. J. 319 In FROST, Justice, KEM THOMPSON Barker, (March 5, 47 Tex. S.Ct. J. 319 concurring. Assocs., 2004); In re Fam. Care Southside (March 5, 2004); In re
47 Tex. S.Ct. J. 319 appropriate Is mandamus Inc., Riverside 47 Tex. S.Ct. J. 319 judge a trial to dismiss claims (March 5, 2004); Farley, prejudice plaintiff’s based on (March Redels, 5, 2004); J. 319 S.Ct. provide expert reports failure to 2004). (March 5, 47 Tex. J. 319 S.Ct. comply with former article 4590i? previously This court has denied among There is a conflict Texas courts mandamus relief under circumstances sim appeals on the correct answer here, present declining ilar to those no;2 say question. say yes;1 others Some holding that an follow Collom and ade Although the yet have to decide. some *5 quate remedy by appeal existed. See In Supreme expressly has not Texas Court Texas, Inc., Hosp. re No. 14- Woman’s of so, of that signal said it has sent a sorts (Tex.App.-Houston [14th 02-00561-CV is not available in mandamus relief (not July orig. proceeding) Dist.] types of cases. denied, designated publication), for mand. notes, high our majority As the (March 2004). 5, Sup.Ct. 47 Tex. J. 318 denied, explana without written hold that relators have an We therefore tion, mandamus petitions ten for writ of adequate remedy by appeal to review the due to inade seeking dismissal expert’s determination of whether an re rul quate expert reports.3 Because represents a faith to com port good effort explanation, they ings were made without ply statutory requirements effect, binding report. precedential such a are without re finding 4590i did not to relaxed standards for mandamus that former article presented); In quire relief in other Id. at 355. cases. dismissal under the facts Assoc., 62 S.W.3d Carney re Collom & Clinic * Smith, 308664, 1. See In re at 1-3 2001, 924, orig. (Tex.App.-Texarkana 928-29 (Tex.App.-Eastland orig. pro Feb. (holding lies if trial proceeding) mandamus ceeding) (mem.op.) (holding mandamus relief required by when for court fails to dismiss lies from trial court’s failure to dismiss when 4590i). mer article 4590i); required by former article In re Watu mull, 351, (Tex.App.-Dallas 354 Texas, Inc., Hosp. No. 14- In re Woman’s 2004, orig. proceeding) (holding mandamus (Tex.App.-Houston [14th 02-00561-CV and there is no relief lies (finding July orig. proceeding) ade when law if trial court fails to dismiss re law) (not designed publi quate remedy 4590i); High quired former article In re denied, cation), Sup.Ct. 47 J. 318 mand. Tex. Home, Ltd., Nursing WL land Pines 2004 Herrera, 5, (March 2004); * 05-02- In re No. 100403, Jan.21, 2004, (Tex.App.-Tyler at 1-4 (Tex.App.-Dallas 000003-CV, 1 (same orig. proceeding) (mem.op.) as Watu .8, 2002, mull); Feb Hosp. law) (not desig (finding adequate remedy at 2003, orig. (Tex.App.-El pro Paso publication). nated for Morris, (same Watumull); ceeding) as In re (Tex.App.-Amarillo Inc., (agreeing In re Woman’s proceeding) that mandamus is 5, 2004); (March In re Hors proper remedy Tex. S.Ct. J. 318 if trial court fails dismiss well, 5, 2004); (March required but 47 Tex. S.Ct. J. 318 when petitions,5 in provide requiring and thus no basis for these ten mandamus any in Owen, denial mandamus relief other joined by Jus opinion her Justice raising high case the same issue.4 Our Brister, suggests tices Hecht and issue, however, on this court’s silence majority justices may have conclud hardly given be considered a vacuum in those cases had an ed that relators dissenting Justice Owen’s adequate remedy by appeal to review the opinion those cases. See In re Woman’s expert’s of whether the determination Texas, Inc., Sup.Ct. port represents faith effort to com 346-51, 2004 WL at *1-5 ply statutory requirements.6 2004) (Owen, J., concurring and Though Supreme Court did though the Texas Su preme Court did not state its reasons for not the rationale for its decisions in reveal (March Shapiro, many possible re 47 Tex. S.Ct. J. There are reasons mandamus 2004); Rodriguez, given any In re S.Ct. J. 319 can be denied in case. Jus (March 5, 2004); Osteopathic In re Fort Worth tice Owen noted several of these reasons in Inc., (March 5, Hosp., agreed part 47 Tex. S.Ct. J. 319 she her which Barker, 2004); appropriate In re 47 Tex. S.Ct. J. 319 that denial was as to six of the (March 5, 2004); In re Care Southside Fam. mandamus before the Texas Su Assocs., (March 5, 2004); See, preme e.g., 47 Tex. S.Ct. J. 319 Court. In re Woman’s Inc., Sup.Ct. In Riverside 47 Tex. S.Ct. J. 319 47 Tex. J. at of 2004 WL (March 5, 2004); Farley, (stating 47 Tex. S.Ct. J. that one (March 2004); Redels, 47 Tex. should be denied because (March 2004). S.Ct. J. 319 trial court not abuse its discretion in did determining satisfied statu *6 tory requirements petition and that another appear any prec 4. There does not to be Texas should be denied because the issue; expressly addressing edent this howev statutory requirements). met the There is an that, er cases other from states hold when a possible explanation other for the Su Texas opinion, court issues a decision without an preme majority Court’s action. A of the court precedential that decision has no effect as to might Legisla have concluded that the Texas any legal issues in the case. See Cantrell v. grant appellate ture's to of review cases Builders, Inc., (Ala Walker 678 So.2d on or after constitutes a .Ct.App.1996) (noting Supreme that Alabama legislative interlocutory decision that no opinion prec- Court's decision without has no otherwise, lief, by mandamus should be effect); Title, edential Ballot Title and available for cases filed before Clause, Summary Submission and 1999- Texas, Inc., See In Woman’s 235(a), (Colo. 2000 # 3 P.3d 1222 n. 1 of 346, 348-51, Sup.Ct. J. 2004 WL 2000) (stating prior decision without J., 2004) (Owen, opinion Supreme of Colorado Court has no Likewise, dissenting). though and effect); precedential Dept. Legal v. Of Affairs terribly unlikely, technically pos it seems it is Dist, App., Dist. Ct. 434 So.2d Of Supreme sible that the Texas Court deter (Fla.1983) (holding that an important to mined that the issue was not opinion court with no no decision written has jurisprudence of the state and therefore failed value). Furthermore, precedential a dissent qualify to for mandamus relief. See Tilton ing justice aon Texas intermediate court re Marshall, (Tex. 1996) cently Supreme asserted that the Texas (stating petition be de that mandamus rulings Court's on these ten without petition important does issues nied if not raise opinion appeals does not bind the of courts jurisprudence). It more like for Texas seems on the issue of whether mandamus relief is justices high ly majority on our of clearly available if the trial court abuses its rejected the dissenters’ view that there by failing required to dismiss when types is no in these of cases. by former article 4590i. See In re Hill Re gional Hosp., 134 S.W.3d (Tex.App.-WacoApr.14, 6. See In re Woman’s of 346, 346-51, C.J., orig. proceeding) (Gray, Sup.Ct. presenting any pronounce- original proceedings ten eases or make this is- these follow, And, binding precedent or a for lower to it was not sue. without ments courts from the Supreme pronouncement so. clear Texas Su- obliged to do The Texas Court, of these required by preme panels decision interme- explain Court is upon by peti- likely courts will opinion written consideration diate most continue be review, though tion is divided on issue.9 but this not in the when it for man- cases will evanesce not-too-distant imposed denies future,10 judicial original economy in an Com- would be well proceeding. damus Tex.R.App. Tex.R.App. 52.8(d) by a pare ques- P. with served definitive answer this Nonetheless, P. tion. the matter the when recurring high deciding court is is a and Today, this court concludes the re- one, explanation elimi- unsettled would remedy by an adequate appeal lators have uncertainty, uniformity nate foster in this case and mandamus relief on denies consistency, and the Texas advance Su- is that basis. The result reached at odds preme paramount function Court’s in In re with Justice Owen’s Wom- speaking clarity important on issues an’s but consistent with jurisprudence.
to Texas prior holding11 this court’s is more likely than not in with the view the line more than a 4590i thousand cases With justices majority Supreme on in the the inter- reportedly pipeline,7 still high court Court. Because our seems are this mediate courts sure to see issue rejected expressed tacitly the views have again. very In the time since short to- opinion, in Justice Owen’s because Supreme Texas Court denied those ten day’s keeping prior decision is in already petitions, issue court, respectfully of this I concur decision several times.8 Because the arisen issue of the relators’ peti- in the court’s denial one, litigants will open remains some tion for writ of mandamus this case. spend money seeking continue to time high signaled— that our court has but not said—is unavailable. Intermediate *7 expend courts will continue attending disposing
their resources to and 5, 2004) J., (Owen, Apr. orig. proceeding) App.-Waco C.L, dissenting). (Gray, 7. In re Woman’s 1, or after As to cases filed on 10. 350, 422583, at Sup.Ct. J. at 2004 WL *4. 2003, Legislature expressly pro- See, e.g., Regional interlocutory appeals Hill from orders vided for * 1; 811729, at WL failure to time- motions to dismiss for 10-04-000076-CV, Wagner, No. 2004 WL ly represents a file an * Apr. (Tex.App.-Waco at 1 re- faith effort Esparza, orig. proceeding) (mem.op.); In re 2, 2003, 78th quirements. of June See Act * 054-CV, 435241, at 2004 WL No. 13-04 - ch. 2003 Tex. Gen. orig. (Tex.App.-Corpus Christi Mar. (current Laws version Civ. (mem.op.); Spohn proceeding) In re Christus 51.014(a)(9)). & Prac. Rem.Code 13-04-081-CV, Sys., No. Health * (Tex.App.-Corpus Christi Texas,Inc., No. See In re Woman’s (mem.op.). proceeding) Mar. (Tex.App.-Houston [14th 14-02-005 61-CV (not See, July e.g., Regional Hosp., Hill (Tex. designed publication).