*1 graffiti Contrary to the record extensive- Appellant’s offense. We have reviewed assertions, however, presented ly, applicable the State under standards of demonstrating that marker review, evidence giving due deference to the fact Appellant used to on the determinations, draw bathroom finder’s we hold paper dispenser towel was an “indelible legally factually evidence was both marker,” 28.08(e)(3) as defined section support jury’s implicit sufficient to penal code. See Tex. Penal Code Appellant finding that used indelible 28.08(e)(3). Officer Rice testified Accordingly, Ann. marker. See id. we overrule graffiti “appeared that the to be written Appellant’s two issues. permanent
in a ink black marker.”2 Wright graffiti also testified that the was IV. Conclusion Sharpie, made with a marker similar to a issues, Having Appellant’s overruled two agreed marking per and he that the was judgment. we affirm the trial court’s Likewise, manent. Baker testified that graffiti was made mark black Thus, er. two of the State’s witnesses permanent,
testified that the marker was erasable, washable, opposed being
as or short-lasting.
otherwise See WebsteR’s Dictionary
Third New Int’l
(defining “indelible” as “that cannot be removed, erased!;] away, washed or LIMITED, In re TENET HOSPITALS obliterated!;] cannot perma be effaced or Partnership, A Texas Limited nent, lasting”). Relator. Baker When was asked what used No. 08-03-00069-CV. graffiti September make the offense, testified, marker, he “The black Texas, Appeals Court they’d using.” the same one been El Paso. testimony prior State offered at- tempts failed, cleaning graffiti had Aug. 2003. Eagle began
so American spray-painting Rehearing Overruled Oct. graffiti over all found in the restroom.3 In company policy, accordance with no one
tried to graffiti Sep- remove the found on spray-painted
tember but instead over evidence,
the marks. With the State proof
offered circumstantial Sep- 12 graffiti
tember was made an ink
product specifically that was formulated to erase, out,
be more difficult to wash ordinary ink products.
remove than See 28.08(e)(3).
Tex. Penal Code A.F., testimony day September graffiti 2. This is similar to that in 3. The after the inci- dent, police opined graffiti company which a officer tiled the bathroom walls A.F., ceiling was made with an "indelible marker.” from the floor to the because of the graffiti problem. 2002 WL at *2. *3 Anderson, Smith, P.C.,
Cynthia Kemp S. Paso, El for relator. Paso, Moody, pro E. El se.
William BARAJAS, C.J., Before Panel No. 5 McCLURE, WITTIG, and JJ.
OPINION McCLURE, ANN CRAWFORD Justice. proceeding,
In this mandamus Tenet Hospitals complains Limited court’s denial of its motion to dismiss a malpractice medical suit. The motion challenged sufficiency expert of two reports plaintiffs filed below which required by failed to address causation as Finding reports statute. were faith, in good filed the trial court denied conditionally the motion to dismiss. We grant relief.
FACTUAL SUMMARY 4, 2000, midnight Around on March Ra- quel emergen- Arriola was admitted to the cy room at Sierra Medical Center. She chills, complained pleuritic pain, chest headache, diarrhea, and nausea. Her history systemic lupus medical revealed erythematosus spleen and Dr. removal. Rowley x-ray, Patricia ordered a chest ECG, laboratory and certain tests. Arrio- decompensated la and arrested at 3:42 a.m. resuscitated, again Angeles, (Tex.App. She was but arrested 5:18 and not be pet.). a.m. could revived. -Texarkana screening mal encourage medical surviving brought a Arriola’s children filing, practice expert prior claims malpractice against medical suit Dr. Row- provide Act requires each ley Hospital. regard With defending physician provid health care plaintiffs Rowley, alleged that she er with one or more relat timely Ar- properly diagnose failed to liability ing and causation. Wood riola, monitoring failed order continuous Tice, (Tex.App.-San level, oxygen her saturation failed denied); pet. Antonio see Tex.Rev. to order the administration of antibiotics. *4 13.01(d). 4590i, § The art. hospital negligent The was purportedly be- Civ.Stat.Ann. expert report, along with a curriculum action taken cause no to address the to expert, vitae of must be furnished each results, electrolyte abnormal ECG imba- day the defendant not later than 180th lance, desaturation, respiratory mild or low after a health the date which care liabil cell and did white blood count the staff ity day claim is filed or the last of patient’s signs vital or monitor her period as under the permitted cardiac condition. extended 4590i, statute. art. Tex.Rev.Civ.Stat.Ann. expert plaintiffs timely The filed two 13.01(d). comply § If a fails to required by the Liabili- as Medical files provision with this and defendant ty Improvement Act. and Insurance Tex. seeking pursuant motion to a sanctions 4590i, art. Rev. Civ.Stat.Ann. 13.01(e), a court has no dis Section trial 13.01(d)(Vernon § In Supp.2003). dismissing cretion must an order and enter first, Bowers, R.N., Margaret explained prejudice. the case with Tex.Rev.Civ.Stat. requisite that standard of care re- 4590i, 13.01(e)(3); Hart, § 16 Ann. art. quires a nurse administer medications expert report is S.W.3d at 876. Where such as antibiotics accordance with the tendered, may challenge the the defendant physician(s) orders and instructions report. adequacy of the directing patient. care of the medical Tex.Rev.Civ.Stat. 4590i, 13.01(0; Hart, 16 § art. opinion, attending her the nurses Arrio- at 876. trial court is author S.W.3d by la failing breached standard care if it grant “only ized a to dismiss motion to administer medications as or- antibiotic court, appears hearing, to the after expert report, In the dered. second represent good does not faith opined applica- Paul Bronston K. comply of an effort to with the definition required ble standard care continuous (r)(6) of this Subsection monitoring signs of the heart and vital 4590i, section.” Tex.Rev.Civ.Stat.Ann. art. Hospital had breached the stan- 13.01(l). An is as defined pain proto- dard and own violated its chest fair summary expert’s opinions col. (1) regarding: applicable standards THE STATUTE (2) care, the manner in which the care by physician or care rendered health and Insur Liability The Medical (the standards, Act) provider failed meet Improvement ance Act was en relationship the causal between Legislature to by acted the Texas curtail harm, injury, damages failure and the or Wright, Hart v. 16 frivolous claims. 872, (Tex.App.-Fort claimed. 876 Worth S.W.3d Tex.Rev.Civ.Stat.Ann. 13.01(r)(6). denied); 2000, pet. Horsley-Layman in- only in situations OF The writ will issue STANDARD REVIEW necessity volving urgent manifest and apply an abuse of discretion may addressed grievances not for reviewing a trial court’s standard when Holloway v. other remedies. Fifth ruling on a dismissal under Section 680, 684 Court 767 S.W.2d 13.01(e)(3). American Transitional Care (Tex.1989). Texas, Palacios, Inc. v. Ctrs. (Tex.2001); Hart, 16 INADEQUACY THE EXPERT OF 875; Gagliardi, Tibbetts v. REPORTS (Tex.App.-Houston [14th Dist.] The sole issue for the denied). pet. only Mandamus will lie reports represented court was whether the correct clear abuse of discretion. Walk good faith effort Packer, (Tex. er v. statutory expert report. definition of an
1992)(orig. proceeding). A clear abuse of Palacios, 46 at 875. Because the man warranting discretion correction report, Act on the contents of the focuses damus occurs a court when issues deci inqui information relevant to the sion which without basis reference *5 ry is contained within the four corners of guiding principles of law. See Johnson Id. court the document. The trial should Fourth Court look no further than the itself in (Tex.1985)(orig. proceeding). ap An it fair determining whether constitutes a pellate rarely court interferes with the tri summary expert’s opinions about al court’s exercise of discretion and we care, the standard of man applicable the may judgment not substitute our for that provided in ner which the care failed Walker, of the trial court. standard, meet that and the causal rela 839-40. The relator must therefore estab tionship between failure and the lish reasonably that the trial court could injury. claimed Id. only have reached one decision. Id. Even if we would have decided the issue differ begin pertinent excerpts of ently, we cannot the trial court’s disturb report: Nurse Bowers’ arbitrary decision unless it is shown be (cid:127) familiar nursing I stan- am with the and unreasonable. Id. respect With to a applied dard of care to be to nurses who legal court’s determination of the patients are in the treatment of involved principles controlling ruling, the stan I hospital emergency department. dard is much less deferential. A trial ordinary prac- am also familiar with the in determining has no discretion by procedures tices and followed the applying is or what law the law to the to prepare nurses and others medical by A facts. clear failure the trial court to records. analyze correctly apply the law will (cid:127) requires The standard of care a nurse may constitute an abuse of discretion and to administer medications such as antibi- appellate result reversal extraordi otics in accordance with the orders and Walker, nary at 840. writ. directing physician(s) instructions of the patient. the medical care deny An appellate court will (cid:127) remedy, if I medical records of mandamus relief another usual have reviewed ly adequate. Sierra Medical Center for the treatment appeal, is available and Walker, Raquel at 840. Arriola for the March Mandamus review, upon it is extraordinary remedy, intended to admission. Based my opinion in limited circumstances. that the nurses involved available monitoring There no cardiac the care of Ms. Arriola breached the have been instituted at failing for for which should standard of care nurses admission; of her beginning as or- administer antibiotic medications of care was violation of standard dered. own Sierra Medical Center’s (cid:127) appears my It from review protocol; Chest Pain emergency department’s records that needed monitored sign Her vital to be Rowley Dr. ordered administration more frequently; given after an of antibiotics She should have been administered IV Phenergan chart at 1:45 noted Sodium Bicarbonate. a.m. As of such for the administration however, antibiotics, are no entries there patient Dr. Bronston concluded that readily chart or visible on medical closely needed to monitored re have been billing records that show that the nurses acidosis, and signs, her her garding vital physician’s fulfilled the orders. increasing hypoxia her and restlessness. Timely admin antibiotics should have been (cid:127) my opinion, professional failure hypoxia acidosis and istered treating Arriola to of each nurse Ms. these have corrected. While should been antibiotics as ordered administer in which addressed manner treating applica- physician breached the hospital allegedly doctor and staff breach nursing care. ble standard care, wholly failed ed the standard of pro- Bronston relationship to address the causal between vided: Arriola’s have the breach and death. We (cid:127) *6 years Ms. Arriola was a 58 old Latina although that the previously determined history lupus female a of systemic “causation” not neces words “cause” or do erythematosus, Sjogren Syndrome and used, sarily have some to be substituted post splenectomy status 1992. She word, certainly phrase, reference is re Pla- had been chronic on Prednisone Hospital El quired. Gonzalez v. Paso therapy the visit quenil at time of her to District, (Tex.App.- 68 716-17 S.W.3d Emergency the Sierra Medical Center pet.). El Paso no Paso, Department in El on Texas 3/4/00 recognize the We 23:30. seen Dr. Patricia at She was faith report good must a represent Rowley at 00:30 on 3/5/00. provide summary a fair effort (cid:127) decompensated and arrested at She mar opinions. report A need not expert’s resusci- about 03:42 on She was 3/5/00. proof, the it must plaintiff’s all but shal tated, hypo- place Dopamine for her opinion the on each of the expert’s include ICU tension and admitted the in the Palac statute. elements identified Jesus Gomez. While the ICU she 878, 879; Hart, ios, 16 at S.W.3d again pronounced arrested at 05:18 and expert’s detailing at the S.W.3d dead at 05:42. elements, the opinions on of those each (cid:127) number violations of There were a enough report provide must information of care in her care and standard if it is to constitute purposes fulfill two treatment: First, report must faith good effort. nev- she Antibiotics were ordered but con specific inform defendant them; er received question. has called into duct the Second, important, report equally continuously monitored She was not trial court provide must by pulse oxymeter; basis dismiss duty prejudice merit. the lawsuit with conclude the claims have Wood, A report at 830. and has no discretion to do otherwise. merely expert’s states conclusions Carney, 62 at 928. Collom & care, breach, about the standard of briefly to issue of pause We address the pur causation does not fulfill these two plaintiffs’ ability to seek an extension Moreover, poses. report cannot consti of time to with the Act. See Tex. if it good tute faith effort omits 3590i, § 13.01(g). Rev.Civ.Stat.Ann. Palacios, statutory requirements. order found “there was no The trial court’s 879; see, Hart, e.g., S.W.3d at 16 S.W.3d at filing adequate accident or mistake 877, (holding inadequate that a record, reports.” On the he noted: patient it had a because stated Well, is, my general feeling of it I don’t heart attack and the doctor breached the think there is an accident or mistake care, describing standard of without mean, I you spent here. I know a lot of care); Wood, standard of it, I talking time but think their about (holding 831-32 that an did position They is much clearer. think the statutory requirements not meet the be I it as an adequate. don’t see defendants, cause it did not name the state I accident or mistake issue. see it as is how the defendants breached the standard is, report adequate or not. If it then care, demonstrate causation and dam isn’t, If it proceed. can then it’s vitae). ages, or include a curriculum Be over, you know. expert reports cause both of the at issue causation, here failed to address can there agree with his assessment and condi- finding good of a faith effort. Con tionally grant relief. The issue writ will sequently, the trial court its discre abused only if trial court fails to enter an denying tion in Hospital’s motion to prejudice. of dismissal dismiss. WITTIG, (sitting by assignment). J. INADEQUATE REMEDY AT LAW WITTIG, Justice, DON Senior Hospital it contends that dissenting, (Assigned). *7 adequate remedy has no at law because a relator, I Because would hold that the post-trial appeal remedy depri cannot remedy Hospitals, adequate Tenet has an statutory of process right vation due law, I respectfully at dissent. Mandamus pretrial prejudice. sup dismissal with In “a and will not issue where there is clear port argument, of its it directs us to In re law, adequate remedy at such as a normal Ass’n, Carney Collom & Clinic 62 S.W.3d Walker, 484, appeal.” State v. 679 S.W.2d 2001, (Tex.App.-Texarkana original 924 (Tex.1984). 485 proceeding). There the court found man extraordinary remedy. Mandamus is an proper requires damus because the Act Dietz, Republican Party Texas v. 940 proper expert is report dismissal where of 86, (Tex.1997); v. Pack 88 Walker S.W.2d timely agree, not filed. as has our We (Tex.1992). er, 833, 827 839-44 S.W.2d in sister court Amarillo. See re Rodri jurisdiction do not to issue writs of 825, have guez, (Tex.App.-Amaril 99 S.W.3d 828 Morris, supervise or correct inciden mandamus 2003)(orig. proceeding); lo In re 388, rulings judge of a trial there is tal where (Tex.App.-Amarillo 93 S.W.3d 390 Holloway adequate remedy by appeal. an 2002)(orig. proceeding). Where 680, totally required Appeals, three v. Court omits one Fifth (Tex.1989). elements, prerequisite the trial court has a ministerial 684 this Without 828
limitation,
case,
825,
appellate
Rodriguez,
courts would
In re
828
“embroil
pre
in
unnecessarily
themselves
incidental
(Tex.App.-Amarillo 2003)(orig. proceeding).
rulings
trial
of the trial courts” and man However, in both Amarillo cases manda
an
damus
soon cease to be
extraor
“would
solely
rely
mus was denied and those cases
Collom,1
dinary
Downey,
v.
811
writ.” Braden
upon
I would also note all three
(Tex.1991).
922, 928
S.W.2d
entirely
cases
these
address
different
Article
and
not
issue,
simply
section of
do
may
mandamus
Before
relator
address either our situation or relator’s
requirement
must
of an inade-
show
by appeal;
is a
quate remedy
argument.
this
“funda-
due process
practice.” Holloway,
mental
of writ
tenet
stated:
specifically
Collom
“The issue
684;
767
at
v.
S.W.2d
Johnson
Fourth
court, having
this case is whether the trial
916,
Court
700
917
S.W.2d
filed
found
(Tex.1985). Two
that allow man-
areas
compliance
not in
was
representative.
damus are
One circum-
requirements,
statutory
having
and
further
allowing extraordinary
stance
interference
compliance
found that such lack of
was not
trial court occurs where there
mistake,
due
accident or
a ministe
had
unique
compelling
and
circumstances
plaintiff’s
rial duty to dismiss the
case with
juris-
summon the exercise of mandamus
It
prejudice.” Collom
Tenet brief that its *8 duty prejudice.” to dismiss the case with denied, “unique process right” was due expressly Id. noted that at 928. Collom citing In re Col only Collom and Morris. mandamus would lie direct lom, 929-30; Morris, In re at duty, performance of ministerial act or (Tex.App.-Amarillo or correct a abuse of discretion majority The clear 2002)(orig. proceeding). trial subsequent Amarillo the trial court. at 927. Once the opinion also cites Id. turn, judge specifically that: generally relies on 2. The tóal found 1. Collom in mandato- law, specifically ry family plaintiff's expert comply deadlines found in with report failed to 4590i, parental rights, are of constitutional which art. Tex.Rev.Civ.Stat. I would that enforcement of dimension. note 13.01(d)(180 day requirements). § deadline statutory type are these deadlines ministeri- al acts. contradiction in direct non-compli thority, rather statutory a clear court found statute, day extension. a 15 (a granted delay) and year more than two ance and dif- the facts extension, a ministerial must contrast both it had grounds Jus Collom statutory requirements. the case. Id. at 928. duty fering to dismiss 13.01(g) correctly pointed out Grant on Section principally tice based 13.01(d). reviewing the merits provides: court was not The latter Section failure of the finding on the trial court’s (d) the later of later than Not comply required expert on which day after the date 180th finding in the order that or the statute filed or the liability claim is care health not the result of failure to was period estab- day of extended last I cannot or mistake. Id. 930. accident (f) (h) of this under Subsection lished com insightful another emphasize over shall, phy- section, for each the claimant “Because this was by Justice Grant: ment against provider health care sician or party the real appeal and because not an claim is asserted: whom a appeal not because in interest could (1) physi- to counsel for each furnish ruling and had received a favorable party or more provider care one cian or health interlocutory, because the order was also a curriculum vitae expert reports, with court’s the merits of the trial the issue of report; or listed in the of each not findings could be reviewed (2) action voluntarily nonsuit today, [Emphasis Id. Yet added]. court.” pro- physician or health care against the has asked us precisely this is what Tenet vider. judicial reasoning of the to do. Review the 4590i, art. Tex.Rev.Civ.StatAnn. court, reports, trial on the merits of 2003). 13.01(d)(Vemon judgment. final Simulta and rendered a in Collom was defendants’ motion claim neously, summarily we cut off the (Z). 13.01(d) Collom, not on based Section ability appeal the trial court’s deni ants case was 927. The Collom 62 S.W.3d at reports.3 their request al of their to amend at 926. The 1998. Id. filed March Collom, its expressed the trial court years later more than two report was filed statutory sufficiently precise Accordingly, Id. at 927. May on granting of the precluded terms that 13.01(e), legislature under Section in Tex. thirty-day grace period provided prejudice, absent mandated dismissal 13.01(g). Rev.Civ.Stat.Ann. which the grace period, of a granting Collom, though at 927. Even Id. trial court denied.4 timely, that court ruled judice, involves Section This case sub grace to a and there was no entitlement (Z) 13.01(Z). A provides: That section statutory au- court without period, that (d) re- within the time of this section briefed. At tion is neither raised nor 3. This issue minimum, shall, the motion of the quired, case should be remanded was in error about provider, inform the trial court it physician or health care affected Obviously and the report. claimants’ counsel against awarding as sanctions enter an order ade- thought were court both attorney: the claimant’s the claimant or adequate, is that not quate. If were not attorney's fees and costs the reasonable contemplated exactly type mistake *9 defendant; by that court incurred of and address allow claimants to amend would any respect- cost bond forfeiture of any deficiencies? against that defen- ing claim the claimant's 13.01(e) provides: "If a claimant award; 4. Section necessary pay the dant to the extent failed, physician or defendant has Subsec- provider, to health care challenging peal. See Tex.Civ.Prac. & Rem.Code grant a motion shall (Vernon 1997). reply 51.014 In its brief expert report only if it adequacy of an admits: “Because the trial itself is court, Tenet hearing, that appears to the after harm, the harm cannot be remedied report represent good not a faith does is that post appeal.”5 a The law clear comply with the definition of an effort to delay having go through the “cost or of 13.01(r)(6) in Subsection of appellate process trial and the does not this section. remedy inadequate.” law make the duly by majority, As noted art. 4590i v. Fourth Hooks Court of challenge adequacy allows a to the Walker, (Tex.1991); 59-60 report. Tex.Rev.Civ.Stat.Ann. at 841-42. 13.01(7). grant The trial court must Collom, the record before us Unlike “only appears to dismiss if it to the motion trial court ex- does not reflect that (trial) court, report hearing, after pressly disregarded mandatory statutory represent good faith effort to does not requirement to dismiss the claims deadline expert comply with the definition of report against relators where no was filed 13.01(r)(6) of this sec report Subsection Here, years. for over two the trial court Here, obviously, it did not quite tion.” Id. good faith effort found the appear to the trial court that the Thus, Article 4590L the record does under faith effort to represent good did not support not the conclusion the trial of an comply with the definition duty judge a ministerial to dismiss violated then, report. Logically there was not and his find- against suit relators. Under duty of the trial could not be a ministerial court could not dismiss the ing, the trial court to dismiss as delineated Collom. that the reme- case. Nor is there evidence me, legislature It in- seems to dy ordinary appeal, given the state trial court in the first vested with the record, inadequate legis- is to meet the instance, courts, au- appellate not the reducing so called frivolous lative intent of determine, judicial thority to dis- proof There is not a scintilla lawsuits. cretion, adequacy report. of a claim is frivolous. I would that this death 13.01(Z) totally de- language Section motion, it is not hold that under relator’s “only” trial court’s discre- pendant on the prerogative appellant courts to issue language of Section tion vis a vis the to control or revise the writs of mandamus 13.01(e), mandates dismissal when which by trial courts in the exercise of discretion timely file a totally the claimant fails judicial performance purely as distin- majority opinion goes report. While Iley, acts. guished from ministerial analyze the merits of great length Accordingly, I would at 651-52. function, reports, is not our ei- that relators have shown conclude or in the exercise ther under the statute extraordinary re- entitled to the relief are extraordinary powers. our writ quested. facially process” arguments Tenet’s “due
fails, legislature left the deci- because the report’s adequacy with the trial
sion of a
court, ap- provided interlocutory is) ability unfettered I would also note relator’s the action of the claim- the dismissal of or traditional motion for to file a no-evidence prejudice against defendant with ant summary judgment, either or both be should refiling.” [Emphasis added].
the claim’s 166a(c) (i).& appropriate. See Tex.R.Civ.P.