Adrian Maynard Lister v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-04-00064-CR ______________________________ ADRIAN MAYNARD LISTER, Appellant  V.  THE STATE OF TEXAS, Appellee                                               On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 31041-B                                                  Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross MEMORANDUM OPINION           A Gregg County grand jury indicted Adrian Maynard Lister for aggravated robbery, to which he pled not guilty. A jury found him guilty of aggravated robbery and assessed punishment at twenty years' confinement and a $5,000.00 fine. On May 18, 2004, the trial court rendered judgment in accordance with the jury's verdict. Later that same day, Lister and his attorney signed a waiver of Lister's right to move for a new trial and of his right of appeal. The trial court's certification reflects Lister's waiver of this right. However, May 28, 2004, Lister filed a notice of appeal pro se. In this notice of appeal, he attempts to "withdraw" his waiver because he was "confused" about his rights at the time. Trial Court's Certification of Right of Appeal           In criminal cases, the trial court must enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order. Tex. R. App. P. 25.2(a)(2). Unless a certification, showing that a defendant has the right of appeal, is in the record, we must dismiss the appeal. See Tex. R. App. P. 25.2(d); Threadgill v. State, 120 S.W.3d 871, 872–73 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Waiver of Right of Appeal           The record confirms the trial court's certification. A valid waiver of appeal, one made voluntarily, knowingly, and intelligently, will prevent a defendant from appealing without the trial court's permission. Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003). The Texas Court of Criminal Appeals has long held that a non-plea-bargaining defendant can make a valid waiver of the right of appeal so long as it is done after the trial court has completed sentencing. See Blanco v. State, 18 S.W.3d 218, 219–20 (Tex. Crim. App. 2000); Ex parte Tabor, 565 S.W.2d 945, 945–46 (Tex. Crim. App. 1978). The state need not receive some benefit before the waiver of the right to appeal is binding on a defendant. See Monreal, 99 S.W.3d at 624 (Johnson, J., concurring). Where a valid waiver exists, regardless of whether there was a plea agreement with the state, a defendant who wishes to appeal must either receive the permission of the trial court or prove to the court of appeals that the waiver was coerced or involuntary. See Tabor, 565 S.W.2d at 946; Hurd v. State, 548 S.W.2d 388, 389–90 (Tex. Crim. App. 1977); Bouchillon v. State, 540 S.W.2d 319, 321 (Tex. Crim. App. 1976).           The record shows that Lister signed the waiver voluntarily, knowingly, and intelligently. It does not prove to this Court that the waiver was involuntary or coerced and does not show that the trial court gave Lister permission to appeal. On May 18, the trial court sentenced Lister in accordance with the jury's recommendation delivered at 3:33 p.m. The trial court explained Lister's right of appeal and the consequences of his waiver of that right. Then, Lister, his attorney, and the trial court signed the waiver wherein Lister acknowledged he had been "fully informed by his attorney and by the Judge . . . that he [had] the legal right of appeal" and was "fully aware of all of his statutory and constitutional rights." From the record, it appears Lister voluntarily, knowingly, and intelligently signed the nonnegotiated waiver after the trial court imposed sentence. We do not find in the record where the trial court granted Lister permission to withdraw such a waiver. The most recent statement of Lister's right of appeal is the trial court's certification of his right of appeal which, again, reflects the waiver. The record supports the conclusion in the trial court's certification: Lister waived his right of appeal. Conclusion           The record confirms the trial court's certification that Lister waived his right of appeal. Since the record does not contain the trial court's certification showing Lister has the right of appeal, we dismiss Lister's appeal for want of jurisdiction.                                                                             Donald R. Ross                                                                            Justice Date Submitted:      June 24, 2004 Date Decided:         June 25, 2004 Do Not Publish atement that most surgeons would have instituted a diagnostic evaluation for bile peritonitis between March 9, 1998 and March 13, 1998, due to Moore's developed abdominal pain and increased need for narcotics and that Sutherland's failure to do so was below that standard of care is not a conclusionary statement. It is an opinion containing specific facts. Sutherland and the Clinic rely on the Palacios and Wright cases to support their position that Meidema's report is inadequate. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48; Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873. But the facts in those two cases are clearly distinguishable from our case. For example, in Palacios there was no statement whatsoever in the expert report as to what was the standard of care. There was only a statement that the medical care rendered to Palacios was below the accepted and expected standard of care. There was no statement of what care was expected but not given. Of course, that was insufficient. In Wright, our Supreme Court held that the expert report gave a fair summary of the standard of care and the breach of that standard, but held that the report did not fairly summarize the causation because the statement of causation was conclusionary. The statement of causation was "if the x-rays would have been correctly read and the appropriate medical personnel acted on those findings then Wright would have had the possibility of a better outcome." As noted by the Supreme Court, this statement did not summarize the causal relationship between the hospital's failure to meet the standard of care and the patient's injury because "the report simply opines that Barbara might have had 'the possibility of a better outcome' without explaining how Bowie's conduct caused injury to Barbara." In our case, Miedema's report charged Sutherland with negligence in failing to diagnose and treat bile peritonitis. His report specifically stated what Sutherland should have done and what happened because he failed to do it. The statement of causation is not a conclusion or a statement of a mere possibility, as in the Wright case, but is a positive statement of fact: "Had the diagnosis of bile peritonitis been made before discharge from the hospital, treatment would have prevented the patient's death." Miedema's report did not charge Sutherland with a negligent or substandard method of treatment. Rather, it charged that Sutherland's complete failure to diagnose and complete failure to treat the bile peritonitis were below the standard of care, and that such failures caused Moore's death. We believe this report gives Sutherland and the Clinic fair notice of what Miedema considers the standard of care, how Sutherland breached that standard, and how that breach caused Moore's death. We also find that the trial court erred in denying Moore's motion for an extension of time under Section 13.01(g) because Moore established that the failure to file a complying report was neither intentional nor the result of conscious indifference, but was the result of an accident or mistake. We review the trial court's ruling on a motion for extension of time to file a complying report under an abuse of discretion standard. See Doades v. Syed, 94 S.W.3d 664, 672 (Tex. App.-San Antonio 2002, no pet.). Subsection (g) of Article 13.01 states: Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g). According to the statute's plain language, an extension of time must be granted if the requirements of Section 13.01(g) are met, and if the motion sets forth facts that, if true, would negate intentional or consciously indifferent conduct. Horsley-Layman v. Angeles, 968 S.W.2d 533, 536 (Tex. App.-Texarkana 1998, no pet.) (citing Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994)). Some excuse, but not necessarily a good excuse, is sufficient to warrant an extension of time to file the expert report, so long as the act or omission causing the failure to file the report was, in fact, accidental. Horsley-Layman v. Angeles, 968 S.W.2d at 536. With respect to Section 13.01(g), the movant has the burden to show some excuse of accident or mistake to establish that he or she did not act "intentionally" or with "conscious indifference." Id.; De Leon v. Vela, 70 S.W.3d 194, 200 (Tex. App.-San Antonio 2001, pet. denied). The trial court abuses its discretion if it dismisses a case when the failure to file the expert report was not intentional or the result of conscious indifference. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g); Landry v. Ringer, 44 S.W.3d 271, 275 (Tex. App.-Houston [14th Dist.] 2001, no pet.); Horsley-Layman v. Angeles, 968 S.W.2d at 536. Here, Moore included in her written response to the motion to dismiss, a request for an extension of time under subsection (g). In this response, Moore asserted that, if her expert report was inadequate, it was the result of her attorney's mistake in misunderstanding the requirements of the statute. In the hearing on the motion for extension, Moore's attorney elaborated on his mistaken understanding of the statutory requirements, and stated to the trial court that he filed his expert report before the Texas Supreme Court rendered its opinion in the case of American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 973, and was therefore unaware of the requirements for expert reports set out in that case. Because of his mistaken belief that the report he filed was sufficient under the law, Moore's counsel urged the trial court to grant him an extension so he could file an adequate report. Aside from Sutherland's and the Clinic's argument that the Palacios case did not change the law, they did not controvert Moore's counsel's representations that he was mistaken about the requirements of Tex. Rev. Civ. Stat. Ann art. 4590i, § 13.01, or that his failure to file what they contended was an adequate expert report was not the result of intentional disregard or conscious indifference, but was an accident and mistake. Sutherland and the Clinic contend that Moore's counsel's statements to the trial court at the hearing do not constitute evidence because the statements were not under oath. Normally, an attorney's statements must be under oath to constitute evidence. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). This can be waived, however, by failing to object when the opponent of the evidence knows or should know that an objection should be made. Id.; Knie v. Piskun, 23 S.W.3d 455, 463 (Tex. App.-Amarillo 2000, pet. denied). As in Banda v. Garcia and Knie v. Piskun, the evidentiary nature of Moore's counsel's statements at the hearing was apparent. He was seeking to prove that, if his expert report was inadequate, his act in filing the inadequate report was the result of an accident or mistake, and was not in intentional disregard or conscious indifference of the law. We conclude that Sutherland's and the Clinic's failure to object to counsel's statements waived the oath requirement. As noted earlier, the reason for failing to strictly comply with Section 13.01 need not necessarily be a good excuse; some excuse will suffice so long as the act or omission was, in fact, an accident or mistake. Landry v. Ringer, 44 S.W.3d at 275. And even admitted negligence on the part of the party seeking an extension will not defeat his right to such an extension. Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d 398, 403 (Tex. App.-Texarkana 1999, pet. denied). Our courts have ruled that the terms "mistake or accident" and "conscious indifference" should be construed similarly to their application in the default judgment context. Horsley-Layman v. Angeles, 968 S.W.2d at 536; In re Rodriguez, No. 07-02-00335-CV, 2003 Tex. App. LEXIS 1644 (Tex. App.-Amarillo Feb. 20, 2003, no pet. h.). Various courts, including this one, have held that an attorney's misunderstanding of the requirements of the law or of a specific statute, as well as calendaring errors or faulty office procedures, are sufficient to show mistake or accident and a lack of conscious indifference. In re Rodriguez, No. 07-02-00335-CV, 2003 Tex. App. LEXIS 1644, *3; Knie v. Piskun, 23 S.W.3d at 462; Presbyterian Health Care Sys. v. Afangideh, 993 S.W.2d 319 (Tex. App.-Eastland 1999, pet. denied); Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d at 403; Horsley-Layman v. Angeles, 968 S.W.2d at 536. We conclude that Moore's counsel did not act with conscious indifference or intentional disregard, but showed an accident or mistake, and thus was entitled to the thirty-day extension in which to file a proper expert report. We note that, even though the trial court believed Moore had not met the legal requirements of showing accident or mistake, he nevertheless felt that Moore deserved an extension and attempted to grant her one. See In re Collom & Carney Clinic, 62 S.W.3d 924 (Tex. App.-Texarkana 2001, orig. proceeding). For all of the reasons stated, we reverse the judgment and remand the cause to the trial court for further proceedings consistent with this opinion. William J. Cornelius Justice* *William J. Cornelius, Chief Justice, Retired, Sitting by Assignment Date Submitted: April 16, 2003 Date Decided: May 22, 2003