Daniel Alvarez and Wife, Fern Alvarez v. Michael P. Thomas, M.D., Michael P. Thomas, M.D., P.A., and Gulf Coast Infectious Disease Associates, P.C.

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-05-00006-CV ______________________________ DANIEL ALVAREZ AND WIFE, FERN ALVAREZ, Appellants  V.  MICHAEL P. THOMAS, M. D., MICHAEL P. THOMAS, M.D., P.A., AND GULF COAST INFECTIOUS DISEASE ASSOCIATES, P.C., Appellees                                               On Appeal from the 172nd Judicial District Court Jefferson County, Texas Trial Court No. E-171,021                                                  Before Morriss, C.J., Ross and Carter, JJ. Opinion by Chief Justice Morriss O P I N I O N             More than 180 days had passed since Daniel Alvarez originally filed his healthcare liability lawsuit against Michael P. Thomas, M.D., and Alvarez had neither filed an expert report—as required by Article 4590i, Section 13, of the Texas Revised Civil Statutes—addressing Thomas' actions, nor sought or received any extension of time to file such a report. So, on March 22, 2004, Thomas mailed to the district clerk a motion to dismiss Alvarez's petition for failure to file the expert report. That would have entitled Thomas to a dismissal, with prejudice, of Alvarez's suit against him, unless Alvarez effectively nonsuited his claims against Thomas before Thomas filed his motion to dismiss.             In fact, on March 23, Alvarez hand filed his fourth amended petition —which, because it dropped Thomas from the list of defendants, was effectively a nonsuit of Thomas. Thomas' motion to dismiss, mailed March 22, was not received and file marked by the clerk until March 25. The trial court ultimately granted Thomas' motion and dismissed Alvarez's claim with prejudice. This appeal followed. We affirm.             The parties in their briefs to this Court, and to the trial court, have based their motion-to-dismiss dispute entirely on the "mailbox rule." See Tex. R. Civ. P. 5. Thomas contends that, under Rule 5, his motion to dismiss is deemed filed March 22, because he proved it was "deposited in the mail . . . before" Alvarez's fourth amended petition was filed, and that the motion was received by the appropriate clerk's office no later than ten days after Alvarez's pleading. Thomas successfully argued to the trial court, and argues to this Court, that, therefore, he is entitled to a dismissal with prejudice of Alvarez's suit. Alvarez responds that Thomas did not adequately prove when Thomas mailed his motion, so the dismissal was filed March 25, two days after his nonsuit. Alvarez argued to the trial court, and argues to us, that the dismissal was filed after the fourth amended petition, and that, therefore, Alvarez should be free of the dismissal with prejudice ordered by the trial court.             We hold that Rule 5's "mailbox rule" does not apply where there is no preset deadline for filing a document, so Alvarez actually filed his nonsuit before Thomas filed his motion to dismiss. But, because Alvarez did not present Rule 5's nonapplicability to the trial court, he did not preserve error. Therefore, we affirm the trial court's dismissal of Alvarez's action with prejudice.             Rule 5 is titled "Enlargement of Time." It applies "[w]hen by [the rules of civil procedure] or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time," and the portion of the rule argued here provides: If any document is sent to the proper clerk by first-class United States mail . . . properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and deemed filed in time. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing. Tex. R. Civ. P. 5 (emphasis added). Therefore, Rule 5 explicitly allows a party to meet a specified filing deadline by mailing a document for filing "on or before the last day for filing same"; and, if the document is received by the clerk within ten days, it is "deemed filed in time." Id. The plain wording of the rule makes it applicable to filings for which there is a time limitation or a deadline. In other words, a litigant can meet the timeliness requirement by mailing the pleading in a timely manner, rather than delivering it to the appropriate clerk's office.             Not only does the rule clearly indicate that it applies only to filings that have deadlines, this Court has previously held that the "mailbox rule" does not enlarge the time for filing a document unless a deadline has been imposed. Smith v. Tex. Dep't of Criminal Justice–Inst. Div., 33 S.W.3d 338, 341 (Tex. App.—Texarkana 2000, pet. denied). In Smith, this Court held that the "mailbox rule" did not apply to an inmate's document mailed three days before the entry of an order of dismissal, since no deadline was imposed for filing the document. Id.             The San Antonio Court of Appeals has similarly held that "Rule 5 does not deem a motion filed on the date it is placed in the mail when no filing deadline is involved." In re Hearn, 137 S.W.3d 681, 687 (Tex. App.— San Antonio 2004, no pet.). There it was determined that an order to pay costs was not void even though it was entered after a motion to recuse the judge was mailed. The motion to recuse was not deemed filed when mailed because there was no deadline for filing the motion.             In a medical malpractice case, the healthcare provider may move for a dismissal if the plaintiff does not timely file the required expert report. The Texas Supreme Court has specifically held there is no statutory deadline to file such a motion to dismiss. See Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003). In Jernigan, the defendant waited almost two years to move to dismiss the case and, during that time, participated in discovery, filed a motion for summary judgment on other grounds, and filed other pleadings. None of that constituted a waiver of the right to move for a dismissal for plaintiff's failure to comply with the medical report requirement. Id. It is clear that no deadline applied to Thomas' right to move for a dismissal.              If this issue had been properly presented, we would hold that Rule 5 does not apply to the motion to dismiss, as there was no preset deadline for its filing. Therefore, Alvarez's filing of his nonsuit predated Thomas' filing his motion to dismiss, and the dismissal would have been error. But the parties did not argue this point to the trial court or to this Court. It would be improper to conclude the trial court erred on an issue that was not presented to it. See Tex. R. App. P. 33.1. Alvarez waived the nonapplicability of Rule 5 by not presenting it to the trial court. Therefore, we must affirm the dismissal.             Even if Rule 5 were applicable, as the parties presented this matter to the trial court, the dismissal should be affirmed. Applying Rule 5, the trial court did not abuse its discretion in dismissing Alvarez's suit; indeed, in light of the uncontroverted evidence that Thomas mailed his motion to dismiss March 22, the clear language of Article 4590i would have compelled such dismissal. See Tex. Rev. Civ. Stat. art. 4590i, § 13 (repealed 2003).             Alvarez argues that the envelope in which Thomas' pleading was mailed does not bear a postmark of the United States Postal Service. Regardless of the truth of that assertion, there is no contention Thomas' pleading was delivered via private carrier. Counsel for Thomas represented at the hearing in the trial court, and reiterated in her affidavit, that the motion to dismiss was placed in the United States mail March 22, 2004, postage prepaid. Likewise, the certificate of service on the motion to dismiss states the motion was sent to Alvarez's attorney via certified mail and to three other attorneys by regular mail. In the absence of a legible postmark, an attorney's uncontroverted affidavit establishing the date of mailing may be sufficient evidence of the mailing date and, therefore, of the filing date. Lofton v. Allstate Ins. Co., 895 S.W.2d 693, 693–94 (Tex. 1995); see Arnold v. Shuck, 24 S.W.3d 470, 472 (Tex. App.—Texarkana 2000, pet. denied) (testimony of legal assistant sufficient as evidence of timely mailing); Hodges v. State, 539 S.W.2d 394, 396 (Tex. Civ. App.—Austin 1976, no writ) (counsel's sworn motion, uncontroverted by opposing party, sufficient to demonstrate compliance with Rule 5 where envelope not produced).             Alvarez claims that the file mark on Thomas' motion to dismiss (March 25, 2004) should control in determining the date of filing. But there are multiple forms of prima facie evidence by which a court may determine the filing date under the "mailbox rule." Thomas' certificate of service and his attorney's affidavit are both prima facie evidence of the date of mailing. Alvarez offered nothing to controvert either the certificate of service or the attorney's affidavit.             Alvarez directs us to Texas Beef Cattle Co. v. Green, 862 S.W.2d 812 (Tex. App.—Beaumont 1993), rev'd on other grounds, 921 S.W.2d 203 (Tex. 1996), as authority that an attorney's affidavit and a postage meter stamp fail to overcome the presumption of date of mailing established by a United States Postal Service postmark. Id. at 814. While that is the holding there, such a comparison is inapposite here, where there is no United States postmark to be considered.             True, Rule 5 provides, as Alvarez argues, that a United States postmark is prima facie evidence of the date of mailing. But the rules and caselaw provide for other forms of prima facie evidence which may be considered. See Tex. R. Civ. P. 21a. An attorney's certificate of service constitutes prima facie evidence of service. Meek v. Bishop Peterson & Sharp, P.C., 919 S.W.2d 805, 809 (Tex. App.—Houston [14th Dist.] 1996, writ denied); Havens v. Ayers, 886 S.W.2d 506, 509 (Tex. App.—Houston [1st Dist.] 1994, no writ).             Thomas provided prima facie evidence of having placed the motion to dismiss in the United States mail, postage prepaid, by way of the certificate of service and the attorney's affidavit. Alvarez offered no evidence controverting the affidavit of Thomas' counsel or the certificate of service attached to the motion to dismiss. The trial court had ample evidence to find that Thomas' motion for dismissal was mailed March 22, 2004. If Rule 5 applied, as was argued by the parties, the motion would have been filed March 22, before the nonsuit.             Article 4590i is explicit. If a plaintiff fails to provide the required expert report within 180 days of the filing of his or her suit, on motion by the defendant, a trial court shall dismiss with prejudice the plaintiff's cause of action. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01. Once a case matures as did this one, without the filing of a qualifying expert report, if thereafter the defendant's motion to dismiss is filed before the plaintiff's nonsuit, the trial court must dismiss with prejudice the plaintiff's suit. Am. Transitional Care Ctr. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001).             We affirm the trial court's judgment.                                                                                      Josh R. Morriss, III                                                                                     Chief Justice Date Submitted:          May 24, 2005 Date Decided:             August 26, 2005 -even-header:url("6-10-185-CR%20Bowser%20v.%20State%20Opinion%20mtd_files/header.htm") eh1; mso-header:url("6-10-185-CR%20Bowser%20v.%20State%20Opinion%20mtd_files/header.htm") h1; mso-even-footer:url("6-10-185-CR%20Bowser%20v.%20State%20Opinion%20mtd_files/header.htm") ef1; mso-footer:url("6-10-185-CR%20Bowser%20v.%20State%20Opinion%20mtd_files/header.htm") f1; mso-first-header:url("6-10-185-CR%20Bowser%20v.%20State%20Opinion%20mtd_files/header.htm") fh1; mso-first-footer:url("6-10-185-CR%20Bowser%20v.%20State%20Opinion%20mtd_files/header.htm") ff1; mso-paper-source:0;} div.WordSection1 {page:WordSection1;} @page WordSection2 {size:8.5in 11.0in; margin:2.0in 1.0in 1.0in 1.0in; mso-header-margin:2.0in; mso-footer-margin:1.0in; mso-even-header:url("6-10-185-CR%20Bowser%20v.%20State%20Opinion%20mtd_files/header.htm") eh1; mso-header:url("6-10-185-CR%20Bowser%20v.%20State%20Opinion%20mtd_files/header.htm") h1; mso-even-footer:url("6-10-185-CR%20Bowser%20v.%20State%20Opinion%20mtd_files/header.htm") ef1; mso-footer:url("6-10-185-CR%20Bowser%20v.%20State%20Opinion%20mtd_files/header.htm") f2; mso-first-header:url("6-10-185-CR%20Bowser%20v.%20State%20Opinion%20mtd_files/header.htm") fh1; mso-first-footer:url("6-10-185-CR%20Bowser%20v.%20State%20Opinion%20mtd_files/header.htm") ff1; mso-paper-source:0;} div.WordSection2 {page:WordSection2;} -->          In The Court of Appeals                        Sixth Appellate District of Texas at Texarkana                                                 ______________________________                                                              No. 06-10-00185-CR                                                ______________________________                              MONTRELL EDWARD BOWSER, Appellant                                                                 V.                                      THE STATE OF TEXAS, Appellee                                                                                                                                               On Appeal from the 7th Judicial District Court                                                             Smith County, Texas                                                       Trial Court No. 007-0047-10                                                                                                                                                Before Morriss, C.J., Carter and Moseley, JJ.                                            Memorandum Opinion by Justice Moseley                                                      MEMORANDUM OPINION  In Smith County,[1] Texas, Montrell Edward Bowser was indicted for the aggravated robbery of a convenience store. He pled not guilty.  At the conclusion of voir dire, the State exercised four peremptory challenges, striking the only four African Americans among the potential jurors. Bowser objected to three[2] of the strikes, arguing that the State struck the jurors because of their race, thereby violating Batson v. Kentucky, 476 U.S. 79 (1986). After a hearing, the trial court denied Bowser’s Batson challenge and seated the jury. During closing arguments of the guilt/innocence phase of the trial, the State mentioned “more aggravated robberies.” Bowser objected to the reference and moved for an instruction to disregard as well as a mistrial. The trial court sustained the objection and instructed the jury to disregard the statement. However, the trial court overruled Bowser’s motion for mistrial. The jury found Bowser guilty and assessed a sentence of forty years’ imprisonment. On appeal, Bowser contends that the trial court erred in:  (1) denying his Batson motion; and (2) overruling his motion for mistrial.             We affirm the trial court’s judgment because:  (1) the trial court was within its discretion to deny the Batson challenge; and (2) the State’s argument was a plea to law enforcement. The Trial Court Did Not Err in Overruling Bowser’s Batson Challenge             After voir dire, among the State’s strikes were jurors number 18, 21, and 28, all of whom were African American. Bowser, who is African American, objected and argued that the State struck the jurors because of their race, thereby violating Batson. After a hearing, the trial court denied Bowser’s Batson challenge and seated the jury. In his first point of error, Bowser argues that the trial court erred in denying his Batson challenge.            The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prevents the exercise of peremptory strikes based on a prospective juror’s race. Batson, 476 U.S. 796; Guzman v. State, 85 S.W.3d 242, 245 (Tex. Crim. App. 2002); Splawn v. State, 160 S.W.3d 103, 114 (Tex. App.—Texarkana 2005, pet. ref’d); see Tex. Code Crim. Proc. Ann. art. 35.21 (West 2006).            Once a Batson challenge is raised, the trial court engages in a three-step inquiry.  Purkett v. Elem, 514 U.S. 765, 767–68 (1995); Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999); Montgomery v. State, 198 S.W.3d 67, 76 (Tex. App.—Fort Worth 2006, pet. ref’d). Under the first step, the person raising a Batson challenge is required to make a prima facie showing of racial discrimination. Ford, 1 S.W.3d at 693; Montgomery, 198 S.W.3d at 76.  Once that prima facie showing is accomplished, the burden shifts to the State to present a racially neutral reason for the challenged jury strikes. Ford, 1 S.W.3d at 693; Montgomery, 198 S.W.3d at 76. Third, and finally, once the State’s reason is proffered, the burden of persuasion shifts back and the person raising the challenge must then convince the court that the reason given by the State was not race-neutral and was merely pretext for concealing discrimination. Ford, 1 S.W.3d at 693 (citing Purkett, 514 U.S. at 767–68).            We review the evidence relevant to the Batson challenge in the light most favorable to the trial court’s ruling. Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992); Roberts v. State, 963 S.W.2d 894, 899 (Tex. App.—Texarkana 1998, no pet.). A high degree of deference is given to the trial court, who is in the best position to determine if the State’s facially neutral explanation for a peremptory strike is genuine.  Splawn, 160 S.W.3d at 114 (citing Jasper v. State, 61 S.W.3d 413, 421–22 (Tex. Crim. App. 2001)).  Thus, a “clearly erroneous” standard of review is applied to the trial court’s decision to overrule a Batson challenge. Hernandez v. New York, 500 U.S. 352, 369 (1991); Splawn, 160 S.W.3d at 114 (citing Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004)).  A finding is clearly erroneous where the reviewing court “is left with the definite and firm conviction that the trial court committed a mistake.” Roberts, 963 S.W.2d at 899.            During voir dire, the State went row by row and asked the jurors to raise their cards “if [they] believe the purpose behind sentencing somebody is to punish them, [even] if it’s a little more than rehab[ilitation].” The records show that the State identified, by number, each potential juror that raised their card. The challenged strikes, venirepersons number 18, 21, and 28 were among those that did not raise their cards.            During the Batson hearing, the trial court took judicial notice that Bowser was African American. There was no dispute that the struck jurors were also African American and that the strikes left the venire panel devoid of African American jurors. The trial court found that Bowser had made a prima facie showing of racial discrimination. The State argued that the challenged strikes, venirepersons number 18, 21, and 28, were struck because they believed that rehabilitation was the primary goal of the sentencing phase of the trial. The State pointed out several other, nonminority, venirepersons that it struck for providing the same answer. In addition, the State proffered that venireperson number 21 was “single, had no children,” and “would be the only person in the strike line that met any of those criteria.” The State also argued that venireperson number 28 put “nothing” in the employment blank of the jury questionnaire.            The trial court found that the State offered race-neutral reasons for striking the three venirepersons. In rebuttal, Bowser contended that the State could not have concluded that these three venirepersons were “rehabilitators,” because the State never specifically asked which jurors believed sentencing was primarily for rehabilitation. He argued that the State’s stated reason for the strikes was improper because it was not based upon any affirmative answer, but rather, was based upon their silence. After the hearing, the trial court found that Bowser failed to overcome or rebut the State’s race-neutral reasons for the three strikes and denied the Batson challenge.            In Montgomery and Victor, our sister courts found that “a veniremember’s belief in rehabilitation as the primary goal of punishment is a race-neutral reason for the exercise of a peremptory challenge.”  Montgomery, 198 S.W.3d at 76; Victor v. State, 995 S.W.2d 216, 222 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).  We conclude that the trial court’s finding (i.e., that the State proffered a sufficient race-neutral reason for striking venirepersons 18, 21, and 28 and that Bowser failed to meet his burden of persuasion to demonstrate otherwise) was not clearly erroneous.  See Splawn, 160 S.W.3d at 115. Accordingly, we overrule this point of error. The State’s Argument Was a Plea to Law Enforcement             During closing arguments of the guilt/innocence phase of the trial, the State made the following argument: And I’d submit to you that no case is more obvious than this one. Because if you use your common sense and follow the law, he’s guilty.  The only way he walks out that door to commit more aggravated robberies is to leave that to the side.  Bowser objected, arguing that the State’s argument was improper, specifically the references to Bowser’s “alleged future actions.” Bowser also requested an instruction to disregard. The trial court sustained the objection, and instructed the jury to disregard the State’s last statement. Bowser then moved for a mistrial, which the trial court denied.             In his second point of error, Bowser argues that the trial court erred by denying his motion for mistrial.            Prosecutorial jury argument is permissible if it falls within one of the following categories: (1) summation of the evidence; (2) reasonable deduction drawn from the evidence; (3) answer to argument of opposing counsel; and (4) a plea for law enforcement.  Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996). If the State’s argument is improper, falling outside the permissible four categories, we examine for harm, balancing three factors:  (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s argument); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the court); and (3) the certainty of conviction absent the misconduct (strength of the evidence supporting the conviction).[3]  Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). [4]            The threshold issue is whether or not the State’s argument was improper, and as the State’s remarks are clearly not a summation of the evidence, a reasonable deduction drawn from the evidence, or an answer to argument of opposing counsel, we examine whether the State’s argument amounted to a plea for law enforcement. The State may make a proper plea for law enforcement, including arguing the relationship between the jury’s verdict and the deterrence of crime in general or specific types of crimes by its verdict.  Borjan v. State, 787 S.W.2d 53, 55–56 (Tex. Crim. App. 1990). The argument that the jury should get the defendant off the streets has also been held to be a proper plea for law enforcement.  Smith v. State, 114 S.W.3d 66, 72 (Tex. App.—Eastland 2003, pet. ref’d).            Here, the State argued that if Bowser was not convicted, he would commit other aggravated robberies in the future. It is similar to arguments found to be proper pleas for law enforcement in Starvaggi v. State, 593 S.W.2d 323, 328 (Tex. Crim. App. 1979) (“I hope he doesn’t come knocking on one of your doors at eight o’clock in the evening . . .”); McBride v. State, 706 S.W.2d 723, 729 (Tex. App.—Corpus Christi 1986, pet. ref’d) (“They always say about doctors that they bury their mistakes.  You-all make a mistake and they might bury somebody else.”), and Sanchez v. State, 622 S.W.2d 491, 493 (Tex. App.—Corpus Christi 1981), rev’d & remanded on other grounds, 628 S.W.2d 780 (Tex. Crim. App. 1982) (“Would you be standing next to him the next time he went berserk on one of your children or one of your friends?”). Therefore, we find the argument to be a plea for law enforcement and overrule this point of error.  We affirm the judgment.                                                                           Bailey C. Moseley                                                                        Justice Date Submitted:         October 3, 2011 Date Decided:            October 5, 2011  Do Not Publish   [1]This case was transferred to this Court from the Tyler Court of Appeals as part of the Texas Supreme Court’s docket equalization program.  We are not aware of any conflict between the precedent of the Tyler Court and the precedent of this Court on any issue relevant in this appeal.  See Tex. R. App. P. 41.3.  [2]The State struck jurors number 18, 21, 28, and 33; however, juror number 33 was not identified in Bowser’s Batson challenge, presumably because the jury was seated from the first thirty-two venirepersons.  [3]“[T]he Mosley factors should be used to evaluate whether the trial court abused its discretion in denying a mistrial for improper argument, at least in cases like this one, in which constitutional rights are not implicated.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).   [4]Bowser cites us to Garrett v. State for the proposition that we should examine whether the State’s improper argument “might have contributed to the conviction or the punishment assessed.” 632 S.W.2d 350, 353–54 (Tex. Crim. App. [Panel Op.] 1982) (emphasis added). However, Garrett does not support that proposition, as it merely states that in applying the Mosley factors, we should examine the evidence adduced at the guilt/innocence stage, and, if applicable, the evidence adduced at the punishment stage of the trial.