Christopher Hilliard v. State

NO. 07-05-0052-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D DECEMBER 30, 2005 ______________________________ CHRISTOPHER HILLIARD, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 331ST DISTRICT COURT OF TRAVIS COUNTY; NO. 2,040,196; HON. FRED MOORE, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ. Christopher Hilliard (appellant) appeals his conviction for possessing a controlled substance, namely cocaine. His two issues concern 1) the trial court's refusal to grant his motion to continue and 2) the effectiveness of counsel. We affirm the judgment. First Issue - Continuance Appellant argues that the trial court erred in refusing to grant his motion to continue the trial. We overrule the issue. The motion was made on the day of trial, though the trial had been set some two months earlier. Furthermore, appellant contends on appeal that the continuance was needed so a defense expert could ascertain whether the several rocks of cocaine found on his person were actually cocaine. (1) Appellant did and does not suggest that they were something else. Nor does he cite us to either argument or evidence of record indicating that they were anything other than cocaine. Indeed, at the hearing, appellant represented to the trial court that laboratory reports obtained from the State revealed the substance to be approximately 1.1 grams of crack cocaine. So too did appellant eventually admit, when pleading guilty, that the substance was more than one but less than four grams of cocaine. Given this, we conclude that the trial court did not abuse its discretion in refusing to grant a continuance on the day of trial. See Wright v. State, 28 S.W.3d 526, 532-33 (Tex. Crim. App. 2000) (holding that the trial court did not abuse its discretion when it denied the defendant's motion to continue made on the day of trial and after knowing for some time the issues upon which an expert would be needed). Issue Two - Effective Assistance Next, appellant contends that his counsel was ineffective because he did not ask for the aforementioned expert earlier. We overrule the issue. One claiming ineffective assistance of counsel must establish not only that his counsel was deficient but also that the deficiency was prejudicial. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). And, to be prejudicial, the record must show that there exists a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. This occurs when the circumstances undermine our confidence in the outcome of the proceeding. Id. Moreover, if either or both prongs of the test go unsatisfied, then the claim must be rejected. As previously stated, appellant cites us to nothing of record suggesting that the substance was anything but cocaine. Moreover, he admitted that it was. And, given his five prior convictions for possessing drugs, the evidence of his dependence upon and, thus, familiarity with, cocaine, and his admission that he and his friends were smoking crack cocaine prior to being arrested, we find nothing undermining our confidence in the outcome of the proceeding. In short, appellant did not establish that there existed a reasonable probability that had an expert been appointed to determine whether the substance was cocaine, the result of the proceeding would have differed. The judgment is affirmed. Brian Quinn Chief Justice Do not publish. 1. This argument was not asserted below. STYLE="font-size: 10pt">Id. §13.01(e); Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003) (stating that the cause must be dismissed if the trial court determines that the report does not represent a good faith effort to comply with the definition of an expert report). However, if a report is timely filed, the opponent may still challenge its adequacy. Next, to be adequate, the document must be written by an expert and provide a fair summary of his opinions regarding the applicable standards of care, the manner in which the care rendered deviated from those standards, and the causal relationship between the deviation and the injury allegedly suffered. Id. §13.01(r)(6); Chisolm v. Maron, 63 S.W.3d 903, 906 (Tex. App.Amarillo 2001, no pet.). To comply with this mandate, the expert must do more than merely voice his opinions in the report; instead, he is obligated to inform the defendant of the specific conduct called into question and provide a basis for the trial court to conclude that the claims have merit. American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001); Chisholm v. Maron, 63 S.W.3d at 906. Though this does not require the claimant to marshal all of his evidence, Rittmer v. Garza, 65 S.W.3d 718, 723 (Tex. App.-Houston [1st Dist.] 2001, no pet.), more than mere conclusions about the standard of care, its breach, and causation must be stated. American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d at 879. As noted by our Supreme Court in Bowie Memorial, some explanation accompanying the expert's utterances is required. Bowie Memorial Hosp. v. Wright, 79 S.W.3d at 53. Finally, in assessing the adequacy of the document, one can look no further than to its four corners. Bowie Memorial Hospital v. Wright, 79 S.W.3d at 52; American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d at 878. Application of the Law As previously mentioned, the Nelsons tendered two expert reports purportedly satisfying the requirements of §13.01(d). Through them, Goren and Smith accused Ryburn and Colvin of failing to perform an adequate pre-operative evaluation and assessment to determine if Charles was in good enough health to withstand the effects of the anesthesia and operation. Furthermore, Goren opined that, "[a]s a direct result of performing this elective surgical procedure on Mr. Nelson's right eye under general anesthesia, in the absence of a proper pre-operative medical evaluation, Mr. Nelson lost his life." Similarly, Dr. Smith concluded that "the anesthetic and surgery were the proximate cause of the death of Mr. Charles Michael Nelson." Assuming arguendo that an anesthesiologist is qualified to opine on the standards of care applicable to an ophthalmologist and vice versa, the trial court had basis upon which to exercise its considered discretion and hold that the reports were deficient. Again, they cannot be conclusory. Bowie Memorial Hosp. v. Wright, supra. And, while they need only be a summary (as opposed to a marshaling of evidence), they must still contain some explanation sufficient to permit the trial court to assess whether the claim has a semblance of merit. Id. Here, merely concluding that 1) the failure to perform a pre-operative medical evaluation or 2) the anesthetic and surgery were the proximate cause of death falls short of that mark. Nowhere do either Smith and Goren explain (through summary or otherwise) how those purported defaults caused Charles' death. The experts simply said they did. Similarly absent is adequate explanation regarding the manner in which Ryburn and Colvin purportedly breached the standard of care, assuming of course the experts adequately opined on the relevant standard. While Dr. Smith suggested that a "CBC," blood gas analysis, pulmonary function test, x-ray, and EKG should have been performed, he failed to discussed what those tests would have uncovered and, whether in light of their results, surgery with a general anesthetic should or should not have been performed. (2) Nor did either expert offer any explanation as to why, under the circumstances present here, the use of a general anesthetic resulted in cardiac arrest sometime after the surgery. Given these deficiencies, the reports were less than the fair summary required by statute. See Gonzales v. Graves, No. 07-03-0268-CV, 2004 Tex. App. Lexis 2403 at *13 (Tex. App.-Amarillo March 16, 2004, no pet.) (holding that it is not enough to state that the failure to diagnose pneumonia was the proximate cause of death). Nelson cites us to several cases which purportedly contain statements of proximate cause that are similar to that before us. (3) The difference between them and the situation before us, however, is that the experts there either linked their conclusions to the facts of the case or it was obvious from the attendant circumstances how the deficient act or omission resulted in the injury. As previously illustrated, that is missing here. Simply put, the Nelsons did not comply with art. 4590i, §13.01(d) of the Texas Revised Civil Statutes. Thus, the trial court did not abuse its discretion in dismissing the lawsuit. Issue 2 - Grace Period The Nelsons next argue that the trial court erred by refusing to grant them 30 days in which to proffer adequate reports. We overrule the issue. Article 4590i, §13.01(g) of the Revised Civil Statutes provides: 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 claimant's attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection . . . . The Nelsons' attorney testified at the hearing that he believed the reports contained a fair summary of the standard of care, its breach, and causation. So too did he utter that if he was mistaken, then his mistake was not the result of conscious indifference or intentional disregard of the statute. Yet, our Supreme Court has held that "a purportedly mistaken belief that the report complied with the statute does not negate a finding of 'intentional or conscious indifference.'" Walker v. Gutierrez, 111 S.W.3d 56, 65 (Tex. 2003); see also Kirksey v. Marupudi, No. 07-03-0076-CV, 2003 Tex. App. Lexis 10852 at *10 (Tex. App.-Amarillo December 30, 2003, no pet.). Nor does it entitle the claimant to a grace period. Id. Therefore, the trial court again did not abuse its discretion in denying the Nelsons' request. Having overruled each issue, we affirm the order of dismissal. Brian Quinn Chief Justice 1. As of September 1, 2003, the provision is now found at §73.351 of the Civil Practice and Remedies Code. Furthermore, the claimant no longer has 180 days to serve the report but only 120. Tex. Civ. Prac. & Rem. Code Ann. §74.351(a) (Vernon Supp. 2005). However, because the lawsuit was filed before September 1, 2003, we cite to the old statute. 2. Dr. Smith also states that both doctors erred in discharging the patient with an oxygen saturation of 90-93% while on supplemental oxygen but does not opine that this was a proximate cause of his death. He merely states that the "anesthetic and surgery" were the proximate cause of death. 3. Petrus-Bradshaw v. Dulemba, 158 S.W.3d 630, 634 (Tex. App.-Fort Worth 2005, pet. denied) (performance of a hysterectomy by the surgical method was a direct and proximate cause of the lacerated ureter and the need for additional surgery); Russ v. Titus Hospital District, 128 S.W.3d 332, 342 (Tex. App.- Texarkana 2004, pet. denied) (sufficient one-to-one observation or escape proof restraints would have prevented a fall out of a hospital window); Estate of Birdwell v.Texarkana Memorial Hospital, Inc., 122 S.W.3d 473, 479 (Tex. App.-Texarkana 2003, pet. denied) (additional measures, i.e. restraints, should have been taken to prevent a fall which resulted in intracranial hemorrhages and paralysis).