07-03-0384-CR
07-03-0385-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 30, 2003
______________________________
DAVID MATTHEW LAYTON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;
NO. 34,435-C, 34,436-C, 34,437-C; HONORABLE PATRICK PIRTLE, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
ORDERWe withdraw our prior order of abatement and remand, and enter this order in its place.
Appellant David Matthew Layton appeals from three convictions and sentences in the 251st District Court of Potter County, Texas (the trial court).
Appellant has, acting pro se, filed motions seeking his appointed appellate counsel's withdrawal and leave to appear on appeal pro se. In the motions, appellant alleges that he and his attorney cannot agree on the issues to be presented for appellate review. Additionally, appellant has filed a copy of a letter directed to his counsel containing demands that counsel withdraw, and threatening to file a grievance with the State Bar of Texas against his attorney if the attorney does not withdraw.
Appellant does not have a right to file documents pro se while being represented by counsel. See Landers v. State, 550 S.W.2d 272, 279-80 (Tex.Crim.App. 1977). Nor does an indigent have the right to choose which counsel the court will appoint to represent him or her. See Buntion v. Harmon, 827 S.W.2d 945, 949 (Tex.Crim.App. 1992); Malcom v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. 1982). Once the court has appointed an attorney to represent an indigent, the attorney has the obligation to represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or is replaced by another attorney. See Olvera v. State, 96 S.W.3d 316, 319 (Tex.App.-Amarillo 2000). If an indigent is displeased with appointed counsel, he must bring the matter to the court's attention. Thereupon, the defendant carries the burden of proving that he is entitled to a change of counsel. Id. The Court of Criminal Appeals has historically affirmed the trial judge's decisions in refusing defendants' motions to dismiss their court-appointed counsel. Id.
Because of the seriousness of appellant's allegations and threats to counsel appointed by the trial court, pursuant to Tex. R. App. P. 2 , these appeals are abated and the causes are remanded to the trial court. Upon remand, the judge of the trial court is directed to cause notice to be given of and to conduct a hearing to determine whether appellant has made a knowing and voluntary decision to waive his right to counsel and to represent himself on appeal. If the trial court determines that appellant has made a knowing, voluntary decision to waive his right to counsel and to represent himself on appeal, then the trial court should discharge appellate counsel from any further obligations to appellant. If the trial court determines that appellant has not made a knowing, voluntary decision to represent himself on appeal, then the trial court should enter orders and make recommendations appropriate to continued prosecution of appellant's appeals based on the evidence presented at the hearing, and on its findings and conclusions therefrom.
The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in a supplemental clerk's record; (3) enter any orders appropriate, based on its findings and conclusions; (4) cause the hearing proceedings to be transcribed and included in a reporter's record; and (5) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk's record or the reporter's record. In the absence of a request for extension of time from the trial court, the supplemental clerk's record, reporter's record, and any additional proceeding records, including any orders, findings, conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than November 14, 2003.
Per Curiam
Do not publish.
he adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report. . . ." Section 74.351(r)(6) defines an expert report as follows:
(6) "Expert report" means a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.
Therefore, the issue we must decide is whether the expert report represents a good-faith effort to comply with the statutory definition. Am. Transitional Care Centers of Tex. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). The only information relevant to this inquiry is that within the document's four corners. Id.
To comply with the statute, the report must contain more than mere conclusions. Wells v. Ashmore, 202 S.W.3d 465, 467 (Tex.App.-Amarillo 2006, no pet.). To constitute a "good-faith effort," the report must contain enough information to (1) inform the defendant of the specific conduct the plaintiff has called into question and (2) provide a basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.2d at 879; Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). The report need not marshal all the plaintiff's proof, but the expert must do more than merely voice his opinions and conclusions about the standard of care, breach, and causation. Bowie, 79 S.W.3d at 52.; Palacios, 46 S.W.3d at 878-79. We review the trial court's ruling for a clear abuse of discretion. See Palacios, 46 S.W.3d at 878. A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). There is no abuse, however, simply because a trial court may decide a matter within its discretion differently than an appellate court. Id. at 242.
UMC does not dispute Dr. Coney's qualifications, his opinion on the applicable standard of care, or his opinion regarding whether that standard was breached. Instead, they contest his opinions with respect to causation. In that regard, we agree with the trial court that the second supplemental report was sufficient to constitute a good-faith effort to comply with the requirements of § 74.351. Dr. Coney states in the report that, while Carita was under UMC's care, her fetal monitoring strip "revealed multiple non-reassuring fetal heart rate patterns." He explains that these non-reassuring patterns are frequently associated with cord problems and should have been recognized by the obstetrical nurses. He then lists seven specific measures that could have been taken to correct the problem and states that, despite the recognizable symptoms, the nurses failed to take any measures and allowed Carita to be discharged. In addition to citing several failures by UMC's nurses that he contends were causative of Dylan's death, Dr. Coney opines that if the nurses had timely recognized the symptoms associated with cord compression and taken the stated measures, there is a high likelihood that the fetus would have been delivered by Cesarean section "alive and intact."
Nonetheless, UMC insists that the expert report fails to explain how the nurses could have prevented Carita from being discharged or how they would have invoked the hospital's chain of command. Similarly, UMC claims the report fails to establish whether the measures proposed by Dr. Coney actually would have resulted in Carita being retained for observation or a successful delivery. Section 74.351, however, only requires that expert reports provide a "fair summary" of an expert's opinions on each of the identified elements. The report need not present evidence as if the plaintiff was actually litigating the case on the merits. Hardy v. Marsh, 170 S.W.3d 865, 868 (Tex.App.-Texarkana 2005, no pet.). See also Bowie, 79 S.W.3d at 52-53; Palacios, 46 S.W.3d at 878. Because the Wards' second supplemental expert report adequately states Dr. Coney's opinions with respect to causation, we find the trial court reasonably exercised its discretion when it overruled UMC's objections. UMC's issue is overruled.
Accordingly, we affirm the trial court's order.
Patrick A. Pirtle
Justice
1. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2006).
2. See § 74.351(a).
3. See § 74.351(c).
4. Although they filed objections to the report, UMC did not move to dismiss the Wards' claims. By their brief, UMC admits that such a motion would have been inappropriate given that the deadline for filing expert reports had not yet passed.