Juan Enriquez v. Ahmed A. Morsy M.D.

Opinion issued November 7, 2023

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-22-00622-CV
NO. 01-22-00852-CV
———————————
JUAN ENRIQUEZ, Appellant
V.
AHMED A. MORSY, M.D., Appellee

On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Case No. 18-CV-0884

MEMORANDUM OPINION

This case involves two related appeals arising from the same trial court cause

number. In the first appeal,1 appellant, Juan Enriquez, challenges the trial court’s

1
Appellate cause no. 01-22-00622-CV (the “sealing-order appeal”).
sealing order in his suit against appellee, Ahmed A. Morsy, M.D., for violations of

the Eighth Amendment and 42 U.S.C. § 1983 and equitable relief under the Texas

Constitution.2 In three issues, Enriquez contends that the trial court erred in ordering

certain evidence be filed under seal.

In the second appeal,3 Enriquez challenges the trial court’s order granting the

plea to the jurisdiction of Dr. Morsy. In four issues, Enriquez contends that the trial

court erred in granting Dr. Morsy’s plea to the jurisdiction and dismissing his claims

with prejudice.

We affirm.

Background4

In his petition, Enriquez alleged that he, at the time he filed suit, was a

prisoner5 housed in the Michael Unit operated by the Texas Department of Criminal

2
See TEX. R. CIV. P. 76a(8); see also Kallergis v. Brupbacher, No. 14-19-00470-CV,
2021 WL 506081, at *2 (Tex. App.—Houston [14th Dist.] Feb. 11, 2021, no pet.)
(mem. op.) (noting Texas Rule of Civil Procedure 76a contains “expansive
language . . . [in] authorizing appeals”).
3
Appellate cause no. 01-22-00852-CV (the “plea-to-the-jurisdiction appeal”).
4
This is not our first appeal involving these parties. See Enriquez v. Morsy, No.
01-18-00877-CV, 2020 WL 4758428 (Tex. App.—Houston [1st Dist.] Aug. 18,
2020, no pet.) (mem. op.).
5
On April 25, 1966, Enriquez “shot to death his girlfriend, her father, her brother, a
woman he abducted, and a Texas Highway Patrolman.” Enriquez v. Procunier, 752
F.2d 111, 113 (5th Cir. 1984) (federal habeas proceeding). On October 19, 1966, a
jury convicted him of the offense of capital murder of the woman he abducted, and
it assessed his punishment at death. Id.; see also Enriquez v. State, 429 S.W.2d 141,
142–45 (Tex. Crim. App. 1968) (affirming Enriquez’s conviction); Enriquez v.
Hurley, No. 03-10-00017-CV, 2010 WL 3271962, at *1 n.1 (Tex. App.—Austin
2
Justice-Correctional Institutions Division (“TDCJ-CID”) in Tennessee Colony,

Texas.6 According to Enriquez, Dr. Morsy handled “the medical care and treatment

of prisoners admitted to” the University of Texas Medical Branch at Galveston

(“UTMB”).

Enriquez alleged that in November 2014, he reported to prison infirmary staff

that he was sick; he had lost his appetite and his food had a metallic taste. He

reported that he was “seeing lights and black holes,” had chills, and could barely

walk. On December 4, 2014, Enriquez purportedly passed out in his cell. On

December 10, 2014, Enriquez was seen by a nurse for high blood pressure, shaking,

and diabetes. The nurse “referred [him] to a provider.” On December 16, 2014,

although Enriquez was scheduled to see a provider, he did not see one that day.

Enriquez then sought help from Eddie Baker, the Senior Warden of the Michael

Aug. 20, 2010, pet. denied) (mem. op.). That sentence was later commuted to life
imprisonment. Procunier, 752 F.2d at 113; Hurley, 2010 WL 3271962, at *1 n.1
(“Enriquez’s death sentence was commuted to life imprisonment after the statutory
scheme under which his capital punishment was imposed was declared
unconstitutional under the 1972 Furman v. Georgia decision.”). In four other
proceedings, Enriquez “pleaded guilty to murder and received three concurrent
99-year sentences and one 25-year sentence.” Procunier, 752 F.2d at 113.
6
The Michael Unit is in Anderson County, Texas. See Enriquez v. Orihuela, No.
14-18-00147-CV, 2019 WL 6872946, at *1 & n.2 (Tex. App.—Houston [14th Dist.]
Dec. 17, 2019, pet. denied) (mem. op.); Butts Retail, Inc. v. Diversifoods, Inc., 840
S.W.2d 770, 774 (Tex. App.—Beaumont 1992, writ denied) (“The Court may take
judicial notice of the location of cities, counties, boundaries, dimensions, and
distances because geographical facts such as these are easily ascertainable and
capable of verifiable certainty.”). In his briefs, Enriquez noted that he was now
housed in the Pack Unit operated by TDCJ-CID and located in Navasota, Texas.

3
Unit, “to help him get examined by a provider,” but Baker did not do anything.

When Enriquez returned to his living area that day, he was sent to the infirmary “due

to his sickly appearance,” but he was not treated by infirmary personnel. On

December 23, 2014, a prison doctor examined Enriquez and requested an expedited

transfer to John Sealy Hospital—a hospital associated with UTMB—for a cancer

pathology evaluation. However, Baker did not transfer Enriquez, and prison

employees refused to transport him to John Sealy Hospital.

Enriquez further alleged that in January 2015, a nurse practitioner diagnosed

him with acute kidney failure and referred Enriquez to John Sealy Hospital. On

January 14, 2015, Enriquez was examined at John Sealy Hospital by a hospital

resident for prostate and kidney issues. Enriquez was admitted to the hospital and

diagnosed with acute kidney failure and benign prostatic hyperplasia.

On January 15, 2015, Dr. Morsy was assigned to be the attending physician

for Enriquez. As to Enriquez’s acute kidney failure, Enriquez alleged that Dr. Morsy

did not inform him “of the extent of [his] kidney damage []or that [he] could die if

his kidneys continued to fail.” And Dr. Morsy did not address the damage to

Enriquez’s kidneys or treat Enriquez’s kidney failure; instead, he approved

Enriquez’s discharge from the hospital on January 21, 2015, listing his condition as

“fair.” According to Enriquez,

[Dr. Morsy’s] failure or refusal to treat [Enriquez’s] kidney failure
evince[d] a culpable state of mind, an awareness of facts from which
4
 the inference c[ould] be drawn that a substantial risk of serious harm to
[Enriquez] existed, and a disregard for an excessive risk to [Enriquez’s]
health and life, which action or inaction resulted in further significant
injury to [Enriquez] and in the unnecessary and wanton infliction of
pain.

Enriquez alleged that Dr. Morsy was deliberately indifferent to Enriquez’s serious

medical need, and as a result, Enriquez continued to suffer kidney damage and his

life was placed at risk.

As to Enriquez’s benign prostatic hyperplasia, Enriquez alleged that on

January 17, 2015, a supervising surgeon informed him that she would perform a

procedure to correct his inability to urinate. But Dr. Morsy did not tell Enriquez, or

explain to him, that the procedure would not ultimately be performed. And although

Dr. Morsy knew that Enriquez had been diagnosed with benign prostatic hyperplasia

and that the supervising surgeon felt that a surgical procedure needed to be

performed, Dr. Morsy failed to or refused to provide Enriquez with the procedure

necessary to correct his benign prostatic hyperplasia and address Enriquez’s inability

to urinate. Instead, Dr. Morsy discharged him from the hospital on January 21, 2015.

Enriquez alleged,

[Dr. Morsy’s] failure or refusal to correct [his benign prostatic
hyperplasia] evince[d] a culpable state of mind, an awareness of facts
from which the inference c[ould] be drawn that a substantial risk of
serious harm to [Enriquez] existed, and a disregard for an excessive risk
to [Enriquez’s] health and life, which action or inaction resulted in
further significant injury to [Enriquez] and the unnecessary and wanton
infliction of pain.

5
 On March 6, 2015, another nurse practitioner examined Enriquez and

diagnosed him with “anemia due to kidney damage.” Although Enriquez continued

to complain of “kidney failure symptoms,” nothing was done to treat his anemia.

On May 28, 2015, Enriquez was examined at John Sealy Hospital by a

hospital resident. Enriquez asked the resident to address and treat the issues with his

kidneys, including his anemia. But the resident only addressed matters related to

Enriquez’s benign prostatic hyperplasia. According to Enriquez, while at the

hospital, Dr. Eduardo Orihuela saw and examined Enriquez and “actively

participated in the decision-making process.” And Dr. Orihuela refused to comply

with Enriquez’s request for treatment related to his anemia and acute kidney failure.

On June 8, 2015, Enriquez was again seen by the nurse practitioner who noted his

anemia and ordered blood tests, but his anemia remained untreated and unaddressed.

Later in 2015, despite repeated requests to be treated for kidney and catheter

issues, including a urinary tract infection (“UTI”), and to get the results of his

previous blood tests, Enriquez did not see a provider for several months. On August

28, 2015, Enriquez was seen by Dr. Thomas Williams who ordered additional testing

related to Enriquez’s UTI, referred Enriquez for a “TURK procedure” to correct his

benign prostatic hyperplasia, and scheduled Enriquez for an appointment to treat his

UTI. Prison employees did not produce Enriquez for that appointment. On

September 10, 2015, Enriquez was seen by Dr. Gary Wright who ordered new blood

6
tests and scheduled Enriquez for a follow-up appointment. On October 7, 2015,

prison employees did not produce Enriquez for his appointment. Because

Enriquez’s UTI became “so severe,” on October 21, 2015, he was transported to

Palestine Regional Medical Center and diagnosed with an epididymis infection.

In February 2016, Enriquez’s epididymis infection returned, but prison nurses

refused to examine him. On February 22, 2016, Enriquez was transported to the

prison infirmary on a gurney, examined, and treated with antibiotics for ten days.

The antibiotics were not effective, and on March 7, 2016, a nurse practitioner

examined Enriquez and ordered antibiotic shots and oral antibiotics. But the nurse

scheduled to administer the shots told Enriquez that they were no longer available,

and the oral antibiotics did not resolve Enriquez’s infection for thirty days. During

those thirty days, Enriquez continued to suffer chills, fever, loss of appetite, loss of

energy, and extreme pain.

According to Enriquez, Dr. Lannellee Linthicum, the Director of Medical

Services for TDCJ-CID, had a policy and practice of allowing prisoners’ serious

medical needs to go unattended, undiagnosed, and untreated as dictated by prison

policies promulgated and implemented by Dale Wainwright, the chairman of the

Texas Board of Criminal Justice (“TBCJ”), Brad Livingston, the executive director

of the TDCJ, and Baker. And in the Michael Unit, operated by TDCJ-CID, the

providers did not have the necessary medication, testing capability, or supplies to

7
treat the serious medical needs of prisoners. Such circumstances caused Enriquez

to develop chronic UTIs and led to the providers’ failures to detect Enriquez’s acute

kidney failure and infections. And Enriquez was denied treatment for his serious

medical needs.

Enriquez brought claims against Dr. Morsy7 for violations of the Eighth

Amendment and 42 U.S.C. § 19838 based on his “deliberate indifference to serious

medical need of treatment for acute kidney failure,” “deliberate indifference to

serious medical need to correct benign prostatic hyperplasia,” and “deliberate

indifference to serious medical need for treatment of [UTIs].” Enriquez also alleged

a negligence claim against Dr. Morsy and sought exemplary damages resulting from

Dr. Morsy’s “gross negligence, malice, or fraud.” Enriquez further sought equitable

relief under the Texas Constitution, and in his prayer for relief, he requested a writ

7
Enriquez brought claims against other defendants as well. But they are no longer
parties to this case. See Morsy, 2020 WL 4758428, at *1–5.
8
See U.S. CONST. amend. VIII; 42 U.S.C. § 1983. 42 U.S.C. § 1983 provides a
remedy when any “person” acting under color of state law deprives another of
rights, privileges, or immunities protected by the United States Constitution or laws.
Thomas v. Collins, 960 S.W.2d 106, 109 (Tex. App.—Houston [1st Dist.] 1997, pet.
denied). Enriquez, in his petition, referenced the Eighth Amendment and 42 U.S.C.
§ 1983 and cited a case involving the Eighth Amendment and § 1983 claims. See
Estelle v. Gamble, 429 U.S. 97, 104–05 (1976) (deliberate indifference to serious
medical needs constitutes unnecessary and wanton infliction of pain proscribed by
Eighth Amendment and deliberate indifference to prisoner’s serious illness or injury
states cause of action under § 1983); see also Williams v. Casal, No.
08-03-00396-CV, 2004 WL 1932649, at *3 (Tex. App.—El Paso Aug. 31, 2004, no
pet.) (mem. op.) (construing pro se prisoner’s petition liberally in determining he
had raised claim for violations of Eighth Amendment and 42 U.S.C. § 1983).

8
of mandamus “directing [Dr. Morsy] to provide [him] with either transurethral

microwave thermotherapy or transurethral needle ablation,” performed by a doctor

not connected with TDCJ or UTMB, to correct his benign prostatic hyperplasia; a

writ of mandamus “directing [Dr. Morsy] to provide [him] with a comprehensive

evaluation of the damage to his kidneys and the treatment necessary to repair or

restore them,” performed by a doctor not connected to TDCJ or UTMB; a writ of

mandamus “directing [Dr. Morsy] to provide [him] with the treatment necessary to

correct or cure [his] anemia,” performed by a doctor not connected to TDCJ or

UTMB; “[p]rospective equitable relief”; actual, exemplary, and nominal damages;

pre- and post-judgment interest; and any other relief in equity or law.

Dr. Morsy answered, generally denying the allegations in Enriquez’s petition.

Dr. Morsy then moved to dismiss Enriquez’s claims against him under the Texas

Tort Claims Act (“TTCA”) and Texas Civil Practice & Remedies Code chapter 14.

In response to Dr. Morsy’s motion to dismiss, Enriquez argued that his claims

against Dr. Morsy were not subject to dismissal under the TTCA because he had

“sued [Dr.] Morsy under Title 42 U.S.C., Section 1983, for damages due to

violation[s] of [his] Eighth Amendment right to be free from cruel and unusual

punishment” as well as “Article 1, Section 19, of the Texas Constitution for equitable

relief due to violation[s] of his rights under the Texas Bill of Rights.” In other words,

9
Enriquez asserted that he had not brought “tort claims” against Dr. Morsy, and, as

such, the TTCA did not apply.9

After Dr. Morsy filed a reply to Enriquez’s response, the trial court, without

specifying the grounds, signed an order granting Dr. Morsy’s motion to dismiss and

dismissing Enriquez’s suit, in its entirety, against Dr. Morsy.

On appeal, this Court affirmed the portion of the trial court’s order dismissing

Enriquez’s tort claims against Dr. Morsy.10 But we reversed the portion of the trial

court’s order dismissing Enriquez’s claims against Dr. Morsy for violations of the

Eighth Amendment and 42 U.S.C. § 1983 based on the “deliberate indifference to

serious medical need” and for equitable relief under the Texas Constitution.11 We

remanded the case to the trial court for further proceedings consistent with our

opinion.12

Following remand, Dr. Morsy filed a plea to the jurisdiction, motion for

summary judgment, and motion to dismiss related to Enriquez’s remaining claims

for violations of the Eighth Amendment and 42 U.S.C. § 1983 based on the

“deliberate indifference to serious medical need” and for equitable relief under the

9
Enriquez also asserted that his claims against Dr. Morsy should not be dismissed
under Texas Civil Practice and Remedies Code chapter 14.
10
See Morsy, 2020 WL 4758428, at *11–17.
11
See id. (expressing no opinion on the merits of Enriquez’s remaining claims).
12
See id. at *17.

10
Texas Constitution.13 In connection with his motion, Dr. Morsy filed a motion for

leave to file certain evidence supporting his motion under seal, asserting that

Enriquez’s claims arose from his medical treatment at UTMB and Dr. Morsy was a

physician involved with Enriquez’s medical treatment. Dr. Morsy requested that he

be permitted to file certain evidence under seal so that he did not violate the Health

Insurance Portability and Accountability Act of 1996 (“HIPAA”).14

Enriquez opposed Dr. Morsy’s motion for leave to file certain evidence under

seal because, according to Enriquez, the “motion or request [was] pre[mature],” the

“request [was] overbroad,” and there was “no reason to seal at th[e] time.”

The trial court held a hearing on Dr. Morsy’s motion for leave to file certain

evidence under seal. When asked by the trial court whether he was opposed to the

trial court granting the motion, Enriquez responded, “At this time, I am. I just don’t

see a need for it right now.” Enriquez further stated that he was “just opposed.” The

trial court granted Dr. Morsy’s motion, allowing him to file under seal certain

13
After Dr. Morsy filed his plea to the jurisdiction, motion for summary judgment,
and motion to dismiss, Enriquez filed a “supplement” to his petition to “provid[e] a
more definite statement of the claims against [Dr.] Morsy.” Dr. Morsy then filed a
supplemental plea to the jurisdiction and supplemental motion for summary
judgment to address Enriquez’s supplemental filing.
14
Generally, HIPAA prohibits a health care provider from disclosing a patient’s
protected health information. See Daywalker v. Univ. of Tex. Med. Branch at
Galveston, Civil Action No. 3:20-cv-00099, 2021 WL 4099827, at *2 (S.D. Tex.
Sept. 9, 2021) (op. and order); see also 45 C.F.R. § 164.502.

11
evidence to support his plea to the jurisdiction, motion for summary judgment, and

motion to dismiss.

As to his plea to the jurisdiction, motion for summary judgment, and motion

to dismiss, Dr. Morsy stated that he was filing a plea to the jurisdiction related to

Enriquez’s claims against him for equitable relief under the Texas Constitution and

Enriquez’s request for a writ of mandamus because the trial court lacked

subject-matter jurisdiction. He also moved for summary judgment on Enriquez’s

claims against him—claims for violations of the Eighth Amendment and 42 U.S.C.

§ 1983 based on the “deliberate indifference to serious medical need,” for equitable

relief under the Texas Constitution, and for the requested writ of mandamus—

asserting that he was entitled to judgment as a matter of law on Enriquez’s claims

and no evidence existed “of one or more essential elements” of Enriquez’s claims

for violations of the Eighth Amendment and 42 U.S.C. § 1983. And Dr. Morsy

moved to dismiss Enriquez’s claims against him for failure to comply with Texas

Civil Practice and Remedies Code chapter 74’s medical expert requirements,

explaining that Enriquez had alleged claims against Dr. Morsy, a physician, related

to Enriquez’s “treatment, lack of treatment, or [an] alleged departure from accepted

standards of medical care that he [asserted] resulted in injury and damages.”

Because Enriquez’s claims against Dr. Morsy constituted health care liability claims,

he was required to serve Dr. Morsy with an expert report and curriculum vitae, which

12
he had not done, and this meant that the trial court had to dismiss Enriquez’s claims

against Dr. Morsy with prejudice. Dr. Morsy requested that the trial court grant his

plea to the jurisdiction, motion for summary judgment, and motion to dismiss. Dr.

Morsy filed under seal certain evidence in support of his plea to the jurisdiction,

motion for summary judgment, and motion to dismiss.15

Following Dr. Morsy’s filing of his plea to the jurisdiction, motion for

summary judgment, and motion to dismiss, Enriquez filed a “Supplement to his

Original Complaint Providing a More Definite Statement of the Claims Against [Dr.]

Morsy.” Related to UTMB, Enriquez alleged that on January 14, 2015, he was

examined at UTMB by Dr. Daniel Bellow, who “determined [that his] prostate gland

was not cancerous but enlarged.” Enriquez was admitted to UTMB and diagnosed

with acute kidney injury and benign prostatic hyperplasia. On January 15, 2015, “a

renal ultra[sound]” showed damage to Enriquez’s kidneys. Also, on January 15,

2015, Enriquez was “seen by a panel of doctors,” the head of which told Enriquez

that he did not have prostate cancer, but he had “an enlarged prostate gland which

caused his kidneys to fail due to urine back-up.” Enriquez was told that “an

15
Although Enriquez complains that certain evidence was filed under seal in the trial
court, when he believes it should not have been, we do not directly discuss this
sealed evidence in this memorandum opinion because it is not necessary for our
disposition. See generally Hunter v. Marshall, No. 01-16-00636-CV, 2018 WL
6684840, at *1 n.4 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no pet.) (mem.
op.) (discussing reasoning for vague record references where trial court has signed
sealing order).

13
attending physician would be assigned to [him]” and that physician would be

responsible for his treatment. On January 16, 2015, Dr. Robyn Crowell visited

Enriquez and told him that she would perform a procedure to “correct his inability

to urinate.”

As to Dr. Morsy, Enriquez alleged that on January 17, 2015, Dr. Morsy was

assigned as the attending physician for Enriquez. According to Enriquez, Dr. Morsy

knew that Enriquez’s kidneys had failed and “remained in a failed state.” And that

Enriquez’s kidneys had been “seriously damaged,” and he was in pain. Although

Enriquez told Dr. Morsy that he “wanted a full evaluation of his kidneys

and . . . whatever treatment was available for failed kidneys,” Dr. Morsy “refused to

treat [Enriquez’s] kidney failure and refused to order a complete evaluation of [his]

kidneys.” Dr. Morsy told Enriquez that “he was not a nephrologist and could not

treat kidneys and . . . he could not order an evaluation of [Enriquez’s] kidneys

because [Enriquez] had been admitted under a diagnosis of acute kidney injury and

not a diagnosis of [a]cute [k]idney [f]ailure.” And UTMB had a policy “to treat only

diagnosed admissions . . . with prisoner patients.” Further, although Enriquez told

Dr. Morsy that “he did not want to be discharged from the hospital until his kidneys

were treated and until he had a full examination of his kidneys and was given a

prognosis of what he could expect from his medical problems,” Dr. Morsy stated

that “he could not do that with a prisoner patient.” Dr. Morsy told Enriquez that “he

14
realized the seriousness of [Enriquez’s] kidney failure and that he also realized that

it could be fatal but that he could do nothing for [Enriquez] . . . except discharge him

to a medical unit.” According to Enriquez, on January 21, 2015,

[Dr. Morsy] discharged [Enriquez] from UTMB[] without treating or
addressing [his] serious medical need [for] treatment for [a]cute
[k]idney [f]ailure, without ordering an evaluation of [his] kidneys,
without waiting until [his] kidneys reached a non-failed state, and
without referring [his] case to a nephrologist who might have been
willing to treat [his] kidney failure.

And this caused Enriquez “subsequent pain and suffering,” further damage to his

kidneys, anemia, UTIs, and was a risk to Enriquez’s “health and life.” Enriquez

alleged that Dr. Morsy was “deliberately indifferent to [his] serious diagnosed

medical needs.”

In response to Enriquez’s “Supplement to his Original Complaint Providing a

More Definite Statement of the Claims Against [Dr.] Morsy,” Dr. Morsy filed a

supplement to his plea to jurisdiction and motion for summary judgment, asserting

that in addition to the grounds raised in his plea to the jurisdiction, motion for

summary judgment, and motion to dismiss, he was entitled to dismissal of

Enriquez’s claims based on his plea to the jurisdiction because the trial court lacked

subject matter jurisdiction as Enriquez had failed to comply with the applicable

statute of limitations. And Dr. Morsy argued that the was entitled to judgment as a

matter of law on Enriquez’s claims against him because Enriquez sued Dr. Morsy

based on medical treatment that ended on January 21, 2015 and “did not serve Dr.
15
Morsy until several months after the applicable statute [of limitations period] had

run.” Dr. Morsy attached certain exhibits to his supplement, some of which were

filed under seal.

Enriquez filed a response to Dr. Morsy’s plea to jurisdiction, motion for

summary judgment, and motion to dismiss and a response to Dr. Morsy’s

supplement to his plea to the jurisdiction and motion for summary judgment.

Following a hearing, the trial court signed an order granting Dr. Morsy’s plea

to the jurisdiction and dismissing Enriquez’s claim against Dr. Morsy for equitable

relief under the Texas Constitution and Enriquez’s request for a writ of mandamus

for lack of jurisdiction. The trial court, in its order, also granted Dr. Morsy summary

judgment on all of Enriquez’s claims against him and ordered that Enriquez take

nothing on his claims against Dr. Morsy. Finally, the trial court granted Dr. Morsy’s

motion to dismiss all of Enriquez’s claims against him based on Enriquez’s failure

to comply with Texas Civil Practice and Remedies Code chapter 74.

Sealing-Order Appeal16

In his first and second issues, Enriquez argues that the trial court erred in

granting Dr. Morsy’s motion for leave to file certain evidence under seal because

Dr. Morsy “did not provide public notice” as required by Texas Rule of Civil

16
Appellate cause no. 01-22-00622-CV.

16
Procedure 76a and Dr. Morsy “did not provide the grounds or the evidence required

for a court to grant a motion to seal records.”17

Notably, to preserve a complaint for appellate review, Texas Rule of

Appellate Procedure 33.1 requires a party to first make a complaint to the trial court

by “a timely request, objection, or motion.” TEX. R. APP. P. 33.1(a)(1); see also

Valdez v. Valdez, 930 S.W.2d 725, 728 (Tex. App.—Houston [1st Dist.] 1996, no

writ) (because party never complained to the trial court, he never gave trial court

opportunity to correct alleged error). If a party fails to do this, error is not preserved,

and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991);

see also Humble Surgical Hosp., LLC v. Davis, 542 S.W.3d 12, 21 (Tex. App.—

Houston [14th Dist.] 2017, pet. denied) (“Rule 33.1 requires the appealing party to

adequately raise issues before the trial court to give the trial court notice of [the

party’s] complaint.”). An objection stating one legal basis may not be used to

17
In his third issue, Enriquez argues that the trial court erred in granting Dr. Morsy’s
motion for leave to file certain evidence under seal because the trial court’s sealing
order did not meet the requirements of Texas Rule of Civil Procedure 76a. Although
this issue is raised in the “Issues Presented” section of Enriquez’s brief, Enriquez
provides no substantive analysis or citation to appropriate authority to support his
assertion. See TEX. R. APP. P. 38.1(i) (“[Appellant’s] brief must contain a clear and
concise argument for the contentions made, with appropriate citations to authorities
and to the record.”). The failure to provide substantive analysis of an issue or cite
appropriate authority waives a complaint on appeal. Marin Real Estate Partners,
L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no pet.); Huey v.
Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.). Thus, we hold that
Enriquez has waived his third issue due to inadequate briefing.

17
support a different legal theory on appeal. See McKee v. McNeir, 151 S.W.3d 268,

270 (Tex. App.—Amarillo 2004, no pet.) (holding appellant waived complaint

because issue on appeal did not comport with argument made in trial court).

On appeal, Enriquez argues that the trial court should not have granted Dr.

Morsy’s motion for leave to file certain evidence under seal because Dr. Morsy “did

not provide public notice” as required by Texas Rule of Civil Procedure 76a and Dr.

Morsy “did not provide the grounds or the evidence required for a court to grant a

motion to seal records.” But appellant did not raise either of these arguments in the

trial court. In his response to Dr. Morsy’s motion for leave, appellant argued that

the trial court should not grant the motion because the “motion or request [was]

pre[mature],” the “request [was] overbroad,” and there was “no reason to seal at th[e]

time.” And at the hearing on Dr. Morsy’s motion for leave, Enriquez simply told

the trial court that he “just opposed” the sealing of the records. A party’s complaint

that the trial court did not comply with Texas Rule of Civil Procedure 76a can be

waived for failure to comply with Texas Rule of Appellate Procedure 33.1(a)’s

preservation requirement. See Kallergis v. Brupbacher, No. 14-19-00470-CV, 2021

WL 506081, at *3 (Tex. App.—Houston [14th Dist.] Feb. 11, 2021, no pet.) (mem.

op.); Rice v. Lewis Energy Grp., L.P., No. 04-19-00234-CV, 2020 WL 6293454, at

*7 (Tex. App.—San Antonio Oct. 28, 2020, no pet.) (mem. op.); McAfee, Inc. v.

Weiss, 336 S.W.3d 840, 843 (Tex. App.—Dallas 2011, pet. denied).

18
 Accordingly, we hold that Enriquez has not preserved his first and second

issues in his sealing-order appeal for appellate review.18

Plea-to-the-Jurisdiction Appeal19

In his first, second, third, and fourth issues, Enriquez argues that the trial court

erred in granting Dr. Morsy’s plea to the jurisdiction because the trial court’s “order

d[id] not have a factual or legal basis” and Dr. Morsy “did not present any evidence

controverting or refuting Enriquez’[s] pleaded jurisdictional claims.”20

18
Although Enriquez is representing himself, he is held to the same standard as a
licensed attorney and must comply with all applicable laws and rules of procedure.
See Tyurin v. Hirsch & Westheimer, P.C., No. 01-17-00014-CV, 2017 WL 4682191,
at *1–2 (Tex. App.—Houston [1st Dist.] Oct. 19, 2017, no pet.) (mem. op.); In re
Estate of Taylor, 305 S.W.3d 829, 837 (Tex. App.—Texarkana 2010, no pet.). “A
pro se litigant is required to properly present [his] case on appeal, just as [he] is
required to properly present [his] case to the trial court.” In re Estate of Taylor, 305
S.W.3d at 837.
19
Appellate cause no. 01-22-00852-CV.
20
On September 22, 2023, Enriquez filed a motion to supplement his brief and a
supplemental brief in his plea-to-the-jurisdiction appeal. Enriquez filed his original
appellant’s brief on February 8, 2023. His supplemental brief, filed more than seven
months after his original appellant’s brief, attempts to raise new issues that could
have been previously raised by Enriquez in his original appellant’s brief. As such,
we liken Enriquez’s request to supplement to a situation where an appellant has
attempted to raise a new issue in a reply brief. See Sea Mist Council of Owners v.
Bd. of Adjustments for Town of South Padre Island Tex., No. 13-09-601-CV, 2010
WL 2891580, at *3 (Tex. App.—Corpus Christi–Edinburg July 22, 2010, no pet.)
(mem. op.). A reply brief may not be used to raise new issues. See Warwick Oil &
Gas, Inc. v. FBS Props., Inc., No. 01-14-00290-CV, 2015 WL 3637988, at *9–10
(Tex. App.—Houston [1st Dist.] June 11, 2015, no pet.) (mem. op.); Sea Mist
Council of Owners, 2010 WL 2891580, at *3. Thus, we deny Enriquez’s motion to
supplement his brief and strike his supplemental brief filed on September 22, 2023.
See Warwick Oil & Gas, 2015 WL 3637988, at *9–10; Sea Mist Council of Owners,
2010 WL 2891580, at *3; see also Caldwell v. Zimmerman, No. 03-17-00273-CV,
2017 WL 4899447, at *3 n.3 (Tex. App.—Austin Oct. 26, 2017, pet. denied) (mem.
19
 Here, Enriquez, in his briefing, challenges the trial court’s granting of Dr.

Morsy’s plea to the jurisdiction. However, the trial court, in the underlying

proceeding, did not just grant Dr. Morsy’s plea to the jurisdiction. It also granted

Dr. Morsy summary judgment on all of Enriquez’s claims against him and ordered

that Enriquez take nothing on his claims against Dr. Morsy. Further, the trial court

granted Dr. Morsy’s motion to dismiss all of Enriquez’s claims against him based

on Enriquez’s failure to comply with Texas Civil Practice and Remedies Code

chapter 74. An appellant must attack all independent bases or grounds that fully

support the complained-of order or judgment. See Oliphant Fin. LLC v. Angiano,

295 S.W.3d 422, 423–24 (Tex. App.—Dallas 2009, no pet.); Britton v. Tex. Dep’t of

Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

If an independent ground fully supports the complained-of order or judgment, but

the appellant assigns no error to that independent ground, we must accept the validity

of the unchallenged independent ground and thus any error in the ground challenged

on appeal is harmless because the unchallenged independent ground fully supports

the complained-of order or judgment. See Oliphant Fin., 295 S.W.3d at 423–24;

Britton, 95 S.W.3d at 681; see also In re A.K.P., No. 06-19-00075-CV, 2020 WL

op.) (where appellant filed supplemental brief raising issues not raised in his
appellant’s brief, declining to consider those issues); Wilson v. State, 811 S.W.2d
700, 702 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (“A point of error
raised for the first time in a supplemental brief is not properly presented for appellate
review.”).
20
465281, at *2 (Tex. App.—Texarkana Jan. 29, 2020, no pet.) (mem. op.) (“When an

appellant fails to challenge an alternate basis for the appealed order, any error in the

challenged basis for the order is rendered harmless.” (internal quotations omitted)).

Enriquez, on appeal, does not challenge the trial court’s rulings granting Dr. Morsy’s

motion for summary judgment or granting Dr. Morsy’s motion to dismiss.21 Thus,

we hold that the trial court did not error in dismissing Enriquez’s claims against Dr.

Morsy. See Oliphant Fin., 295 S.W.3d at 424; Britton, 95 S.W.3d at 681–82.

We overrule Enriquez’s first, second, third, and fourth issues in his

plea-to-the-jurisdiction appeal.

Conclusion

We affirm the orders of the trial court.

Julie Countiss
Justice

Panel consists of Chief Justice Adams and Justices Hightower and Countiss.

21
As previously noted, Enriquez, although proceeding pro se, is held to the same
standard as a licensed attorney and must comply with all applicable laws and rules
of procedure. See Tyurin, 2017 WL 4682191, at *1–2; In re Estate of Taylor, 305
S.W.3d at 837. “A pro se litigant is required to properly present [his] case on appeal,
just as [he] is required to properly present [his] case to the trial court.” In re Estate
of Taylor, 305 S.W.3d at 837.

21