Valley Baptist Medical Center - Brownsville v. Rosalinda Battles, Gerald Battles, as Surviving Spouse of Rosalinda Battles, Amanda Giselle Battles, as Surviving Child of Rosalinda Battles, and Jeremy Blake Battles, as Surviving Child of Rosalinda Battles

ACCEPTED
13-14-00756-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
3/2/2015 4:08:08 PM
DORIAN RAMIREZ
CLERK

CAUSE NO. 13-14-00756-CV

IN THE COURT OF APPEALS FILED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH JUDICIAL DISTRICT
CORPUS CHRISTI/EDINBURG, TEXAS
SITTING AT CORPUS CHRISTI - EDINBURG,
3/2/2015TEXAS
4:08:08 PM
DORIAN E. RAMIREZ
Clerk

VALLEY BAPTIST MEDICAL CENTER APPELLANT

VS.

ROSALINDA BATTLES, GERALD
BATTLES, AS SURVIVING SPOUSE
OF ROSALINDA BATTLES,
AMANDA GISELLE BATTLES, AS
SURVIVING CHILD OF ROSALINDA
BATTLES AND JEREMY BLAKE
BATTLES, AS SURVIVING CHILD OF
ROSALINDA BATTLES APPELLEES

APPELLANT’S BRIEF

ON APPEAL FROM CAUSE NO. 2013-DCL-04983
IN THE 444TH JUDICIAL DISTRICT COURT
OF CAMERON COUNTY, TEXAS

SCOTT T. CLARK
ROGER W. HUGHES
WILL HUGHES
ADAMS & GRAHAM, L.L.P.
P.O. Drawer 1429
Harlingen, TX 78551-1429
Phone: (956) 428-7495 ORAL ARGUMENT IS
Fax: (956) 428-2954 REQUESTED

Attorneys for Appellant VALLEY BAPTIST MEDICAL CENTER
 IDENTITY OF THE PARTIES AND COUNSEL

1. Appellant:

Defendant Attorney
Valley Baptist Medical Center- Scott T. Clark
Brownsville sclark@adamsgraham.com
Roger W. Hughes
rhughes@adamsgraham.com
Will Hughes
willhughes@adamsgraham.com
ADAMS & GRAHAM, L.L.P.
P. O. Drawer 1429
Harlingen, TX 78551-1429
Phone (956) 428-7495
Fax (956) 428-3954

2. Appellees

Plaintiffs Attorneys
Rosalinda Battles, Gerald Battles, as Robert Garza
Surviving Spouse of Rosalinda jrobert@rgarzalaw.com
Battles, Amanda Giselle Battles, as Myles R. Garza
Surviving Child of Rosalinda Battles myles@rgarzalaw.com
and Jeremy Blake Battles, as Law Office of Robert Garza, P.C.
Surviving Child of Rosalinda Battles 1200 E. Harrison St.
Brownsville, TX 78520
Phone (956) 544-1111
Fax (956) 544-1108

ii
 TABLE OF CONTENTS

Page:

IDENTITY OF THE PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. When the purported report is “no report,” no extension
is permitted and the trial court must dismiss. . . . . . . . . . . . . . . . . . . . 1

B. Nurse O’Malley’s first report stated no opinions
and was “no report.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C. Caselaw demonstrates the trial court was obligated
to grant VBMC’s first motion to dismiss. . . . . . . . . . . . . . . . . . . . . . . 5

CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

iii
 TABLE OF AUTHORITIES

Page:
Cases:
Avila v. Jimenez, No. 13-13-00101-CV, 2013 WL 1500328
(Tex. App.–Corpus Christi 2013, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . 3

Badiga v. Lopez, 253 S.W.3d 204 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fung v. Fischer, 365 S.W.3d 507
(Tex. App.–Austin 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Haskell v. Seven Acres Jewish Senior Care Servs., Inc.,
363 S.W.3d 754 (Tex. App.–Houston
[1st Dist.] 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 5-7

Laredo Tex. Hosp. Co., L.P. v. Gonzalez, 363 S.W.3d 255
(Tex. App.–San Antonio 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 9

Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007) . . . . . . . . . . . . . . . . . . . . . . . . 2

Reddy v. Hebner, 435 S.W.3d 323
(Tex. App.–Austin 2014, pet. filed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

San Antonio Extended Medical Care, Inc. v. Vasquez, 358 S.W.3d 685
(Tex. App.–San Antonio 2011, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) . . . . . . . . . . . . . . . . . . 1, 2, 5, 9

Sinha v. Thurston, 373 S.W.3d 795
(Tex. App.–Houston [14th Dist.] 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . 3

Velandia v. Contreras, 359 S.W.3d 674 Tex. App.–Houston
[14th Dist.] 2011, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

iv
 STATEMENT OF THE CASE

This is an expert report appeal in a healthcare liability claim. Appellees

asserted medical negligence claims against appellant Valley Baptist Medical Center

(VBMC) and provided an expert report from a nurse, Erin K. O’Malley. C.R. 5-15,

40-48; R.R. IV, X-1. App. 1. VBMC challenged the report and moved to dismiss.

C.R. 35-38. The trial court granted a thirty day extension, and Nurse O’Malley

provided a revised report. C.R. 51-52, 63-66; R.R. IV, X-2. App. 2. VBMC again

moved to dismiss, and that motion was denied. C.R. 53-59, 75. App. 3.

ISSUES PRESENTED

1. Was the first report from plaintiffs’ expert, Nurse Erin K. O’Malley, “no

report” because it:

a) failed to say anything about the standard of care for VBMC;

b) failed to say anything about how VBMC violated any standard of care;

c) failed to say anything about how any breach of a standard of care by

VBMC caused the death of Ms. Battles; and

d) failed to offer any opinion opinion that appellees’ claims have merit?

2. If the first report was “no report,” did the trial court have discretion to grant an

extension to cure deficiencies in the report, or was the trial court obligated to

grant VBMC’s motion to dismiss?

v
 STATEMENT OF FACTS

On July 24, 2013, appellees sued Valley Baptist Medical Center (VBMC),

alleging that insufficient post-surgery monitoring of Rosalinda Battles caused

Battles’s death. C.R. 5. On November 21, 2013, VBMC received appellees’

purported expert report and C.V. from Nurse Erin K. O’Malley. C.R. 40. App. 1.

Nurse O’Malley wrote that she had reviewed an autopsy report, lab reports, and

medical records “regarding Mr. Bradford” (sic). C.R. 42; R.R. IV, X-1.

The remainder of Nurse O’Malley’s report stated:

Summary:

On 7/25 Ms. Battles a 47yo female entered Valley Baptist Medical
Center for a routine cholecystectomy and was admitted to a short stay
unit. The procedure was done without incident. The patients (sic) vital
signs remained stable throughout the procedure, and in post-operative
care. That evening around 5:30 pm the patient started complaining of
headaches, nausea, and vomiting. At 6:12 pm the patient exhibited
seizure activity. The patient lost consciences (sic), and a code was
called. The patient was intubated, given Lovenox, and transferred to the
intensive care unit. The patient was taken to CT scan, which showed
minimal edema, and no intracranial bleeding. The CT angiogram of the
chest showed no pulmonary embolism. The CT scan of the abdomen
showed no fluid collection. The patient developed a sub arachnoid and
subdural hemorrhage. This caused cerebral edema, hemorrhage,
necrosis, herniation at the brain stem area which eventually caused death.
The family was aware of her condition and decided that Ms. Battles
should be taken off life support. C.R. 42; R.R. IV, X-1; App. 1.

Nurse O’Malley’s report made no other comment about the care provided to Ms.

Battles. C.R. 42; R.R. IV, X-1; App. 1.

VBMC filed objections to Nurse O’Malley’s report and a motion to dismiss.

vi
C.R. 35. Appellees filed no response to VBMC’s motion to dismiss. The trial court

found that the report was deficient and granted a thirty day extension to cure the

deficiencies. C.R. 51-52; App. 2.

On February 7, 2014, appellees provided another report from Nurse O’Malley.

C.R. 65; R.R. IV, X-2. This second report added a section titled “Findings,” but even

this second report conceded “I cannot fully say that the standard of care concerning

the care of Mrs. Battles was breached.” C.R. 65; R.R. IV, X-2.

On March 12, 2014, VBMC filed objections to this second report and again

urged a motion to dismiss. C.R. 53. Appellees responded by arguing that VBMC’s

objections to the second report were untimely. C.R. 67.

As of December 3, 2014, the trial court had not yet ruled, and a status hearing

was held on the motion to dismiss. R.R. III, 5. At that hearing, the court invited

further arguments on the motion to dismiss. R.R. III, 7. VBMC argued that Nurse

O’Malley’s first report was “no report,” and the case should be dismissed on that

basis. R.R. III, 8-11. On December 10, 2014, the trial court denied VBMC’s second

objections and motion to dismiss. C.R. 75; App. 3.

vii
 SUMMARY OF THE ARGUMENT

This appeal concerns the trial court’s abuse of discretion with regard to Nurse

O’Malley’s first report and VBMC’s first motion to dismiss. Because Nurse

O’Malley’s first report was “no report,” the trial court had no discretion to grant an

extension of time to cure the report, but rather was obligated to grant the first motion

to dismiss. The court’s erroneous extension does not cure this abuse of discretion, and

the timeliness of VBMC’s second motion to dismiss is a moot issue.

Texas law distinguishes between deficient expert reports and purported reports

that are really no report at all. A thirty day extension may be granted to cure a

deficient report, but when the purported report is “no report,” then no extension is

permitted and the trial court has no option but to grant a motion to dismiss. Because

Nurse O’Malley’s first report never asserted VBMC did anything wrong, did not

implicate the conduct of any agent of VBMC, and gave no indication that appellees’

claim had merit, it was “no report” and the trial court was required to grant the motion

to dismiss rather than allow a thirty day extension.

ARGUMENT

A. When the purported report is “no report,” no extension is permitted and
the trial court must dismiss.

A document qualifies as an expert report only if it contains a statement of

opinion by an individual with expertise indicating that the claim asserted by the

plaintiff against the defendant has merit. Scoresby v. Santillan, 346 S.W.3d 546, 549

1
(Tex. 2011), App. 4. An extension to cure deficiencies in a report may only be

granted if the report contains the opinion of an individual with expertise that the claim

has merit, and if the defendant’s conduct is implicated. Id. at 557, App. 4. A

document that fails to address the statutorily mandated elements set forth in Chapter

74 constitutes no expert report at all. Ogletree v. Matthews, 262 S.W.3d 316, 323

(Tex. 2007) (Willett, J., concurring).

If no expert report is timely served, the denial of a motion to dismiss is

appealable, even if the court grants an extension. Scoresby, 346 S.W.3d at 555; citing

Badiga v. Lopez, 253 S.W.3d 204, 207-08 (Tex. 2008). The Medical Liability Act

does not authorize an extension if no report is timely served. Scoresby, 346 S.W.3d

at 555; Haskell v. Seven Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754, 761

(Tex. App.–Houston [1st Dist.] 2012, no pet.). Granting an extension not authorized

by section 74.351 does not preclude an appeal. Scoresby, 346 S.W.3d at 555, App.

4.

If the document never asserts that anyone did anything wrong, it cannot receive

an extension. Laredo Tex. Hosp. Co., L.P. v. Gonzalez, 363 S.W.3d 255, 258 (Tex.

App.–San Antonio 2012, no pet.) quoting Scoresby, 346 S.W.3d at 558 (Willet, J.,

concurring). If the trial court responds to a motion to dismiss by erroneously granting

an extension, the defendant may appeal after the denial of a second motion to dismiss.

See Laredo Tex. Hosp., 363 S.W.3d at 258-59 (erroneous extension was not

2
immediately appealable, but appellate court ordered dismissal on appeal after denial

of second motion to dismiss because initial report was “no report”); cf. Avila v.

Jimenez, No. 13-13-00101-CV, 2013 WL 1500328 at *2-3 (Tex. App.–Corpus Christi

2013, pet. denied) (extension was granted, second motion dismiss was denied and

appeal then taken; court considered contention that pre-extension report was “no

report”).

A report that does not implicate the conduct of a defendant does not constitute

an expert report as to that defendant. Reddy v. Hebner, 435 S.W.3d 323, 328 (Tex.

App.–Austin 2014, pet. filed); Sinha v. Thurston, 373 S.W.3d 795, 800 (Tex.

App.–Houston [14th Dist.] 2012, no pet.). When the purported report does not

constitute an expert report as to a defendant, the trial court does not have any

discretion to deny the defendant’s motion to dismiss. Id.

The 21-day deadline for objecting to the sufficiency of an expert report is only

triggered if the report implicates the defendant. Reddy, 435 S.W.3d at 328. If what

the plaintiff provides is “no report,” then the defendant’s obligation to object to the

report is never triggered. Haskell, 363 S.W.3d at 761.

B. Nurse O’Malley’s first report stated no opinions and was “no report.”

Nurse O’Malley’s first report was the kind of document that is “no report.” The

report simply described events during Ms. Battles’s stay at VBMC, without comment

on what should or should not have been done during the course of her care. C.R. 42;

3
R.R. IV, X-1; App. 1.

The only portion of the report that addresses Ms. Battles’s care, the

“Summary,” begins by noting that a cholecystectomy was performed without incident,

and the patient’s vital signs remained stable throughout the procedure and in post-

operative care. C.R. 42; R.R. IV, X-1; App. 1.

It then notes that around 5:30 pm the patient started complaining of headaches,

nausea, and vomiting. C.R. 42; R.R. IV, X-1; App. 1. The report does not say that

any misconduct by VBMC was responsible for the headaches, nausea, and vomiting,

nor does it say what VBMC should have done, or should not have done, in response

to these symptoms. C.R. 42; R.R. IV, X-1; App. 1.

Next the report says at 6:12 pm the patient exhibited seizure activity, but,

again, the report does not say that any misconduct by VBMC was responsible for the

seizure activity, nor does it say what VBMC should have done, or should not have

done, in response to this seizure activity. C.R. 42; R.R. IV, X-1; App. 1.

Next the report says the patient was taken for CT scans, but the CT scans

showed no problems. C.R. 42; R.R. IV, X-1; App. 1. The report makes no comment

about whether it was appropriate to conduct the CT scans, or what, if anything, should

have been done in response to the results of the CT scans.

The report concludes by saying the patient developed a sub arachnoid and

subdural hemorrhage, which caused cerebral edema, hemorrhage, necrosis, herniation

4
at the brain stem and, eventually death. C.R. 42; R.R. IV, X-1; App. 1. Again the

report does not say any acts or omissions by VBMC were responsible for any of these

conditions, nor does it fault anything VBMC did or failed to do in response to these

conditions. C.R. 42; R.R. IV, X-1; App. 1.

At no point does the report offer any commentary or opinions about the

appropriateness of the care provided by VBMC. Indeed, the report does not even

identify any care that was (or should have been) provided by VBMC’s agents rather

than by others whom VBMC does not control and for whom VBMC does not have

vicarious liability, such as physicians. C.R. 42; R.R. IV, X-1; App. 1. Nowhere does

the report state, directly or indirectly, that appellees’ claims have merit.

C. Caselaw demonstrates the trial court was obligated to grant VBMC’s first
motion to dismiss.

The Medical Liability Act does not suggest that a document utterly devoid of

substantive content will qualify as an expert report. Scoresby v. Santillan, 346 S.W.3d

at 549, App. 4. Nurse O’Malley’s first report is the kind of document that is “no

report” because it does not contain a statement of opinion indicating that the claim

asserted by the plaintiff against the defendant has merit. Id. If the purported report

is this kind of “no report,” then the trial court has no discretion to grant an extension

of time to cure deficiencies in the report, but rather, the trial court is obligated to grant

the initial motion to dismiss. Id. at 557; Haskell, 363 S.W.3d at 761.

Several cases have held that reports like Nurse O’Malley’s first report are “no

5
report,” and the trial court cannot grant an extension but must grant a motion to

dismiss such a report.

In Velandia v. Contreras, 359 S.W.3d 674 Tex. App.–Houston [14th Dist.]

2011, no pet.) the purported report failed to include any opinion that the claim had

merit. Id. at 678. Nor did the report offer the applicable standard of care or an

explanation of how the defendant failed to meet any standard of care. Id. at 678-79.

The report also failed to identify a causal relationship between any failure by the

defendant and the plaintiff’s injury, harm, or damages. Id. at 679. The court

concluded the purported report was not an expert report, and the trial court had abused

its discretion in denying the motion to dismiss. Id. In our case, Nurse O’Malley’s

report has the same problems - it does not describe the standard of care applicable to

VBMC, does not identify any breach of any such standard, does not explain how any

such breach caused the injuries complained of, and does not include an opinion that

the claim has merit. C.R. 42; R.R. IV, X-1.

Also instructive is Haskell v. Seven Acres Jewish Senior Care Services, Inc.,

363 S.W.3d 754, (Tex. App.–Houston [1st Dist.] 2012, no pet.). In that case, the

plaintiff provided letters from three doctors which “describe actions taken by Seven

Acres that form the basis of Haskell’s suit.” 363 S.W.3d at 760. However, “none

claims that those actions were malpractice that caused Haskell an injury.” Id.

Furthermore, while each doctor described harm suffered by Haskell, “none of them

6
ties this alleged injury to any wrongful action by Seven Acres.” Id. The court added

“[m]ost significantly, there is nothing in Haskell’s report regarding any failure by

Seven Acres to meet the applicable standard of care.” Id.

Similarly in our case, Nurse O’Malley’s report describes some actions taken at

VBMC, but does not claim those actions were malpractice that caused Battles an

injury. C.R. 42; R.R. IV, X-1. Although O’Malley’s report notes that Battles died,

the report does not in any way tie this injury to any wrongful action by VBMC. C.R.

42; R.R. IV, X-1. Also, as in Haskell, O’Malley’s report says nothing about VBMC

failing to meet the applicable standard of care. C.R. 42; R.R. IV, X-1.

In Laredo Tex. Hospital Co., L.P. v. Gonzalez, 363 S.W.3d 255 (Tex. App.–San

Antonio 2012, no pet.) the plaintiff obtained a report from a doctor stating that

insertion of an intravenous catheter led to the patient’s injuries, but the report does not

identify who performed this procedure. Id. at 258. Furthermore, the report “never

attempts to state the applicable standard of care, how any defendant failed to meet that

standard, or even if a failure in the standard of care occurred.” Id. at 258. The court

held this report was “no report” and therefore extension of time to cure deficiencies

was improper and dismissal was mandatory. Id. at 258-59.

In San Antonio Extended Medical Care, Inc. v. Vasquez, 358 S.W.3d 685, 690

(Tex. App.–San Antonio 2011, pet. denied) the purported report identified defendant

Med Mart as a party that was to deliver medical supplies but otherwise did not identify

7
the standard of care, and was silent on how Med Mart failed to meet the standard of

care or how that shortcoming caused Vasquez’s death. Id. at 690. Also, the purported

report did not provide an opinion regarding whether Vasquez’s claims had merit. Id.

The court concluded the purported report did not meet the standard for an “expert

report” and dismissal was mandatory. Id. at 691.

Finally, in Fung v. Fischer, 365 S.W.3d 507, 530, 536 (Tex. App.–Austin

2012, no pet.) the court noted that the purported report does provide information about

Fung’s standard of care as a primary care physician, does not allege any breach of the

standard of care by Fung, nor any causal link between an alleged breach by Fung and

plaintiff’s injury. Id. at 536. The court concluded the purported report “simply fails

to assert that Fung did anything wrong” and was “no report” as to Fung. Id.

Therefore, the report was ineligible for the statutory extension and Fung was entitled

to dismissal. Id.

Nurse O’Malley’s report contains the same glaring flaws - no statement of the

standard of care as to VBMC, no statement of how any such standard was breached,

no statement of how any such breach caused Ms. Battles’ death, and, fundamentally,

no statement that VBMC did anything wrong or that appellees’ claims against VBMC

have any merit. C.R. 42; R.R. IV, X-1.

CONCLUSION AND PRAYER

Because Nurse O’Malley’s report was “no report,” the trial court had no

8
discretion to take any action but dismissal. The trial court was not authorized to grant

the thirty day extension that it did, and the timeliness of VBMC’s second motion to

dismiss is irrelevant, because the trial court was obligated to grant the first motion to

dismiss, and VBMC is entitled to take an appeal from the trial court’s abuse of

discretion with regard to the first motion to dismiss. Scoresby, 346 S.W.3d at 555;

Laredo Tex. Hosp., 363 S.W.3d at 258-259.

WHEREFORE, appellant Valley Baptist Medical Center prays that this Court

render judgment dismissing appellees’ claims with prejudice, and for all other relief

to which it is entitled.

Respectfully submitted,

ADAMS & GRAHAM, L.L.P.
P.O. Drawer 1429
Harlingen, Texas 78551-1429
Telephone: (956) 428-7495
Facsimile: (956) 428-2954

By: /s/ Scott T. Clark
Scott T. Clark
State Bar No. 00795896
sclark@adamsgraham.com
Roger W. Hughes
State Bar No. 10229500
rhughes@adamsgraham.com
Will Hughes
State Bar No. 10240100
willhughes@adamsgraham.com

COUNSEL FOR APPELLANT, VALLEY
BAPTIST MEDICAL CENTER

9
 CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned certifies this Appellant’s Brief
complies with the type-volume limitations of Tex. R. App. P. 9.4(i)(2)(D).

Exclusive of the exempted portions in Tex. R. App. P. 9(i)(1), Appellant’s Brief
contains 2,191 words. Appellant’s Brief has been prepared in proportionally spaced
typeface using:

Software Name and Version: WordPerfect X5 for Windows

in (Typeface Name and Font Size): New Times Roman 14 point .

ADAMS & GRAHAM, L.L.P.
P. O. Drawer 1429
Harlingen, TX 78551-1429
956/428-7495; FAX: 956/428-2954
sclark@adamsgraham.com

By: /s/ Scott T. Clark
SCOTT T. CLARK
State Bar No. 00795896

Attorney for Appellant

10
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded to the following counsel of record on this the 2nd day of
March, 2015:

Attorneys of record for Appellees BATTLES, ET AL.:

Mr. Robert Garza Via e-service
Myles R. Garza & e-mail
LAW OFFICE OF ROBERT GARZA, P.C.
1200 E. Harrison Street
Brownsville, Texas 78520

/s/ Scott T. Clark
SCOTT T. CLARK

11
 APPENDICES

1. Erin K. O’Malley, RN, BSN, MHSA, INC-CSp.’s report dated November 11,
2013.

2. Order Granting Defendant Valley Baptist Medical Center’s Objections to
Plaintiffs’ Expert Report of Erin K. O’Malley, RN, BSN, MHSA, INC-CSP and
Granting Plaintiffs A CPRC§74.351(c) Extension to Furnish Compliant Report
signed January 8, 2014.

3. Order on VBMC’s Objections to Plaintiff’s Second Deficient Expert Report of
Erin K. O’Malley, RN, BSN, MHSA, INC-CSP and Motion to Dismiss signed
December 10, 2014.

4. Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011)

12
 Cause No. 13-14-00756-CV

APPENDIX 1
TO APPELLANT’S BRIEF
NOV/21/2013/THU 05:36 PM Robert Garza P.C. FAX No. 956-544-1108 P.003

EKO Consulting
Erin K.O'MaUeY,RN,BSN,MHSA, urc-cse.
2907 Ashwood St
Houston, TX 77025

November 11Ib, .2013

Law Offices of Robert Garza. PC
DEFENDANT'S
EX~Jr~
Retired State District Judge
2320 Central Blvd
::::....
Brownsville, Texas 78520

Re: Battles vs, Valley BaptistMedical Center

Dear Mr. Garza:

You have asked me for my opinion on the standards of care, breaches of said standards, and the basis
of same in the case of Batt;Ies vsValley BaptistMedica1 Ceolrr.

I am a registered nurse in the state of Texas since December 1991, and have over twenty-two years of
clinical experience, which include: emergency medicine. critical care, wound care, hyperbaric
medicine, outpatient clinical management. and hospitaladministration. 1 have over fifteen years
experience in wound care practice and clinical management. I obtained a Bachelors Degree in Nursing
from Texas Woman'a University in 1991, a Masters Degree in Health Services Administration from
Southwest University in 2001. and a Masters in Business Administration from Texas Women's
University in 2008. I have cared for numerous patients requiring intensive care treatment. My
experience includes the following;

1991-1993 Staff Nurse Emergency Room at Memorial Hermann-TlvfC. Houston TX.

1993-1996 Relief Charge Nurse Shock Trauma leU at Memorial Hermann-TM'C. Houston
TIC
NOV/ZI/Z013/THU 05:36 PM Robert Garza p.e. FAX No. 956-544-1108 P. 004

1996-1999 Clinical Nurse Coordinator for Department of Hyperbarics, Wound Care and
Lymphedema at Memorial Hermann Hospital, Houston, TX.

1999-2000 Clinical Manager of the University of Texas Outpatient Clinic at Memorial
Hermann Hospital, Houston, TX

2000-2001 Curative Healthcare Services - contract wound care management and
pharmaceutical company which manages wound care operations in acute care
hospitals.

2001·2003 ChiefNursing Officer III of 110 bed long term acute care facility with Kindred
Healthcare, Inc. in Houston, TX.

2003-2004 Associate Administrator at Cornerstone Hospitals of Austin, a long term acute
care hospital in Austin, TX.

2005-2006 Director of Education for Spring Branch Medical Center responsible for all
training, educational and orientation programs of acute medical and surgical
patients.

2006·2008 Clinical Operations Manager of Hyperbaric, Wound Care and Lymphedema unit
at Memorial Hermann Hospital in Houston. TX.

2008-2010 Director of Outpatient Services and Neurosciences at Memorial Hermann
Hospital in Houston, TX

2010-2012 Chief Clinical Officer of Kindred Hospital North. long term acute care hospital
including nursing, wound care, outpatient services.

2012- Present Clinical Practice Manger and Head Research Nurse, Baylor College of Medic me.
NOV/21/2013/THU 05:36 PM Robert Garza P.C. FAX No. 956-544-1108 P. 005

This report has been rendered in a professional.diligent manner, and is based on the facts obtained
from the materials provided to me, as well as my education, training and clinical expertise in general
nursing care. This report is intended to be a fair summary of my opinions.

I have reviewed the following records provided by your office regarding Mr. Bradford:

Autopsy Report

Lab Reports

• Medical Records from Valley Baptist Medical Center

Summary:

On 7/25 Ms. Battles a 47yo female entered Valley Baptist Medical Center for a routine cholecystectomy
and was admitted to a shortstay unit. The procedure was done without incidence. The patients vital
signs remainedstable throughout the procedure, and in post-operative care, That evening around 5:30 pm
the parlent started complaining of headaches, nausea, and vomiting. At 6:12 pm the patient exhibited
seizure activity. The patient lost consciences, and a code was called. The patient was intubated, given
Lovenox, and transferred to the intensive care unit. The patient was taken to cr scan, which showed
minimal edema, and no intracranial bleeding. The cr angiogram. of the chest showed no pulmonary
embolism. The CT scan of the abdomen showed no fluid collection, The patient developed a.sub
arachnoid and subdural hemorrhage. This caused cerebral edema, hemorrhage, necrosis, herniation at the
brain stem area which eventually caused death. The family was aware ofher condition and decided that
Ms. Battles should be taken off life support.
 Cause No. 13-14-00756-CV

APPENDIX 2
TO APPELLANT’S BRIEF
 ... '
.;.....

CAUSE NO. 2013-DCL-04983-H

ROSALINDA BATILES. GERALD IN THE DISTRlcr COURT
BATTLES, AS SURVIVING SPOUSE
OF ROSALINDA BATILES, AMANDA
GISELLE BATTLES, AS SURVIVING
CHILD OF ROSAUNDA BATILES
AND JEREMY BLAKE BATTLES.AS
SURVIVING CHILD OF ROSALINDA
BAITLES

VS. 444 fh JUDICIAL DISTRICT

VALLEY BAPTIST MEDICAL CENTER OF CAMERON COUNTY. TEXAS

ORDER GRANTING DEFENDANT VALLEY BAPTIST MEDICAL CENTER-
BROWNSVILLE'S OBJECTIONS TO PLAINTIFFS' EXPERT REPORT OF
ERIN K. O'MALLEY, RN, BSN, MHSA, INC-CSP AND GRANTING
PLAINTIFFS A CPRC§74.351(c) EXTENSION
TO FURNISH COMPLIANT REPORT

CAME ON FORCONSIDERATION, defendantValleyBaptistMedical Center-Brownsville's
Objections to Plaintiffs'ExpertReportof Erin K. O'Malley, RN,BSN,MHSA, INC-CSpand the Court
having heardtheevidencesubmitted inconnection with theObjections oftheopinionthatsaidObjections
should be sustainedbecausetheCourtfindsthatelementsof the report aredeficient andthat the plaintiffs
should have one 30-day extension to cure such deficiencies; and accordingly;
IT ISTHEREFOREORDEREDthat defendant Valley Baptist Medical Center-Brownsville's
Objections to Plaintiffs' Expert Reportof Erin K. O'Malley, RN, BSN,MHSA, INC-CSp are hereby
sustained; and
IT ISFURTHER ORDERED that plaintiffs aregranted a 3O-day extension tocure the deficiencies
in their expert report.

:, >t. ,O"\FILESW -928\orCfef,\Granting.Q01 Pag" "

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 SIGNED FOR ENTRY thiS,+- day of---tr.r-_~~_

Rober! Garza. LAW OFFICE OF ROBERT GARZA, P.C., 2320 Central Blvd., Brownsville, TX 78520: Fax No. 956·544·1108;
email:jroberl@rgarzalaw.com
Will Hughes, ADAMS & GRAHAM, LLP.. P.O. Drawer 1429, Harlingen, TX 78551.1429; Fax No. 956-428-2954;
e-mail:willhughes@adaltll;grllham.com

(12~ C:\FILE~W'928\orClerS\Granling'OOl Page 2

52
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 Cause No. 13-14-00756-CV

APPENDIX 3
TO APPELLANT’S BRIEF
 CAUSE NO. 2013-DCL-4983-H

ROSALINDA BATTLES, GERALD § IN THE DISTRICT COURT
BATTLES, AS SURVIVING SPOUSE §
OF ROSALINDA BATTLES, AMANDA §
GISELLE BATTLES, AS SURVIVING §
CHILD OF ROSALINDA BATILES §
AND JEREMY BLAKE BATTLES, AS §
SURVIVING CHILD OF ROSALINDA §
BATTLES §
Plaintiffs, §
§
V. § 444TH JUDICIAL DISTRICT
§
VALLEY BAPTIST MEDICAL §
CENTER §
Defendant. § OF CAMERON COUNTY, TEXAS

ORDER ON DEFENDANT VALLEY BAPTIST MEDICAL CENTER-
BROWNSVILLE'S OBJECTIONS TO PLAINTIFF'S SECOND DEFICIENT EXPERT
REPORT OF ERIN K. O'MALLEY, RN. BSN, MHSA. INC-CSP AND MOTION TO
DISMISS

On , a hearing was held on the Defendant Valley Baptist Medical

Center - Brownsville's Objections to Plaintiff's Second Deficient Expert Report of Erin K.

O'Malley. RN, BSN, MHSA, lNC-CSP and Motion to Dismiss in the above-styled and

nwnbered cause. After considering the arguments of the parties, the court is of the opinion that

said.motion should be DENIED.

IT IS THEREFORE ORDERED that Defendant Valley Baptist Medical Center -

Brownsville's Objections to Plaintiffs Second Deficient Expert Report of Erin K. O'Malley,

RN, BSN, MHSA, INC-CSP and Motion to Dismiss is hereby DENIED.

SIGNED on thisULday of J t.Cet.~2014.

FILEDJl-0'CLOCKLM
AURORA DE LAGARZA, CLERK
~-) -"j ----- {
JUDGE PRESIDING
IL\:::0=

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 Cause No. 13-14-00756-CV

APPENDIX 4
TO APPELLANT’S BRIEF
546 Tex. 3-16 SOUTH WESTERN REPORTER, 3d SERIES

We reverse the court of appeals' judgment with expertise indicating that claim as-
and render judgment for BIC. serted by plaintiff has merit;
(3) 30 day extension to cure deficiencies in
Justice GREEN did not participate in expert report may be granted if report
the decision. is served by statutory deadline and
contains opinion of individual with ex-
pertise that claim has merit;
(4) doctor's expert report was deficient be-
cause it did not state standard of care;
and
Tyler SCORESBY, M.D., Petitioner,
(5) doctor's expert report, although defi-
v.
cient, was not the legal equivalent of
Catarino SANTILLAN, Individually and "no report" at all under Act.
As Next Friend of Samuel Santillan, Affirmed,
A Minor, Respondent.
Willett, J., filed concurring opinion.
No. 09-0497.
Johnson, J., dissented and filed opinion in
Supreme Court of Texas. which Wainwright, J., joined.
Argued Nov. 9, 2010.
Decided July 1, 2011. 1. Health e=>804
Rehearing Denied Sept. 30, 2011. Medical Liability Act entitles a defen-
Background: Patient brought action dant to dismissal of a health care liability
against physicians under Medical Liability claim if, within 120 days of the date suit
Act. The 96th District Court, Tarrant was filed, he is not served with an expert
County, Jeff Walker, J., denied physicians' report showing that the claim against him
motions to dismiss for failure to file com- has merit. V.T.CA, Civil Practice &
pliant health care expert report, and Remedies Code §§ 74.001-74.507.
granted patient 30-day extension to cure
2. Appeal and Error e=>70(3)
deficiencies in report. Both physicians ap-
pealed. On consolidated appeal, the Fort Trial court's refusal to dismiss health
Worth Court of Appeals, Bill Meier, J., 287 care liability claim when defendant is not
S.W.3d 319, dismissed the appeals. Physi- served with an expert report within 120
cians appealed. days of the date suit was filed is immedi-
ately appealable. V.T.C.A., Civil Practice
Holdings: The Supreme Court, Hecht, J.,
& Remedies Code §§ 74.001-74.507.
held that:
(1) trial court should err on side of grant- 3. Appeal and Error e=>70(3)
ing plaintiff additional 30 days in which Health e=>804
to cure deficiency in expert report, and Medical Liability Act sets specific re-
defendant cannot seek review of this quirements for an adequate expert report
ruling or appeal court's concomitant and mandates that objective good faith
refusal to dismiss claim before 30 day effort be made to comply with them, but it
period has expired; also authorizes the trial court 'to give a
(2) document qualifies as "expert report" plaintiff who meets the 12O-day deadline
under Medical Liability Act if it con- for serving expert report an additional
tains statement of opinion by individual thirty days in which to cure a "deficiency"
 SCORESBY v, SAl"ITILLAN Tex. 547
Cite as 346 S.W.3d 546 (Tex. 2011)

in the elements of the report, and trial care more available and less expensive by
court should err on the side of granting reducing the cost of health care liability
the additional time and must grant it if the claims, and eliciting an expert's opinions
deficiencies are curable, and defendant early in the litigation is an obvious place to
cannot seek review of this ruling or appeal start in attempting to reduce frivolous law-
the court's concomitant refusal to dismiss suits and thereby reduce the costs of
the claim before the thirty-day period has claims. V.T.CA, Civil Practice & Reme-
expired. V.T.C.A., Civil Practice & Reme- dies Code §§ 74.001-74.507; Vernon's
dies Code §§ 51.014(a)(9), 74.351(a-c, 1), Ann.Texas Civ.St. art. 4590i (Repealed).
(1')(6).
4. Health lS='804 8. Health lS='804
While Medical Liability Act contem- Purpose of Medical Liability Act's ex-
plates that a document can be considered pert report requirement is to deter frivo-
an expert report despite its deficiencies, lous claims, not to dispose of claims re-
the Act does not suggest that a document gardless of their merits. V.T.CA, Civil
utterly devoid of substantive content will Practice & Remedies Code § 74.351(1')(6).
qualify as an expert report. V.T.CA, Civ-
il Practice & Remedies Code 9. Health lS='804
§ 74.351(1')(6).
Failing to timely file an expert report,
5. Health lS='804 or filing a report that does not evidence a
Document qualifies as an "expert re- good-faith effort to comply with the defini-
port" under Medical Liability Act if it con- tion of an expert report under Medical
tains a statement of opinion by an individu- Liability Act, means that the claim is ei-
al with expertise indicating that the claim
ther frivolous, or at best has been brought
asserted by the plaintiff against the defen-
prematurely. V.T.CA, Civil Practice &
dant has merit. V.T.CA, Civil Practice &
Remedies Code § 74.35l(c), (1')(6).
Remedies Code § 74.351(1')(6).
See publication Words and Phrases
for other judicial constructions and
10. Pretrial Procedure lS='46
definitions. There are constitutional limitations
6. Health lS='804 upon the power of courts to dismiss an
Under Medical Liability Act, expert's action for discovery violations without af-
lack of relevant qualifications and his opin- fording a party the opportunity for a hear-
ion's inadequacies are deficiencies the ing on the merits of his cause, and those
plaintiff should be given an opportunity to limitations constrain the legislature no less
cure if it is possible to do so, and this in requiring dismissaL
lenient standard avoids the expense and
delay of multiple interlocutory appeals and 11. Health lS='804
assures plaintiff a fair opportunity to dem- No particular words or formality are
onstrate that his claim is not frivolous. required in expert report under Medical
V.T.e.A., Civil Practice & Remedies Code Liability Act, but bare conclusions will not
§ 74.351(1')(6).
suffice, and the report must address all the
7. Health lS='603 elements set forth in Act, and omissions
Goal of the Medical Liability and In- may not be supplied by inference.
surance Improvement Act (MLIIA) and V.T.CA, Civil Practice & Remedies Code
the Medical Liability Act is to make health § 74.351(1')(6).
548 Tex. 346 SOUTH WESTERN REPORTER, 3d SERIES

12. Health e=>804 conduct. V.T.C.A., Civil Practice & Reme-
Medical Liability Act allows a claim- dies Code § 74.35l(r)(6).
ant a thirty-day period to cure deficiencies 18. Health e=>804
before the trial court finally determines
Doctor's expert report, although defi-
that the report is inadequate and the claim
cient because it did not state the standard
must be dismissed. V.T.CA, Civil Prac-
of care, was not the legal equivalent of "no
tice & Remedies Code § 74.35l(c), (r)(6).
report" at all under Medical Liability Act,
13. Health e=>603 given that there was no question that, in
Medical Liability Act's principal pur- doctor's expert opinion, patient's health
pose is to reduce the expense of health care liability claim against defendant phy-
care liability claims. V.T.CA, Civil Prac- sicians had merit, and since the report was
tice & Remedies Code §§ 74.001-74.507. served within the statutory 120 day dead-
14. Health e=>804 line, trial court had authority under Act to
Goal of the Medical Liability Act's grant patient an additional 30 days to cure
expert report requirement is to deter friv- deficiencies in the expert report.
olous claims, and inadequate expert report V.T.C.A., Civil Practice & Remedies Code
does not indicate a frivolous claim if the § 74.351(a-c).
report's deficiencies are readily curable. 19. Appeal and Error e=>70(3)
V.T.C.A., Civil Practice & Remedies Code Health e=>804
§ 74.35l(c), (r)(6). Although doctor's expert report was
15. Health e=>804 deficient, because it did not state the stan-
Medical Liability Act's thirty-day ex- dard of care, it was possible to cure defi-
tension to cure deficiencies in an expert ciencies in the expert report, and thus,
report may be granted if the report is trial court granted patient an additional 30
served by the statutory deadline, if it con- days to cure deficiencies in the expert
tains the opinion of an individual with ex- report, and trial court's decision granting
pertise that the claim has merit, and if the patient an additional 30 days to cure defi-
defendant's conduct is implicated. ciencies, and denying the defendant physi-
V.T.C.A., Civil Practice & Remedies Code cians' motions to dismiss patient's health
§ 74.35l(c), (r)(6). care liability claim, were not appealable
before the 30 day period had expired.
16. Appeal and Error e=>70(3)
V.T.C.A., Civil Practice & Remedies Code
Under Medical Liability Act, all defi-
§ 74.351(a-c), (r)(6).
ciencies in expert report, whether in the
expert's opinions or qualifications, are sub- 20. Health e=>804
ject to being cured before an appeal may Medical Liability Act requires that ex-
be taken from the trial court's refusal to pert's knowledge, training or experience,
dismiss the case. V.T.C.A., Civil Practice and practice be relevant to patient's claim.
& Remedies Code § 74.35l(c), (r)(6). V.T.C.A., Civil Practice & Remedies Code
§ 74.351(r)(6).
17. Health e=>804
Doctor's expert report was deficient,
and thus did not satisfy standards for ex-
pert report under Medical Liability Act,
because it did not state the standard of Eric Rene Reyes, Jason C.N. Smith, Art
care, but, rather, only implied that it was Brender, Fort Worth, for Catarino Santil-
inconsistent with the defendant physicians' lan.
 SCORESBY v, SANTILLAN Tex. 549
Cite all 346 S.W.3d 546 (Tex. 2011)

Michael Alan Yanof, Philipa Remington, ruling 9 or appeal the court's concomitant
Dallas, for Tyler Scoresby, M.D. refusal to dismiss the claim before the
Randy J. Hall, David Leon Pratt II, thirty-day period has expired."
Fort Worth, for Yadranko Ducic, M.D. [4-6) While the Act thus contemplates
that a document can be considered an ex-
Justice HECHT delivered the opinion of pert report despite its deficiencies, the Act
the Court, in which Chief Justice does not suggest that a document utterly
JEFFERSON, Justice MEDINA, Justice devoid of substantive content will qualify
GREEN, Justice WILLETT, Justice as an expert report. Based on the Act's
GUZMAN, and Justice LEHRMANN text and stated purposes, we hold that a
joined. document qualifies as an expert report if it
[1-3] The Medical Liability Act 1 enti- contains a statement of opinion by an indi-
tles a defendant to dismissal of a health vidual with expertise indicating that the
care liability claim if, within 120 days of claim asserted by the plaintiff against the
the date suit was filed, he is not served defendant has merit. An individual's lack
with an expert report showing that the of relevant qualifications and an opinion's
claim against him has merit," The trial inadequacies are deficiencies the plaintiff
court's refusal to dismiss is immediately should be given an opportunity to cure if it
appealable." The Act sets specific require- is possible to do so. This lenient standard
ments for an adequate report 4 and man- avoids the expense and delay of multiple
dates that "an objective good faith effort interlocutory appeals and assures a claim-
[be made) to comply" with them,' but it ant a fair opportunity to demonstrate that
also authorizes the trial court to give a his claim is not frivolous. The expert re-
plaintiff who meets the 12O-day deadline port before us meets this test, and there-
an additional thirty days in which to cure a fore the trial court's order allowing thirty
"deficiency" in the elements of the report," days to cure deficiencies and denying the
The trial court should err on the side of defendants' motions to dismiss were not
granting the additional time 7 and must appealable. Accordingly, we affirm the
grant it if the deficiencies are curable." court of appeals' judgment dismissing the
The defendant cannot seek review of this appeal for want of jurisdiction."

1. TEX. CIV PRAC. & REM. CODE §§ 74.001-.507. their claims.''' (quoting id. at 416 (Guzman.
All references to the Act are to these provi- J.. joined by Lehrrnann.r J.. concurring in the
sions. judgrnentll).

2. /d. § 74.35I(bl. 8. Id. at 411 (plurality op. of Medina, J., joined
by Jefferson. C.J .. and Hecht, J.); id. at 416
3. Id. § 51.014(a)(9); Badiga v. Lopez, 274 (Guzman. J., joined by Lehrmann. J.. concur-
S. W.3d 681, 685 (Tex.2009). ring in the judgment).
4. TEX. CIV. PRAC. & REM CODE § 74.35I(r)(6).
9. TEX. CIY PRAC. & REM. CODE § 51.014(a)(9) (no
interlocutory appeal); /11 re Watkil1s. 279
5. /d. § 74.351(l).
S.W.3d 633, 634 (Tex.2009l (orig.proceeding)
6. /d. § 74.35I(c). (no review by mandamus).

7. Samlowski v. Wootel1. 332 S.W.3d 404. 411 10. Ogletree v. Matthews. 262 S.W.3d 316, 321
(Tex.201\) (plurality op. of Medina, J., joined (Tex.2007).
by Jefferson. C.J.. and Hecht. J.) (" '[Tjrial
courts should err on the side of granting II. 287 S.W.3d 319 463.1
~ not available, the claim lacks merit, and Defendant may challenge an indict-
the claim should be dismissed. ment .that, on its face, is barred by the
I would reverse the judgment of the statute of timitations by way of a pretrial
court of appeals and dismiss the case. See application for writ of habeas corpus.
Badiga v. Lopez, 274 S.W.3d 681. .684-85
4. Habeas Corpus e=>463.1 ",
(Tex.2009).
If an indictment alleges that the stat-
ute of limitations is tolled, the sufficiency
of that tolling allegation may not be chal-
lenged by a pretrial writ of habeas corpus.
5. Habeas Corpus e=>463.1, 474
Ex parte Tenika BROOKS. Facially barred indictments that can-
No. 12-06--00378-CR. not be repaired have a defect that is incur-
able, and the statute of limitations is an
Court of Appeals of Texas,
absolute bar to prosecution, but a repara-
Tyler.
ble indictment or tolling provision may be
June 20, 2007. amended and any defect repaired; thus,
Discretionary Review Granted the first is the proper subject of a pretrial
Oct. 10, 2007. application for habeas corpus, the second
Background: Defendant charged by in- is not.
dictment with aggregate theft applied for 6. Habeas Corpus e=>814
pretrial writ of habeas corpus. The 145th Appellate court lacked jurisdiction to
Judicial District Court, Nacogdoches address merits of theft defendant's inter-
County, Campbell Cox II, J., denied appli- locutory appeal from denial of her pretrial
cation, and defendant took interlocutory application for writ of habeas corpus,
appeal.
where defendant's complaint as to suffi-
Holding: The Court of Appeals, Brian ciency of state's anticipated argument as to
Hoyle, J., held that it lacked jurisdiction to tolling of statute of limitations was not
address merits of defendant's appeal. proper subject of pretrial application for
Appeal dismissed. writ of habeas corpus, and both imputed
tolling allegation and indictment itself
1. Criminal Law e=>147, 157 were reparable.
Prosecutions for theft as a felony 7. Habeas Corpus e=>275.1
must be initiated within five years of the Trial court's decision to dismiss first
theft; however, that period of limitations is indictment against defendant charged in
tolled for the time that an indictment is second indictment with aggregate theft
pending. Vernon's Ann.Texas C.C.P. arts. could not be raised by pretrial application
12.0l(4)(A), 12.05(b).
for writ of habeas corpus, where defendant
2. Criminal Law e=>157 had remedies at law and potential injury
Prior indictment tolls the statute of resulting from delaying consideration of
limitations when the subsequent indict- issue until after conviction and' appeal was
ment alleges the same conduct, same act, neither proximate nor serious; defendant
or same transaction. Vernon's Ann.Texas had adequate remedies on appeal, or could
C.C.P. art. 12.05(b). tile motion to dismiss or quash second