in Re: Robert O. Zimmerman, M.D.

• Court: Court of Appeals of Texas
• Decided: October 15, 2004
• Docket: 06-04-00095-CV
• Status: Published

Opinion

6-96-028-CV Long Trusts v. Dowd

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00095-CV

IN RE: ROBERT O. ZIMMERMAN, M.D.

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Original Mandamus Proceeding

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter

O P I N I O N

            Robert O. Zimmerman, M.D., has filed a petition for writ of mandamus in which he asks us to order the trial court to vacate its February 20, 2004, ruling in which it reconsidered its previous order and granted plaintiffs an extension of time to file an amended expert report. The issue is the adequacy of the medical expert's report pursuant to former Article 4590i. Tex. Rev. Civ. Stat. Ann. art. 4590i, Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884, and recodified at Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2004–2005).

            Zimmerman and other doctors were sued by Albion Guppy, based on his allegations that their failures in treatment resulted in serious injury. Zimmerman and James E. Gulde, M.D., filed motions to sever the claims against them from the lawsuit and to dismiss. The trial court granted Zimmerman's motion to dismiss October 13, 2003. The court conducted a hearing on a motion to reconsider January 23, 2004. The trial judge stated in open court that the expert's report was inadequate, but withdrew the dismissal as to Zimmerman and gave Guppy a thirty-day grace period, until February 23, 2004, to bring the expert report into compliance with the statute.

Mandamus: Standard of Review

            Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992). 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).

Relator's Arguments

            Zimmerman argues that we should order the trial court to withdraw its order allowing Guppy an additional thirty days to amend the expert report and that the trial court clearly abused its discretion by reconsidering its order of dismissal and by allowing the thirty-day grace period.

            In his petition for writ of mandamus, Zimmerman contends the trial court was required to dismiss the lawsuit because Guppy did not furnish either an "expert report" (because no adequate curriculum vitae was attached), or any report that represented a good-faith effort to comply with the statute. He further argues that, under those circumstances, the trial court had no authority to grant a thirty-day grace period to bring the expert report into compliance—and that, by so doing, the court clearly abused its discretion.

            Zimmerman finally argues that he has no adequate remedy at law because a post-trial appeal cannot remedy his loss of his due process right to pretrial dismissal with prejudice.

Is Mandamus Available to Review a Court's Decision on an Expert Report

            Relying on In re Collom & Carney Ass'n, 62 S.W.3d 924 (Tex. App.—Texarkana 2001, orig. proceeding), a case from this Court, and on a case citing our opinion, Zimmerman takes the position that mandamus is routinely available to review a court's determination on an expert's report in a medical malpractice case. That is not a correct analysis of our opinion.

            The facts in Collom & Carney were unique. The trial court explicitly found that the medical report failed to comply with the statute and that the failure was not the result of accident or mistake. Regardless, the trial court granted an extension of time to refile the expert medical report. Id. at 927. We expressly stated that the issue was whether "the trial court, having found that the expert report filed by the plaintiff was not in compliance with the statutory requirements, and having further found that such lack of compliance was not due to accident or mistake, had a ministerial duty to dismiss the plaintiff's case with prejudice." Id. We concluded that it did and that its findings precluded the court from granting a grace period or time extension—thus, in light of the mandatory language of the controlling statute, the trial court had a ministerial duty to dismiss with prejudice.

            As explicitly pointed out in the concurring opinion authored by Justice Ben Z. Grant, we did not in that opinion review the merits of the court's finding on the expert's report. Id. at 930 (Grant, J. concurring). Indeed, the merits were later addressed by this Court in a direct appeal, in Moore v. Sutherland, 107 S.W.3d 786 (Tex. App.—Texarkana 2003, pet. denied). In that opinion, we addressed the merits of the issues raised concerning the expert's report and found that the court erred because the original report substantially complied with the statute and that the plaintiff was therefore entitled to the thirty-day extension to file a complying report.

            Zimmerman also directs our attention to In re Morris, 93 S.W.3d 388, 390 (Tex. App.—Amarillo 2002, orig. proceeding), an Amarillo opinion that cites our opinion for the proposition that, because the statute expressed a specific purpose of addressing frivolous claims by requiring dismissal, remedy by direct appeal was inadequate and mandamus was available. We have previously discussed the basis on which mandamus was granted in Collom & Carney. The Amarillo court's analysis approves a further-reaching mandamus review than was present in Collom & Carney.

            For mandamus relief to be available here, we first must conclude the trial court clearly abused its discretion or made findings which left it with the duty to perform only a ministerial act. If neither of those situations is present, the first requirement for mandamus relief is not shown and it is not necessary to address the second requirement (no adequate remedy by appeal). In this case, the trial court implicitly found that the report failed to comply with the statute since it granted the plaintiff an extension to correct it. However, the trial court further implicitly found that the failure to comply with the statute was not intentional or a result of conscious indifference, but was a result of accident or mistake. This clearly distinguishes this case from Collom & Carney.

            The trial court is required to grant a thirty-day grace period if, after a hearing, "the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, . . . ." Tex. Rev. Civ. Stat. Ann. art. 4509i, 13.01(g). At the January 23 hearing, Ryan Chadwick, one of Guppy's attorneys, testified that, at the time he filed the expert medical report, he believed the report met the statutory requirements. He thought the information in the report was sufficient to provide the curriculum vitae of Dr. Carlos Herrera. He further stated he did not consciously disregard the requirements of the statute.

            Zimmerman argues that Guppy is precluded from making this argument based on counsel's analysis of the recent Texas Supreme Court opinion in Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).

            In Walker, the court agreed that the Section 13.01(g) extension period applies to inadequate but timely filed reports. Id. at 61. The court reviewed the differences between failures that were intentional or the result of conscious indifference as opposed to those that were the result of accident or mistake. In the context of a mistake of law, i.e., an error by counsel in his or her understanding of the law, the court recognized that counsel had filed a report that entirely omitted two requirements of the statute. The court then held that, where counsel omitted "one or more of section 13.01(r)(6)'s required elements, a purportedly mistaken belief that the report complied with the statute does not negate a finding of 'intentional or conscious indifference.' Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g). Accordingly, such a mistake is not a mistake of law that entitles a claimant to a section 13.01(g) grace period." Id. at 65. The opinion did not address situations where the element was provided—but arguably was inadequate.

            In this case, counsel did not omit a required element of the statute. Arguably, the report was inadequate—but the required elements were not omitted. In such a situation, the express language of Walker does not apply and the trial court was not required, as a matter of law, to find that no accident or mistake occurred. Under Walker, a different result would exist had counsel entirely omitted a statutorily required portion of the report.

            Under the requisite abuse of discretion analysis required under Walker, 111 S.W.3d at 62, we therefore conclude the trial court did not abuse its discretion by determining that Guppy should be allowed to amend and correct the expert report.

            We deny the petition.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          October 14, 2004

Date Decided:             October 15, 2004

ified by an anonymous tip regarding a drug transaction. 6 S.W.3d at 762. The "weapons" pat down, which yielded the small amount of cocaine expected, however, was not justified. Id. at 764. The court pointed out that the detention occurred in the middle of the day in a public parking area not designated as a high crime area. Id. There was no information from the tipster that Guevara was to be considered armed and dangerous. Id. Guevara was cooperative and did nothing furtive or suspicious that might have indicated a threat to the officer. Id. The court also pointed out that in light of the anonymous tip, the officer knew that at best, the transaction would involve only a small amount of cocaine. Id. The officer "acquiesced" to State questioning, explaining that he patted down Guevara for weapons and contraband, but never specified why he believed the situation was unsafe. Id. It was obvious to the Guevara court that the officer was searching for the cocaine mentioned in the tip; he testified that he was. Id. The court rejected the State's argument that the violent nature of narcotics transactions made it reasonable to suspect that the appellant might have a weapon: "These reasons are merely the 'unparticularized' suspicions or 'hunches' which Terry held are not enough to justify a self-protective search." Id.

C. Review of the Validity of a Pat Down

So, it is clear that police regulations or routines are not sufficient to justify a pat-down search. See O'Hara, 27 S.W.3d at 553; Sikes, 981 S.W.2d at 494. However, not every pat-down search performed as a matter of routine will be overturned automatically. O'Hara, 27 S.W.3d at 554. Even if an officer conducts a pat down simply as a matter of routine, the objective facts available to the officer may still justify the pat down. Id. Whether a Fourth Amendment violation has occurred "turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time, and not on the officer's actual state of mind at the time the challenged action was taken." Maryland v. Macon, 472 U.S. 463, 470-71 (1985); Sheppard, 271 S.W.3d at 288; O'Hara, 27 S.W.3d at 551; Davis, 947 S.W.2d at 242-43. In other words, an officer's testimony that he or she was not afraid of the suspect does not automatically invalidate a pat-down search for weapons. ⁽⁶⁾ O'Hara, 27 S.W.3d at 551.

Instead, we must remain focused on the proper question by asking whether, under an objective analysis, a reasonably cautious person would be justified in making a precautionary search for weapons. See Terry, 392 U.S. at 27; O'Hara, 27 S.W.3d at 551. The officer need not be absolutely certain that the individual is armed. Reasonable inferences that the officer is entitled to draw by analyzing the facts in light of his or her experience may be all that is necessary to characterize the officer's actions as reasonable. See Terry, 392 U.S. at 27.

A defendant alleging a Fourth Amendment violation bears the burden of producing some evidence to rebut the presumption of proper police conduct and "meets his initial burden of proof by establishing that a search or seizure occurred without a warrant." Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986). The burden then shifts to the State to prove that the search or seizure was nonetheless reasonable under the totality of the circumstances. See id. at 9-10. In determining whether the State carried its burden, we must give great deference to the trial court's determination of the historical facts. See Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). We are not at liberty to disturb any finding supported by the record. Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993).

D. Analysis and Conclusion

Here, Griswold legally detained Chism, who met the description of a man reported as having engaged in suspicious behavior at the convenience store. However, the record indicates that Chism posed no danger to Griswold. Chism was alone, and there is no indication that the location of the detention was a high-crime area. Chism was suspected of panhandling, not generally considered a violent offense that could lend itself to justifying concern for officer safety. Griswold confirmed that Chism was nothing but compliant during the encounter. Further, the encounter took place mid-morning, in broad daylight. Griswold testified he saw no bulges that would suggest a concealed weapon and that Chism made no furtive movement that would suggest Chism was about to flee or that Chism posed a threat to Griswold. ⁽⁷⁾

Griswold testified plainly he had no concern that Chism was carrying a weapon:

[DEFENSE COUNSEL]: Did you see anything on his person that appeared to you that he might have a weapon?

[GRISWOLD]: No, sir.

. . . .

[DEFENSE COUNSEL]: Did he make any threats or gestures to you that you took as exhibiting some type of threat towards you?

[DEFENSE COUNSEL]: And he did nothing to threaten you in any manner; is that correct?

[GRISWOLD]: That's correct.

Instead, he explained, he performs a pat-down search as a matter of routine: "Every single time I make contact with a suspect[,] I check for weapons for officer safety." "I'm making a contact with a person that I don't know who people are accusing of an offense."

Recognizing that Griswold's testimony regarding his "normal practice" and his lack of subjective fear are not conclusive on the issue, we look to the only evidence in the record touching on a concern for officer safety. This testimony came in Griswold's response to the State's leading questions on the matter:

[STATE]: Okay. [Defense counsel] makes a big deal about you Terry stopping him for no reason, you Terry stop everybody in the world. People that are walking in Gilmer, transient population, do they usually have weapons on them?

[GRISWOLD]: Yes.

[STATE]: Okay. Such as?

[GRISWOLD]: I have found knives, screwdrivers, handguns.

[STATE]: A lot of transient population also abuse narcotics?

[GRISWOLD]: Yes, sir.

[STATE]: Would they also have needles, such things on them?

[GRISWOLD]: That is correct.

[STATE]: So were you worried that he might possibly stab you with one of these items?

[STATE]: Is it normal for you to have these apprehensions of someone walking, panhandling that might hurt you?

Much like the officer in Guevara, Griswold "acquiesced" to the State's prompting/questioning about safety concerns. Moreover, Griswold based this concern for officer safety solely on Chism's status as a transient, a status that although suggested, is not conclusively established by the record. Because Chism appeared to be homeless, Griswold assumed that he would be an armed and dangerous narcotics abuser. And that was his justification for the newly-revealed concern for his safety.

Taking that evidence in the light most favorable to the trial court's ruling, even though it is directly contrary to his earlier testimony, we conclude that such evidence still falls short of the standards set forth in Terry. Terry requires that "due weight must be given, not to [the officer's] inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences which [the officer] is entitled to draw from the facts in light of his experience." 392 U.S. at 27. The officer ''must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous." Sibron v. New York, 392 U.S. 40, 64 (1968) (emphasis added).

Here, we have only generalizations concerning weapons and narcotics abuse within the transient population of Gilmer, Texas. Assuming the veracity of Griswold's professed concern, we find that it runs afoul of Terry's prohibition of pat-down searches based on "unparticularized suspicion[s] or hunch[es]." These broad and bold generalizations based on an individual's transient status are insufficient to authorize a reasonable belief or inference that the person is armed and dangerous. To conclude otherwise would subject very nearly any lawfully detained homeless or transient person to a pat-down search at any moment. This is unreasonable.

Similar to the encounter in Sikes, we see a daylight detention of a compliant individual suspected of a nonviolent offense, a pat down performed as a matter of routine, and a record devoid of any specific facts to suggest the individual was a danger to the officer or to support the officer's professed concern for safety. Like the officer in Guevara, Griswold did acquiesce to the State's leading questioning and testified that he was concerned for his safety. But that concern, based solely on generalizations of a population, is insufficient to serve as justification for the pat-down search. In much the same way as did the Houston First Court in Guevara, we reject these "'unparticularized' suspicions or 'hunches' which Terry held are not enough to justify a self-protective search." 6 S.W.3d at 764; see Ybarra, 444 U.S. at 93 (fact that defendant was wearing 3/4-length lumber jacket which could be expected on almost any tavern patron in Illinois in early March does not articulate any specific fact that would have justified a police officer at scene reasonably concluding defendant was armed and dangerous).

Viewing the evidence in a light most favorable to the trial court's ruling, we find that the only evidence that Griswold was concerned that Chism was armed and dangerous is Griswold's extracted, internally inconsistent testimony concerning his generalized ideas of the transient population. This evidence is contradictory to Griswold's original account that he did not have any concern about a threat or a weapon when approaching Chism who was, by Griswold's own account, compliant during the encounter. Even in a most favorable light, Griswold's later testimony recalling a concern for safety is based on broad generalizations of the homeless population and, as such, falls short of a reasonable belief based on specific, articulable facts that the person is armed and dangerous. See Terry, 392 U.S. at 27; Sheppard, 271 S.W.3d at 287. Based on the totality of the circumstances and the facts known to Griswold at the moment of the pat down, we find the facts do not support a reasonably prudent concern for officer safety and that the resultant weapons pat down was unjustified; the motion to suppress the controlled substance found in the search should have been granted.

We reverse the trial court's judgment and remand the cause to the trial court for further proceedings.

Date Submitted: July 24, 2009

Date Decided: September 16, 2009

Publish

1. "[P]anhandle" - "to accost passers-by on the street and and beg from them. . . . . so called from the resemblance of the extended arm to a panhandle." Random House Webster's Unabridged Dictionary 1402 (2nd ed. 2001)

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2.

Another officer would later go to the store to get a further description and information. But at the time Griswold was dispatched, the extent of the information was as described.

3.

Not every encounter between police and citizens implicates the Fourth Amendment. Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997). A mere request for an individual to stop or submit to a search does not necessarily constitute a ''stop," and such a request need not be justified by reasonable suspicion. See id. Only if the officer conveyed a message that compliance was required has a consensual encounter become a detention. In determining whether the officer conveyed  such  a  message  to  the  suspect,  we  consider  the  following  nonexhaustive  factors: (1) whether the officer was in uniform; (2) whether the officer exhibited a weapon; (3) the number of officers present; (4) whether the officer suggested that he or she would get a warrant if the defendant did not comply; (5) whether the officer told the defendant he or she believed the defendant was carrying drugs; and (6) whether the officer told the defendant that compliance was or was not required. Id. An investigative detention occurs when an individual is encountered by a police officer, yields to the officer's display of authority, and is temporarily detained for purposes of an investigation. Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). A person "yields to an officer's display of authority" when a reasonable person would not feel free to continue walking or otherwise terminate the encounter. Florida v. Bostick, 501 U.S. 429, 436 (1991); State v. Velasquez, 994 S.W.2d 676, 679 (Tex. Crim. App. 1999).

4.

As we will explore later, we pause here to note that a weapons pat down is not intended to allow an officer to search for evidence of a crime. See Wood v. State, 515 S.W.2d 300, 306 (Tex. Crim. App. 1974).

5.

It was later determined that neither brother had committed the offense of burglary of a vehicle; Mark Sikes, appellant's brother and the driver, was merely putting a note in his girlfriend's vehicle. See Sikes, 981 S.W.2d at 491.

6.

As the Fifth Circuit Court of Appeals has observed, there is "no legal requirement that a policeman must feel 'scared' by the threat of danger" because "some foolhardy policemen will never admit fear." O'Hara, 27 S.W.3d at 551 (quoting United States v. Tharpe, 536 F.2d 1098, 1101 (5th Cir. 1976), overruled in part on other grounds by United States v. Causey, 834 F.2d 1179 (5th Cir. 1987)).

7. There is no evidence that Chism exhibited any of the nonexclusive list of factors that the Texas Court of Criminal Appeals has listed as authorizing a protective search:

1) no flight or no furtive gestures or sudden movements towards a pocket or other place where a weapon might be concealed; 2) no threats made and no attempt made to resist detention; 3) appellant is not shown to be committing or about to commit any criminal offense, and; 4) appellant does not seem to be under the influence of alcoholic beverages or drugs.

Worthey, 805 S.W.2d at 438-39 (citing Lippert v. State, 664 S.W.2d 712, 721 (Tex. Crim. App. 1984)).