author: TERRY JENNINGS, Justice.

text:
    In re UNITEC ELEVATOR SERVICES COMPANY d/b/a VTM Elevator Company, VTM Elevator Company, Naes Central, Inc., Naes Central, Inc., formerly known as Unitec Elevator Services, and Naes Central, Inc., d/b/a VTM Elevator Company, Relators.
    No. 01-05-00005-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 2, 2005.

      Christopher Charles Rosas, Evelyn Ailts Derrington, Neal David Kieval, Lynne M. Jurek, Phillips & Akers, P.C., Houston, TX, for Appellant.
    Daryl L. Moore, Storey, Moore & McCally, P.C., Jonathan Sol Harris, Sehec-ter, McElwee & Shaffer, L.L.P., Melissa Ann Nance, Christopher Keith Harshbar-ger, Kelly, Smith & Murrah, P.C., Jonathon Bruce Smith, Baker Botts L.L.P., Gordon Blaine Morgan, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
   OPINION

TERRY JENNINGS, Justice.

By petition for writ of mandamus, rela-tors, Unitec Elevator Services Company d/b/a VTM Elevator Company, VTM Elevator Company, NAES Central, Inc., NAES Central, Inc., formerly known as Unitec Elevator Services, and NAES Central, Inc., d/b/a VTM Elevator Company, challenge the trial court’s orders of April 5, 2004 and December 20, 2004, denying relators’ motions for leave to designate responsible third parties in the underlying lawsuit. See Tex. Crv. PRAC. & Rem.Code Ann. § 33.004 (Vernon Supp.2004-2005). In their sole issue, relators contend that the trial court clearly abused its discretion in denying their first, second, and third motions for leave to designate responsible third parties in the underlying lawsuit.

We deny the petition.

Factual and Procedural Background

In the underlying lawsuit, real parties in interest Mary Theresa Bryant and Anna Menses, allege that, on November 1, 2001, while working for Southwestern Bell Telephone Company (“Southwestern Bell”) at a building located on 3303 Weslayan Street in Houston, they sustained personal injuries when the elevator in which they were riding fell three stories. Plaintiffs further allege that, although the relators were responsible for the maintenance of the elevator and had knowledge that the elevator was having mechanical failures, relators returned the elevator to service before the accident without ensuring that it was in a safe working condition. Plaintiffs have brought claims of negligence and gross negligence against relators and seek actual and punitive damages.

David Trujillo and Rawle Frank have intervened in the lawsuit, alleging that they too were passengers in an elevator located at the Southwestern Bell building on 3303 Weslayan and, following a loss of power, the elevator in which they were riding fell three floors, causing them personal injuries. Trujillo and Frank have brought claims of negligence and malice against relators, and seek actual and punitive damages.

Southwestern Bell Telephone Company

The case was originally set for trial on June 1, 2004. On March 25, 2004, relators filed a motion for leave to designate Southwestern Bell as a responsible third party, alleging that (1) plaintiffs and intervenors were employees of Southwestern Bell at the time of the incident; (2) Southwestern Bell was the owner of the building in which the elevators were located; (3) Southwestern Bell had the right of control over the building, its elevators, and its electrical power; and (4) Southwestern Bell’s conduct was the sole cause of the incident. Plaintiffs, on March 30, 2004, filed an objection to relators’ motion, asserting that the building was owned by SBC Communications, a parent company of Southwestern Bell. In their objection, plaintiffs also assert that relators had failed to plead sufficient facts to support their allegations that Southwestern Bell was the owner of the building and was responsible for the incident. On April 5, 2004, the trial court entered an order sustaining plaintiffs’ objection to relators’ motion for leave to designate Southwestern Bell as a responsible third party, and denying relators’ motion “as presented.”

On November 10, 2004, relators filed a request for reconsideration and an amended motion for leave to designate Southwestern Bell as a responsible third party, alleging that the construction of the Southwestern Bell building as well as the defective design and manufacture of the elevator may have contributed to the incident. Relators also allege that Southwestern Bell was responsible for the unreasonably dangerous condition, had a duty to warn of such a condition, and was responsible for placing the allegedly defective elevator into the stream of commerce. Plaintiffs filed an objection to relators’ request for reconsideration and amended motion on November 17, 2004, renewing their argument that relators failed to plead sufficient facts to support their allegations coneern-ing Southwestern Bell’s responsibility for plaintiffs’ and intervenors’ injuries. The request for reconsideration and amended motion remains pending before the trial court.

Unknown vandals

Relators, on December 1, 2004, filed a second motion for leave to designate unknown vandals as responsible third parties, alleging that the incident was the result of a power surge caused by a fault at an off-site transformer, and that this fault was caused by unknown vandals who damaged the transformer. Relators assert that deposition testimony from employees and experts of “Centerpoint Energy,” another named defendant, support these allegations. Plaintiffs filed an objection to this second motion on December 8, 2004, arguing that the “vandal theory” was mere speculation and that relators did not plead sufficient facts to support their allegation that unknown vandals were responsible for the incident. On December 20, 2004, the trial court entered an order sustaining “at this time” plaintiffs’ objection to relators second motion for leave to designate unknown vandals as responsible third parties, and denying relators’ motion “as presented.” ■

Centerpoint Energy Houston Electric, L.L.C.

Plaintiffs originally sued a number of other defendants, including Centerpoint Energy Houston Electric, L.L.C. (“Cen-terpoint”). Plaintiffs alleged that Center-point negligently caused a power surge which may have caused the elevator on which the plaintiffs were riding to suddenly and unexpectedly drop three stories. Plaintiffs also alleged that Centerpoint negligently created an unreasonably dangerous condition, failed to correct a dangerous condition, failed to exercise reasonable and ordinary care to reduce or eliminate the risk of a power surge, and failed to warn of a dangerous condition. Intervenors made similar allegations against Centerpoint. Centerpoint filed a motion for summary judgment on November 8, 2004, arguing that plaintiffs’ and in-tervenors’ claims were precluded as a matter of law because there was no evidence that Centerpoint was negligent or that Centerpoint’s negligence caused plaintiffs’ and intervenors’ injuries. Plaintiffs nonsuited their claims against Cen-terpoint on December 27, 2004, and inter-venors’ claims against Centerpoint were dismissed when the trial court granted Centerpoint’s summary judgment motion on January 8, 2005.

On January 5, 2005, relators filed a third motion for leave to designate Centerpoint as a responsible third party, alleging that the incident was the result of a power surge from a fault at an off-site transformer and that Centerpoint supplied the electricity and controlled the electrical equipment which contributed to the incident. Relators acknowledge that their third motion for leave was filed beyond the statutorily prescribed deadline, but argued that, because all claims against Centerpoint had been recently dismissed or resolved, good cause existed to permit them to designate Centerpoint. Plaintiffs filed an objection to this third motion on January 12, 2005, explaining that they had dismissed their claims against Centerpoint because Cen-terpoint’s summary judgment motion appeared to have merit, there was no evidence to support the allegations against Centerpoint, and there was no basis for Centerpoint to be submitted as a responsible third party. In their objection, plaintiffs assert that relators had not pleaded sufficient facts to support their allegation that Centerpoint was responsible for the incident and that the motion was untimely and made without a showing of good cause to permit the designation of Centerpoint as a responsible third party within sixty days of trial. On January 17, 2005, the trial court entered an order sustaining “at this time” plaintiffs’ objection to relators’ third motion and denying relators’ motion “as presented.”

The case was reset for trial on February 7, 2005, and on January 26, 2005, we granted relators’ motion for temporary relief and stayed all further proceedings in the trial court to consider their petition.

Standard of Review

Mandamus is an extraordinary remedy, which is available only when (1) a trial court clearly abuses its discretion and (2) there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004); In re Supportkids, Inc., 124 S.W.3d 804, 807 (Tex.App.-Houston [1st Dist.] 2003, orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). With respect to a trial court’s determination of legal principles, “a trial court has no ‘discretion’ in determining what the law is or applying the law to facts.” In re Prudential, 148 S.W.3d at 135 (quoting Walker, 827 S.W.2d at 840). Thus, a trial court’s failure to analyze or apply the law correctly will constitute an abuse of discretion and may result in a reversal by extraordinary writ. Walker, 827 S.W.2d at 840.

The requirement that persons seeking mandamus relief establish the lack of an adequate remedy by appeal is a “fundamental tenet” of mandamus practice. Id. The writ will issue “only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.” Id. Accordingly, it is well-settled that mandamus will not issue where there is “a clear and adequate remedy at law, such as a normal appeal.” Id. (emphasis added).

Mandamus

In their sole issue, relators argue that the trial court abused its discretion in denying their motions to designate Southwestern Bell, unknown vandals, and Centerpoint as responsible third parties because chapter 33 of the Civil Practice and Remedies Code “mandates the fair and accurate apportionment of responsibility among all potential tortfeasors.” Relators further argue that, because the trial court’s rulings “deprive them of their right to have the entire case, including the issues of proportionate responsibility, submitted at one time,” they have no adequate remedy by appeal.

Designation of Responsible Third Parties

In regard to relators’ argument that the trial court abused its discretion in denying relators’ motions to designate responsible third parties, we note that a trier of fact, as to each cause of action, is required to determine the percentage of responsibility for each claimant, each defendant, each settling person and each responsible third party who has been designated under section 33.004 of the Texas Civil Practice and Remedies Code. Tex. Civ. PRAC. & Rem.Code Ann. § 33.003(a). “Responsible third party” is defined to mean “any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these.” Tex. Civ. Prac. & Rem. Code Ann. § 33.011(6).

Civil Practice and Remedies Code section 33.004 sets forth the procedures for designating responsible third parties:

(a) A defendant may seek to designate a person as a responsible third party by filing a motion for leave to designate that person as a responsible third party. The motion must be filed on or before the 60th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date.
(f) A court shall grant leave to designate the named person as a responsible third party unless another party files an objection to the motion for leave on or before the 15th day after the date the motion is served.
(g) If an objection to the motion for leave is timely filed, the court shall grant leave to designate the person as a responsible third party unless the objecting party establishes:
(1) the defendant did not plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading requirement of the Texas Rules of Civil Procedure; and
(2) after having been granted leave to replead, the defendant failed to plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading requirements of the Texas Rules of Civil Procedure.
(h) By granting a motion for leave to designate a person as a responsible third party, the person named in the motion is designated as a responsible third party for purposes of this chapter without further action by the court or any party.

Tex. Civ. PRAC. & Rem.Code Ann. § 33.004. We consider whether the trial court clearly failed to analyze or apply these statutory provisions to relators’ designations of Cen-terpoint, unknown vandals, and Southwestern Bell. Walker, 827 S.W.2d at 840.

Designation of Centerpoint

Relators filed their motion to designate Centerpoint on January 5, 2005, less than sixty days before the February 7, 2005 trial setting. Thus, the motion was untimely unless the trial court found good cause to allow the motion to be filed. Tex. Civ. PRAC. & Rem.Code Ann. § 33.004(a). Relators argue that such good cause existed because plaintiffs nonsuited their claims against Centerpoint and the trial court granted Centerpoint’s summary judgment, dismissing intervenors’ claims, within sixty days of trial. Relators assert that, prior to the nonsuit and summary judgment, Cen-terpoint was a named defendant and would have been submitted to the jury and that plaintiffs’ last-minute non-suit should not destroy their right to designate Center-point as a responsible third party.

Plaintiffs counter that the trial court did not abuse its discretion in rejecting rela-tors’ assertion of good cause because rela-tors waited over 18 months after plaintiffs named Centerpoint as a defendant to seek leave to designate Centerpoint as a responsible third party, and relators knew that plaintiffs could non-suit their claims at any time. Plaintiffs further argue that, at the latest, relators should have filed their motion for leave when Centerpoint filed its summary judgment motion seeking dismissal of all claims against it. Instead, relators waited over sixty days until after the summary judgment motion was filed before filing their motion for leave.

Relators have not established that the trial court clearly abused its discretion in rejecting the assertion of good cause to permit them to designate Centerpoint as a responsible third party within sixty days from the date of trial. Because relators have not established that the trial court committed a clear and prejudicial error of law in rejecting their assertion that good cause existed to allow their motion to designate Centerpoint as a responsible third party, we hold that the trial court did not abuse its discretion in denying their motion for leave to designate Centerpoint as a responsible third party.

Designation of unknown vandals

On December 2, 2004, relators filed their first answer containing an allegation against unknown vandals, repeating the allegations made in their second motion for leave to designate unknown vandals as responsible third parties. Relators further allege that these vandals “committed a criminal act” that caused plaintiffs’ injuries and that the fault resulting in the power surge which caused the incident “was the result of criminal conduct, including vandalism ... by unknown third party vandals.”

Plaintiffs contend that relators designation of the unknown vandals was untimely. Section 33.004(j) provides in relevant part:

(j) Notwithstanding any other provision of this section, if, not later than 60 days after the filing of the defendant’s original answer, the defendant alleges in an answer filed with the court that an unknown person committed a criminal act that was a cause of the loss or injury that is the subject of the lawsuit, the court shall grant a motion for leave to designate the unknown person as a responsible third party if:
(1) the court determines that the defendant has pleaded facts sufficient for the court to determine that there is a reasonable probability that the act of the unknown person was criminal;
(2) the defendant has stated in the answer all identifying characteristics of the unknown person, known at the time of the answer; and
(3) the allegation satisfies the pleading requirements of the Texas Rules of Civil Procedure.

Tex. Civ. PRac. & Rem.Code Ann. § 33.004(j). Plaintiffs argue that, under subsection (j), because relators did not file an answer containing an allegation that unknown vandals committed criminal acts that caused the plaintiffs’ injuries within sixty days after filing their original answer, they could not seek to designate the unknown vandals as responsible third parties.

Conversely, relators assert that the language “Notwithstanding any other provision of this section,” contained at the beginning of subsection (j), should be construed to mean that in addition to the other available timetables and means to designate responsible third parties under the section 33.004, subsection (j) affords a defendant an independent means to designate unknown individuals within sixty days of a defendant’s answer to preclude a plaintiffs right to object. Relators further assert that subsection (j), which prescribes a strict pleading requirement for designating unknown persons, does not provide the exclusive means for designating the unknown vandals and that plaintiffs’ interpretation of the statute is contrary to the statute’s liberalization of rights afforded to defendants under the revised section 33.004.

When we construe a statute, we begin with the words used. Cities of Austin, Dallas, Ft. Worth, and Hereford v. Southwestern Bell Tele. Co., 92 S.W.3d 434, 442 (Tex.2002). If a statute is clear and unambiguous, we need not resort to the rules of construction or other aids to construe it. In re Canales, 52 S.W.3d 698, 702 (Tex.2001). However, we may also consider the statute’s objectives, the legislative history, former statutory and common law, and the consequences of a particular construction. Id.

Applying the plain language of subsection (j) and considering section 33.003 as a whole, we find that the statute clearly and unambiguously requires a defendant seeking to designate an unknown person as a responsible third party, based on the person’s commission of criminal acts causing the loss or injury that is the subject of the lawsuit, to file an answer containing such allegations no later than sixty days from filing its original answer. Tex. Civ. PRAC. & Rem.Code Ann. § 33.004(j). Here, the record establishes that relators did not file an answer containing the allegations against the unknown vandals until well after sixty days after filing their original answer. Because relators did not timely file an answer containing the required allegations, they are precluded from designating the unknown vandals as responsible third parties. Accordingly, we hold that the trial court did not abuse its discretion in denying relators’ second motion for leave to designate the unknown vandals as responsible third parties.

This holding is not inconsistent with the liberalization of rights afforded a defendant in revised section 33.004. While revised section 33.004 clearly recognizes the right of a defendant to submit an unknown person as a responsible third party to a jury for the jury’s apportionment of responsibility, subsection (j) provides that as a prerequisite to designating such an unknown person, a defendant must comply with certain pleading requirements likely designed to furnish the other parties with notice that the defendant intends to assert that the claimant’s injuries were caused by an unknown criminal. Relators’ argument, that subsection (j) merely affords a defendant an additional and independent means to designate unknown persons as responsible third parties, would render the pleading deadlines imposed in subsection (j) meaningless. A defendant would never have an incentive to comply with the pleading requirement in subsection (j) when it could simply wait to designate the unknown person sixty days before trial, and obtain a strategic advantage not intended by the legislature.

Designation of Southwestern Bell

Relators’ motion to designate Southwestern Bell as a responsible third party was filed more than sixty days before the original trial setting, and thus was timely. Tex. Civ. Prac. & Rem.Code Ann. § 33.004(a). The trial court was required to grant relators’ motion for leave to designate Southwestern Bell as a responsible third party unless another party timely objected. Tex. Civ. PRAC. & Rem.Code Ann. § 33.004(f). Plaintiffs’ timely objected •within fifteen days from the date the motion for leave was served. Tex. Civ. PRAC. & Rem.Code Ann. § 33.004(g). However, even after the plaintiffs timely objected, section 33.004(g) still required the trial court to grant relators’ motion for leave, unless plaintiffs established that (1) rela-tors did not plead sufficient facts concerning the alleged responsibility of Southwestern Bell to satisfy the pleading requirements of the Texas Rules of Civil Procedure, and (2) after having been granted leave to replead, relators still did not plead sufficient facts concerning the alleged responsibility of Southwestern Bell. Tex. Crv. PRac. & Rem.Code Ann. § 33.004(g).

Here, relators specifically alleged that plaintiffs and intervenors were employees of and were working for Southwestern Bell at the time of the incident; that Southwestern Bell was the owner of the building where the incident occurred, and it had the right of control over the building, its elevar tors, and its electrical power. Relators further alleged that Southwestern Bell solely caused the incident. These detailed pleadings, concerning the responsibility of Southwestern Bell, appear to be sufficient to meet the requirements of the Texas Rules of Civil Procedure.

The record does not demonstrate that plaintiffs established (1) that relators failed to plead sufficient facts concerning the alleged responsibility of Southwestern Bell or (2) that relators failed to plead sufficient facts concerning Southwestern Bell’s responsibility after having been granted leave to replead. We note that the plain language of section 33.003 makes clear that, in determining whether to grant relators’ motion for leave to designate Southwestern Bell as a responsible third party, the trial court was restricted to evaluating the sufficiency of the facts pleaded by relators and was not permitted to engage in an analysis of the truth of the allegations or consider evidence on Southwestern Bell’s ultimate liability. In re Arthur Andersen, 121 S.W.3d 471, 478 n. 20 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding).

Rather than argue that they met the burdens set forth in section 33.004, plaintiffs argue that, because relators filed a request for reconsideration and amended motion to designate Southwestern Bell as a responsible third party, which is still pending, mandamus relief is premature. Nevertheless, the fact remains that the trial court entered a written order denying relators’ motion for leave to designate Southwestern Bell as a responsible third party,' and we can discern no reason for the trial court’s denial of the motion. However, while mandamus is appropriate to correct a trial court’s erroneous interpretation or application of the law, the extraordinary writ will issue only if it is shown that the relator has no adequate remedy by appeal. Walker, 827 S.W.2d at 840.

Adequate Remedy by Appeal

Relators argue that they do not have an adequate remedy by appeal because (1) they may lose substantive rights to seek post-judgment contribution from potential joint tortfeasors, (2) they will lose their substantial right to have one jury apportion liability among all responsible parties, (3) this Court’s intervention would give needed and helpful direction on the right to designate responsible third parties, and (4) it would be unfair to require the parties and the trial court to expend costs and resources in a highly complex trial that would be subject to reversal on appeal.

Initially, we must reject relators’ argument that mandamus relief is appropriate because they may lose their right to bring a post-judgment claim for contribution against Southwestern Bell. Relators are appealing the denial of a motion for leave to designate Southwestern Bell as a responsible third party, not the denial of a right to join Southwestern Bell in the lawsuit as a contribution defendant. Furthermore, even assuming that relators may lose the right to seek post-judgment contribution from Southwestern Bell, we do not see how it is relevant in determining the adequacy of an appellate remedy in the instant suit. In re Prudential, 148 S.W.3d at 139 (stating that “a separate lawsuit is simply not an appellate remedy.”) (emphasis in original).

In regard to their remaining arguments in support of their request for mandamus relief, relators rely primarily on In re Arthur Andersen, 121 S.W.3d 471. In In re Arthur Andersen, after the collapse of Enron, investors brought claims against Andersen, Enron’s accounting firm, for fraud and misrepresentation. 121 S.W.3d at 474. Andersen sought to join multiple financial institutions as responsible third parties, alleging that these institutions were responsible for plaintiffs’ injuries. Id. at 474. The trial court denied Andersen’s motion, and Andersen sought mandamus relief. Id. Our sister court found that the trial court had abused its discretion in denying the motion and further found that Andersen had no adequate remedy at law. Id. at 485-86. In support of its holding that Andersen had no adequate remedy at law, the court stated that the law was unsettled on whether Andersen could file a separate post-judgment suit for contribution against the third party financial institutions. Id. at 485. The court further stated that even if Andersen could pursue a separate post-judgment suit for contribution, it would still be losing “the opportunity to have one jury apportion liability among all responsible third parties.” Id. More importantly, the court explained that the financial institutions’ absence would “likely profoundly affect the conduct and outcome of [the] suit in ways unlikely to be apparent in the appellate record” and that “due to the enormity of the facts surrounding the collapse [of Enron],” a separate suit or successful appeal would result in an “enormous waste of resources.” Id. at 486. Based on this enormous waste of resources, combined with the possibility that Andersen might not be able to prosecute a separate suit or a successful appeal, the court found that there was no adequate remedy at law. Id.

In re Arthur Andersen is substantively distinguishable from the instant case because here, we are not dealing with the complex, intertwined facts surrounding the collapse of a major corporation, but a relatively straightforward personal injury case. In this case, the trial court’s error can be corrected, if necessary, through a “normal appeal,” which would not result in an “enormous waste of resources” similar to that in In re Arthur Andersen. The circumstances presented in this case are more comparable to those presented in In re Martin, 147 S.W.3d 453 (Tex.App.Beaumont 2004, orig. proceeding), than those presented to our sister court in In Re Arthur Andersen.

In In re Martin, the parents of a child who drowned in a pool sued the pool owners. 147 S.W.3d at 455. The pool owners filed a motion for leave to join as a third party the person who was responsible for supervising the child at the time of the incident. Id. Even though the court found that the defendant properly attempted to join the third party and that there was no apparent reason why the trial court denied the motion, the court held that mandamus relief was not warranted because relator’s complaint could be addressed on appeal and a new trial ordered if needed. Id. at 459. As explained by the court:

In certain circumstances, as in Andersen, an appeal may be an inadequate legal remedy, but we conclude the complaint in this case can be addressed on appeal and a new trial ordered if necessary. As the Andersen court said, “The additional expense and effort of preparing for and participating in two separate trials does not, standing alone, justify mandamus relief.”

Id. (citations omitted).

In In re Prudential, the Texas Supreme Court recently restated that “an appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ.” 148 S.W.3d at 136. The relator in In re Prudential sought mandamus review of a trial court’s refusal to enforce a contractual pre-suit waiver of trial by jury. Id. at 129. In determining whether the relator had an adequate remedy by appeal, the supreme court stated that it was required to engage in a “careful balance of jurisprudential considerations” implicating both public and private interests. Id. at 136. The supreme court emphasized:

Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted during eventual reversal of improperly conducted proceedings. An appellate remedy is adequate when any benefits to mandamus review are outweighed by the detriments. When the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate.

Id. While the supreme court noted that whether an appellate remedy is adequate “depends heavily on the circumstances presented and is better guided by general principles than by simple rules,” it was also careful to point out that mandamus relief should be used selectively and that appellate courts “must be mindful ... that the benefits of mandamus review are easily lost by overuse.” Id. at 137-38. The supreme court determined that mandamus review was appropriate in In re Prudential because the trial court’s denial of the relator’s contractual right could not, in any “real sense,” be rectified on appeal, and that the contractual right would be lost forever. Id. at 137. The court stated that “[e]ven if [relator] could somehow obtain reversal based on the denial of its contractual right, it would already have lost a part of [its right] by having been subject to the procedure it agreed to waive.” Id. at 138.

In conducting our balance of jurisprudential considerations, we note that it is true that relators, under chapter 33 of the Civil Practice and Remedies Code, have a right to have one jury apportion liability among all responsible parties. It is also true that, in certain circumstances, a regular appeal of a trial court’s order denying a defendant its rights afforded under chapter 33 may be inadequate and that mandamus relief may be appropriate. See In re Arthur Andersen, 121 S.W.3d at 483. We recognize that if relators eventually have to appeal the trial court’s ultimate judgment, conducting a second trial may result in a waste of judicial resources, compounded by the fact that the only available remedy will likely be to order a new trial, as to all parties and all issues, so that the jury-may apportion responsibility among all persons who should have been designated under the rules. However, we also have to recognize that, in spite of any error committed by the trial court, it is entirely possible that relators, and not the plaintiffs and intervenors, may ultimately prevail at trial. Moreover, it is entirely possible that other errors presented on appeal may necessitate the order of a new trial. Thus, while we may consider the additional expense and effort of preparing for and participating in another subsequent trial, this factor does not, standing alone, justify mandamus relief if there is an adequate remedy by appeal. In re Prudential, 148 S.W.3d at 139.

As instructed by the supreme court in In re Prudential, we are mindful that mandamus relief should be used selectively and that the benefits of mandamus review are easily lost by overuse. Id. at 138. Although the trial court’s order denying relators’ their right to designate responsible third parties is not a mere “incidental” ruling, the instant case, a relatively straightforward personal injury action, is not “exceptional.” We conclude that granting mandamus relief in this case would encourage litigants to seek mandamus review of all trial court rulings under chapter 33, even in cases, like here, that do not present extraordinary circumstances like those presented in In re Arthur Andersen. This would have the effect of adding unproductively to the expense and delay of civil litigation by enabling parties to seek extraordinary relief from appellate courts on rulings related to a trial court’s management of all kinds of cases, whether exceptional or not. The potential for appellate courts and parties to incur expense and delay in seeking review of these types of rulings by mandamus is illustrated by the fact that this Court has found, after extensive briefing and argument by the parties and after substantial deliberation, that the trial court did not clearly abuse its discretion in denying two of three motions at issue in this original proceeding. Moreover, in regard to the third motion, rela-tors have pending before the trial court a request for reconsideration and amended motion to designate Southwestern Bell as a responsible third party.

As emphasized by the supreme court, whether mandamus relief is appropriate “depends heavily on the circumstances presented.” See In re Prudential, 148 S.W.3d at 137. Here, any benefits to mandamus review are outweighed by the detriments. Id. Accordingly, we agree with the reasoning and persuasive authority of In re Martin, and we hold that relators have an adequate remedy by appeal with respect to the trial court’s denial of its motion for leave to designate Southwestern Bell as a responsible third party. Because relators have an adequate remedy by appeal, the petition for writ of mandamus must be denied.

Conclusion

Because the trial court did not abuse its discretion in denying relators’ second motion for leave to designate unknown vandals as responsible third parties or in denying relators’ third motion for leave to designate Centerpoint as a responsible third party, and because relators have an adequate remedy by appeal with respect to the trial court’s denial of its motion for leave to designate Southwestern Bell as a responsible third party, the petition for writ of mandamus is denied in all respects. Having disposed of this original proceeding, we lift the stay imposed by our order dated January 26, 2005.

Justice NUCHIA, concurring in result only.

      . Mary Theresa Bryant, et al. v. Unitec Elevator Services Company D/B/A VTM Elevator Company, et al., cause No.2003-43576, pending in the 133rd District Court, Harris County, Texas, the Hon. Lamar McCorkle presiding.

      . Helmsman Management Services Company ("Helmsman”), the workers’ compensation carrier for Southwestern Bell, also intervened, seeking subrogation for workers' compensation benefits paid to plaintiffs and inter-venors. Helmsman alleged that, at the time of the incident, plaintiffs and intervenors were in the course and scope of their employment with Southwestern Bell and that, after the accident, it paid medical expenses and compensation benefits to plaintiffs and inter-venors pursuant to its workers' compensation policies.

      . Our January 26, 2005 order granting the relators' application for an emergency stay of the underlying proceedings has prevented the trial court from ruling on the request for reconsideration and amended motion for leave. Contemporaneously with issuing this opinion, we vacate the order staying the trial proceedings.

      . Relators challenge the trial court’s order denying their third motion for leave to designate Centerpoint as a responsible third party by way of a supplemental petition for writ of mandamus.

      . Section 33.011 was amended in 2003. The amended version, which broadens the definition of a responsible third party, applies to actions filed after July 1, 2003, and thus applies to this action. Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 4.05, 23.02(c), 2003 Tex. Gen. Laws 847, 857, 898. Prior to the 2003 amendments, the definition of a responsible third party was restricted to those persons “to whom all of the following apply: (1) the court in which the action was filed could exercise jurisdiction over the person; (2) the person could have been, but was not, sued by the claimant; and (3) the person is or may be liable to the plaintiff for all or part of the damages claimed against the named defendant or defendants.” Act of May 8, 1995, 74th Leg., ch. 136, § 1, 1995 Tex. Gen. Laws 971, amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 4.05, 2003 Tex. Gen. Laws 847, 857. Under the newly enacted version, a responsible third party may include persons who are not subject to the court’s jurisdiction or who are immune from liability to the claimant. Additionally, unlike the predecessor statute, under the amended version a claimant’s employer that is a subscriber to the workers compensation system is not precluded from being designated as a responsible third party. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 4.05, 2003 Tex. Gen. Laws 847, 857.

      . "An unknown person designated as a responsible third party under Subsection (j) is denominated as 'Jane Doe' or 'John Doe' until the person's identity is known.” Tex. Civ. Prac. & Rem.Code Ann. § 33.004(k).

      . The parties focus on the date the second motion for leave was filed. However, section 33.004Q) requires a party to file an answer containing the necessary allegations within sixty days after filing its original answer, not a motion for leave. A party who makes allegations in a timely filed answer in satisfaction of subsection (j)’s requirements could file a motion to designate unknown persons as responsible third parties under the deadlines imposed in section 33.004(a), i.e., at least sixty days before trial. Tex Civ. Prac. & Rem.Code Ann. § 33.004(a).

      . Subsection (j) expressly applies to the designation of unknown persons as responsible third parties, and, even absent an objection, requires a defendant seeking to designate an unknown person to satisfy specific pleading requirements before a trial court may grant a motion for leave to designate. Tex Civ. Prac. & Rem.Code Ann. § 33.004(j). Subsection (f), on the other hand, expressly applies to the designation of named persons, and compels a trial court to grant a motion to designate a named person unless an objection is filed. Tex. Civ. Prac. & Rem.Code Ann. § 33.004(f). The structure of section 33.003 indicates that the legislature intended to prescribe different procedures for designating named and unnamed persons. Our holding recognizes and enforces these differing procedures.

      . A party is entitled to challenge the sufficiency of evidence supporting the designation of a responsible third party. After adequate time for discoveiy, a party may move to strike the designation of a responsible third party on the ground that there is no evidence that the designated person is responsible for any portion of the claimant’s alleged injuiy or damage. Tex. Civ. Prac. & Rem.Code Ann § 33.003(7). The trial court must grant the motion to strike unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the designated person's responsibility for the claimant's injury or damage. Id. Additionally, a party may object to the submission of a responsible third party in the jury charge if there is not sufficient evidence to support the submission. Tex. Civ. Prac. & Rem.Code Ann. § 33.003(b). However, the trial court did not rule on a motion to strike or objection filed under these provisions.

      . It is doubtful whether relators ever had any substantive rights of contribution against Southwestern Bell. The Labor Code provides that an employer is not liable to third parties for contribution with respect to injuries com-pensable under the Workers' Compensation Act. Tex. Lab.Code Ann. § 417.004 (Vernon 1996). Though not clearly established in the record, the pleadings indicate that plaintiffs received benefits for their injuries from Southwestern Bell’s workers' compensation carrier.

      . The record reveals that relators have asserted a separate claim for contribution against Southwestern Bell, but relators do not seek mandamus relief with respect to this claim.

      . Other courts have discussed this issue in determining if a party has an adequate remedy on appeal. See In re Arthur Andersen, 121 S.W.3d at 485 (noting that Andersen may not have "an adequate remedy in a separate suit against third parties”); In re Martin, 147 S.W.3d 453, 459 (Tex.App.-Beaumont 2004, pet. denied) (denying mandamus relief on trial court’s order striking defendant’s timely filed third party petition and noting that defendant could bring a separate post judgment contribution suit against third party).

      . Andersen sought joinder under the version of section 33.004 in effect prior to the 2003 amendments. Under the amended version of section 33.004, which is applicable to this case, a party may be merely designated rather than joined.


source: Caselaw Access Project

author: EVA M. GUZMAN, Justice. CHARLES W. SEYMORE, Justice,

license: Public Domain

text:
    Sandhya-Rani MOKKALA, M.D., Jeffrey D. Carter, D.O., and Arlington Orthopedic Associates, P.A., Appellants, v. James F. MEAD, Jr., and Diane P. Mead, Individually and As Next Friends of James Franklin Mead, III, Robert Mead, and Thomas Mead, Minors, Appellees. Sandhya-Rani Mokkala, M.D., Appellant, v. James F. Mead, Jr., and Diane P. Mead, Individually and As Next Friends of James Franklin Mead, III, Robert Mead, and Thomas Mead, Minors, Appellees.
    Nos. 14-04-00708-CV, 14-04-00845-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 2, 2005.
    Rehearing Overruled Sept. 8, 2005.
    Rehearing En Banc Overruled Nov. 3, 2005.

      Mary Olga Lovett, Christopher Cord Miller, Wendi R. Ervin, Houston, for appellants.
    Lori D. Proctor, Tommy Ray Hastings, Houston, for appellees.
    Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
   MAJORITY OPINION

EVA M. GUZMAN, Justice.

In these consolidated interlocutory appeals, we are called upon to construe section 74.351(a) and (b) of the Texas Civil Practice and Remedies Code, which pertains to the filing of expert reports for health care liability claims. Appellants, healthcare providers, challenge the trial court’s orders denying their motions to dismiss with prejudice their health care liability claims under section 74.351, which provides in relevant part:

(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties....
(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c), enter an order that:
(1) awards to the affected physician or health care provider reasonable attorney’s fees and costs of court incurred by the physician or health care provider; and
(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.

Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a)(b) (Vernon 2005).

Here, it is undisputed that appellees (“the Meads”) served their expert report and expert’s curriculum vitae 121 and 122 days, respectively, after filing their original petition against appellants, Sandhya-Rani Mokkala, M.D., Jeffrey D. Carter, D.O., and Arlington Orthopedic Associates, P.A. (the “health care providers”) and others, in trial court cause number 03-64427 (the “2003 case”). After twice nonsuiting their claims against the health care providers in the 2003 case, the Meads then filed the same claims against the health care providers in cause number 04-23671 (the “2004 case”). We conclude the 120-day period set forth in section 74.351(a) runs from the date the Meads filed the first petition asserting their health care liability claim, a period which, in this case, had expired before the Meads nonsuited their claims against the health care providers. Therefore, we hold the trial court erred in denying the health care providers’ motions to dismiss. Accordingly, in the 2004 case, we reverse and remand with directions to the trial court to award the health care providers their reasonable attorney’s fees and costs of court and to render judgment dismissing the Meads’ claims with prejudice. See id. Presuming for the sake of argument that we would otherwise have appellate jurisdiction over Dr. Mokkala’s appeal regarding the 2003 case, we dismiss this appeal as moot because the Meads nonsuited their claims in the 2003 case before the trial court denied Dr. Mokkala’s motion to dismiss.

I.PROCEDURAL BACKGROUND

In summary form, the following procedural events transpired in the two underlying trial court cases:

Date_2003 Case 2004 Case

11-24-03 The Meads file a petition claiming the health care providers were negligent in failing to diagnose cancer in appellee _James Mead, Jr.__

03-24-04 The Meads serve their expert report._

03-25-04 The Meads serve the expert’s _curriculum vitae.____

04-02-04 The Meads file a motion to nonsuit the claims against the health care _providers.____

04-07-04 The trial court grants the motion to _nonsuit.____

04-12-04 The Meads amend their petition, again naming the health care providers as _defendants._

04-16-04 Dr. Mokkala files a motion to dismiss based on the Meads’ untimely serving of the expert’s report and curriculum _vitae.__

05-03-04 The trial court again grants a motion by the Meads to nonsuit them claims _against the health care providers._

05-06-04 The Meads file a petition claiming appellants were negligent in failing to diagnose cancer in appellee James Mead, _Jr._

06-07-04 Based on the Meads’ alleged untimely serving and inadequacy of the expert’s report, Dr. Carter files a motion to _dismiss and requests attorney’s fees.

06-11-04 The trial court orally denies Dr. _Mokkala’s motion to dismiss._

06-30-04 The trial court signs an order denying Dr. Mokkala’s motion to dismiss, but the order is filed with the 2004 cause _number._

07-06-04 Based on the Meads’ untimely serving of the expert’s report and curriculum vitae, Dr. Mokkala files a motion to _dismiss and requests attorney’s fees.

07-19-04 The trial court signs orders denying motions to dismiss in both cases._

07-22-04 Dr. Mokkala files a notice of appeal._Dr. Mokkala files a notice of appeal.

08-06-04 Dr. Carter and Arlington Orthopedic Associates file a notice of appeal.

II. Discussion

A. Issue Presented and Standard of Review

In a single issue, the health care providers argue the trial court abused its discretion or otherwise erred in denying their motions to dismiss the Meads’ claims with prejudice because the Meads failed to timely serve their expert report and the expert’s curriculum vitae. They argue that the 120-day time period under Section 74.351(a) began when the Meads filed their “claim” in the 2003 case, and it was not affected by their nonsuit in that case or their refiling of the same claims in the 2004 case.

The Meads contend they have an absolute right to nonsuit under Texas Civil Procedure Rule 162 and, under the current statutes and case law, the health care providers were required to move for dismissal before the Meads filed their nonsuit. The Meads assert that by nonsuiting their claims, they were then placed in the same position they would have been had they not brought the 2003 case, i.e., the deadline for serving their expert report was 120 days from the date they filed the 2004 lawsuit.

We apply an abuse-of-discretion standard in reviewing a trial court’s decision on a motion to dismiss in which a defendant claims the expert opinion was untimely served. See Pfeiffer v. Jacobs, 29 S.W.3d 193, 195-96 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (applying abuse-of-discretion standard to dismissal under sections 13.01(d)(g) of former article 4590i). An abuse of discretion occurs when a trial court acts in an unreasonable and arbitrary manner, or when it acts without reference to any guiding principles. Rittmer v. Garza, 65 S.W.3d 718, 721-22 (TexApp.-Houston [14th Dist.] 2001, no pet.). We defer to the trial court’s factual determinations, but review questions of law de novo. Id. at 722. To the extent resolution of the issue before the trial court requires interpretation of the statute itself, we apply a de novo standard. Buck v. Blum, 130 S.W.3d 285, 290 (Tex.App.-Houston [14th Dist.] 2004, no pet.).

B. Interpretation of Texas Civil Practice and Remedies Code Section 74.351

In this case, the Meads (1) filed a lawsuit alleging a health care liability claim against health care providers and permitted the 120-day period for serving an expert report to expire without serving the health care providers with the report; (2) thereafter nonsuited the claim before, and again after, the health care providers filed a motion to dismiss under subsection 74.351(b); and (3) then filed a new lawsuit alleging the same health care liability claim. Thus, the following question is before us: Under these circumstances, does the 120-day statutory period for filing the expert report run from the date the second lawsuit is filed? This question requires us to construe the statute.

1. Legal standards. In construing a statute, our objective is to determine and give effect to the legislature’s intent. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003); Nabors Corp. Servs., Inc. v. Northfield Ins. Co., 132 S.W.3d 90, 96 (Tex.App.-Houston [14th Dist.] 2004, no pet.). We look first to the “plain and common meaning of the statute’s words,” presuming the legislature intended the plain meaning of those words. Nabors Corp. Servs., 132 S.W.3d at 96. We also determine legislative intent from the entire act, not just isolated portions, and read the statute as a whole, interpreting it so that every part is given effect. Id.

In addition, the Code Construction Act applies to section 74.351. See Tex. Civ. PRAC. & Rem.Code Ann. 1.002 (Vernon 2002) (stating, unless otherwise expressly provided by the Civil Practice and Remedies Code, the Code Construction Act applies to the construction of each provision in the code). Under the Code Construction Act, even if a statute is unambiguous on its face, we may consider matters including (1) the object the legislature sought to obtain; (2) the circumstances under which the legislature enacted the statute; (3) the legislative history; (4) common law or former statutory provisions, including laws on the same or similar subjects; and (5) the consequences of a particular construction. See Tex. Gov’t Code Ann. § 311.028 (Vernon 2005).

2. Statutory language. Section 74.351(a) provides: “In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve ... one or more expert reports ... for each physician or health care provider against whom a liability claim is asserted.” Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(a) (emphasis added). “Claim” in section 74.351 “means a health care liability claim.” Id. § 74.351(r)(2). A “health care liability claim” is a “cause of action,” not a lawsuit. See id. § 74.001(a)(13). Thus, under the plain language of section 74.351(a), the 120-day period is triggered on the date the claimant files a petition alleging a particular health care liability claim, not the date she files another lawsuit asserting that same claim.

Our interpretation is consistent with that of the Dallas Court of Appeals in Puls v. Columbia Hospital at Medical City Dallas Subsidiary, L.P., 92 S.W.3d 613, 617-18 (TexApp.-Dallas 2002, pet. denied). In Puls, the appellants initially asserted a claim against a hospital, Medical City, based on its vicarious liability for the alleged negligence of perfusionists (technicians specialized in management of a heart-lung machine) during the decedent’s coronary artery bypass surgery. Id. at 615. The appellants subsequently amended their petition to assert the hospital’s vicarious liability for the alleged negligent conduct of nurses providing post-operative care.

The expert report criticizing the nurses’ conduct was served within the statutory deadline of the amended petition, but not the original petition. On appeal, the court rejected Medical City’s contention the deadline was to be measured from the date the claimants filed their original suit against Medical City, in which they alleged the hospital’s liability based on the perfu-sionists’ conduct. The Puls court explained:

Here, appellants’ lawsuit against Medical City was initiated with a single health care liability claim asserted in the original petition filed August 8, 2000. That claim alleged that Medical City was vicariously liable for the perfusionists’ actions during surgery. Section 13.01(d) states that an expert report is due “[n]ot later than the later of the 180th day after the date on which a health care liability claim is filed.... ” Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d) (emphasis added). Pursuant to section 13.01(d), an expert report regarding the standard of care applicable to a per&sionist’s acts during surgery was due Í80 days after that claim was filed.
Medical City’s interpretation of the above phrase would require a plaintiff to furnish an expert report 180 days after suit is filed, but section 13.01(d) plainly and unambiguously says claim, not suit. A health care liability claim is “a cause of action against a health care provider ... for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety.” Id. § 1.03(a)(4). That is, it is a theory of a health care provider’s liability. Here, appellants pleaded two claims, alleging that Medical City was vicariously liable for the perfusionists’ conduct during surgery and for the nurses’ post-operative actions. Section 13.01(d) requires experts’ opinions as to the standards of care applicable to each claim.... By amending its petition on May 15, 2001, appellants alleged, for the first time, a health care liability claim against Medical City for vicarious liability arising from the nurses’ alleged postoperative actions. According to the plain meaning of section 13.01(d), filing a claim arising from the nurses’ negligence began the period for timely furnishing an expert report as to that claim. Nothing in the statute distinguishes between claims for direct and vicarious liability. Thus, the amendment of a petition to add a new claim constitutes filing of that claim pursuant to section 13.01(d) and triggers the expert report deadline as to any defendant sued in either 'a direct or vicarious capacity. •

Id. at 617-18. Furthermore, if the legislature had intended to set the 120-day time limit in relation to the date a claimant files a lawsuit, it could have done so, as it did in section 74.051, which provides:

Any person ... asserting a health care liability claim shall give written notice of such claim ... to each physician or health care provider against whom such claim is being made at least 60 days before the fíling of a suit in any court of this state based upon a health care liability claim.

Tex. Civ. Prac. & Rem.Code Ann. § 74.051(a) (Vernon 2005) (emphasis added).

3. Purported conñict with Texas Civil Procedure Rule 162. The Meads, however, contend they had an absolute right to nonsuit their claims under Rule 162, and that the health care providers were required to move for dismissal before the Meads filed their nonsuit. Having non-suited their claims, the Meads assert they effectively occupied the same position had they not brought the 2003 case; that is, their deadline for serving their expert report was 120 days from the date they filed the 2004 case.

Rule 162 provides in relevant part: “At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be entered in thé minutes.” Tex.R. Civ. P. 162. A plaintiffs right to take a nonsuit is unqualified and absolute so long as the defendant has not made a claim for affirmative relief or a motion for sanctions, BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840 (Tex.1990). Nothing in our interpretation of Civil Practice and Remedies Code section 74.351 interferes with a plaintiffs right to take a nonsuit.

Although under our interpretation of section 74.351(a) the plaintiff is arguably not placed in the “same position” she was before she brought the action, at least not in relation to the amount of time she has to serve the section 74.351 expert report, our interpretation does not conflict with the purpose of Rule 162. See Alvarado v. Hyundai Motor Co., 885 S.W.2d 167, 170 (Tex.App.-San Antonio 1994) (noting Rule 162 is designed to allow a plaintiff to avoid unexpected emergencies, citing 5 Roy W. McDonald, Texas Civil Practice § 27:39 (John S. Covell ed., 1992)), rev’d on other grounds, 892 S.W.2d 853 (Tex.1995); see also Hoodless v. Winter, 80 Tex. 638, 641, 16 S.W. 427, 428 (1891) (“Owing to unexpected contingencies that may occur during a trial, [a plaintiffs right to take a nonsuit] is a privilege which it may become necessary for the most careful and diligent litigant to exercise, and it is important that the substance, and not the shadow alone, of the right shall be preserved.”). The plaintiff controls when she files a petition alleging a health care liability claim, thereby triggering the commencement of the 120-period within which she must serve the expert report. Subject only to the statute of limitations, a plaintiff can therefore wait to file a petition until she has obtained, and can serve, the expert report. Thus, our holding that refiling a previously nonsuited health care liability claim fails to restart the 120-day period, does not conflict with the purpose of Rule 162, i.e., allowing a means to discontinue the suit in the event of unexpected contingencies.

Moreover, even if there were a conflict between section 74.351(a) and Rule 162, the legislature has determined section 74.351(a) prevails: “In the event of a conflict between this chapter and another law, including a rule of procedure or evidence or court rule, this chapter controls to the extent of the conflict.” Tex. Crv. PRac. & Rem.Code Ann. § 74.002(a) (Vernon 2005). As Justice Owen has observed, it was the legislature’s “clear determination that law that applies in other lawsuits is inadequate in some respects for health care liability claims.” In re Woman’s Hosp. of Tex., Inc., 141 S.W.3d 144, 147 (Tex.2004) (Owen, J., dissenting).

4. Legislative background of section 74.351. To interpret section 74.351 as permitting the 120-day period to recommence on the refiling of a previously nonsuited claim would not only be inconsistent with the plain language of the statute, but also with the circumstances under which the legislature enacted the statute, the object the legislature sought to obtain, and the legislative history of chapter 74 of the Civil Practices and Remedies Code.

In enacting chapter 74, the legislature was concerned with the frequency and costs of health care liability claims. Act of June 2, 2003, 78th Leg., R.S. ch. 204, § 10.11(a), 2003 Tex. Gen. Laws 847, 884. Two purposes of chapter 74 are to: “(1) reduce excessive frequency and severity of health care liability claims through reasonable improvements and modifications in the Texas insurance, tort, and medical practice systems;” and “(2) decrease the cost of those claims and ensure that awards are rationally related to actual damages.” Id. § 10.11(b). In presenting House Bill 4, Representative Joe Nixon, Chair of the House Committee on Civil Practices explained:

House Bill 4 ... is a comprehensive civil justice reform bill intended to address and correct a serious problems [sic] in our courts system. It is designed to promote fairness and efficiency in civil lawsuits, protect Texas citizens and Texas courts from abusive litigation tactics, remove incentives in the system that are causing unwarranted delay and expense. House Bill 4 — it’s purpose is to restore the needed balance in our court system so that it can operate more efficiently and more fairly and less costly.

Hearings on Tex. H.B. 4 Before the House Comm. on Civil Practices, 78th Leg., R.S. 1 (Feb. 26, 2003) (statement of Rep. Nixon) (transcript available from Capitol Research Services, Austin, Texas). Representative Nixon subsequently stated, “[T]he hard reality is we just need to make a hard and fast deadline, like we do on statue [sic] of limitations — as we do on other requirements.” Debate on Tex. H.B. 4 on the Floor of the House, 78th Leg., R.S. 317 (Mar. 19, 2003) (statement of Rep. Nixon) (transcript available from Capitol Research Services, Austin, Texas). He agreed that, if House Bill 4 were passed, it meant that, if an attorney missed the deadline for “filing [sic]” the expert report, the plaintiff would be barred from prosecuting that claim. Id.

Although he had other objections to the expert-report provisions in House Bill 4, attorney Jim M. Perdue, Jr., explained the advantages of a firm expert-report deadline to the Senate State Affairs Committee:

It seems to me that one of the primary ways to deal with an issue of increased filings of frivolous lawsuits and the defense costs that those create would be to get nonmeritorious cases out of the system as early as possible and as easy as possible.... The expert report section ... of 4590i is something that can be dealt with and should be dealt with to accelerate the disposition of a nonmeri-torious case. And as a plaintiffs lawyer that screens and takes one out of about 250 cases that come to our firm, if we could figure out a way to get out of the system a case that is decided by the judge to not have expert support within the first 180 days it’s on file, those defense costs will now, not be incurred. The heartache and expense of doctors who have been sued that cannot be supported will not be suffered.
On the increased number of cases that are being dismissed within the first 180 days because of the failure of an expert report. If there was a way to make the 180-day requirement firm, solid and clear and the expert report requirement then on file, and not allow venue shopping where you have judges who arent’ [sic] dismissing it, that is something that will stick. I, I will suggest to the Committee that when the 2002 data comes out you’re going to see that, an increased number of medical malpractice cases have been successfully dismissed and, and those defense costs now have not been incurred and that nonmeritorious case, that is an expert cannot support the case, you get the case out of the system. That is a valid goal that is a way to achieve a real result on the front end.... I think it’s dangerous to take out the attorney’s ability to extend it, especially if you’re gonna make it a firm 90-day, nonnegotiable, dismiss with an interlocutory appeal that is set up such that the defense lawyer can hide all discovery, or stop all discovery and you cannot go forward. What I think the more reasonable approach would be is, have an ex-an absolute expert report requirement within 180 days. Have a mean [sic] for attorneys to extend that if necessary.

Hearings on Tex. H.B. 4 Before the Senate State Affairs Comm., 78 Leg., R.S. 1920 (April 16, 2003, tape 2) (statement of Jim M. Perdue, Jr.) (transcript available from Senate Staff Services Office).

Against this backdrop, in enacting section 74.351, the legislature made significant changes to the former expert-report procedure for health care liability claims. The legislature removed the provisions allowing a cost bond or cash deposit in lieu of an expert report served 90 days after a plaintiff filed a health care liability claim and removed the provisions permitting a nonsuit if an expert report was not filed 180 days after the plaintiff filed the claim. See Act of May 5,1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(a), (d), 1995 Tex. Gen. Laws 985, 985, 986 (repealed 2003). Cf. Tex. Civ. PRAC. & Rem.Code Ann. § 74.351 (Vernon 2005). The legislature also removed former subsections (f) and (g), which provided a 30-day extension and a grace period, respectively, if a plaintiff failed to timely comply with the 180-day requirement. See Act of May 5,1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(f), (g), 1995 Tex. Gen. Laws 985, 986 (repealed 2003). Cf. Tex. Civ. Príc. & Rem.Code Ann. § 74.351. Under the present statute, the only means for a plaintiff to extend the 120-day deadline for serving an expert report is by agreement of the affected parties. See Tex. Civ. Peac. & Rem.Code Ann. § 74.351(a).

Allowing a plaintiff to restart the period for serving an expert report by simply nonsuiting her health care liability claim and refiling that same claim, could effectively expand the 120-day period to well over two years. See id. §§ 74.051(c), 74.251(a), 74.351(a) (tolling statute of limitations for period of 75 days after notice is given, setting forth two-year statute of limitations, and setting 120-day deadline for expert report). Such a procedure is inconsistent with the policies, goals, and statutory provisions set forth above.

III. Conclusion

Under section 74.351(a), absent an agreement by the affected parties, the Meads were required to serve their expert report by March 23, 2004. See Tex. Civ. Peac. & Rem.Code Ann. § 74.351(a). The record is devoid of any agreement, and it is undisputed the Meads served their report on March 24, 2004. Under section 74.351(b), on the health care providers’ motions, the trial court was required to enter an order dismissing the claims against the health care providers with prejudice to refiling the claim. See id. § 74.351(b). Accordingly, we hold the trial court erred in denying the health care providers’ motions.

Although the Meads missed the 120-day deadline by only one day, we are bound by the express provisions of the statute. It is the province of the legislature — not this court — to provide for extensions or grace periods regarding this deadline.

Because the Meads were not entitled to more than 120 days under the statute, their reports were untimely, and the trial court should have dismissed their claims. Accordingly, in cause number 14-04-00708-CV, we reverse the order of the trial court and remand with directions to the trial court to award the health care providers their reasonable attorney’s fees and costs of court and to render judgment dismissing with prejudice the Meads’ claims against the health care' providers. Presuming for the sake of argument that we would otherwise have appellate jurisdiction over Dr. Mokkala’s appeal in cause number 14-04-00845-CV, we dismiss this appeal as moot because the Meads non-suited their claims in the 2003 case before the trial court denied Dr. Mokkala’s motion to dismiss.

SEYMORE, J., dissents.

CHARLES W. SEYMORE, Justice,

dissenting.

I respectfully dissent to the majority’s reversal as to cause number 14-04-00708-CV because the trial court strictly applied precedent and the statute as written by the Texas Legislature. Accordingly, I cannot conclude that the trial court abused its discretion by denying appellants motion to dismiss.

Appellant’s motion to dismiss was, in reality, a request for the trial court to impose the proverbial death penalty on appellees. This court should exercise great caution before concluding that the trial court acted unreasonably, arbitrarily, or without reference to any guiding principles. See Rittmer v. Garza, 65 S.W.3d 718, 721-22 (Tex.App.-Houston [14th Dist.] 2001, no pet.).

The trial court applied section 74.351(a) strictly as written by the Texas Legislature. Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(a)(Vernon Pamph.2004-05). The statute merely expresses that the claimant shall, “not later than the 120th day after the date the claim was filed, serve ... one or more expert reports ...” Id. In contrast, the majority has added a word that the legislature did not include. The statute does not express that the 120-day period for serving expert reports begins on the date the claim was first filed.

Moreover, the majority mistakenly relies on Puls v. Columbia Hospital at Medical City Dallas Subsidiary, L.P., 92 S.W.3d 613 (Tex.App.-Dallas 2002, pet. denied) to support its conclusion that the 120-day period began when appellees first filed the 2003 case. Puls is distinguishable. In Puls, the Dallas court of appeals was construing similar language in the predecessor health care liability statute. The claimants in Puls were prosecuting more than one health care liability claim in the same suit. The Dallas court of appeals properly concluded that the “amendment of a petition to add a new claim constitutes filing of that claim.” Id. at 618. Succinctly, the proper deduction from the ruling in Puls is as follows: the 120-day period for a health care liability claim begins on the day a claimant files suit and asserts that particular health care liability claim within the pleadings. Otherwise, a claimant might find himself barred from adding a meritorious new claim to an existing lawsuit simply because of the passing of 120 days from the date suit was first filed. I respectfully submit that the Dallas court was appropriately eliminating an unintended procedural trap for the claimant.

Here, the majority creates a trap for the claimant, who should be allowed to reasonably rely on the procedural safeguards afforded under Rule 162, Texas Rules of Civil Procedure. To eliminate the procedural safeguard, the majority describes a “purported conflict” between the application of section 74.351(a) and Rule 162 where none exists. By creating a conflict, the majority can neatly dispose of Rule 162 by deferring to the statute. See Tex. Civ. PRAC. & Rem.Code. Ann. § 74.002(a) (Vernon Pamph.2004-05) (stating Chapter 74 controls to the extent it conflicts with another law). In a footnote, the majority refers to language in the predecessor statute permitting a plaintiff to non-suit an action if he fails to timely furnish an expert report. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(d)(2), (n), 1995 Tex. Gen. Laws 985, 986, 987 (repealed 2003). Cf Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Notwithstanding inferences the majority has drawn from legislative history, it is my considered opinion that there is no conflict between the statute and the rule. Obviously, when the legislature enacted a comprehensive overhaul of health care liability in Texas, it could have expressly eliminated the claimants procedural safeguard of a Rule 162 non-suit without prejudice, but it did not.

Until today, no appellate court in Texas has concluded that a health care liability claimant who files a non-suit without prejudice may not be returned to status quo ante without prejudice to initiate another suit. On the contrary, under similar facts, our sister court in Corpus Christi concluded that the trial court erred when it dismissed the second case after a claimant filed a non-suit without prejudice in the first case. Martinez v. Lakshmikanth, 1 S.W.3d 144 (Tex.App.-Corpus Christi 1999, pet. denied). Importantly, in Martinez, the 180-day period prescribed in the predecessor statute expired before the plaintiff filed a non-suit. See Tbx.Rev.Civ. Stat. ANN. art. 4590i, § 1301(d)(2). The Corpus Christi court correctly concluded that the defendant waived his right to a remedy under the statute by not seeking dismissal after expiration of the 180-day period. Id. at 148. Instead, the court acknowledged that Rule 162 controlled. Id. at 149. In other words, under the former act, medical malpractice claimants could avail themselves of the benefits of Rule 162 even when they failed to timely file a non-suit before expiration of the 180-day period. The legislature enacted painstaking reform of health care liability in Texas. The tactical benefit afforded all litigants under Rule 162, Texas Rules of Civil Procedure, was not addressed. Accordingly, I respectfully disagree with the conclusion of the majority that the legislature intended to preclude litigants from exercising the right to file a non-suit without prejudice as prescribed by Rule 162 when it enacted House Bill 4.

It is my considered opinion that health care liability defendants are adequately protected through statutory entitlement to a dismissal with prejudice if a motion is timely filed before claimants file a non-suit. Tex. Civ. PRac. & Rem.Code Ann. § 74.351(b)(2) (Vernon Pamph. 200405). Moreover, in consideration of the undisputed chronology of events, I would not engage in an analysis of legislative history to support the conclusion that the trial court acted arbitrarily or without reference to guiding principles.

Accordingly, I respectfully dissent.

      . In 2003, the Texas Legislature repealed article 4590i of the Revised Civil Statutes and moved substantially amended provisions of former article 4590i to Chapter 74 of the Civil Practice & Remedies Code. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09, 2003 Tex. Gen. Laws 847, 864-82, 884. This legislation also added the interlocutory appeal statute that provides appellate jurisdiction in the present case. See id. § 1.03, 2003 Tex. Gen. Laws 847, 849 (codified at Tex. Civ. Prac. & Rem.Code § 51.014(a)(9) (Vernon Supp.2004-05)).

      . The Meads named several other defendants who are not parties to this interlocutory appeal.

      . Thus, the 120-day period expired before the Meads nonsuited their claims against the health care providers. We therefore need not decide whether filing of a nonsuit before the expiration of the 120-day period would toll the 120 days for the period that elapses between the filing of the nonsuit and the refiling of the same health care liability claim.

        .See McNeill v. Hubert, 119 Tex. 18, 22, 23 S.W.2d 331, 332-33 (Tex.1930) (indicating plaintiff’s nonsuit of his claim, when defendant had not filed a claim for affirmative relief, necessarily rendered any questions involved in appeal moot, because there was nothing upon which the judgment of the appellate court could effectively operate).

      . This motion is not part of the appellate record.

      . There is no indication in the appellate record of whether or when the Meads served the expert’s report and curriculum vitae in the 2004 case.

      . See Act of May 25, 1993, 73rd Leg., R.S., ch. 625, § 3, 1993 Tex. Gen. Laws 2347, 234749, amended by Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 985-87, repealed by Act of June 2, 2003, 78th Leg., R.S. ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.

      . Section 74.001 (a)(l 3) provides:
      "Health care liability claim” means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.
      Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13) (Vernon 2005).

      . The Puls court was construing former article 4590i. See Puls v. Columbia Hosp. at Med. City Dallas Subsidiary, L.P., 92 S.W.3d 613, 617-18 (Tex.App.-Dallas 2002, pet. denied). Nevertheless, the specific language the Puls court was interpreting and the definition of "health care liability claim” on which it relied are in all material respects identical to those found in the present statute. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, 1, 1995 Tex. Gen. Laws 985, 986 (setting forth expert-report procedure), repealed by Act of June 2, 2003, 78th Leg., R.S. ch. 204, 10.09, 2003 Tex. Gen. Laws 847, 884; Act of May 30, 1977, 65th Leg., R.S, ch. 817, 1.03(a)(4), 1977 Tex. Gen. Laws 2039, 2041 (defining "health care liability claim”), repealed by Act of June 2, 2003, 78th Leg., R.S. ch. 204, 10.09, 2003 Tex. Gen. Laws 847, 884.

      . Thus, contrary to the dissent’s suggestion, we do not conclude "the legislature intended to preclude litigants from exercising the right to file a non-suit without prejudice as prescribed by Rule 162 when it enacted House Bill 4.” Op. at 4, 178 S.W.3d at 78 (Seymore, J., dissenting). A plaintiff still has, pursuant to the exceptions set forth in Rule 162, an absolute right to a nonsuit. See TexR. Civ. P. 162.
      We note, however, that the legislature removed provisions of the prior statute permitting a plaintiff to nonsuit an action if the plaintiff failed to furnish an expert report within the required time. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, 1, sec. 13.01(d)(2), (n), 1995 Tex. Gen. Laws 985, 986, 987 (repealed 2003). Cf. Tex Civ. Prac. & Rem.Code Ann. 74,351 (Vernon 2005). We do, therefore, conclude the legislature intended that a nonsuit would not provide plaintiffs with a new 120-day period within which to hie their expert report. In short, like the expiration of a limitations period, expiration of the 120-day period for filing an expert report cannot be cancelled by a nonsuit.

      . Cf. Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex.1962) (stating dismissal is in no way an adjudication of rights of the parties, but merely places parties in position they were in before court’s jurisdiction was invoked just as if suit had never been brought).

      . The legislature specifically found: "(1) the number of health care liability claims (frequency) has increased since 1995 inordinately;” and "(2) the filing of legitimate health care liability claims in Texas is a contributing factor affecting medical professional liability rates.” Act of June 2, 2003, 78th Leg., R.S. ch. 204, 10.11(a), 2003 Tex. Gen. Laws 847, 884.

      . The senate committee version of House Bill 4 reflected some of the concerns expressed by those who had testified before the Senate State Affairs Committee. In contrast to House Bill 4, which set a 90-day deadline for the report, the senate committee version set a 150-day deadline. See Conference Committee Report on H.B. 4, Section by Section Analysis, 78th Leg., R.S. 209[79]. Unlike House Bill 4, the senate committee version permitted the affected parties to extend the deadline and required objections to the sufficiency of the report to be filed within 21 days of service of the report. Id. at 210[80]. The senate version also allowed more deposition discovery before the expert report is served. Id. at 215[85],

      . In support of its position that a health care liability claimant who files a non-suit without prejudice should be returned to status quo ante without prejudice to initiating another suit, the dissent cites Martinez v. Lakshmikanth, 1 S.W.3d 144 (Tex.App.-Corpus Christi 1999, pet. denied). Op. at 4, 178 S.W.3d at 78 (Seymore, J., dissenting). In Martinez, the court rejected the health care providers’ argument that provisions in the predecessor statute expressly limited a plaintiffs right to non-suit and " ‘13.01(d)(2) limit[ed] the right by preventing a post-180 day non-suit from interfering with the consequences of a claimant’s failure to furnish the required expert report, and 13.01(n) limits the right by creating an exception to the rule that the effect of a non-suit is to render a case as if it had never been filed.’ ” Martinez, 1 S.W.3d at 148. Observing that the legislature, in enacting House Bill 4, did not address Rule 162, the dissent suggests Martinez is still good law. Op. at 4, 178 S.W.3d at 78 (Seymore, J., dissenting). The court in Martinez, however, was considering a statutory structure containing specific provisions for nonsuits — provisions the legislature removed in 2003. See Martinez, 1 S.W.3d at 147-49. Cf. Tex. Civ. Frac. & Rem. Code Ann. § 74.351 (Vernon 2005). Because the legislature removed the provisions in the predecessor statute referring to nonsuits, there was arguably no need for the legislature separately to address Rule 162.


author: ELSA ALCALA, Justice.

text:
    Henderson David PHILLIPS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00759-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 9, 2005.
    Discretionary Review Refused Dec. 7, 2005.

      R.P. Cornelius, Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney-Hams County, Amanda J. Peters, Assistant District Attorney, Houston, TX, for Appellee.

      Panel consists of Justices TAFT, ALCALA, and HIGLEY.
   MEMORANDUM OPINION

ELSA ALCALA, Justice.

Appellant, Henderson David Phillips, pleaded not guilty to the felony of burglary of a habitation. A jury found him guilty, and the trial court, having found true the enhancement allegation of a prior conviction for burglary of a budding, assessed punishment at 20 years in prison. In three points of error, appellant contends that the evidence is legally insufficient to establish entry into the habitation and that the trial court erred by denying appellant’s requested jury charges on the lesser-included offenses of theft and criminal trespass. We affirm.

Background

Early on May 9, 2003, Christian Thompson left his house to attend class at a local university. When he returned to his house at about 10 a.m. that day, he saw appellant inside his back yard, where he was attempting to climb over the fence. The fence had a door that was locked to prevent entry into the back yard. Thompson observed appellant in possession of a floodlight that belonged to Thompson. In addition, a van was parked in front of Thompson’s house, and a vacuum cleaner that belonged to Thompson was next to the van. Thompson asked appellant what he was doing. Appellant replied that he was taking the items at the request of an inspector. But no one else was present near the house. Although a notice was apparent on the door of the house, it was a pool-violation notice. Dissatisfied with appellant’s explanation, Thompson wrote down the license plate number of the van and went inside the house to call for the police. While Thompson was inside the house, appellant left in the van, taking the floodlight with him.

Police officers obtained the license plate information from Thompson, and that information led officers to suspect appellant. Appellant’s photo was placed into a photo spread shown to Thompson, who positively identified appellant as the person at the fence that morning.

At trial, Thompson testified that, when Thompson left his house that- morning, both the vacuum that was near appellant’s van and the floodlight near appellant were inside a utility shed attached to the house. Thompson explained that the shed had a door that was closed, but not locked. Thompson said that the only way to obtain the two items was by entering the shed.

Legal Sufficiency of the Evidence

In his first point of error, appellant contends that the evidence is legally insufficient to establish his conviction for burglary of a habitation. Appellant’s complaint concerns an alleged lack of evidence to establish entry into the habitation.

In assessing legal sufficiency, we determine whether, based on all of the record evidence, viewed in the light most favorable to the verdict, a rational jury could have found the accused guilty of all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003). In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993).

To establish that appellant committed burglary of a habitation, the State had to prove that appellant (1) entered a habitation, (2) without the effective consent of the owner, and (3) with intent to commit a theft. See Tex. Pen.Code Ann. § 30.02(a)(1) (Vernon 2003). A person “enters” a habitation if he intrudes any part of his body, or any physical object connected with the body. Tex. Pen.Code Ann. § 30.02(b)(1), (2) (Vernon 2003). Proof of entry may be shown by circumstantial evidence. Clark v. State, 543 S.W.2d 125, 127 (Tex.Crim.App.1976); Boudreaux v. State, 757 S.W.2d 139, 147 (TexApp.-Houston [1st Dist.] 1988, pet. ref d). A structure that is attached to and shares a common wall with a complainant’s house is a habitation for purposes of section 30.02(a). See Johnson v. State, 844 S.W.2d 872, 874 (TexApp.-Amarillo 1992, no pet.) (rejecting contention that garage attached to house did not constitute habitation).

Although no one saw appellant enter or leave the shed, the undisputed evidence shows that Thompson saw appellant inside Thompson’s fenced and locked backyard. Appellant possessed Thompson’s floodlight and left with the light when he departed in the van, although he did not take the vacuum that belonged to Thompson that Thompson saw near the van when he arrived at the house. The floodlight and vacuum had been inside the shed, or pantry room, attached to Thompson’s residence. Neither item could have been removed from the room without entry into the room.

On viewing these circumstances in the light most favorable to the verdict, a jury could rationally have found, beyond a reasonable doubt, that appellant entered the room, which was undisputedly attached to Thompson’s house and, thus, his habitation. See id. We hold that the evidence is legally sufficient to establish that appellant entered Thompson’s habitation.

Accordingly, we overrule point of error one.

Lesser-included Offenses

In his second and third points of error, appellant contends that the trial court erred by denying his request that instructions on the lesser-included offenses of criminal trespass and theft be included in the jury charge.

An offense is a lesser-included offense under the following circumstances: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish commission of the offense; (3) it differs from the offense charged only in that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex.Code Crim. PROC. Ann. art. 37.09 (Vernon 2004).

A two-pronged test determines whether a defendant is entitled to a charge on a lesser-included offense. See Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App.2005). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Id. (citing article 37.09). The critical elements of the charging instrument, including time, place, identity, and manner and means, are relevant to the inquiry whether one offense includes another for the purposes of lesser-included offense instructions. Id. at 479 (citing Campbell v. State, 149 S.W.3d 149, 155 (Tex.Crim.App.2004)). Second, some evidence must exist in the record that would permit the jury to find, rationally, that the appellant, if guilty, is guilty only of the lesser-ineluded offense. Hayward, 158 S.W.3d at 478.

The evidence must establish the lesser-ineluded offense as a valid, rational alternative to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App.2000). A charge on the lesser-ineluded offense is not required, however, when the defendant presents no evidence or presents evidence that no offense was committed. Lofton v. State, 45 S.W.3d 649, 652 (Tex.Crim.App.2001). The offenses of theft and criminal trespass can be lesser-ineluded offenses of burglary. See Daniels v. State, 633 S.W.2d 899, 900 (Tex.Crim.App.1982) (trespass as lesser-included offense of burglary); Day v. State, 532 S.W.2d 302, 306 (Tex.Crim.App.1975) (same); Martinez v. State, 635 S.W.2d 629, 634 (Tex.App.-Austin 1982, pet. refd) (theft and criminal trespass as lesser-included offenses of burglary).

Appellant has not satisfied the second prong of the test, which requires that the record show that some evidence would permit the jury to find, rationally, that if appellant is guilty, he is guilty only of the lesser offense. See Hayward, 158 S.W.3d at 478. The undisputed evidence in the record shows that Thompson’s vacuum and floodlight were in the shed attached to his residence when he left for school that morning, that appellant possessed the floodlight when Thompson arrived home, that appellant was inside the locked fence that surrounded Thompson’s back yard, that Thompson’s vacuum was next to appellant’s van, that appellant left the location with Thompson’s floodlight, and that the floodlight and vacuum could only be acquired by entering the shed attached to Thompson’s residence. Neither the State nor appellant presented any evidence showing that, if appellant was guilty, he was guilty only of the lesser-ineluded offenses of theft or trespass. We hold that the trial court did not err by refusing appellant’s request that the jury charge include instruction's for the lesser-ineluded offenses of theft and trespass.

We overrule points of error two and three.

Conclusion

We affirm the judgment of the trial court.