author: DON WITTIG, Justice. RICHARD H. EDELMAN, Justice,

text:
    Anthony Randolph FERREL, Appellant, v. The STATE of Texas, Appellee.
    No. 14-97-00936-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 13, 2000.

      John Brice Carroll, Houston, for appellant.
    Barbara Anne Drumheller, Houston, for appellee.
    Panel consists of Justices MAURICE E. AMIDEI, EDELMAN, and WITTIG.
   MAJORITY OPINION

DON WITTIG, Justice.

This was a short-lived bar room fight. After the trial judge refused appellant Anthony Randolph Ferrel’s requested instructions on self defense, apparent danger and misdemeanor assault, a jury convicted appellant of aggravated assault. Appellant was sentenced by the jury to six years confinement and a $2,500 fine. We reverse and remand for a new trial.

Background

Appellant was involved in an altercation in which he struck the complainant in the mouth with a beer bottle. The complainant fell to the ground, hit his head on the floor, and died. Viewing the evidence in the light most favorable to the appellant, testimony by defense witnesses, appellant, or both, established the following preceded the blow by the bottle:

— complainant was “highly intoxicated” and drank about ten (10) Jack Daniels and water;
— complainant was characterized that evening as being “obnoxious, demeaning and loud,” and “arrogant, cocky, demanding, rude;”
— during the confrontation, appellant and complainant exchanged heated profanities and insults; the complainant hurled the gravest insult in reference to appellant’s mother.
— appellant stated that the complainant was “coming at” him, with his back against the bar and because of various obstacles, he was unable to retreat;
— complainant was pushing into appellant;
— complainant weighed a bulky 218 pounds outweighing appellant by nearly fifty pounds;
— complainant told appellant, “why don’t we just take this outside;”
— appellant stated that complainant was “really angry” and that he saw in complainant’s eyes that he was going to attack him;
— as complainant’s companion approached them, appellant feared both men were going to jump him;
— complainant’s comrade weighed about 240 pounds, seventy pounds more than appellant.

The Government Argues Against Self-Defense

The government argues to further restrict the right of self-defense. We are confronted with the when and how of every person’s most basic right of self-defense. The issue is not simple. Because of the legislature’s adoption of Tex. Pen. Code Ann. § 9.82 limiting the amount of force that can be used to defend oneself, the interplay of the lesser assault issue now plays a critical role in determining whether or not every Texan still maintains the right to defend themselves. Stated otherwise, by engineering the charge to exclude misdemeanor assault, the government can completely deprive Texans of their right to self-defense. This is so because under Tex. Pen.Code Ann. § 9.32, one does not have a legal right to use deadly force except to protect oneself from deadly force. Therefore, by eliminating simple assault from the court’s charge, self-defense is also scuttled. We therefore first address appellant’s second issue that the trial court erred in refusing to submit a jury instruction on the lesser-included offense of misdemeanor assault.

Lesser-included Misdemeanor Assault

A defendant is entitled to a charge on a lesser-included offense where the proof of the charged offense includes the proof required to establish the lesser-included offense and there is some evidence permitting a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser-included offense. See Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim.App.1999). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Id. Essentially, the evidence should establish the lesser-included offense as a “rational alternative” to the charged offense. See id. This is accomplished if the evidence “casts doubt” on an element of the greater offense, providing the jury with a rational alternative by voting for the lesser-included offense. See id.

A person commits the offense of misdemeanor assault if he intentionally, knowingly, or recklessly causes bodily injury to another. See Tex. Pen.Code Ann § 22.01(a)(1) (Vernon 1994). A person commits the offense of aggravated assault if he commits misdemeanor assault and either: (1) causes serious bodily injury to another, or (2) uses or exhibits a deadly weapon during commission of the assault. See Tex. Pen.Code Ann. § 22.02(a) (Vernon 1994). “Serious bodily injury” is defined as any injury that “creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Tex. Pen.Code Ann. § 1.07(a)(46).

To be entitled to an instruction on the lesser-included offense of misdemeanor assault, there must have been some evidence permitting a jury to find appellant did not cause serious bodily injury and that appellant did not use or exhibit a deadly weapon.

The record shows appellant’s expert testified the complainant did not in fact suffer a serious bodily injury by the blow from the bottle. The expert opined complainant died as a result of hitting his head on the floor, his heavy alcohol consumption, and other factors. To the inquiry whether the bottle, in the manner of its use, was capable of causing serious bodily injury, the expert opined, “you cannot get enough force, and it’s in the wrong place to generate a significant head injury or lethal head injury.” Appellant too testified he did not intend to kill complainant or cause him serious injury and that he only hit complainant with the bottle to “get him away from me.”

Thus the lesser assault issue is raised. Appellant provided sufficient evidence for a jury to reasonably find complainant did not suffer a serious bodily injury from the blow by the bottle alone and that appellant did not use or exhibit a deadly weapon. Therefore, the trial court erred by not including the lesser-included offense in the charge. Appellant’s issue number two is sustained.

Self-Defense and Apparent Danger

Appellant’s first and third issues contend that the trial court erred in refusing his request for a jury instruction on self-defense and apparent danger. We will not address apparent danger because it is not necessary to the disposition of this appeal.

Though the State may have provided more than ample proof appellant could have used deadly force, the issue was not conclusively proven to the exclusion of simple assault and the issue of self-defense. By the expert’s testimony that the complainant did not in fact suffer a serious bodily injury by the blow from the bottle, that the bottle, in the manner of its use, was incapable of causing serious bodily injury, and appellant’s testimony he did not intend to kill complainant or cause him serious injury and that he only hit complainant with the bottle to “get him away from me,” the defense controverted the State’s deadly force evidence, thereby raising the factual dispute. As such, the jury was entitled to disregard the State’s evidence on use of deadly force and believe the defense’s version.

Because the determination of deadly force was not properly and orderly made, the defendant was denied the opportunity to have a legitimate self-defense issue presented. Not surprisingly, during deliberations, the jury asked on their own whether they could consider self-defense and they, like appellant, were denied the opportunity. The right of self-defense is at least as fundamental to freedom and liberty as free speech, the right to vote, and trial by jury.

Harm Analysis

We must first determine whether the court’s failure to charge the jury on a lesser included offense or self defense in this case requires us to conduct a harm analysis under the “Constitutional Error” standard of Tex.R.App. P. 44.2(a) or the “Other Errors” standard of Tex.R.App. P. 44.2(b). It is well-established that due process requires that a lesser included offense instruction be given in a capital case when the evidence warrants such an instruction. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). However, we are aware of no clear authority holding this to be a federal or state constitutional requirement in a non-capital case. But because, as discussed below, we find these errors violated a substantial right of appellant, we need not decide here whether appellant’s constitutional rights were violated.

Tex.R.App. P. 44.2(b) provides: “Any other [non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”

“A ‘substantial right’ is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997).

In considering harm, the entire record must be reviewed to determine whether the error had more than a slight influence on the verdict. See King, 953 S.W.2d at 271 (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); Reeves v. State, 969 S.W.2d 471, 491 (Tex.App. — Waco 1998, pet. refd). If the court finds that the error did have more than a slight influence on the verdict, it must be concluded that the error affected the defendant’s substantial rights in such a way as to require a new trial. Reeves, 969 S.W.2d at 491. If the court has grave doubts about the error’s effect on the outcome, the case must be remanded for a new trial. /¿Otherwise, the court should disregard the error. Id.

The charge in this case left the jury with the sole option of either convicting the defendant of the greater offense of aggravated assault or acquitting him. It found him guilty of aggravated assault, a second degree felony, and assessed six years confinement and a $2,500 fine. The range of punishment for a second degree felony is two to twenty years imprisonment plus a fíne of up to $10,000. Tex. Pen.Code Ann. § 12.33 (Vernon 1999). The lesser included offense of simple assault is a Class A misdemeanor. Had the jury been allowed to consider the lesser assault and found appellant guilty of it, the maximum punishment it could have assessed is far less severe: one year in jail and a $4,000 fine. Tex. Pen.Code Ann. § 12.21. Because of this, the jury was denied the opportunity to consider the entire range of offenses presented by the evidence. The jury was given only one option. The trial court eliminated not only the lesser included simple assault but also per force, self defense. The jury seeking an avenue to find some culpability of appellant, could only find the greater offense. The jury seeking to an avenue to find self defense was met with a dead end street. See Saunders v. State, 913 S.W.2d 564, 571 (Tex.Crim.App. 1995). We hold that the failure to submit the lesser included offense instruction amounts to at least “some harm” under Almanza/Airline v. State, 721 S.W.2d 348 (Tex.Crim.App.1986). Patently this harm affects a “substantial right” of appellant. See 44.2(b).

The jury was also concerned about appellant’s mental state by explicitly asking during deliberations whether it could consider self-defense. By asking the question, we may infer it likely was willing to consider appellant was guilty of a less culpable mental state than that required in felony assault. Because of this, it is more likely the jury would have found appellant’s mental state was such that he would have only been guilty of the lesser assault, had it been allowed to consider it.

The jury’s sua sponte request on self-defense is powerful, if not conclusive, evidence of its willingness of at least one juror’s desire to seriously consider it and that appellant was thus harmed by its omission. The jury’s inability to consider self-defense may have had even greater consequences than its inability to consider lesser-included offense. Rather than merely assess a shorter jail term and a smaller fine in the lesser-included offense context, had the jury believed appellant’s version of events pertaining to self-defense, appellant would have been entitled to an acquittal. In effect appellant was totally denied the opportunity to present his version of the evidence to the jury via proper instructions. Appellant was thus deprived of the fundamental right to defend himself in the face of harm.

In light of these circumstances, we believe the failure to instruct the jury on the lesser assault and self-defense had a substantial and injurious effect or influence in determining the jury’s verdict.

The judgment of the trial court is reversed and remanded for a new trial.

RICHARD H. EDELMAN, Justice,

dissenting.

Anthony Randolph Ferrel appeals a conviction for aggravated assault on the grounds that the trial court erred by refusing his requests for jury instructions on self-defense, apparent danger, and the lesser-included offense of misdemeanor assault. For the following reasons, I would affirm.

Background

During an altercation, appellant struck the complainant in the mouth with a beer bottle. The complainant fell to the ground, hit his head on the floor, and died from the resulting injuries. Appellant was charged with aggravated assault, found guilty by a jury, and sentenced by the jury to six years confinement and a $2500 fíne.

Lesser-Included Offense Instruction

A defendant is entitled to a charge on a lesser-included offense if: (1) proof of the charged offense includes the proof required to establish the lesser-included offense; and (2) there is some evidence in the record that if the defendant is guilty, he is guilty of only the lesser-included offense. See Moore v. State, 999 S.W.2d 385, 403-04 (Tex.Crim.App.1999).

A person commits the offense of misdemeanor assault if he intentionally, knowingly, or recklessly causes bodily injury to another. See Tex. Pen.Code Ann § 22.01(a)(1) (Vernon 1994). A person commits the offense of aggravated assault if he commits misdemeanor assault and either: (1) causes serious bodily injury to another, or (2) uses or exhibits a deadly weapon during commission of the assault. See id. § 22.02(a).

In this case, appellant’s indictment alleged that he both caused serious bodily injury to the complainant and that he did so by striking him with a deadly weapon, namely a bottle. Therefore, for appellant to have been entitled to an instruction on the lesser-included offense of misdemeanor assault, there must have been some evidence both that the complainant did not suffer a serious bodily injury (or, if he did, appellant did not cause it) and that appellant did not use or exhibit a deadly weapon because the existence of either would mean that appellant was not guilty of only the lesser offense.

Unassigned Error

The majority opinion concludes that appellant was entitled to an instruction on the lesser included offense of misdemeanor assault, in part, because the evidence raised an issue whether striking the complainant with the bottle constituted the use of a deadly weapon. However, whether or not the evidence actually raised any such issue (which is also discussed below), the portion of appellant’s brief concerning the lesser included offense charge addresses only whether the complainant suffered a serious bodily injury and not whether hitting the complainant with a beer bottle constituted the use of a deadly weapon:

SECOND POINT OF ERROR (RESTATED)
THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT’S REQUESTED CHARGE ON A LESSER INCLUDED OFFENSE, NAMELY MISDEMEANOR ASSAULT
BRIEF OF THE ARGUMENT UNDER THE SECOND POINT OF ERROR
The charge submitted to the jury included the following:
A person commits the offense of assault if he intentionally, knowingly or recklessly causes bodily injury to another.
A person commits the offense of aggravated assault if he commits assault, as defined above, and the person:
(1) caused serious bodily injury to another; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
Appellant timely and properly requested an issue on misdemeanor assault. The trial court denied the request.
A charge on a lesser included offense is required when there is evidence that the defendant, if guilty, is only guilty of the lesser offense. The jury charge defined both “bodily injury” and “serious bodily injury.” It is conceivable that the jury could have found Appellant guilty of only misdemeanor assault if they found that the victim, Mr. McManus, suffered only bodily injury and not serious bodily injury. The medical examiner’s testimony described injuries to the mouth suffered by Mr. McManus. While she testified that the base of the beer bottle can sometimes cause death or serious bodily injury, she testified she did not know that Mr. McManus had been hit in the mouth with a beer bottle. A defense expert testified that getting hit in the mouth with a beer bottle would not cause a “... significant head injury or lethal head injury.” [] Thus, it is conceivable that the jury could have found Appellant guilty only [of] the lesser included offense of misdemeanor assault. Appellant properly preserved error by timely requesting the inclusion of misdemeanor assault in the charge. The trial court’s error was clearly harmful to Appellant. Appellant is entitled to a new trial.

(emphasis added) (citations omitted).

Although appellate courts must uphold trial courts’ decisions if they are correct under any theory of law applicable to the case, we may not reverse decisions under any applicable theory of the law, hut must confíne the grounds for reversal to those presented by the appellant. In this case, because appellant’s brief asserted only that there was evidence of no serious bodily injury and not that there was also evidence that appellant did not use or exhibit a deadly weapon, it failed to establish that appellant was entitled to a charge on the lesser included offense of misdemeanor assault. By reversing the trial court’s judgment on a ground it has constructed rather than one presented in appellant’s brief, the majority opinion has abandoned the court’s position of impartiality in this case.

Evidence of Guilt of Only the Lesser Offense

To find evidence that appellant was entitled to the lesser-included offense instruction, the majority opinion states:

The record shows appellant’s expert testified the complainant did not in fact suffer a serious bodily injury by the blow from the bottle. The expert opined complainant died as a result of hitting his head on the floor, his heavy alcohol consumption, and other factors. To the inquiry whether the bottle, in the manner of its use, was capable of causing serious bodily injury, the expert opined, “you cannot get enough force, and it’s in the wrong place to generate a significant head injury or lethal head injury.” Appellant too testified he did not intend to kill complainant or cause him serious injury and that he only hit complainant with the bottle to “get him away from me.”

Serious Injury and Causation

Appellant’s expert was a medical examiner who had reviewed the complainant’s autopsy report. When asked by defense counsel why he believed the complainant had not died as a result of the injuries to his mouth, the expert first stated his understanding that the complainant had been struck on the mouth with a beer bottle, then stated, “ You can’t get enough force, and it’s in the wrong place to generate a significant head injury or lethal head injury.”

It is undisputed in this case that the complainant suffered a serious injury when his head hit the floor after he was struck by the bottle and fell. On appeal, however, appellant and the majority opinion seek to confine the scope of the relevant injury to that suffered by the complainant solely from the immediate impact of the bottle, excluding that from striking his head on the floor.

Regardless whether conduct, such as an assault, causes a particular result, such as an injury, directly or indirectly, a person is nevertheless criminally responsible for the result if it would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor was clearly insufficient. See Tex. Pen.Code Ann. § 6.04(a) (Vernon 1994). In this case, the jury charge did not include an instruction under section 6.04(a), and appellant does not assign error to any such omission. Thus, regardless whether being struck in the mouth with the bottle was a direct or only indirect cause of the injuries suffered when the complainant hit his head on the floor, the jury was not authorized to determine that appellant was not criminally responsible for those injuries under section 6.04(a). Therefore, we are not at liberty to reverse the conviction on the basis that the scope of the injury suffered for purposes of satisfying the aggravating element of the offense is limited to that sustained by the complainant solely from the immediate impact of the bottle and not that suffered from striking his head on the floor.

Deadly Weapon.

A “deadly weapon” includes “anything that in the manner of its [actual] use or intended use is capable of causing death or serious bodily injury.” See Tex. Pen.Code Ann. § 1.07(a)(17)(B) (Vernon 1994). “Serious bodily injury” includes any injury that “causes ... serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Tex. Pen.Code Ann. § 1.07(a)(46). Combining these two definitions, a deadly weapon includes, among other things, any object that is capable of causing permanent disfigurement or loss or impairment of the function of any body part. Thus, for there to be evidence that the bottle in this case was not a deadly weapon, there must have been evidence that neither its actual nor intended use was capable of causing disfigurement or impairment.

As to intended use, appellant testified that he did not intend to kill or seriously injure the complainant. With regard to the actual use of the bottle, the majority opinion relies on the previously referenced testimony of appellant’s expert medical examiner that a blow to the mouth with a beer bottle lacks sufficient force and is in the wrong place to generate a lethal or significant head injury.

Although this testimony is some evidence that being struck with a beer bottle in the mouth cannot cause a fatal or serious head (ie., brain) injury, it does not address whether such a blow to the mouth could cause permanent disfigurement or impairment, such as in the form of a jaw or dental injury or facial disfigurement. In addition, the expert’s testimony does not address whether being struck with a beer bottle in another portion of the head could cause a fatal or sérious head injury. Although appellant’s blow with the bottle happened to strike the complainant in the mouth, such an altercation could have also resulted, even unintentionally, in striking the complainant in the temple, eye, other area of the head that could have produced a fatal or serious brain or eye injury. The fact that it did not happen to do so in this case is not evidence that the bottle, in the manner of its actual use, was not capable of producing a serious bodily injury or thus that the bottle was not used as a deadly weapon.

Having failed to offer evidence either that the bottle was not used as a deadly weapon or that the complainant did not suffer a serious bodily injury from the assault, appellant was not entitled to a charge on the lesser included offense of misdemeanor assault. Therefore, his second point of error should be overruled.

Self-defense and Apparent Danger Instruction

Appellant’s first and third points of error contend that the trial court erred in refusing his request for a jury instruction on self-defense and apparent danger because the evidence raised fact questions on those issues.

A defendant is entitled to an instruction on any properly requested defensive issue raised by the evidence, regardless whether the evidence is weak or strong, unim-peached or contradicted, or credible or not credible. See Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App.1999); Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996). The defendant’s own testimony alone is sufficient to raise a defensive theory requiring a charge. See Hamel, 916 S.W.2d at 493.

A person is justified in using non-deadly force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force. See Tex. Pen.Code Ann. § 9.31 (Vernon Supp.2000). However, the use of force against another is not justified in response to verbal provocation alone. See id.

A person is justified in using deadly force against another if he would be justified in using force under Section 9.31, if a reasonable person in the actor’s situation would not have retreated, and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other’s use or attempted use of unlawful deadly force. See Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2000). In order for a defendant to be entitled to an instruction on the use of deadly force, there must be some evidence to show that the defendant reasonably believed his use of deadly force was immediately necessary to protect himself against the use or attempted use of deadly force. See Dyson v. State, 672 S.W.2d 460, 463 (Tex.Crim.App.1984).

Whether a defendant was actually attacked is immaterial; a person has a right to defend against apparent danger to the same extent as he would had the danger been real, provided that he acted upon a reasonable apprehension of danger as it appeared to him at the time. See Hamel, 916 S.W.2d at 493. Therefore, where evidence raises the issue of apparent danger, the court, in instructing the jury on the law of self-defense, should also instruct it that a person has a right to defend himself from apparent danger to the same extent as he would had the danger been real, provided that he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time. See Jones v. State, 544 S.W.2d 139, 142 (Tex. Crim.App.1976).

In this case, neither appellant nor the majority opinion contend that appellant was threatened with either real or apparent deadly force in this case. Rather, the majority concludes that appellant was entitled to an instruction on ordinary self-defense, i.e., using non-deadly force, because it determines that there was evidence that appellant didn’t use deadly force and thus did not need justification for the use of any deadly force. This conclusion is, in turn, based on the majority’s assessment, discussed in the preceding sections, that there was evidence that being struck in the mouth by the bottle could not and did not cause a fatal or serious head injury to the complainant. The majority thus concludes that appellant was entitled to instructions on the defenses of ordinary self-defense and apparent danger in the event that the jury would find him guilty of only misdemeanor assault pursuant to the lesser included offense instruction to which it determines that appellant was also entitled.

On the contrary, because appellant was not entitled to an instruction on misdemeanor assault, as discussed above, because ordinary self-defense and apparent danger are not defenses to aggravated assault with a deadly weapon, and because there was no evidence that appellant was threatened by real or apparent deadly force, he was not entitled to instructions on self-defense or apparent danger. Therefore, appellant’s first and third points of error should be overruled, and the judgment of the trial court should be affirmed.

      . It seems to us that a beer bottle should not always be considered a “deadly weapon,” or the act of hitting someone with a bottle inevitably the cause of serious bodily harm.

      . We disagree with the dissent that appellant’s brief fails to address the issue of whether he used a deadly weapon. Briefing rules are to be construed liberally. See Tex.R.App. P. 38.9. While there was not a discrete point of error regarding deadly weapon in appellant’s brief, he did point to the record where he timely requested a definition on deadly weapon in the charge, but was denied. Appellant also manifestly raised self-defense and the lesser assault issue, which, as we have elaborated, are inextricably intertwined with deadly force. The issue was thus briefed in a manner that substantially complied with Tex. R.App. P. 38. Appellant sufficiently raised the issue and is therefore entitled to have that issue determined by us.

      .The argument that the jury found appellant to have used deadly force by implication because it ultimately found appellant guilty of aggravated assault (of which deadly force is an element) begs the issue at hand. That is, Was there sufficient evidence raised at trial to include self-defense in the charge? The proper resolution of that question would have required a specific determination by the jury of whether appellant used deadly force prior to their reaching the verdict.

      . Section 9.31 outlines the conditions under which one may use force to protect against non-deadly force. This section is not applicable in a case in which a defendant has used deadly force. Section 9.32 permits the use of deadly force, but only to protect oneself against the immediate threat of deadly force. Therefore, to determine which section, if either, applies, the question of whether appellant used deadly force must be resolved. In denying appellant’s request for an issue on self-defense, the court appears to have incorrectly assumed deadly force was conclusively proven in that it only analyzed the request under Section 9.32.

      . James Bowie, Antonio Fuentes and William Barrett Travis would not comfortably rest if they thought for one moment that modern Texans’ right to defend themselves was in jeopardy.

      . We also note that, for the reasons stated above, this case also warrants reversal under the "some harm” test of Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985). In a number of subsequent cases, the Court of Criminal Appeals has found there to be "some” harm and reversed because of the omission of a lesser-included offense. See, e.g., Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.App. 1991); Hayes v. State, 728 S.W.2d 804, 810 (Tex.Crim.App. 1987); Gibson v. State, 726 S.W.2d 129, 133 (Tex.Crim.App. 1987); Moreno v. State, 702 S.W.2d 636, 641 (Tex.Crim. App.1986). While many courts continue to follow Almanza, it seems to us the amendments to the Texas Rules of Appellate Procedure effective September 1, 1997 may also require us to perform a harm analysis either under 44.2(a) Constitutional Error, or under 44.2(b) which globally includes "Other Errors.” See Tex.R.App. P. 44.2. The Almanza line of cases as well as Beck, supra, suggest this type of charge error, denial of self defense and misdemeanor assault, are of the constitutional nature. Cf. Valdez v. State, 993 S.W.2d 340, 344-45 (Tex.App.-EI Paso 1999, no pet.). Arguing in favor of the continued use of Almanza vis a vis R 44.2 is the proposition that the rule making authority of the Court of Criminal Appeals may not abridge, enlarge or modify substantive rights of accused. See Lyon v. State 872 S.W.2d 732, 735 (Tex.Crim.App. 1994). Accordingly, we choose the safer course of analysis under both standards.

      . It is undisputed in this case that misdemeanor assault is a lesser included offense of aggravated assault.

      . Appellant’s brief does not challenge the sufficiency of the evidence to show either that he seriously injured the complainant or that he used a deadly weapon to do so, but only whether he was entitled to additional jury instructions

      . Although in another context this statement could also support an argument that the bot-tie was not a deadly weapon, its context in appellant’s brief demonstrates that it is being asserted only to support the contention that the complainant did not suffer a serious bodily injury.

      . See, e.g., Prystash v. State, 3 S.W.3d 522, 527 (Tex.Crim.App.1999). This is true even if the trial judge failed to give a reason or gave a wrong reason for the ruling. See id.

      . Appellant’s expert made no assessment of the extent or magnitude of the injuries to the complainant’s mouth. Therefore, even if the relevant injury were confined to that solely resulting from the impact of the bottle, the expert provided no evidence that the complainant had not suffered serious injury in the form of disfigurement or impairment.

      . See also Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App.1996) (holding that instruction on use of deadly force was required where appellant was aware of the decedent’s violent history, decedent had a gun in his car and appellant used force only after decedent had made an attempt to approach his car); Riddle v. State, 888 S.W.2d 1, 6-7 (Tex.Crim. App.1994) (holding that instruction on use of deadly force was not required where there was no evidence that: decedent had attempted to assault appellant, appellant could not retreat, or that decedent was armed); Hayes v. State, 728 S.W.2d 804, 808 (Tex.Crim.App. 1987) (holding that instruction on use of deadly force was required where complainant was armed with a coke bottle).

      . Testimony established that the complainant was intoxicated and had been obnoxious and loud during the evening. There was an exchange of words between appellant and the complainant. Appellant testified that the complainant was approaching him and, because of various obstacles, appellant was unable to retreat. As the complainant's friend approached them, appellant feared that both men were going to jump him. The complainant then stated, "why don’t we just take this outside.” Appellant responded, "no we don’t have to" and struck complainant with the bottle. Other than appellant’s claims that he felt frightened, there is no evidence to support a reasonable belief he was in immediate danger of a use of force or deadly force by the complainant. There is no evidence suggesting that complainant was armed or made any violent motions towards the appellant. Appellant testified that complainant did not raise his hands towards appellant. Nor is there evidence indicating that the complainant’s companion attempted to interject himself into the confrontation. If anything, complainant’s remark "let’s take this outside,” indicates that if complainant intended to hit appellant at all, it would not be inside the bar.

      .Again, only the majority opinion, and not appellant’s brief, raises whether the use of the bottle made it a deadly weapon.


source: Caselaw Access Project

author: DIXON W. HOLMAN, Justice. TERRIE LIVINGSTON, Justice,

license: Public Domain

text:
    Bobby HART and Carolyn Hart, Appellants, v. Dr. Robert Lee WRIGHT and Huguley Memorial Medical Center a/k/a Huguley Health System a/k/a Adventist Health System/Sunbelt, Inc., Appellees.
    No. 2-99-234-CV.
    Court of Appeals of Texas, Fort Worth.
    April 20, 2000.
    Rehearing Overruled May 18, 2000.

      Danny Duane Pitzer, Arlington, for Appellant.
    Wallach & Moore, P.C., Jennifer M. Andrews, D. Michael Wallach, Wesley T.D. Myers, Fort Worth, Watson, Caraway, Harrington, Midktff & Luningham, L.L.P., Brooks Harrington, Fort Worth, for Ap-pellees.
   OPINION

DIXON W. HOLMAN, Justice.

I. BACKGROUND

On January 22, 1996, Appellant Bobby Hart fell in his backyard. He began sweating, became flushed, and experienced pain in his arms, neck, and chest. Carolyn Hart drove Mr. Hart to Huguley Memorial Medical Center (Huguley) where he was admitted to the emergency room. Mr. Hart began vomiting and described feeling like “something was sitting on his chest.” Mr. Hart’s neck and chest were x-rayed, and a cat scan was ordered. Mr. Hart was given a shot and released later that day, but the following morning, he was admitted to Harris Hospital (Harris). An examination and tests indicated that he had suffered an inferior wall myocardial infarction. Cardiac catheterization revealed a complete occlusion of the left anterior descending coronary artery.

Appellants filed suit on January 21, 1998 against Huguley and the treating doctors at Huguley. Appellants alleged Appellees were negligent in their treatment and care of Mr. Hart, violations of the Deceptive Trade Practices Act (DTPA), and breach of good faith and fair dealing. Ms. Hart also sued to recover damages from the loss of support, advice, counsel, companionship, and consortium stemming from Appellees’ alleged negligence and for mental anguish damages.

Appellees filed motions to dismiss with prejudice pursuant to Appellants’ failure to file their expert report as required by Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d)(1) (Vernon Supp.2000). Appellants responded by offering a report from Dr. Hrishi Maewal, which purported to comply with article 4590i, section 13.01(d)(1). Appellants then filed a motion to extend time to file an expert affidavit. On October 15, 1998, the trial court held a hearing on Appellees’ motions to dismiss and found that Appellants had failed to furnish a report pursuant to article 4590i, section 13.01(d) in a timely manner. However, the trial court also found that under article 4590i, section 13.01(g), Appellants had provided sufficient evidence of good cause to permit the late filing of Dr. Mae-wal’s report; thus, the court granted Appellants’ motion to extend time to file the expert affidavit. The court postponed its ruling on Appellees’ claims that Dr. Mae-wal’s report was insufficient under article 4590i, section 13.01(r)(6).

On December 10, 1998, the trial court held a hearing on Appellees’ motion to strike Dr. Maewal’s report and denied it in addition to their motion to dismiss. Appel-lees filed another motion asking the court to reconsider the motion. The court reversed itself and found that Dr. Maewal’s report was insufficient as a matter of law and dismissed Appellants’ entire cause of action.

II. ISSUES ON APPEAL

Appellants contend in their first issue that the trial court erred by striking Dr. Maewal’s expert report and by dismissing their health care claim. In their second issue, Appellants insist that the trial court erred by dismissing their fraud and breach of fiduciary duty claims.

III. EXPERT REPORT OF DR. MAEWAL

We review a trial court’s order dismissing a case with prejudice pursuant to article 4590i, section 13.01(e)(3) under an abuse of discretion. See Wood v. Tice, 988 S.W.2d 829, 830 (Tex.App. — San Antonio 1999, pet. denied); Estrello v. Elboar, 965 S.W.2d 754, 758 (Tex.App. — Fort Worth 1998, no pet.). But see Palacios v. American Transitional Care Ctrs., 4 S.W.3d 857, 860 (Tex.App. — Houston [1st Dist.] 1999, pet. filed) (applying summary judgment standard of review, which we decline to follow). 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. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). To the contrary, an abuse of discretion does not occur where the trial court bases its decision on conflicting evidence, see Kirkpatrick v. Memorial Hosp., 862 S.W.2d 762, 776 (Tex. App. — Dallas 1993, writ denied), or where there is some evidence of a substantive and probative character to support the trial court’s decision. See Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App. — Houston [1st Dist.] 1993, writ denied). We must therefore examine the evidence in the light most favorable to the trial court’s order.

The Medical Liability and Insurance Improvement Act (the Act) was enacted by the Texas Legislature to curtail frivolous claims against physicians and related health care providers. See Horsley-Layman v. Angeles, 968 S.W.2d 533, 537 (Tex.App.—Texarkana 1998, no pet.). Under the Act, a plaintiff must provide each defending physician or health care provider one or more expert reports, along with a curriculum vitae, not later than the 180 a day after the date on which a health care liability action is filed. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d)(1). If a plaintiff fails to comply with this provision and the defendant files a motion seeking sanctions, a trial court has no discretion and must enter an order dismissing the case with prejudice. See id. § 13.01(e)(3).

But where an expert report is tendered to the opposing party, the party is permitted to challenge the report’s adequacy. See id. § 13.01©. The court must grant the motion if it appears to the court, after conducting a hearing, that the report does not represent a good faith effort to meet the requirements of an expert report. See id. An expert report is defined as any report written by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding: (1) the applicable standard of care; (2) the manner in which the care rendered by defendant failed to meet the standard of care; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See id. § 13.01(r)(6).

Appellants offered this written report of Dr. Maewal in affidavit form to comply with their obligation under the Act:

My name is Hrishi K. Maewal. I am over the age of majority, I have never been convicted of a felony or a crime of moral turpitude, and I am in all things qualified to make this affidavit.
I am a physician licensed to practice medicine in the State of Texas.
I am currently practicing medicine and was practicing medicine on January 22,1996.
I am board certified in Internal Medicine, Pulmonary Disease, Cardiology, and Critical Care Medicine.
I examined Bobby Hart at Harris Methodist Fort Worth Hospital on January 23,1996.
Based on the history obtained from the patient and his family members along with the supporting evidence of laboratory evaluation which showed an elevated creatine kinase of 1854 U/L, CK-MB 219.7 ng/ml and % relative index 11.9 at 10:41 a.m. along with an EKG which shows an inferior infarction with Q-waves, in my expert opinion, Mr. Hart was experiencing an acute myocardial infarction at approximately 5:00 p.m. on January 22, 1996 while a patient in the emergency room at Huguley Memorial Hospital.
Based on the above analysis, Dr. Wright, the treating physician at Hugu-ley Memorial Hospital, and Huguley Memorial Hospital departed from the acceptable standard of care for the diagnosis, medical care, and treatment of a patient with an acute myocardial infarction.

Appellants argue that even though Dr. Maewal’s report does not include all of the information required by section 13.01(r)(6), it nonetheless satisfies the definition of an expert report. We disagree because Dr. Maewal’s report does not address a standard of care, deviation from that standard, or that a deviation from the standard caused injury or damages. See id. The report merely concludes that Mr. Hart demonstrated signs and symptoms of a heart attack at a time and place with which Dr. Maewal had no connection. For Dr. Maewal to qualify as an expert, the report had to show that he had knowledge of the accepted standards of care for the diagnosis, care and treatment of the injury involved, how the applicable standard was breached, and how the alleged breach contributed to Appellants’ injuries or damages. See id. §§ 13.01(r)(5), (6). While a party need not marshal all of its proof, a good faith effort in preparing an expert report must, at a minimum, attempt to incorporate the three requirements found in section 13.01(r)(6). Here, the concluso-ry report is not the good faith effort required by the statute. We overrule issue one.

IV. FRAUD AND BREACH OF FIDUCIARY DUTY

Although a plaintiff may assert a claim for common law fraud that is not governed by article 4590i, see Shannon v. Law-Yone, 950 S.W.2d 429, 436 (Tex. App. — Fort Worth 1997, pet. denied), Texas courts have repeatedly held that a plaintiff cannot recast a health care liability claim in the language of another cause of action to circumvent the statute’s purpose. See Savage v. Psychiatric Inst., 965 S.W.2d 745, 751 (Tex.App. — Fort Worth 1998, pet. denied). In determining whether a plaintiff has attempted to do so, we review the underlying nature of the cause of action. See Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994). If, as here, the cause of action is based on the physician’s breach of the accepted standard of medical care, the cause of action is nothing more than a health care liability claim, no matter how a plaintiff labels it. See Gormley v. Stover, 907 S.W.2d 448, 450 (Tex. 1995); Savage, 965 S.W.2d at 751.

In addition to their allegations of medical negligence and fraud, Appellants assert that their cause of action arose in part because Dr. Wright owed them a fiduciary duty and breached it. Appellants maintain that when Mr. Hart entered Huguley’s emergency room on January 22, 1996, Dr. Wright had a fiduciary duty to inform him that the emergency room physicians were not employees of the hospital and that it would not accept responsibility for the medical treatment those physicians administered in its emergency room.

A physician is liable for malpractice or negligence only when there is a physician-patient relationship. See Wilson v. Winsett, 828 S.W.2d 231, 232-33 (Tex. App. — Amarillo 1992, writ denied). Additionally, a physician has no liability for medical malpractice unless the physician breaches that duty. See St. John v. Pope, 901 S.W.2d 420, 423 (Tex.1995). Breach of a fiduciary duty by misrepresentation is simply a form of fraud and deception, and although a fiduciary relationship might exist between a physician and patient in special circumstances, the description of a physician’s disclosure duty to a patient in the Act addresses only a duty to disclose to the patient the risks and hazards of a medical or surgical procedure before the patient consents to undergo it. See Tex. Rev.Civ. Stat. Ann. art. 4590i, § 6.05.

Appellants have not cited any case law or statutory law to support their contention that Dr. Wright had a fiduciary duty of the character or description asserted in their pleading and their brief on appeal. Appellants’ allegations of fraud and breach of fiduciary duty by misrepresentation is but an impermissible recasting of their claim for the alleged medical malpractice. See Gormley, 907 S.W.2d at 450.

Appellants also assert that they were defrauded when Mark Forrester, an insurance adjuster acting on behalf of Huguley, told them that Huguley wanted to reach a settlement with them. The parties never agreed on settlement terms. To establish a claim for common-law fraud or misrepresentation, a plaintiff must show that a material misrepresentation was made by a person who knew it was false or made the misrepresentation recklessly without any knowledge of its truth or falsity and with the intention that it would be acted upon by another; and that the other person did act in rebanee and was injured as a result. See Savage, 965 S.W.2d at 752.

After carefully reviewing Appellants’ petition, it is clear that their breach of fiduciary duty claim, stemming from a non-disclosure of the status of emergency room physicians, is simply a claim resulting from a breach of the accepted standard of care. There are no independent factual allegations supporting fraud other than those that relate to their medical malpractice claim. There is no proof that any representation was made, that it was false, or that it was rebed on by Appellants. Although Appebants argue that the alleged misrepresentation was an affirmative omission, this is insufficient to support a finding of fraud absent a duty to speak, and we do not find one here. See Smith v. National Resort Communities, Inc., 585 S.W.2d 655, 658 (Tex.1979). As for the alleged misrepresentations of Mark Forrester, Appebants have faded to estabbsh that the statements were false and that they relied on them. Moreover, Appellants seek to recover the same damages under ab theories of babibty.

Without their medical malpractice claim, Appebants would have no claim for fraud. Appellants’ attempt to avoid dismissal under article 4590i, section 13.01 by characterizing their claims as fraud is untenable. See Gormley, 907 S.W.2d at 450; Savage, 965 S.W.2d at 751. We overrule issue two.

V. CONCLUSION

Because the trial court did not err by dismissing Appellants’ causes of action against Appellees, we affirm the trial court’s judgment.

LIVINGSTON, J. filed dissenting and concurring opinion.

TERRIE LIVINGSTON, Justice,

dissenting and concurring.

I respectfully dissent from the majority’s conclusion as to appellants’ first issue, but join in the majority’s conclusion on their second issue. Therefore, I would reverse the trial court’s dismissal of appellants’ medical malpractice claim but affirm its dismissal of their claims based on fraud and breach of a fiduciary duty.

What is an Expert’s Report Under Article 4590i?

As noted by the majority, section 13.01(d)(1) of article 4590i requires a claimant to provide opposing parties with an expert report within 180 days of filing a claim. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d)(1) (Vernon Supp.2000). If a healthcare claimant fails to provide such a report, the trial court may dismiss the claimant’s suit. See id. § 13.01(e)(3). Whüe I agree with the majority that a trial court’s dismissal of a claim on this basis should be treated as a sanction and therefore should be reviewed under an abuse-of-discretion standard, I do not agree with the majority’s conclusion. See Estrello v. Elboar, 965 S.W.2d 754, 758 (Tex.App.— Fort Worth 1998, no pet.).

Here, appebees’ motion to strike appellants’ 13.01(d) expert report and to dismiss was based on its alleged inadequacy. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(e)(3), ffi, (r)(6).

Section 13.01(r)(6) of the medical babibty act defines an expert report as:

a written report by an expert that provides a fair summary of the expert’s opinion as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or healthcare provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

Id. § 13.01(r)(6). Additionally, section 13.01(j) provides:

Nothing in this section shall be construed to require the filing of an expert report regarding any issue other than an issue relating to liability or causation.

Id. § 13.01®.

And subsection (Z) sets forth the parameters under which opposing counsel might challenge the adequacy of an expert report.

A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section.

Id. § 13.01(Z). The majority agrees with appellees’ challenge to the adequacy of the report because it “does not address a standard of care, deviation from that standard, or that a deviation from the standard caused injury or damages.” While there are several cases that deal with the failure to timely file an expert report, there are relatively few cases that deal with the adequacy of the report in light of subsection (Z)’s good faith attempt to comply.

I believe that this expert report shows a good faith effort to comply. First, the report is not being filed in a vacuum but against the backdrop of the pleadings that set forth the basic factual allegations to show a deviation from a standard of care that resulted in injuries. Appellants claim in their original petition:

The Defendants were negligent in their treatment of Plaintiff in the following respects:
1. In failing to take a proper medical history.
2. In negligently failing to treat Plaintiff for the symptoms [of] his arm and chest pain.
3. In failing to perform an EKG and laboratory tests, as would be indicated by his history and condition.
4. In failing to investigate all probable causes of Plaintiffs neck, arm, and chest pain, nausea and vomiting.
5. In failing to promptly diagnose and treat the myocardial infarction.
6. In releasing Plaintiff to return home without properly testing him for all symptoms.
7. In releasing Plaintiff to return home while he was in acute pain.
8. Defendants were in all probability negligent in other respects in addition to the above and foregoing and Plaintiffs reserve the right to amend their pleadings to conform to the evidence.

This information provides a backdrop against which the report may be viewed.

Second, the report reveals enough information to show that the patient was improperly diagnosed at Huguley and that the failure to diagnose departed from an appropriate standard of care. The report shows it was based on personal knowledge of the expert’s interview of the patient and family, laboratory tests run and evaluated, along with an EKG. While not explaining the specific standard of care, the expert clearly states that the standard was breached.

In Palacios v. American Transitional Care Ctrs., Inc., the Houston Court of Appeals was faced with reviewing an adequacy challenge to an expert’s report. 4 S.W.3d 857, 859-60 (Tex.App. — Houston [1st Dist.] 1999, pet. filed). In reversing the trial court’s dismissal of the plaintiffs’ claims, the appellate court, applying the summary judgment standard of review instead of abuse of discretion, noted that the section 13.01(r)(6) expert report was designed to weed out frivolous suits in the early stages of litigation. The controlling issue is not whether the report provided the requisite “fair summary” but whether the report showed a good faith effort at meeting section 13.01(r)(6)’s requirements. See id. at 862. The appellate court concluded that the statements on the report were a good faith effort to meet section 13.01(r)(6)’s requirements in that it was directed toward the hospital and stated that the hospital’s actions fell below the accepted standard of care. See id. at 861. The report noted that a hospital should have taken precautions for a patient who fell from his hospital bed and suffered yet a second brain injury when he fell due to his history of falling. See id. Because precautions to prevent his fall were not taken the standard of care had not been met. See id. at 863.

The San Antonio Court of Appeals has applied an abuse-of-discretion standard to appellate review of a dismissal of a healthcare liability claim due to an inadequate expert report. See Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d 727 (Tex. App. — San Antonio 1999, no pet.). In Schorp the plaintiffs healthcare claim was dismissed because the “anonymous” report failed to state the name and qualifications of the expert and failed to attach the required curriculum vitae. Thus, the court reasoned there was no way to determine whether the plaintiffs expert was qualified. See id. at 732.

In yet another case, the Houston 14 th Court of Appeals upheld a trial court’s decision to strike two “éxpert letters or reports” noting that the letters failed to even show who was drafting the letter but appeared to be a letter requesting an expert opinion by marking a “yes” or “no” to the question of whether the defendant was negligent in his care of the plaintiff. Tibbetts v. Gagliardi, 2 S.W.3d 659, 662 (Tex. App. — Houston [14 th Dist.] 1999, pet. denied). Plaintiffs counsel filed an affidavit in support of her client’s claim that these “yes” and “no” letters were a good faith effort to comply with the statute. Id. Her affidavit merely stated, however, that it was an oversight not to be aware of the definition of an expert report and that she was not consciously indifferent. See id. at 663. The court of appeals affirmed the dismissal and held that the expert letters were not a good faith attempt to comply with the statutory definition of an expert report. See id.

Here the expert report clearly identifies the expert; lists his medical training; lists his certifications; identifies the lab results and other tests that he administered to the patient and reviewed; identifies the hospital to which the complaint is directed; and, identifies the treating physician and that his care fell below the acceptable standard of care for a patient with an acute myocardial infarction. I believe this is enough to be a good faith effort to give a fair summary of the expert’s opinion. This report goes much further than the reports that were struck in Schorp or in Tibbetts and is more like the report in Palacios. In light of an abuse-of-discretion standard, I would hold that the report was a good faith attempt to give a fair summary and would therefore hold the trial court abused its discretion in striking the report and dismissing appellant’s healthcare claim. In all other respects, I agree with the majority opinion.

      . A claimant under article 4590i must provide opposing parties one or more expert reports within 180 days after filing the claim. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d)(1). Failure to do so can result in the dismissal of the claimant’s case. See id. § 13.01(e)(3). Section 13.01(e) specifically describes such a dismissal as a "sanction” against the claimant. See id. Sanctions are typically reviewed under an abuse-of-discretion standard. See Stites v. Gillum, 872 S.W.2d 786, 788 (Tex. App.- — Fort Worth 1994, writ denied). We are bound by the plain language of section 13.01(e) and the common meaning of the term "sanction.” Therefore, we will review Appellants’ issue under an abuse-of-discretion standard.

      . Unlike the case before us, the plaintiff in Shannon did not allege that his health care providers were negligent or that they breached the acceptable standard of care. See Shannon, 950 S.W.2d at 437.

      . A duty to speak may arise when a fiduciary relationship exists between parties, see Stone v. Lawyers Title Ins. Corp., 537 S.W.2d 55, 67 (Tex.Civ.App. — Corpus Christi 1976), aff'd in part & rev'd in part, 554 S.W.2d 183 (Tex. 1977), or when a party makes a material representation relied upon by the other party that the party later finds out to be untrue and fails to reveal this change in events. See Susanoil, Inc. v. Continental Oil Co., 519 S.W.2d 230, 236 (Tex.Civ.App. — San Antonio 1975, writ ref d n.r.e.).


author: SAM J. DAY, Justice.

text:
    In re OSTEOPATHIC MEDICAL CENTER OF TEXAS.
    No. 2-00-050-CV.
    Court of Appeals of Texas, Fort Worth.
    April 20, 2000.

      Goodman, Odom, Lacy, Floyd & Midg-ley, L.L.P.., Lane, Odom, Jeffrey A. Lacy, Fort Worth, for appellant.
    Jim Claunch, Kirk Claunch, Forth Worth, for appellee.
    PANEL A: DAY, RICHARDS, and GARDNER, JJ.
   OPINION

SAM J. DAY, Justice.

We withdraw our opinion and judgment of April 6, 2000 and substitute the following opinion.

INTRODUCTION

Relator Osteopathic Medical Center of Texas (the “Hospital”) seeks mandamus relief from the trial court’s order compelling disclosure of two documents that it claims are excluded from discovery by the medical peer review privilege. After examining the documents in question, we find the Hospital has adequately proved, by affidavit, that one of the two documents is a privileged medical peer review document. Accordingly, we conditionally grant the petition for writ of mandamus in part and deny it in part.

Background

This case involves a slip-and-fall. Maxine Erickson fell in the bathroom at the SMART Institute, a physical therapy rehabilitation facility operated by the Hospital and the University of North Texas Health Science Center, and staffed by Richards Healthcare, Inc. As a result of her injuries, the Ericksons brought the underlying premises liability case. The Ericksons served the Hospital with a second request for production of documents seeking disclosure of the following items:

REQUEST FOR PRODUCTION NO. 1: Any and all accident reports in the possession of Osteopathic Medical Center of Texas regarding the accident which is the basis of this lawsuit to include those created by entities other than Osteopathic Medical Center of Texas. This request does not include any accident reports that were created after the filing of this lawsuit.
REQUEST FOR PRODUCTION NO. 2: Any and all documents or notes in the possession of Osteopathic Medical Center of Texas regarding any investigation of the accident which is the basis of this lawsuit to include those created by entities other than Osteopathic Medical Center of Texas. This request for production does not include any documentation or notes created after the filing of this lawsuit.

The Hospital objected to disclosure of any such documents on the basis of medical peer review committee privilege. Thereafter, the Ericksons filed a motion to compel discovery of the documents asserting that the privilege was inapplicable. In response to the motion, the Hospital filed the affidavit of Dr. Bryce Beyer in support of its privilege claim.

The trial court held a hearing on the motion to compel on January 7, 2000, at which time the Hospital tendered the documents to the trial court for in camera inspection. Overruling the Hospital’s peer review objections, the trial court granted the Ericksons’ motion to compel, in part, and ordered the Hospital to produce (1) the Patient Quality Event Tracking Report, and (2) the Security Services Incident Report. The Hospital seeks relief from this order.

Discussion

Mandamus will issue to correct a discovery order if the order constitutes a clear abuse of discretion and there is no adequate remedy by ordinary appeal. See In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998) (orig.proceeding); Walker v. Packer, 827 S.W.2d 833, 840-42 (Tex.1992) (orig.proceeding); Arlington Mem’l Hosp. Found., Inc. v. Barton, 952 S.W.2d 927, 929 (Tex.App. — Fort Worth 1997, orig. proceeding). A party does not have an adequate remedy by appeal when an appellate court cannot cure the trial court’s erroneous discovery order. See Arlington Mem’l, 952 S.W.2d at 929. An appellate court cannot cure the error when a trial court erroneously orders disclosure of privileged information that materially affects the rights of the aggrieved party. See Walker, 827 S.W.2d at 840; Arlington Mem’l, 952 S.W.2d at 929. Thus, the Hospital is entitled to mandamus relief in this instance if the trial court abused its discretion in compelling production of privileged documents.

The essence of the medical peer review privilege is that documents made by or for a medical committee or medical peer review committee are confidential and privileged from discovery unless they are made in the regular course of business or the privilege has been waived. See Tex. Occ.Code Ann. § 160.007(a), (e) (Vernon 2000); Tex. Health & Saeety Code Ann. § 161.032(a), (c) (Vernon Supp.2000); Arlington Mem’l, 962 S.W.2d at 929. The nature and extent of the medical peer review privilege is a question of law. See Brownwood Reg’l Hosp. v. Eleventh Court of Appeals, 927 S.W.2d 24, 27 (Tex.1996) (orig.proceeding). The burden to establish the privilege is on the party seeking to preclude documents from discovery on this basis. See Arlington Mem’l, 962 S.W.2d at 929. To that end, the party has the obligation to prove, by competent evidence, that the privilege applies to the information sought. See id. This is generally accomplished by affidavit. An affidavit filed as proof of the privilege must necessarily be descriptive enough to be persuasive. See id.

A review of the documents at issue indicates that both documents are preprinted forms of the Hospital and were completed immediately after or shortly after Ms. Erickson’s fall. The Patient Quality Event Tracking Report shows the time and location of the occurrence, the patient’s pre-occurrence condition, the nature of the occurrence, the post-occurrence treatment, witnesses to the occurrence, and a description of the incident or occurrence. This document specifically provides it is “FOR USE BY THE QUALITY ASSURANCE COMMITTEE.”

The Security Services Incident Report is marked “Draft,” and was apparently completed by an individual in the Hospital’s security department. It contains a brief hand-written statement concerning the incident and indicates security was notified.

Dr. Beyer’s affidavit indicates that he is the chairman of the Hospital’s medical peer review committee (the Medical Staff Quality Assurance Committee), and that he has personal knowledge of the statements made in the affidavit. He avers the Hospital’s peer review committee evaluates cases involving patient care at the Hospital and outpatient facilities, including the SMART Institute. The affidavit explains that, pursuant to hospital policy, incident reports are prepared immediately following an unusual occurrence to facilitate the peer review investigation process. These reports are then forwarded to the Hospital Quality Council Committee for analysis, and summaries are prepared and forwarded to him as chairman of the medical peer review committee with copies of the reports. These reports are received by, made at the behest of, and maintained by the peer review committee in the performance of its functions. The affidavit goes on to say the reports do not constitute routine business or medical records of the Hospital, and are not a part of the patient’s medical chart. Beyer enumerates the specific production requests and states that the documents tendered, which would be responsive to the requests, constitute records and communications to the peer review committee concerning the matter involving Ms. Erickson.

The affidavit is sufficient to make a pri-ma facie showing that the documents are entitled to the claimed privilege. See In re WHMC, 996 S.W.2d 409, 411 (Tex.App.— Houston [14 th Dist.] 1999, orig. proceeding); Arlington Mem’l, 962 S.W.2d at 928-29; Northeast Community Hosp. v. Giregg, 816 S.W.2d 320, 326 (Tex.App. — Fort Worth 1991, orig. proceeding). Nevertheless, upon in camera submission, the trial court, without specifying the basis for its ruling, determined the documents were not protected by the privilege.

In favor of production, the Erick-sons initially argue that the peer review privilege is inapplicable because the documents in question were prepared by employees of Richards Healthcare, against whom the Hospital has filed a cross-action. The Ericksons presented evidence consisting of deposition excerpts showing one or both of the reports were prepared by employees of Richards Healthcare and sent to the Hospital’s “quality management” department. The fact that the reports, or portions thereof, were prepared by persons other than Hospital employees or medical staff is not material to the question of whether the documents are subject to peer review privilege. Furthermore, there is no statutory requirement that the documents be made by Hospital employees or medical staff.

Next, the Ericksons argue the privilege is inapplicable because the underlying case presents a premises liability case, versus a medical malpractice or health care liability case. However, the Ericksons cite no authority limiting application of the privilege to specific causes of actions, nor are we aware of any. Likewise, we cannot perceive how the fact that the Hospital has filed a cross-action against Richards Healthcare in the underlying case is relevant to the privilege claim. We therefore conclude the peer review privilege may be applicable in a premises liability case, provided the party resisting disclosure satisfies the burden of establishing the privilege.

Further, the Ericksons propose the peer review affidavit was controverted by evidence at the motion to compel hearing. This contention, however, is not supported by the record. To the contrary, we find no evidence directly controverting the assertions in Dr. Beyer’s affidavit. Deposition testimony in fact supports the allegation that incident reports are made for and sent to the Hospital’s quality management committee.

Finally, the Ericksons contend the documents do not fall within the purview of the privilege because they are not related to the quality of medical or health care services or the competence of medical or health care providers. See Tex. Occ.Code Ann. § 151.002(a)(7)-(8). Instead, they contend the reports are the type kept in the ordinary course of business by the hospital. See Tex. Health & Safety Code Ann. § 161.032(c).

“Medical peer review” means “the evaluation of medical and health care services, including evaluation ... of patient care provided by” professional health care practitioners. Tex. Occ.Code Ann. § 151.002(7). The term includes evaluation of the accuracy of a diagnosis, the quality of the care provided by a health care practitioner, and any report to a medical peer review committee concerning activities under the committee’s review authority. Id. § 151.002(7)(B)-(D). Under article 4590i, section 1.03(a)(2), “ ‘health care’ means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Tex.Rev.Civ. Stat. Ann. art. 4509i, § 1.03(a)(2) (Vernon Supp.2000). The term “medical care” means any act “performed or furnished, or which should have been performed, by one licensed to practice medicine in Texas for, to, or on behalf of a patient during the patient’s care, treatment, or confinement.” Id. § 1.03(a)(6).

The peer review privilege does not protect records “made or maintained in the regular course of business.” Tex. Health & Safety Code Ann. § 161.032(c). For the purposes of peer review analysis, “records made or maintained in the regular course of business” means “records kept in connection with the treatment of [a hospital’s] individual patients as well as the business and administrative files and papers apart from committee deliberations.” McCown, 927 S.W.2d at 10 (quotingTexarkana Mem’l Hosp., Inc. v. Jones, 551 S.W.2d 33, 35 (Tex.1977) (orig.proceeding)).

It is apparent from the face as well as the content of the Patient Quality Event Tracking Report that it was made exclusively for the Hospital’s medical peer review committee. On its face, the report specifically states “Do Not Copy,” and that it is “Privileged and Confidential,” “For Quality Assurance Committee Use Only,” and “Not Part of [a Patient’s] Medical Record.” In addition, the content of the document, in part, references the medical and health care provided to Ms. Erickson by members of the Smart Institute staff and a physician summoned by the staff to aid Ms. Erickson after the occurrence. It describes Ms. Erickson’s condition before the occurrence, a diagnosis of her condition after the occurrence, and the care and treatment she received at the Institute until her transfer to a hospital. Moreover, the uncontroverted affidavit of Dr. Beyer explains that the document was prepared to provide information to facilitate the committee’s peer review function of evaluating “the quality of medical and healthcare services” provided by the Institute following unusual occurrences, such as the one involving Ms. Erickson. The document does not appear to have been generated for routine business or administrative purposes and Dr. Beyer’s affidavit supports this interpretation. Thus, we conclude the Patient Quality Event Tracking Report is peer review material and the trial court abused its discretion in ordering production of this report.

However, it is not clear from the face or the content of the Security Services Incident Report that it was necessarily prepared by or for the Hospital’s peer review committee for purposes of investigating such occurrences. The document is not related to any medical or health care services provided to Ms. Erickson following the occurrence. To the contrary, it appears to have been prepared as a routine matter by the Hospital’s security department for purposes of general information gathering. This document more likely falls within the category of records or reports made or maintained in the normal course of business by the Hospital apart from committee deliberations. That the document may have been forwarded to and considered by the committee does not transform the document into a committee record. See Barnes v. Whittington, 751 S.W.2d 493, 496 (Tex.1988) (orig.proceeding); McAllen Methodist Hosp. v. Ramirez, 855 S.W.2d 195, 198 (Tex.App.— Corpus Christi 1993, orig. proceeding). Consequently, we cannot conclude the trial court abused its discretion in ordering production of this report.

Conclusion

The writ of mandamus is conditionally granted in part. We direct the trial court to modify its discovery order to the extent the order compels discovery of the Patient Quality Event Tracking Report. A writ will issue only if the trial court does not modify its January 24, 2000 order accordingly. The writ is otherwise denied.

      . The Ericksons did not allege the Hospital waived the privilege or provide proof of waiver at the hearing. Therefore, we do not discuss the issue of waiver in this opinion.

      . Section 160.007(e) of the occupations code provides that unless disclosure is required or authorized by law, a record or determination of or a communication to a medical peer review committee is not subject to discovery and is not admissible as evidence in any civil judicial proceeding, absent waiver. See Tex. Occ.Code Ann. § 160.007(e) (emphasis added). Nor does section 161.032 of the health and safety code limit the privilege to specific types of actions. See Tex. Health & Safety Code Ann. § 161.032; see also Memorial Hosp.-The Woodlands v. McCown, 927 S.W.2d 1, 2 (Tex. 1996) (orig.proceeding) (privilege applied in defamation/libel case); Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12, 14-15 (Tex.1996) (orig.proceeding) (privilege applied in libel/slander/interference with business relations case).


author: DON WITTIG, Justice.

text:
    BRIDAS CORPORATION, Appellant, v. UNOCAL CORPORATION, Delta Oil Company, Ltd., Delta International, and Deltoil Corporation, Appellees.
    No. 14-99-00796-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 27, 2000.

      Patricia A. Hill, Murray Fogler, Houston, for appellant.
    Randall W. Wilson, William W. Ogden, Phillip T. Bruns, Robin C. Gibbs, Jeffery C. Alexander, Houston, for appellees.
    Panel consists of Chief Justice MURPHY, Justices HUDSON, and WITTIG.
   OPINION

DON WITTIG, Justice.

This accelerated appeal addresses whether a trial court has jurisdiction to issue an anti-suit injunction while the final judgment of the case is pending on appeal. We also consider the claim that the trial court abused its discretion in granting the injunction. We affirm.

Factual and Procedural Background

In 1996, appellant, Bridas Corporation, filed suit against appellees, Unocal and Delta (collectively “Unocal”) in Fort Bend County. The suit arose out of the parties’ activities in Afghanistan, Turkmenistan, and Texas. Bridas asserted claims against Unocal for tortious interference with contract, tortious interference with prospective business relations, and civil conspiracy-

About the same time Unocal appeared in the Fort Bend County suit, it filed a parallel declaratory judgment action in Turkmenistan. Bridas responded in its Fort Bend forum with a strongly worded application for temporary restraining order and temporary injunction against Unocal. Bri-das contended the Turkmenistan action was a “mirror image” of the Fort Bend case, that the filing of it was “vexatious and oppressive” and “smack[ed] of cynicism, harassment, and delay.” As another ground in support of an injunction, Bridas contended the Fort Bend court, upon Bri-das’ filing of the original action, “obtained exclusive jurisdiction over this controversy.” On the basis of Bridas’ motion, the court asserted exclusive jurisdiction and enjoined Unocal from prosecuting a parallel claim anywhere in the world but Fort Bend County. Bridas now changes its tack, wistfully to sail away to that same forbidden port.

In 1998, Unocal moved for summary judgment. It asserted: (1) Afghanistan and Turkmenistan law applied to Bridas’ claims; (2) the laws of those countries do not recognize such claims; (3) therefore, Bridas’ claims are barred. After an extensive choice of law and summary judgment hearing, the trial court agreed and granted a take-nothing summary judgment on October 2,1998. Bridas filed notice of appeal on March 1, 1999, and appeal of that summary judgment has been submitted before this court.

Just prior to a mediation that had been ordered by this court, Bridas notified Unocal it intended to “initiate legal proceedings ... in Afghanistan if the matter cannot be resolved in the mediation.” After the mediation failed, Unocal moved the Fort Bend trial court to enjoin Bridas from filing suit in Afghanistan. The court granted the temporary injunction on June 11, 1999, several months after we assumed jurisdiction and the trial court’s plenary power had expired.

Bridas contends the trial court lacked jurisdiction to enter the injunction. Alternatively, it contends the court abused its discretion in granting it.

Jurisdiction

In support of its contention that the trial court was powerless to enter the anti-suit injunction, Bridas cites the general rule that a trial court only has plenary power until thirty days after its judgment becomes final. See Tex.R. Civ. P. 329b(d); Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex.1993). Further, once an appeal is perfected, the court of appeals acquires exclusive plenary jurisdiction over the case. See Robertson v. Ranger Ins. Co., 689 S.W.2d 209, 210 (Tex.1985).

Unocal responds that despite these propositions, the trial court continues to retain jurisdiction to protect or enforce its judgment while the case is pending on appeal. See Houston Oil Co. v. Village Mills Co., 109 Tex. 169, 202 S.W. 725 (1918). The trial court is vested with the inherent judicial authority to enforce its orders and decrees. See Arndt v. Farris, 633 S.W.2d 497, 499 (Tex.1982); Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex.1979). Additionally, it is vested with explicit statutory authority to enforce its judgments, including the issuance of an injunction. See Tex. Civ. PRAC. & Rem.Code Ann. § 65.011 (Vernon 1997); Tex. R. Civ. P. 308.

Village Mills bears important similarities to our case. There, the plaintiff won a judgment for the ownership of land. During the defendant’s appeal on the merits, the plaintiff moved the trial court to enjoin the defendant from cutting timber on the land. The court granted the injunction. The defendant appealed, asserting, as Bridas does now, the trial court was without jurisdiction to grant injunctive relief while the case is on appeal. Citing the predecessor to section 65.011(2), The Texas Supreme Court disagreed: “There is, in our opinion, no doubt as to the power of the District Judge to grant the injunction.” Village Mills, 202 S.W. at 725. The court held that the trial court’s injunction would “not interfere with the full exercise of the Court of Civil Appeals’ power over the appeal.” Id. Village Mills thus clearly stands for the proposition that Bridas denies: the trial court is empowered to issue an anti-suit injunction to enforce its judgment while the case is pending on appeal.

The power of a trial court to grant in-junctive relief while the case is pending on appeal is supported by other authority. See EMW Mfg. Co. v. Lemons, 12A S.W.2d 425, 426 (Tex.App.-Fort Worth 1987 orig. proceeding) (the power to grant injunction to preserve status quo or prevent damage to litigant who has an appeal pending rests exclusively with the district judge); Wolf v. Young, 275 S.W.2d 741, 745 (Tex.Civ. App.-San Antonio 1955, no writ) (same); Madison v. Martinez, 42 S.W.2d 84, 86 (Tex.Civ.App.-Dallas 1931, no writ) (same).

Appellant contends that Greiner v. Jameson, 865 S.W.2d 493 (Tex.App.-Dallas 1993, writ denied), presents an “analogous situation” and is therefore controlling. In Greiner, the court of appeals reversed the trial court because the sanctions order it had issued compelled the defendant to “specifically perform” the judgment while that judgment was pending on appeal. Id. at 500. The court of appeals held that to permit the trial court to order the defendant to do this “effectively undermines his right to seek appellate relief and denies this Court its lawful jurisdiction of the appeal.” Id.

Greiner is inapplicable. Contrary to Bridas’ assertion, Greiner does not hold that a trial court is powerless to issue an anti-suit injunction while the case is on appeal. Rather, it enumerates several limits to that power. Specifically Greiner holds, that the trial court may not interfere with the appellate court’s determination of the issue, undermine the right of the appellant to prosecute its appeal, or modify its final judgment. Id. at 500. None of this type of overreaching occurred in our ease. Here, the trial court’s anti-suit injunction only prohibited Bridas from relitigating the identical issues in a foreign court. The trial court simultaneously protected its own judgment and preserved our appellate jurisdiction. We do not perceive, and Bridas does not state, how this undermines or interferes with its right to seek appellate relief in this court or with this court’s determination of the issue on appeal. Nor do we see how the injunction in any way modifies the final judgment.

We therefore hold that the trial court did not exceed its power in issuing the anti-suit injunction. See, e.g., Tex. Crv. PRAC. & Rem.Code Ann. § 65.011; Village Mills, 202 S.W. at 725; EMW Mfg., 724 S.W.2d at 426. This issue is overruled.

Abuse of Discretion

Bridas argues in the alternative that even if the trial court was empowered to issue an anti-suit injunction, it abused its discretion by so doing.

Generally, the court which renders a judgment has a duty to enforce it. See City of Dallas v. Dixon, 365 S.W.2d 919, 923 (Tex.1963). However, an anti-suit injunction should be employed sparingly and carefully. See University of Texas v. Morris, 162 Tex. 60, 344 S.W.2d 426, 429 (1961). Such a device should be used only in compelling circumstances. See Gannon v. Payne, 706 S.W.2d 304, 306 (Tex.1986). The party seeking the injunction has the burden of showing that a clear equity demands the injunction. Id. The decision to grant or deny an injunction is within the sound discretion of the trial court. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993). In reviewing the trial court’s order, the appellate court should draw inferences from the evidence in the manner most favorable to the trial court’s ruling. See James v. Wall, 783 S.W.2d 615, 619 (Tex.App. — Houston [14 th Dist.] 1989, no writ).

An anti-suit injunction is appropriate only to (1) address a threat to the court’s jurisdiction; (2) prevent the evasion of important public policy; (3) prevent a multiplicity of suits; or (4) protect a party from vexatious or harassing litigation. Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651 (Tex.1996). It appears that Unocal’s principal basis for the injunction was that Bridas’ suit threatened “vexatious or harassing litigation.”

Some of the strongest evidence supporting an anti-suit injunction against Bridas comes from Bridas itself. When Unocal filed its suit in Turkmenistan, in its sworn application for temporary injunction, Bridas emphatically maintained that:

— the Fort Bend court is vested with “exclusive jurisdiction over this controversy between the parties” and “[i]t is improper for Unocal to thwart, subvert and defeat the jurisdiction of this court by filing a foreign action.”
— Unocal’s single, parallel, concurrent action against it in Afghanistan is “vexatious and oppressive” and “smacks of cynicism, harassment, and delay.”

Unocal contends that Bridas is now judicially estopped to deny the foregoing. The elements required to trigger judicial estop-pel are: (1) the sworn, prior inconsistent statement must have been made in a judicial proceeding; (2) the party now sought to be estopped must have successfully maintained the prior position; (3) the prior inconsistent statement must not have been made inadvertently or by mistake, fraud or duress; and (4) the statement must be deliberate, clear, and unequivocal. See Huckin v. Connor, 928 S.W.2d 180, 182-83 (Tex.App.-Houston [14 th Dist.] 1996, writ denied).

We agree with Unocal that the elements of judicial estoppel are fulfilled with respect to the Fort Bend court having “exclusive jurisdiction” over the controversy. Bridas was successful in having the court assume “exclusive jurisdiction” over this controversy and the controversy in the Fort Bend case is the same as in the threatened Afghanistan suit. Bridas is now estopped to assert that the Fort Bend District Court does not have the jurisdiction over the controversy it asserted or that invoking the foreign jurisdiction would not thwart, subvert and defeat the jurisdiction of the Fort Bend District Court.

We are reticent to find that Bridas is judicially estopped to deny that its threatened suit in Afghanistan would be “vexatious and oppressive” although it earlier asserted the same about Unocal’s suit. Though the suits and issues are essentially identical in substance, they nonetheless offer slightly different circumstances. Therefore, the technical requirements of judicial estoppel may not be satisfied. However, Bridas’ unequivocal and repeated admissions that Unocal’s litigation was “vexatious and oppressive” provided additional evidence for the trial court to conclude that Bridas’ threatened additional suit was no less pernicious. Bridas’ assertion that Unocal’s suit was “vexatious and oppressive” applies a fortiori against itself when Unocal has now successfully obtained a favorable final judgment in the court where Bridas chose to litigate and to convincingly demand exclusive jurisdiction. In this light, we fail to see how Bridas with a straight face would assert that the same trial court which granted an anti-suit injunction in its favor abused its discretion in finding that Bridas’ threatened virtually twin action would likewise be vexatious or harassing.

Bridas also contended that principles of comity prevented the trial court from issuing an anti-suit injunction. Comity is a principle under which the courts of one jurisdiction give effect to the laws of another jurisdiction not as a rule of law, but rather out of deference or respect. See Hawsey v. Louisiana Dep’t of Social Servs., 934 S.W.2d 723, 726 (Tex.App.Houston [1st Dist.] 1996, writ denied). Generally, it is appropriate for courts to apply the comity doctrine where another court has exercised jurisdiction over the matter. See Bryant v. United Shortline Inc. Assur. Servs., N.A., 972 S.W.2d 26, 30-31 (Tex.1998). We are aware of no authority that would have a court, after rendering final judgment, defer to a foreign court for some in futuro action. If anything, we would expect the foreign jurisdiction to invoke comity in the Texas court’s favor had Bridas carried out its threat. Cf. Gannon, 706 S.W.2d at 307 (once final judgment is reached in one of the actions, the second forum is usually obliged to respect the prior adjudication under the rules regarding the enforcement of final judgments); Pursley v. Ussery, 937 S.W.2d 566, 567-68 (Tex.App.-San Antonio 1996, no writ) (under the principles of comity, a court should not be permitted to interfere with the final judgment of another court). Thus we see no basis on which to invoke comity.

Bridas also complained that the court erred because Unocal was unable to show a plea of res judicata in the foreign court would not provide an adequate remedy at law. We disagree. Unocal produced evidence that a res judicata plea in Afghanistan may not provide an adequate remedy at law. First, after Bridas threatened to file suit against Unocal in Afghanistan, counsel for Unocal faxed counsel for Bri-das an elegantly worded note: “Dear Murray: Ever heard of res judicata? ” Counsel for Bridas responded, in part: “A more salient inquiry is whether the courts of Afghanistan have ever heard of res judica-ta.” Second, Unocal provided the trial court with an English translation of the Mejelle, which is regarded as a source of law in Arab countries. Section 1838 of the Mejelle provides that judgments not conforming with “Sher principles” may be reheard. Section 1839 made provisions for one who is dissatisfied with a judgment to have it “annulled” if not “in conformity with the principles of the Law.”

We believe that Bridas’ counsel’s letter and the cited portions of the Mejelle provided the trial court with evidence that its judgment may not be given preclusive effect in an Afghan court. Thus, when viewed in the light most favorable to Unocal, the record supports the trial court’s finding that a plea of res judicata would not necessarily provide Unocal an adequate remedy at law.

Unocal produced sufficient evidence that Bridas’ threatened suit was vexatious or harassing under the Golden Rule standard. In short, the proof clearly showed that Bridas intended to disregard the jurisdiction of the court it emphatically insisted upon, and attempt to circumvent its final judgment. Unocal would have been subjected to once again litigate the same matter in a foreign jurisdiction where a plea of res judicata could likely to fall on deaf ears. This represents more “vexatious and oppressive” acts than Bridas had successfully enjoined. We therefore hold the trial court did not abuse its discretion in granting Unocal’s anti-suit injunction. Bridas’ second issue is overruled.

Unocal has filed a Conditional Motion for Temporary Injunction. Because we hold the trial court’s injunction was proper, we do not reach the motion. The judgment of the trial court is affirmed.

      . The allusion is figurative for Afghanistan is landlocked by Iran and Pakistan.

      . The statute provides, in pertinent part, that a writ of injunction may be granted if:
      a party performs or is about to perform or is procuring or allowing the performance of an act relating to the subject of pending litigation, in violation of the rights of the applicant, and the act would tend to render the judgment in that litigation ineffectual.
      Tex. Civ. Prac. & Rem.Code Ann. § 65.011(2).

      . The "exclusive jurisdiction” language is that of the parties, not ours. We are not holding that only the 268th District Court had jurisdiction. Once Bridas created this "law of the case,” it is estopped to reverse this position, sua sponte, unless of course the court is without jurisdiction.

      . As the court in State Farm Fire & Cas. Co. v. Simmons, 857 S.W.2d 126, 143 (Tex.App.Beaumont 1993) aptly observed: "There is an old axiom, not in law, unspoken, but perhaps underlying all equitable principals, which holds: 'What's sauce for the goose is sauce for the gander.' ”

      . We also note that when moving to enjoin the Unocal action, Bridas asserted that "no principle of comity should allow Unocal to interfere with this court’s jurisdiction.”

      .The trial court may consider any material or source, whether or not submitted by a party or admissible under the rules of evidence, to determine the law of a foreign nation. See Tex.R. Evid. 203.

      . Bridas argues that if any court has jurisdiction to grant an anti-suit injunction while the case is on appeal, it is the appellate court where the case is pending. Though we do not decide whether this court is empowered under these circumstances to grant such an injunction, we note there is authority that suggests otherwise. See, e.g., EMW Mfg., 724 S.W.2d at 426 (appellate court has no jurisdiction to issue writ of injunction merely to preserve status quo or prevent damage to one of the parties pending appeal). We also observe that as a practical matter, the trial court is generally a superior forum to adjudicate whether injunctive relief is appropriate because of its ability to hear evidence and act with greater dispatch.