author: TERRY JENNINGS, Justice.

text:
    Mark M. METTAUER, M.D., Appellant, v. Helen NOBLE, Individually and as Independent Executrix of the Estate of Anthony M. Noble, Deceased, Alexandria Noble Barcak, Sasha Noble, Danielle Heller, and Vanessa Noble, Appellees.
    No. 01-10-00167-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 30, 2010.

      James B. Edwards, R. Gregg Byrd, Edwards & Associates, Stafford, for Appellant.
    Lynn J. Element, Law Office of Lynn J. Element, Angleton, for Appellee.
    Panel consists of Justices JENNINGS, ALCALA, and SHARP.
   OPINION

TERRY JENNINGS, Justice.

In this interlocutory appeal, appellant, Mark M. Mettauer, M.D., challenges the trial court’s order denying his motion to dismiss the health care liability claim of appellees, Helen Noble, individually and as independent executrix of the estate of Anthony M. Noble, deceased, Alexandria Noble Barcak, Sasha Noble, Danielle Heller, and Vanessa Noble (collectively, the “Nobles”). In two issues, Dr. Mettauer contends that the trial court erred in finding that the Nobles’ expert report, written by Dr. Joseph Carey, is sufficient, determining that Dr. Carey is a qualified expert, and not dismissing the claim. The Nobles contend that Dr. Mettauer has brought this appeal “only to delay the trial and increase the cost” of the case, and they seek sanctions for his bringing of a frivolous appeal.

We affirm.

Background

In their original petition, the Nobles, asserting a health care liability claim against Dr. Mettauer, allege that he, while conducting a thoracoscopic atrial ablation on the decedent, and unable to visualize a catheter, negligently continued with the procedure and “tore a hole in the right atrial-inferior vena-cava junction of the [decedent’s] heart.” Dr. Mettauer then, instead of a “medial sternotomy incision,” performed a “right posterolateral thoraco-tomy to open the [decedent’s] chest and repair the injury,” causing an “extensive period of time before blood flow could be reestablished to [the decedent’s] body and organs.” The lack of blood flow caused “catastrophic multiple organ failure,” which resulted in death.

The Nobles timely served Dr. Mettauer with the expert report of Dr. Joseph S. Carey, who opined that the standard of care for thoracoscopic surgery generally requires a surgeon to “visualize through the camera the catheter used during the procedure” and Dr. Mettauer deviated from the standard of care by continuing “with the thoracoscopic ablation procedure when he could not visualize the blue catheter.” The deviation “in reasonable medical probability resulted in the injury to the [decedent’s] inferior vena cava right atrial junction.” Dr. Carey further opined that after the injury, the standard of care called for Dr. Mettauer “to immediately convert the procedure from a thoracoscopic procedure to an open procedure,” which requires a surgeon “to open the chest using a median sternotomy incision, which allows more direct visualization of the heart and the injury.” Dr. Mettauer deviated from the standard of care when he converted to a “right posterolateral thoracotomy” because such a procedure “takes longer” and “does not allow full visualization” of the heart. Use of the procedure caused the decedent to be “without blood supply to his vital organs for a critical period of time,” rather than the “few minutes” that would have passed had Dr. Mettauer used the open procedure. This delay, “in reasonable medical probability,” caused the decedent’s “catastrophic multiple organ failure that resulted in his death.”

Dr. Mettauer objected to Dr. Carey’s report on the ground that Dr. Carey “does not perform the thora[co]scopic cardiac ablation procedure at issue,” making him unqualified to opine on the standard of care for the procedure. Dr. Carey’s conclusions that the “right posterolateral thora-cotomy unnecessarily caused the decedent to go without blood supply” and that this ultimately caused his death were based on “assumptions and/or mistakes,” not the decedent’s medical records. Also, Dr. Carey’s “proximate cause conclusion” did not “provide necessary underlying facts regarding the alleged causal relationship” between the “right posterolateral thoraco-tomy and Mr. Noble’s death.”

In response to Dr. Mettauer’s objections, the Nobles timely served upon him Dr. Carey’s amended expert report in which he stated that he had reviewed the decedent’s records from St. Luke’s Hospitals in the Woodlands and Houston, Dr. Mettauer, and Dr. Frank D. Reichmann. Dr. Carey clarified that he had performed “many thoracoscopic surgical procedures” but had only “performed the atrial ablation procedure with the open technique.” He opined that the standard of care for thora-coscopic surgery is the same for “an ablation as for other cardiovascular surgery.” Dr. Carey clarified that the decedent had been subjected to a “period of 13 minutes between the onset of the bleeding and the opening of the chest” and that blood flow, in reasonable probability, could have been “re-established within 2-3 minutes” had Dr. Mettauer used the “open procedure” to open the decedent’s chest. He opined that “had the blood flow been re-established within such time, [the decedent] would not, in reasonable medical probability, have suffered the catastrophic multiple organ failure that resulted in his death.”

Dr. Mettauer lodged the same three objections that he had made against Dr. Carey’s original report and asserted his “[section] 74.351” motion to dismiss the Nobles’ health care liability claim. Dr. Mettauer claimed that Dr. Carey’s (1) proximate cause opinion depended upon a loss of blood supply that did not occur based on the medical records that established that “Mr. Noble never lost blood pressure and thus never lost blood supply”; (2) thoracoscopic standard of care opinion is based upon “his lack of experience with the surgery at issue”; and (3) atrial proximate cause opinion is based upon “an assumption that is not supported by the medical records (or by the discovery),” which shows that “the Flex View special camera adaptor” created the injury and not an “unsupervised blue catheter.” Dr. Mettauer asserted that “Dr. Carey’s amended expert report cannot be sufficient if the operative facts within it are wrong or if the critical opinions within it are conclusory.” He asked the trial court to consider “whether [the decedent’s] medical records and the discovery ... show that the operative facts” within Dr. Carey’s expert report “are wrong” and that his opinions are conclusory. Dr. Met-tauer attached to his motion the decedent’s “anesthesia record” from St. Luke’s Hospital in the Woodlands, the “report of procedure” from St. Luke’s Hospital in Houston, a PowerPoint presentation allegedly showing how to use the “Guidant Flex 10 Microwave Surgical Ablation System” used during the ablation, and his own answers to interrogatories (collectively, the “source material”). Dr. Mettauer also filed motions to stay discovery and for continuance while his interlocutory appeal of the trial court’s order is pending.

In their response to Dr. Mettauer’s objections, the Nobles asserted that Dr. Met-tauer was asking the trial court to “consider extraneous evidence as to whether the opinion in the report” was accurate instead of looking “only within the four corners” of the report to determine its sufficiency. They countered that Dr. Carey could “rely on matters not in the medical records to support his opinions” and “the minutes of delay resulting from using a posterolateral technique” caused the multiple organ failure that ultimately killed Mr. Noble. The report outlined the standard of care and “inform[ed] [Dr. Mettauer] of the specific conduct called into question, how [the standard of care] was breached, and how that breach caused Mr. Noble’s injuries.”

In their response to Dr. Mettauer’s motion to dismiss, the Nobles asserted that his attached source material is “extrinsic evidence which cannot be considered in determining whether an expert report is adequate.” The Nobles labeled Dr. Met-tauer’s motion a “motion for summary judgment” because he sought to use evidence from the medical records and discovery to “prove Dr. Carey’s opinions are wrong” instead of challenging whether Dr. Carey’s “report meets the criteria for an expert report.” Additionally, they asserted that Dr. Mettauer’s motion was based on his attorneys’ “interpretation of what [the anesthesia report] means,” not any “expert testimony,” and the “medical literature” relied upon had not been “established as authoritative by any expert.”

Standard of Review

We review a trial court’s decision on a motion to dismiss a health care liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001) (predecessor statute); Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex.App.Houston [1st Dist.] 2006, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex.1999). When reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for that of the trial court. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. Gray, 189 S.W.3d at 858; Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170, 176 (Tex.App.-Houston [1st Dist.] 2007, no pet.).

Expert Report

In two issues, Dr. Mettauer argues that the trial court erred in denying his motion to dismiss the Nobles’ health care liability claim because “not requiring the facts affecting the standard of care, breach, proximate cause, and damages in the expert report to be reliable permits impermissibly absurd results,” Dr. Carey was not qualified to opine on the standard of care applicable to a thoracoscopic atrial ablation procedure, and the trial court “should have taken notice of Dr. Mettauer’s source material” in determining the sufficiency of Dr. Carey’s expert report and qualifications.

Sufficiency of Expert Report

A plaintiff bringing a health care liability claim must provide each defendant health care provider with an expert report. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (Vernon Supp.2010); Gray, 189 S.W.3d at 858. The expert report must provide a fair summary of the expert’s opinions as of the date of the report regarding the applicable standards of care, the manner in which the care rendered by the health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6).

If a defendant files a motion to dismiss challenging the adequacy of the expert report, the trial court shall grant the motion to dismiss only if it appears to the court, after a hearing, that the report does not represent an objective good-faith effort to comply with the definition of an expert report. Id. § 74.351(b), (l). The only information relevant to the inquiry is that within the four corners of the document. Palacios, 46 S.W.3d at 878. Although the plaintiff need not marshal all of her proof in the report, the report must include the expert’s opinion on each of the elements identified in the statute. See Palacios, 46 S.W.3d at 878-79; Gray, 189 S.W.3d at 859. In setting out the expert’s opinions, the report must provide enough information to fulfill two purposes to constitute a good-faith effort. Palacios, 46 S.W.3d at 879. First, the report must inform the defendant of the specific conduct the plaintiff has called into question. Id. Second, the report must provide a basis for the trial court to conclude that the claim has merit. Id. A report that merely states the expert’s conclusions does not fulfill these two purposes. Id. The expert must explain the basis of his statements to link his conclusions to the facts. Bowie, 79 S.W.3d at 52. However, a plaintiff need not present evidence in the report as if she were actually litigating the merits. Palacios, 46 S.W.3d at 879. Furthermore, the report may be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary judgment proceeding or trial. Id.

Dr. Mettauer argues that because Dr. Carey’s report is “counterfactual” and “factfree,” the trial court should have considered Dr. Mettauer’s “source material contradicting the facts affecting standard of care, breach, proximate cause, and damages,” which the Nobles “failed to reasonably question.” Dr. Mettauer asks this Court to hold that “when checking the specific medical facts cited by the expert,” a trial court should be allowed to “look in the medical records cited by the expert” rather than restrict its review to the four corners of the expert report and curriculum vitae in determining the sufficiency of the expert report. He asserts that the trial court was required to take judicial notice of “specific medical facts affecting standard of care, breach, proximate cause, and/or damages” that he supplied with his ■source material.

In support of his argument, Dr. Mettauer relies on Baptist Hospitals of Southeast Texas v. Carter, No. 09-08-00067-CV, 2008 WL 2917109, at *3 (Tex.App.-Beaumont July 31, 2008, no pet.) (mem. op). In Carter, the plaintiff contended that the absence of an operative report from his first surgery impeded diagnosis and delayed proper corrective surgery. Id. The defendant-hospital introduced two “operative reports,” which had been reviewed by the expert in writing his report, to support its objection that the expert’s report “inadequately explained how the alleged delays in [the plaintiff’s] treatment were attributable to the absence of a report on the first surgery.” Id. at *3. The court of appeals stated, “While a court cannot go outside the expert’s report in order to supply information that is statutorily required to be within it, the challenge in this case addresses whether the opinions in the expert’s report are supported by the facts reflected in the medical records the expert has relied upon to render a report.” Id. at *3 n. 4. The court went on to consider in its sufficiency analysis the two records presented by the defendant-hospital for the trial court’s review, and the court concluded that the expert report based “its causation analysis on several assumptions about [the plaintiffs] treatment at [the defendant-hospitals] that are inconsistent with the medical records placed in evidence.” Id. at *5. The court further concluded that the operative report from the second surgery referred to the first surgery and adequately made the surgeon aware of the complications from the first surgery. Id. at *6. The court held that the expert report did not “sufficiently explain how not having a report on the first surgery delayed [the plaintiffs] treatment and resulted in his injury” and, thus, was con-elusory. Id.

The Nobles assert that any review of the source material, which is outside the four corners of Dr. Carey’s report, violates the “four corners” rule of Palacios. 46 S.W.3d at 878. We agree. First, Dr. Mettauer, unlike the plaintiff in Carter, does not assert that Dr. Carey relied on the source material in writing his expert report. A court of appeals may not engage in a review of documents not relied upon by an expert. Christus Health Se. Tex. v. Broussard, 306 S.W.3d 934, 939 (Tex.App.-Beaumont 2010, no pet.) (“Because [the] defendants’ motion asked the trial court to look beyond the four corners of the report and determine fact issues based on an affidavit and documents not reviewed or relied on by the expert, the trial court did not abuse its discretion in denying the motion to dismiss”); see also In re Windisch, 138 S.W.3d 507, 511 (Tex.App.-Amarillo 2004, no pet.) (per curiam) (refusing to consider record of hearing and expert’s testimony in considering adequacy of expert report).

Second, in the context of a health care liability claim, the trial court’s role is not to determine the truth or falsity of the expert’s opinion but to act as a gatekeeper. Pedroza v. Toscano, 293 S.W.3d 665, 667 (Tex.App.-San Antonio 2009, no pet.); Schmidt v. Dubose, 259 S.W.3d 213, 218 (Tex.App.-Beaumont 2008, no pet.); see also E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). Here, the trial court was specifically restricted to determining whether Dr. Carey’s expert report “represented] a good-faith effort to comply with the definition of an expert report,” that is, whether it informed Dr. Mettauer of the specific conduct called into question, provided a basis for the trial court to conclude that the Nobles’ claim has merit, and explained the basis of Dr. Carey’s statements to link his conclusions to the facts. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b), (l); Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878.

Third, the Beaumont Court of Appeals has, since it issued its opinion in Carter, issued a recent opinion clarifying that a challenge to the sufficiency of an expert report is limited to the four corners of the expert report. Broussard, 306 S.W.3d at 939. In Broussard, the court held that, despite inconsistencies between assertions made in a plaintiffs expert report and those made in a defendant’s motion to dismiss, a trial court may not look beyond the four corners of the expert report to determine whether the facts asserted in the report are false. Id. (“Because defendants’ motion asked the trial court to look beyond the four corners of the report and determine fact issues based on an affidavit and documents not reviewed or relied on by the expert, the trial court did not abuse its discretion in denying the motion to dismiss.”). The court in Broussard clearly noted that extraneous information, which was not relied upon by an expert in making his determinations and which does not appear in the report, may not be reviewed in determining the sufficiency of an expert report. Id.

Finally, we find no support in Texas Supreme Court authority that the trial court’s review of the sufficiency of an expert report may include documents outside the four corners of the expert report and the expert’s curriculum vitae. Accordingly, we conclude that the trial court did not err in declining to review Dr. Mettauer’s source material in its review of Dr. Carey’s expert report.

We review the sufficiency of Dr. Carey’s report looking at the four corners of the report. See Palacios, 46 S.W.3d at 878. Dr. Carey explained that the standard of care required Dr. Mettauer to stop the thoracoscopic atrial ablation when he could not “visualize the blue catheter” and to convert to a “medial sternotomy incision” to open the decedent’s chest after the injury. Dr. Carey identified the specific acts of Dr. Mettauer that were negligent: continuing the procedure when he could not visualize the catheter, resulting in the tear in the artery, and converting to a postero-lateral thoracotomy to open the chest. The report put Dr. Mettauer on notice that his use of the posterolateral thoracotomy, instead of the “open procedure,” delayed restoration of the blood supply to multiple organs, which subsequently failed and caused Mr. Noble’s death. Accordingly, we hold that the trial court did not err in finding Dr. Carey’s expert report sufficient.

Dr. Carey’s Qualifications

In regard to an “expert report” in a health care liability claim, an “expert,” “giving opinion testimony about the causal relationship between [an] injury, harm, or damages claimed and [an] alleged departure from the applicable standard of care,” must be “a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(5)(C). Under the Texas Rules of Evidence, “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex.R. Evid. 702; see also Broders v. Heise, 924 S.W.2d 148, 153 (Tex.1996).

In regard to the qualifications of an expert witness on causation in a health care liability claim against a physician, the expert witness must be a physician and “otherwise qualified to render opinions on [causation] under the Texas Rules of Evidence.” Tex. Civ. Prac. & Rem.Code Ann. § 74.403(a) (Vernon 2005). On the issue of whether a physician departed from accepted standards of medical care, a person may qualify as an expert witness only if the person is a physician who:

(1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.

Id. § 74.401(a) (Vernon 2005). If a witness is to be qualified on the basis of training or experience, “the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness ... (1) is board certified ... and ... is actively practicing medicine in rendering medical care services relevant to the claim.” Id. § 74.401(c). An expert report by a person not qualified to testify does not represent a good-faith effort to comply with the definition of an expert report. Foster v. Zavala, 214 S.W.3d 106, 116 (Tex.App.-Eastland 2006, pet. denied) (citing In re Windisch, 138 S.W.3d at 511 (interpreting predecessor statute to section 74.351)).

Dr. Mettauer first asks this Court to look outside the four corners of the expert report and curriculum vitae and rely on his source materials to conclude that Dr. Carey is unqualified to opine on the issue of standard of care. Again, however, our analysis of the qualifications of an expert is limited to the “four corners of the expert’s report and curriculum vitae.” Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 758 (Tex.App.-Houston [14th Dist.] 2007, no pet). Thus, the source material is not relevant to a qualifications inquiry. Instead, the analysis is confined to Dr. Carey’s expert report and curriculum vitae. Id.

Dr. Mettauer next argues that because Dr. Carey has “no experience with the thoracoscopic atrial ablation surgery,” his opinion that “the standard of care regarding thoracoscopic surgery as it relates to the [decedent] is the same whether the thoracic surgeon is performing an ablation or other cardiovascular surgery using the thoracoscopic technique” is conclusory. He asserts that the Nobles failed to challenge his source material, specifically the PowerPoint presentation, as “unreliable” and the presentation shows that Dr. Carey is not qualified to give an opinion about the thoracoscopic cardiac ablation procedure.

However, as identified in his expert report, Dr. Carey’s credentials include board certifications in surgery and thoracic surgery and private practice for twenty-seven years as a cardiovascular and thoracic surgeon, the area of medicine relevant to the Nobles’ claim. He is “very familiar with general thoracoscopic surgical techniques.” In his practice, he routinely performs thoracic surgical procedures that involve a thoracoscope, but he has never performed the cardiac ablation procedure using the thoracoscopic technique, which is the procedure at issue.

Dr. Mettauer next asserts that Dr. Carey had to have “familiarity with the medical procedure at issue” to be qualified. See Forrest v. Danielson, 77 S.W.3d 842, 848 (Tex.App.-Tyler 2002, no pet.). In Forrest, the expert, whom the court found was not qualified, was board certified in orthopedic surgery, which deals with injuries to the skeletal system. Id. However, his expert report and curriculum vitae did not indicate that he was familiar with the procedures that the defendant-doctor had used to access the plaintiffs spine or to remove the disc protrusion or the treatment of a disc protrusion. Id. Here, in contrast, Dr. Carey, while not having performed an atrial ablation using the thora-coscopic procedure, has in fact performed numerous atrial ablations using the “open procedure,” and he routinely performs tho-racoscopic cardiothoracic procedures. He is also a board certified thoracic surgeon who is currently practicing.

The facts presented here are more similar to those in Moore v. Gatica, 269 S.W.3d 134, 141-42 (Tex.App.-Fort Worth 2008, pet. denied). In Moore, an expert was board certified in thoracic surgery and had a practice covering “all aspects” of general, thoracic, and cardiovascular surgery. Id. at 142. Though the expert report did not indicate that he had experience performing the “laparoscopic appendectomy” at issue, the court concluded that he was qualified to offer an opinion on the standard of care for the treatment of appendicitis because his practice “solely focused on surgery” and he cared “for patients with appendicitis.” Id. at 141-42. Like the expert in Moore, Dr. Carey has an extensive background in cardiothoracic surgery that includes the routine use of thoracoscopes, and he has experience performing atrial ablations. Thus, he had knowledge of the accepted standards of care for a thoraco-scopic atrial ablation. Accordingly, we hold that the trial court did not err in finding that Dr. Carey is a qualified expert on the issue of the standard of care.

Having held that the trial court did not err in finding that Dr. Carey is a qualified expert on the issue of the standard of care and that his report is sufficient, we overrule Dr. Mettauer’s two issues.

Sanctions

The Nobles argue that we should assess sanctions against Dr. Mettauer for bringing a frivolous appeal because “no case law supports [his] reliance upon extraneous evidence to attack the adequacy of [Dr. Carey’s] report,” he failed to “expend the effort to authenticate the information he relied upon” or to provide expert testimony in support of his assertions, and Dr. Mettauer brought this appeal “only to delay the trial and to increase the cost.”

After considering the record, briefs, or other papers filed in this Court, we may award a prevailing party just damages if we objectively determine that an appeal is frivolous. Tex.R.App. P. 45; Smith v. Brown, 51 S.W.3d 376, 381 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). An appeal is frivolous when the record, viewed from the perspective of the advocate, does not provide reasonable grounds for the advocate to believe that the case could be reversed. Smith, 51 S.W.3d at 381. The decision to grant appellate sanctions is a matter of discretion that an appellate court exercises with prudence and caution and only after careful deliberation. Id.

In his appeal, Dr. Mettauer has, contrary to the overwhelming weight of authority, asked us to look outside the four corners of the expert report and to consider his “source material” in evaluating Dr. Carey’s qualifications and expert report. Also, Dr. Mettauer’s reliance on Carter is misplaced, and he did fail to bring the Beaumont Court of Appeals’ more recent opinion in Broussard to our attention. However, his argument is based on the reasoning expressed in Carter, and Brous-sard was not issued until the day before Dr. Mettauer filed his notice of appeal. Exercising prudence and caution, we decline to assess sanctions under these circumstances.

Conclusion

We affirm the judgment of the trial court.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9) (Vernon 2008).

      . See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (Vernon Supp.2010).

      . See id.

      . See Tex.R.App. P. 45.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 74.351.

      . See id. § 74.351.

      . See also Hamilton v. Durgin, No. 10-08-00146-CV, 2008 WL 4816624, at *1 (Tex.App.-Waco Nov. 5, 2008, no pet.) (mem. op.) (holding that defendants attempted to argue merits of claim by asking court to review documents and information outside the expert reports in determining the sufficiency of the reports).

      . See also CHCA Mainland, L.P. v. Dickie, No. 14-07-00831-CV, 2008 WL 3931870, at *3 (Tex.App.-Houston [14th Dist.] Aug. 21, 2008, no pet.) (mem. op.).


source: Caselaw Access Project

author: LAURA CARTER HIGLEY, Justice.

license: Public Domain

text:
    Clifford SMITH, Appellant, v. GALVESTON COUNTY, Appellee.
    No. 01-08-01011-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 7, 2010.

      Clifford A. Smith, Beeville, TX, for Appellant.
    Donald S. Glywasky, Galveston County Legal Department, Galveston, TX, for Ap-pellee.
    Panel consists of Justices KEYES, HIGLEY, and BLAND.
   OPINION

LAURA CARTER HIGLEY, Justice.

Pro se inmate Clifford Smith sued Galveston County for negligence after he slipped in the jail shower and sustained injury. The county filed a plea to the jurisdiction in which it alleged that it was immune from Smith’s suit. The trial court granted the plea and dismissed Smith’s suit against the County. In one issue, Smith challenges the trial court’s dismissal by asserting that the County’s immunity from suit was waived.

We affirm.

Background

On February 28, 2006, Smith was an inmate in the Galveston County Jail. He was housed in the part of the jail known as “Tank F.” Smith claimed that he slipped as he was getting out of the shower causing him to fall and hit a table. Smith alleged that he cut his lip and sustained other injuries in the fall.

Smith sued Galveston County. He asserted that the County had been negligent for failing to place a non-skid floor cover-mg “on the smooth concrete floor to prevent a person from slipping.”

The County answered and filed a combined plea to the jurisdiction and motion for summary judgment. In its jurisdictional plea, the County asserted sovereign immunity from suit. The County contended, “[Smith] has failed to state a claim within the Texas Tort Claims Act, and therefore the Court is without jurisdiction over this case.” The County pointed out that, by its terms, the Tort Claims Act does not apply to acts or omissions that occurred before January 1, 1970. In support of its plea, the County offered evidence showing that Tank F was built in 1960 and that no modifications have been made to that part of the jail since its construction.

Smith responded to the jurisdictional plea asserting that the County was “negligent in failing to provide a non-slip/skid floor covering and/or replace the non-slip/ skid floor covering in front of the shower area and that as a result Plaintiff slipped, fell and suffered injury.” Smith pointed out that the Tort Claims Act waives immunity from suit for a personal injury caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. Smith claimed that the County’s housing of inmates at the jail facility constituted a use of real property and that his alleged injuries arose out of “a condition associated with the use of [the] real property.” More particularly, Smith asserted that the County knew of the hazardous nature of the shower floor but had failed to remedy it. Smith argued that the County’s knowledge of the floor’s condition was demonstrated by the County’s installation of non-skid flooring in the shower of the jail’s medical unit. Smith also offered evidence that other inmates had slipped in the Tank F shower.

Smith addressed the County’s assertion that the Tort Claims Act does not apply to his claims because the shower floor has existed unmodified since 1960. Smith did not dispute that the Tort Claims Act does not waive sovereign immunity for claims arising from acts or omissions occurring before 1970. Instead, Smith asserted such exception did not apply here because the County “waived the defense of sovereign immunity” because it “chose to continue the occupation and utilization of the jail to house prisoners” after 1970.

Following a hearing, the trial court granted the County’s jurisdictional plea and dismissed Smith’s claims against the County. This appeal followed. In one issue, Smith contends that the trial court erred by dismissing his suit.

Plea to the Jurisdiction

A. Scope and Standard of Review

A plea to the jurisdiction based on sovereign immunity challenges the trial court’s subject matter jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004). Because subject matter jurisdiction is a question of law, we review de novo a trial court’s ruling on a plea to the jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex.2007).

The plaintiff bears the burden of alleging facts that affirmatively demonstrate that the trial court has subject matter jurisdiction over a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). When a plea to the jurisdiction challenges the sufficiency of plaintiffs pleadings to confer jurisdiction, we determine whether the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. See Miranda, 133 S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiff and look to the pleader’s intent. Id. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend its petition. Id. at 227.

In some instances, a plea to the jurisdiction may require the court to consider evidence pertaining to jurisdictional facts. See id.; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). A plea should not be granted if a fact issue is presented regarding the court’s jurisdiction. Miranda, 133 S.W.3d at 227-28. But, if the relevant undisputed evidence negates jurisdiction, then the plea to the jurisdiction must be granted. Id. at 228. We must take as true all evidence favorable to the plaintiff and “indulge every reasonable inference and resolve any doubts in [his] favor.” Id.

B. Analysis

Sovereign immunity protects the state against lawsuits for money damages unless the state has consented to suit. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.2008); Miranda, 133 S.W.3d at 224. Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the state, including counties, cities, and school districts, unless that immunity has been waived. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004); San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 283 (Tex.1996).

The Tort Claims Act waives a governmental unit’s sovereign immunity from suit to the extent that the governmental unit has liability under the act. Tex. Civ. Prac. & Rem.Code Ann. § 101.025 (Vernon 2005); City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex.2009). Section 101.061 of the act provides that immunity is not waived for claims based on an act or omission that occurred before January 1,1970. Tex. Civ. Prac. & Rem.Code Ann. § 101.061 (Vernon 2005). When a party alleges waiver of immunity based on a condition or use of personal or real property, the governmental unit is entitled to immunity if it can prove that (1) the structure was completed before 1970 and (2) has remained in the same condition since that time. Rodriguez v. County of Cameron, No. 13-08-145-CV, 2009 WL 39091, at *2 (Tex.App.-Corpus Christi Jan. 8, 2009, no pet.) (mem. op.); Maxwell v. Tex. Dep’t of Transp., 880 S.W.2d 461, 465 (Tex.App.-Austin 1994, writ denied).

Here, Smith alleges that his injuries occurred as a result of the slippery condition of the smooth concrete floor inside Tank F’s shower area. The County supported its jurisdictional plea with the affidavit of Mike Henson, Commander of the Corrections Division of the Galveston County Sheriffs Department. His testimony indicated that Tank F was built in 1960 and that no modifications have been made to Tank F since its construction.

Despite Tank F’s pre-1970 construction, Smith maintains that the Tort Claims Act’s waiver of immunity applies. He points out that the County made a decision to continue to use the jail after 1970. Smith offered evidence to show that, in conjunction with its continued use, the County knew that the shower floor was slippery and “hazardous.” Smith contends that, based on the County’s continued use and awareness of the hazardous condition, the County had a duty to install a non-skid floor covering in the shower area.

A review of the case law indicates that Smith’s contention is without merit. Courts have consistently rejected similar arguments involving structures built before 1970. See, e.g., Maxwell, 880 S.W.2d at 465-66; Barron v. Tex. Dep’t of Transp., 880 S.W.2d 300, 302 (Tex.App.-Waco 1994, writ denied); Chapman v. City of Houston, 839 S.W.2d 95, 99 (Tex.App.-Houston [14th Dist.] 1992, writ denied). Texas courts have recognized that subjecting the government to liability under the Tort Claims Act for structures built before the act’s enactment, and not thereafter modified, would place the government in the unfeasible position of analyzing every structure under its control to determine whether it needed to be rebuilt, redesigned, or otherwise modified to defend against liability. See Rodriguez, 2009 WL 39091, at *3; Cranford v. City of Pasadena, 917 S.W.2d 484, 488 (Tex.App.-Houston [14th Dist.] 1996, no writ). We agree with other courts that in such cases, the actionable conduct occurs when the structure is built; the failure to provide additional safety features or devices after 1970 is not an act or omission within the meaning of the Tort Claims Act. See, e.g., Goodson v. City of Abilene, 295 S.W.3d 692, 695 (Tex.App.-Eastland 2009, no pet.); Maxwell, 880 S.W.2d at 466.

Smith further asserts that the Tort Claims Act operates to waive immunity because the County “modified” the shower floor located in the jail’s medical unit. As noted by the County, this was not the location of Smith’s claimed injury. Smith alleges that he was injured in the Tank F shower. The record indicates that Tank F has remained unmodified since its construction in 1960. Even assuming that the placement of the non-skid flooring in the infirmary’s shower is of some significance, nothing in the record indicates that such modification occurred after 1970. See Rodriguez, 2009 WL 39091, at *3 (noting that affidavit which averred that a modification had been made to the structure at issue failed to show that modification was made after 1970). On this record, we conclude that section 101.061 precludes application of the Tort Claims Act to Smith’s claims. See Tex. Civ. Prao. & Rem.Code Ann. § 101.061.

In addition, the County points to another section of the Tort Claims Act, which preserves its immunity. Section 101.056 provides that immunity is retained for discretionary decisions made by the government. See Tex. Civ. Prac. & Rem.Code Ann. § 101.056 (Vernon 2005).

Section 101.056’s discretionary function provision is designed to “avoid judicial review or interference with those policy decisions committed to other branches of government.” See Stephen F. Austin State University v. Flynn, 228 S.W.3d 653, 657 (Tex.2007). The provision generally preserves immunity not only for the government’s public policy decisions, but also for its failure to act when no particular action is required by law. See Tex. Civ. Prac. & Rem.Code Ann. § 101.056; Flynn, 228 S.W.3d at 657.

Smith responds that the placement of non-skid flooring in Tank F’s shower was a non-discretionary, ministerial act. Smith asserts that, once the County placed nonskid flooring in the medical unit’s shower, it had a ministerial duty to place similar flooring throughout the jail. Smith contends that installation of non-skid flooring in the Tank F shower was a maintenance activity and, as such, was ministerial. See City of Fort Worth v. Gay, 977 S.W.2d 814, 817 (Tex.App.-Fort Worth 1998, no pet.) (“Maintenance activities undertaken at the operational level are not discretionary functions and are not immune from liability.”).

As suggested by the County, Smith’s argument is flawed. Smith has pled that the County was negligent for failing to install non-skid flooring in the tank F shower. In other words, Smith has alleged that the County was negligent for failing to install a safety feature that was not part of the original building construction.

Installation of a safety feature that was not part of the original building design is not a maintenance activity; it is discretionary activity. See Barron, 880 S.W.2d at 302 (explaining that “maintenance” means that which is required to preserve a structure as it was originally designed and constructed; court determined that no evidence was presented in summary judgment proceeding to show that government had performed any maintenance after January 1,1970 that contributed to plaintiffs injury); Stanford v. State Dept. of Highways & Pub. Transp., 635 S.W.2d 581, 582 (Tex.App.-Dallas 1982, writ ref'd n.r.e.) (concluding that whether to add guardrails to overpass approach is design question, not a maintenance issue; thus, it is a discretionary function that makes decision exempt from liability). Courts have consistently held that decisions regarding the installation of safety features are discretionary determinations for which a governmental unit is immune. See, e.g., State v. San Miguel, 2 S.W.3d 249, 251 (Tex.1999) (holding that decision to warn of missing guardrail with barrels and signs on a roadway is a discretionary decision); Wenzel v. City of New Braunfels, 852 S.W.2d 97, 99-100 (Tex.App.-Austin 1993, no writ) (concluding that adding additional lighting along parade route was discretionary governmental function protected by immunity from claims based on inadequate safety precautions).

On point with this case, courts have held that failing to modify a pre-1970 structure to install a safety feature that was not part of the original structure is an exercise of a governmental unit’s discretion for which it retains immunity. See, e.g., Goodson, 295 S.W.3d at 696 (holding that city retained immunity because decision whether to modify balcony railing constructed in 1959, and never thereafter modified, was discretionary decision); Barron, 880 S.W.2d at 302 (concluding that state agency’s decision whether to rebuild original bridge, which was built in 1920s and upgraded in 1950s, was discretionary decision entitling agency to immunity from suit). Here, whether the County passively failed to install the non-skid flooring or actively chose not to install it, such act or omission was discretionary and not subject to the Tort Claims Act’s waiver of immunity. See Tex. Civ. Prac. & Rem.Code Ann. § 101.056.

On this record, we conclude that the Tort Claims Act does not waive the County’s immunity from Smith’s suit. The trial court properly granted the County’s plea to the jurisdiction and dismissed Smith’s claims.

We overrule Smith’s sole issue.

Conclusion

We affirm the judgment of the trial court.

      . Smith does not allege that the County's placement of non-skid flooring in the Tank F shower was required by law.


text:
    Kelvin WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 01-10-00589-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 7, 2010.
    Gail Kikawa McConnell, John J. Harrity III, Assistant District Attorneys, John F. Healey Jr., Fort Bend County District Attorneys Office, Richmond, TX, for Appellant.
    Kent Schaffer, Steven J. Lieberman, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, HIGLEY, and BLAND.
   OPINION

LAURA CARTER HIGLEY, Justice.

Appellant, Kelvin Washington, appeals the trial court’s denial of his request for pretrial habeas corpus relief. See Tex. R.App. P. 31. Appellant identifies three issues in which he contends that the State’s prosecution of him violates his state and federal constitutional guarantees against double jeopardy.

We affirm.

Background

On January 8, 2007, four men broke into and stole merchandise from a jewelry store owned by Sohail Ahmed. Appellant was later charged with the offense of burglary related to the break in and theft.

On July 13, 2010, a jury was impaneled to hear the burglary charge against appellant. The next day, each side made opening arguments, and the State presented its first witness.

Before the State’s second witness testified, the following exchange occurred between the prosecutor and the trial court:

[Prosecutor:] May we approach, Your Honor?
(At the Bench, on the record)
THE COURT: Yes, ma’am.
[Prosecutor:] Judge, our victim is present in the courthouse but is apparently ill.
THE COURT: Who, Mr.—
[Prosecutor:] Mr. Ahmed, our victim. I don’t know, right now might be a good time to take our morning break so I can at least assess if he is in any position to maybe testify or what to do with that.
THE COURT: Do you know what his problem is?
[Prosecutor:] I’m not really sure. I was told they were getting him a Sprite. I do believe that it may be a stomach issue, but I don’t know.
THE COURT: Well, okay. We’ll take about a 15-minute recess and see what you can find out.

During the recess, the complaining witness, Mr. Ahmed, had a confrontation with the court’s bailiff in the hallway. Mr. Ahmed became agitated and loudly made disparaging remarks about the bailiff, the prosecution, the defense attorneys, the defendant, and the judicial process generally.

After the recess, the defense moved the court to declare a mistrial based on Mr. Ahmed’s outburst. The defense argued that appellant’s right to a fair trial had been prejudiced because a number of jurors were in the hallway and had heard Mr. Ahmed’s disparaging comments.

The trial judge stated on the record that he also had been in the hallway and had intervened to diffuse the situation. The judge agreed that some of the jurors had likely heard Mr. Ahmed’s remarks. The court granted the motion for mistrial and reset trial for the following week.

After granting the mistrial, the trial court requested Mr. Ahmed to appear before it. Mr. Ahmed approached the bench and was placed under oath. The court verbally reprimanded Mr. Ahmed for his conduct and informed him that his outburst had caused the mistrial. In response, Mr. Ahmed explained that he had been feeling ill from food poisoning. He told the court that the burglary of his store had caused him financial ruin and great hardship for his family. He expressed that he was frustrated with the legal system because it had taken three years for the case to go to trial. Mr. Ahmed indicated that he had been called to the courthouse a number of times during that time to no avail.

In the end, Mr. Ahmed took responsibility for his improper conduct. He apologized to the court, explaining that his outburst had occurred “spur of the moment, it had no reference or context.”

Five days later, appellant filed an application for writ of habeas corpus based on double jeopardy grounds. Appellant asserted that Mr. Ahmed’s conduct, which necessitated the mistrial, could be imputed to the State.

To support his arguments, appellant alleged, in his verified habeas corpus application, that the prosecution had “engaged in communications, via post-it notes passed between themselves and the complainant [Mr. Ahmed] by way of an intern.” Appellant claimed that “[t]he notes set out the complainant’s health problems and his discomfort while sitting in the hallway, outside of the courtroom.” He asserted that “[t]he State was, effectively put on notice that the complainant was upset and disturbed to the point that he could cause a disruption of the trial proceedings.” Appellant alleged, “With knowledge of the complainant’s location and disturbed state of mind, the prosecution allowed the jury to walk directly in front of the enraged complainant.” Appellant further argued,

The mistrial was caused by the prosecution’s conscious disregard of a substantial risk that the complainant, whom the prosecution knew to be intensely angry and ill, would taint the jury. The complainant informed the prosecution by note that he was extremely upset at being summoned to court again and was not feeling well. Knowing the complainant was just outside the courtroom; the prosecution requested a recess and consciously disregarded the fact that the jury could hear the complainant’s expletive filled statements about the Defendant, defense counsel, and the judicial system.

Appellant averred that, if the trial court did not find that the State acted with conscious disregard, then “the prosecutors are de facto agents for the complainant.” Appellant argued that Mr. Ahmed’s improper conduct, and the State’s conscious disregard of Mr. Ahmed’s conduct, “created a jeopardy bar” because such actions were prejudicial to him and were intended to provoke a mistrial. Appellant asserted that as a result of the State’s and Mr. Ahmed’s actions, he was “forced to move for a mistrial.”

The State filed an answer to appellant’s habeas application. In its answer, the State asserted that appellant’s request for habeas relief was “frivolous and without legal support.” The State also requested sanctions against appellant.

The trial court conducted a hearing on appellant’s habeas application. Appellant argued that the prosecutor was an agent of the complainant, Mr. Ahmed. Appellant also reiterated that during trial, an intern had given the prosecutor a note stating that Mr. Ahmed was ill and “having problems.” Immediately thereafter, the prosecutor had requested a recess to speak to Mr. Ahmed to determine whether he could testify. Appellant alleged that Mr. Ahmed was being accompanied by “a representative of the district attorney’s office” prior to his outburst.

For these reasons, appellant intimated that the prosecution should have been aware that Mr. Ahmed was ill and agitated. Appellant argued that if the prosecutor had informed the trial court of “the potential problem,” perhaps the court or the State could have taken steps to insulate the jury from his tirade.

Appellant argued that it was these actions, or inactions, by the State that required him to move for a mistrial. Appellant asserted that permitting the State’s continued prosecution of him “would amount to double jeopardy.”

The prosecution responded by pointing out that it does not represent the complainant, Mr. Ahmed; it represents the State of Texas. The prosecution asserted that appellant relied on an improper legal standard to impute responsibility for Mr. Ahmed’s improper conduct to the State. The State explained, “For prosecutorial misconduct to occur, you must show that the prosecutor intentionally engaged in such outrageous conduct that his only purpose was to get a mistrial. That’s what they have to show. There is no indication whatsoever that ever even occurred in [sic] here.”

To support his habeas application, appellant offered the portion of the trial transcript related to his motion for mistrial. At the habeas hearing, the trial court also took judicial notice of its knowledge of the trial proceedings related to the motion for mistrial.

After considering the application on its merits, the trial court denied appellant’s request for habeas relief. In rejecting appellant’s double jeopardy claim, the trial court orally found that the prosecution had not acted as an agent for Mr. Ahmed. The court also found that the prosecution could not have anticipated Mr. Ahmed’s outburst and that his improper remarks cannot be imputed to the State. In making its findings, the trial court cited Mr. Ahmed’s sworn statement in the trial transcript that he had made the improper remarks “spur of the moment, it had no reference or context.”

The trial court also denied the State’s request for sanctions. The court agreed that appellant had the right to appeal the denial of his habeas application. The court continued appellant’s trial, pending resolution of this appeal.

In his opening brief, appellant identifies three issues in which he generally contends that the trial court erred in denying his habeas application and specifically contends that his retrial is barred by the double jeopardy clauses of the state and federal constitutions. Because they are interrelated, we, like the parties, jointly discuss and consider the three issues.

A. Legal Principles

1. Standard and Scope of Review

We review a trial court’s ruling on a pretrial writ of habeas corpus for an abuse of discretion. Ex parte Wheeler, 203 S.W.3d 317, 323 (Tex.Crim.App.2006). In conducting this review, we view the facts in the light most favorable to the trial court’s ruling and defer to the trial court’s implied factual findings, which are supported by the record. Id. at 325-26.

2. Double Jeopardy Following Mistrial

The double jeopardy clauses of our federal and state constitutions protect a criminal defendant from repeated prosecutions for the same offense. See U.S. Const. amend. V (providing “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”); Tex. Const. art. I, § 14 (“No person, for the same offense, shall be put twice in jeopardy of life or liberty.”). In Oregon v. Kennedy, the United States Supreme Court held that the Fifth Amendment’s Double Jeopardy Clause barred retrial after a defendant successfully moved for mistrial only when it was shown that the prosecutor engaged in conduct that was “intended to provoke the defendant into moving for a mistrial.” 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982).

In contrast, the Texas Court of Criminal Appeals interpreted the Double Jeopardy provision of the Texas Constitution more expansively, to cover “reckless” conduct. Bander v. State, 921 S.W.2d 696, 699 (Tex.Crim.App.1996). The Bander court held that retrial would also be barred “when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant’s request.” Id. The Court of Criminal Appeals re-affirmed and clarified the standards enunciated in Bander in Ex parte Peterson, 117 S.W.3d 804 (Tex.Crim.App.2003).

Four years later, the Court of Criminal Appeals overruled Bander and Peterson in Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App.2007). The Lewis court held that “the proper rule under the Texas Constitution is the rule articulated by the United States Supreme Court in Oregon v. Kennedy,” i.e., whether the prosecutor intended to provoke the defendant into moving for a mistrial. Id. at 337.

Two months after deciding Lewis, the Court of Criminal Appeals decided Ex parte Masonheimer, 220 S.W.3d 494 (Tex.Crim.App.2007). The court held that the standard enunciated in Oregon v. Kennedy barred retrial “under the unique circumstances of that case” because the State had intentionally failed to disclose exculpatory evidence with the specific intent to avoid the possibility of an acquittal. Id. at 509. The Masonheimer court reasoned that “in a case like this, a defendant suffers the same harm as when the State intentionally ‘goads’ or provokes the defendant into moving for a mistrial.” Id. at 508-09.

B. Analysis

Citing Masonheimer, appellant contends, “In the instant case, circumstances existed which allow the actions of the complaining witness to be imputed to the prosecution, and to which Appellant suffered the same type of harm which would have resulted from the State ‘goading’ Appellant into moving for a mistrial.” In making this assertion, appellant does not recognize that in Masonheimer, as in Lewis, the Court of Criminal Appeals required intentional conduct by the State, which resulted in harm to the defendant. The Masonheimer court held that re-prosecution of the defendant was jeopardy barred because the State had failed to disclose exculpatory evidence with the specific intent to avoid the possibility of the defendant’s acquittal. Id. at 509.

In this case, viewing the record in the light most favorable to the trial court’s ruling, no action by the prosecution indicates that it had either the intent to goad appellant into a mistrial or the intent to avoid the possibility of appellant’s acquittal. See Lewis, 219 S.W.3d at 336; Masonheimer, 220 S.W.3d at 507. Mr. Ahmed’s sworn statements to the trial court following the mistrial indicate that he alone was accountable for his improper conduct and the resulting mistrial. Mr. Ahmed took responsibility for his conduct when he apologized to the trial court. As noted by the trial court, Mr. Ahmed stated that he had made the remarks “on the spur of the moment, without reference or context.” Such comment indicates that he had not planned to make the remarks; rather, they were made out of anger and frustration.

In addition, the exchange between the prosecutor and the trial court before the recess indicates that the prosecution believed Mr. Ahmed to be physically ill with a stomach ailment. Nothing in the exchange indicates that the prosecution knew, or should have known, that Mr. Ahmed was also agitated or angry.

Appellant also asserts that, at the time of his outburst, a representative of the district attorney’s office was seated with Mr. Ahmed outside the courtroom. Appellant contends that Mr. Ahmed was under “the supervision” of this representative. Appellant intimates that the representative was aware of Mr. Ahmed’s agitated state and informed the prosecutor. Appellant also contends that a note passed by an intern to the prosecutor inside the courtroom indicated that Mr. Ahmed was ill and agitated. Relying on these factual allegations, and on a case from the Fourth Circuit Court of Appeals, United States v. Smith, appellant contends that the government’s conduct can be “so reckless as to be ‘the functional equivalent’ of intent to cause a mistrial.” See 441 F.3d 254, 265 (4th Cir.2006). Given the Court of Criminal Appeals clear indication that the State’s conduct must be intentional, not reckless, the merits of appellant’s legal argument are doubtful. See Lewis, 219 S.W.3d at 336; Masonheimer, 220 S.W.3d at 507. In any event, appellant’s factual assertions underlying his argument are not supported by the record.

An applicant for a writ of habeas corpus bears the burden of proving his allegations by a preponderance of the evidence. Ex Parte Thomas, 906 S.W.2d 22, 24 (Tex.Crim.App.1995). The applicant also bears the burden of ensuring that a sufficient record is presented to show error requiring reversal on appeal. See Ex parte Chandler, 182 S.W.3d 350, 353 n. 2 (Tex.Crim.App.2005); Ex parte Kimes, 872 S.W.2d 700, 703 (Tex.Crim.App.1993). Here, appellant has failed to meet this burden.

The record does indicate that the State knew that Mr. Ahmed felt physically ill. Appellant, however, did not offer testimony or other evidence at the habeas hearing to support his factual allegations regarding the prosecution’s knowledge of Mr. Ahmed’s agitated state of mind. The allegations were contained in his verified application, but they were not supported by testimony or documentary evidence at the habeas hearing. See Ex parte Wells 169 Tex.Crim. 127, 332 S.W.2d 565, 565 (1960) (“The application for the writ, although sworn to, is but a pleading and does not prove itself.”). Nor are they supported in the trial transcript. See State v. Ybarra, 942 S.W.2d 35, 36-37 (Tex.App.-Corpus Christi 1996, pet. dism’d) (explaining that review of habeas corpus proceeding is not limited to testimony and evidence adduced at the hearing, but includes the record as it existed before the trial court at the habeas hearing); see also Ex parte Turner, 612 S.W.2d 611, 612 (Tex.Crim.App.1981) (holding that trial judge who presided over revocation of probation hearing and habeas corpus action could properly take judicial notice of evidence presented in revocation of probation hearing during habeas corpus action at which State offered no other evidence).

In Ex parte Washington, the Fort Worth Court of Appeals declined to hold that the state of mind of the prosecution’s complaining witness could be imputed to the State to preclude further prosecution pursuant to the federal and state double jeopardy clauses. 168 S.W.3d 227, 237-38 (Tex.App.-Fort Worth 2005, no pet.). Appellant argues that Washington is distinguishable from this case because, there, the State did not have advanced notice that its complaining witness would give inadmissible testimony. Appellant asserts that the State had notice of Mr. Ahmed’s state of mind before his offensive conduct. We disagree.

Here, the evidence, when viewed in favor of the trial court’s ruling, supports a finding that Mr. Ahmed’s outburst in front of the jury is not attributable to the State’s action or inaction. The record also supports a finding that the State could not have anticipated the outburst. Most significantly, the record shows no intentional prosecutorial misconduct either to provoke appellant to move for a mistrial or to avoid appellant’s acquittal. See Lewis, 219 S.W.3d at 336; Masonheimer, 220 S.W.3d at 507. In short, the record does not support appellant’s claim that the State’s re-prosecution of him is jeopardy barred under the federal and state constitutions.

We hold that the trial court properly exercised its discretion when it denied appellant’s pre-conviction application for writ of habeas corpus.

We overrule appellant’s three issues.

Conclusion

We affirm the judgment of the trial court denying appellant’s request for habe-as corpus relief.

      . The Washington court noted that every "federal or state court that has addressed the issue of whether a witness’s state of mind should be attributed to the prosecution for the purposes of Fifth Amendment analysis has rejected such imputation.” Ex parte Washington, 168 S.W.3d 227, 238 n. 3 (Tex.App.Fort Worth 2005, no pet.), (citing, inter alia, United States v. Ford, 17 F.3d 1100, 1103 (8th Cir.1994); United States ex. rel. Clauser v. McCevers, 731 F.2d 423, 431 (7th Cir.1984); United States v. Green, 636 F.2d 925, 928-29 (4th Cir.1980); State v. Barnes, 222 Ga.App. 875, 476 S.E.2d 646, 647 (1996); People v. Walker, 308 Ill.App.3d 435, 241 Ill.Dec. 842, 720 N.E.2d 297, 299-301 (1999), appeal denied, 189 Ill.2d 678, 246 Ill.Dec. 921, 731 N.E.2d 770 (2000); State v. Wittsell, 275 Kan. 442, 66 P.3d 831, 837-39 (2003); Commonwealth v. Deloney, 20 S.W.3d 471, 474-75 (Ky.2000); Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232, 1237 (1980); State v. Hopson, 113 Wash.2d 273, 778 P.2d 1014, 1018-19 (1989); State v. Clements, 175 W.Va. 463, 334 S.E.2d 600, 604-05 (1985)).


author: Chief Justice MORRISS.

text:
    Kreasha SIMS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-10-00056-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Aug. 30, 2010.
    Decided Oct. 15, 2010.

      John D. Reeves, Lufkin, for appellant.
    Dale Paul Summa, Asst. Dist. Atty., Luf-kin, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

After a putative waiver of the right to appeal, Kreasha Sims pled guilty, in an open plea before the 217th Judicial District Court in Angelina County, to the offense of arson. After signing her waiver and before she pled guilty, Sims had been admonished by the trial court that she had waived the right to appeal anything except matters arising from the sentencing hearing. After her plea and some delay in getting a presentence investigation (PSI) report, the trial court found her guilty and sentenced her to ten years’ confinement in this case and five years’ confinement in the companion case.

Sims seeks to appeal from her conviction, arguing that her guilty plea was involuntary and that her trial counsel was ineffective. The State cites the waiver of the right to appeal and contests Sims’ substantive arguments on appeal. We affirm the trial court’s judgment because — although (1) Sims’ right to appeal was not waived — (2) improper admonishments by the trial court did not make Sims’ plea involuntary, (3) the claim that Sims’ plea was involuntary due to her alleged incompetence was not preserved, and (4) the record does not demonstrate ineffectiveness by Sims’ trial counsel.

(1) Sims’ Right to Appeal Was Not Waived

The first question we must address involves the jurisdiction of this Court. The trial court’s certification of Sims’ right to appeal contains a handwritten notation reciting that Sims waived her right to appeal the guilty plea in this case, but that she reserved the right to appeal the punishment proceedings.

When a defendant’s waiver of the right to appeal was entered before he or she knew what the punishment would be, the waiver is ineffective. See Ex parte Delaney, 207 S.W.3d 794, 797 (Tex.Crim.App.2006); Blanco v. State, 18 S.W.3d 218, 219-20 (Tex.Crim.App.2000) (waiver of appeal enforceable when executed after conviction, but before sentencing, in exchange for recommended sentence). Thus, post-sentencing waivers of the right to appeal are valid, as are waivers when plea agreements have been entered. Another way a presentencing waiver can be enforceable without a plea agreement is when the State has given some consideration for the waiver, such as a consent in some other aspect of the case. Ex parte Broadway, 301 S.W.3d 694 (Tex.Crim.App.2009). None of those factors support the waiver in this case. On its face, therefore, it appears that this waiver fails.

The State cites an earlier case for the proposition that a valid, nonnegotiated waiver of appeal will prevent a defendant from appealing any issue without the consent of the trial court. Monreal v. State, 99 S.W.3d 615, 616 (Tex.Crim.App.2003). In its argument, the State relies on particular language from Monreal:

When asked to choose between a rule stating that a waiver of appeal is binding unless and until the defendant files a notice of appeal and a rule stating that a valid waiver of appeal is binding on the defendant and will prevent the defendant from appealing without the consent of the trial court, we have consistently opted for the latter. See Ex parte Dickey, 543 S.W.2d 99 [ (Tex.Crim.App.1976) ]; Johnson [v. State], 556 S.W.2d 816 [ (Tex.Crim.App.1977) ]; Ex parte Tabor, 565 S.W.2d 945 [ (Tex.Crim.App.1978) ]. This decision has never been based on whether the defendant received some benefit in exchange for the waiver, but rather on whether, as the rule states, the waiver was voluntary, intelligent, and knowing, and thus valid. See Id.; and also Blanco, 18 S.W.3d 218.

Id. at 622. Notwithstanding that general language, the question before us is whether Sims’ waiver is valid.

To be valid under the more recent and controlling authorities referenced above, Sims must know the consequences of her waiver or there must be some consideration provided by the State so that a true bargain exists.

In this case, the defendant pled guilty with no plea agreement. After taking Sims’ plea October 26, 2009, the trial court did not find her guilty, but continued the trial pending receipt of a PSI. At some point before the plea proceeding, Sims had signed a waiver of right of appeal, as acknowledged by the trial court. During the plea, the court informed Sims that she had given up the right to appeal any matter but the sentencing hearing. The record contains a written waiver of right of appeal, signed by Sims October 26, which contains this language:

Having been informed of whatever right to appeal may exist, and having agreed to waive my right to appeal both guilt/innocence and punishment, and after having consulted with my attorney, I hereby voluntarily, knowingly and intelligently waive my right to appeal.

As previously noted, the final version of the certification of right of appeal signed by the trial court in this case states that Sims has waived her right of appeal except for punishment issues. The punishment phase was conducted in late February 2010, and Sims was sentenced in early March.

In this case, Sims signed a “waiver” before being sentenced — even before the trial court concluded the guilt portion of the proceeding — and after the court had explained the range of punishment for the offenses. The State made no punishment recommendation. Cf. Delaney, 207 S.W.3d at 799. But, “simply knowing the range of punishment for the offense is not enough to make the consequences of a waiver known with certainty.” Broadway, 301 S.W.3d at 698. No plea agreement existed, and this record does not reflect that any other sort of agreement existed either. See id. at 697.

There is nothing in this record to indicate that Sims’ written waiver was bargained for, that any consideration was given by the State for the waiver, or that the punishment was known. Under these facts and the analysis endorsed by the Texas Court of Criminal Appeals, this waiver could not qualify as being “voluntarily, knowingly, and intelligently” made. The appeal is therefore fully before this Court, and we will not limit its scope as suggested by the trial court’s addendum to the certification.

(2) Improper Admonishments by the Trial Court Did Not Make Sims’ Plea Involuntary

Sims contends that her plea of guilty was involuntary because the trial court did not adequately admonish her. See Tex.Code Crim. Proc. Ann. art. 26.13 (Vernon Supp.2010). Article 26.13 contains a series of admonishments that are to be given to defendants who plead guilty. Substantial compliance with the statute is sufficient unless a defendant shows that he or she was not aware of the consequences of the plea and was also misled or harmed by the admonishment. TexCode Crim. Proc. Ann. art. 26.13(c). An admonishment error asserted under Article 26.13(a) is subject to a harm analysis, because it is statutory and not constitutional in nature. Aguirre-Mata v. State, 992 S.W.2d 495 (Tex.Crim.App.1999); see Tex.R.App. P. 44.2(b).

Sims contends that she was improperly admonished and that the improper admonishment, along with the totality of the surrounding circumstances, resulted in harm through the entry of an involuntary plea. She acknowledges that the written admonishments did, as required by Article 26.13 of the Texas Code of Criminal Procedure, specify the offense alleged, the range of punishment for the crime, and also contained a blanket statement that Sims was competent and understood what went on before the plea. The document also contains language stating that Sims pleads guilty and waives a jury trial, a statement that, if the court assesses punishment, a PSI will be conducted, and the previously discussed language concerning her loss of her right to appeal.

Sims was given an admonishment that incorporated the language set out by Article 26.13(a)(3) of the Texas Code of Criminal Procedure, but added the incorrect information set out above. We consider inaccurate additions to an admonishment to be a part of that admonishment. Thus, in the absence of an express waiver, a complaint concerning the admonishment may be raised for the first time on appeal.

The question is whether the failure to properly admonish Sims was such as to affect her “substantial rights.” See Tex.R.App. P. 44.2(b); Bessey, 239 S.W.3d at 812-13. In applying Rule 44.2(b) to the failure to give an admonition, we should consider the record as a whole to determine whether, in this particular case, the error substantially affected the defendant’s rights. Anderson v. State, 182 S.W.3d 914, 918 (Tex.Crim.App.2006). In Anderson, the court considered the strength of the evidence of guilt, whether the record indicates that the appellant was aware of the requirement, and whether the omitted admonition actually applied to the appellant’s situation.

In this case, as a plea of guilty, evidence of guilt is stipulated and is not at issue. The record also does not suggest, however, that Sims or her counsel were aware that the information provided by the trial court was erroneous. Certainly, the error was directly applicable to Sims’ situation.

But that does not justify reversal in this instance. Sims was informed incorrectly that she had no right, or a limited right, of appeal. We see nothing suggesting that this inaccurate warning, even though given both in writing and orally, would be such as to encourage her to plead guilty. Indeed, the expected result would be precisely the opposite.

Sims also argues that the conflicts among the invalid waivers, the incorrect written admonishments, and the erroneous oral comments by the trial court were such as to cause harm. Because any effect of such conflicts would be to discourage a guilty plea, not to encourage one, there was no harm here.

We overrule this point of error.

(3) The Claim that Sims’ Plea Was Involuntary Due to Her Alleged Incompetence Was Not Preserved

Sims has suffered from mental problems to such a degree that she has been institutionalized and was bench warranted from Rusk State Hospital to Angelina County for trial October 14, 2009, following receipt of a report October 9, 2009, from the hospital stating that she was now competent to stand trial. She asserts that there was no inquiry as to her condition or competency at any of the various hearings and that the failure in the admonishments would be such as to confuse a fully competent person, much less a person whose capabilities were questionable.

The State contends that this argument has not been preserved for review. We agree.

Before the trial court, Sims did not object to the plea proceeding or challenge the voluntariness of her plea. Without a timely objection, motion, or request that the trial court inquire into the volun-tariness of her plea, Sims has forfeited her right to complain about the issue on appeal. See Mendez, 138 S.W.3d at 339, 350; Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997). We overrule this point of error.

(U) The Record Does Not Demonstrate Ineffectiveness by Sims’ Trial Counsel

Sims also contends that she received ineffective assistance of counsel at trial, pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This is based on trial counsel’s failure to argue that Sims was incompetent to stand trial. With the exceptions discussed above, the record is effectively silent on this matter. Where an appellate record is silent as to why trial counsel failed to take certain actions, the appellant has failed to rebut the presumption that trial counsel’s decision was in some way reasonable. See Mata v. State, 226 S.W.3d 425, 431 (Tex.Crim.App.2007). In this case, there is no record at any level to indicate why counsel chose to take or declined to take any of these actions.

The ineffectiveness of counsel is a matter that must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Smith v. State, 51 S.W.3d 806, 812 (Tex.App.-Texarkana 2001, no pet.). In the absence of such a record, and lacking anything that would indicate such completely ineffective assistance as could be shown without such a record, we overrule the point of error.

We affirm the judgment.

      . Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R.App. P. 41.3.

      . The trial court proceeding appealed in this matter bears the trial court’s cause number 28,025. In a companion case, trial court cause number 29,162, Sims pled guilty to aggravated assault on a public servant. That companion appeal bears our cause number 06-10-00057-CR and is being decided at the same time as this case.

      . The written plea admonishments used here are a fairly typical "check the box” boilerplate form that tries to cover every possible variation of sentencing, and provides admonishments to the defendant. Sims’ form contains the following admonishment:
      PERMISSION TO APPEAL: ... where you plead guilty or nolo contendere without a plea bargain agreement, all nonjurisdictional defects, including claimed deprivations of federal due process, are waived and no appeal may be made.
      This is not one of the required admonishments set out by Article 26.13 of the Texas Code of Criminal Procedure. With some additions, it derives from the old Helms rule. See Helms v. State, 484 S.W.2d 925, 926 (Tex.Crim.App.1972). In 2000, however, the Texas Court of Criminal Appeals superseded Helms in adopting a new rule:
      Whether entered with or without an agreed recommendation of punishment by the State, a valid plea of guilty or nolo conten-dere "waives” or forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error.

        Young v. State, 8 S.W.3d 656, 666-67 (Tex.Crim.App.2000). After Young, a guilty plea does not necessarily waive a right to any appeal. Thus, the admonishment given Sims is not accurate and is misleading as to the rights of a defendant who pleads guilty without a plea agreement.
      The erroneous admonishment was repeated orally during the plea proceeding. The State suggests that perhaps the oral exchange would suffice to show Sims’ intention to waive her right of appeal. It does not. It is nothing more than her acknowledgement of a pronouncement by tire trial court. As the pronouncement was incorrect, we find Sims' acknowledgement thereof irrelevant.

      . The State contends that this argument has been waived. We disagree. Errors may be raised for the first time on appeal if the complaint is that the trial court disregarded an absolute or systemic requirement or that the appellant was denied a waivable-only right that was not waived. Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App.2004); Marin v. State, 851 S.W.2d 275, 280 (Tex.Crim.App.1993). A defendant's right to be properly admonished is a waivable-only right, because a trial court has a statutory duty to properly admonish defendants as described by Article 26.13 of the Texas Code of Criminal Procedure. Bessey v. State, 239 S.W.3d 809, 812-13 (Tex.Crim.App.2007). "A law that puts a duty on the trial court to act sua sponte, creates a right that is waivable only. It cannot be a law that is forfeited by a party’s inaction.” Mendez, 138 S.W.3d at 342. Thus, a court’s failure to properly admonish a defendant cannot be forfeited by inaction and may be raised for the first time on appeal unless it is expressly waived.

      . Even if this claim had been preserved, the record would not sustain it. A person is presumed to be competent to stand trial unless proven incompetent. Tex.Code Crim. Proc. Ann. art. 46B.003(b) (Vernon 2006). A person is incompetent to stand trial if that person lacks "sufficient present ability to consult with [that] person's lawyer with a reasonable degree of rational understanding; or ... [if that person lacks] a rational as well as factual understanding of the proceedings against [that] person.” Tex.Code Crim. Proc. Ann. art. 46B.003(a)(2) (Vernon 2006). If evidence of the defendant’s incompetence is brought to the court’s attention from any source, the court must conduct a hearing out of the presence of the jury to determine whether there is evidence to support a finding of incompetency to stand trial. Tex.Code Crim. Proc. Ann. art. 46B.004(b) (Vernon 2006). In this case, the trial court had recent information that Sims was competent, the attorney was willing to agree that she was, and our review of the record does not affirmatively show Sims’ lack of understanding of the proceedings. Admittedly, she exhibited some confusion at the end of the proceedings concerning the existence of a further bond, but that confusion is hardly unusual in such a situation for a defendant and does not tend to show incompetence. Her head nods and somewhat unclear answers in response to questions about her understanding of the various documents she had signed may show some confusion, but likewise fail to show incompetence. This record does not show that Sims’ substantial rights were compromised by errors committed by the trial court.


author: BRIAN QUINN, Chief Justice.

text:
    In the Interest of K.M.M. and E.J.G., Children.
    No. 07-10-0083-CV.
    Court of Appeals of Texas, Amarillo, Panel B.
    Oct. 21, 2010.
    William E. McNamara III, Attorney at Law, Lubbock, TX, for Appellant.
    Inda Watson Crawford, Law Office of Inda Watson Crawford P.C., Panhandle, TX, for Appellee.
    Dale W. Lee, Texas Attorney General’s Office, Child Support Enforcement Division, Unite 0103E, Amarillo, TX, John B. Worley, Rande K. Herrell, Attorney General’s Office, Child Support Division/Appellate Litigation Section, Austin, TX, for Real Party in Interest.
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
   Opinion

BRIAN QUINN, Chief Justice.

Santiago Jimmy Montoya (Jimmy) challenges the legal and factual sufficiency of the evidence underlying the decision to terminate the parental relationship between him and E.J.G. He also complains of the failure of the trial court to appoint an attorney ad litem or amicus attorney for the child. We address only the latter issue for it is dispositive of the appeal, and upon addressing it, reverse the judgment.

Section 107.021 of the Texas Family Code states that:

[i]n a suit requesting termination of the parent-child relationship that is not filed by a governmental entity, the court shall, unless the court finds that the interests of the child will be represented adequately by a party to the suit whose interests are not in conflict with the child’s interests, appoint one of the following:
(1) an amicus attorney; or
(2) an attorney ad litem.

Tex. Fam.Code Ann. § 107.021(a-l) (Vernon 2008).

Katrina alleged in her second amended petition for divorce (through which document she also sought termination of the parent-child relationship) that she could adequately represent the interests of E.J.G. and that her interests did not conflict with those of the child. Jimmy generally denied the allegations contained in that amended petition but also averred that he was the presumed father of the youth and that the boy should be appointed a guardian ad litem. Upon searching the record, we found no order appointing the child either a guardian ad litem, an amicus attorney, or an attorney ad litem. Furthermore, neither parent suggested that any such appointment was made.

Also missing from the record is any finding that Katrina would or could adequately represent E.J.G. The latter is problematic because without such a finding, the appointment of either an amicus attorney or attorney ad litem was mandatory. See In re M.D.S., 1 S.W.3d 190, 195 (Tex.App.-Amarillo 1999, no pet.) (discussing a prior version of § 107.021(a-1) of the Family Code with similar language); see also In the Interest of R.J.C., No. 04-09-0106-CV, 2010 WL 816188 at *3, 2010 Tex.App. LEXIS 1686 at *8-9 (Tex.App.-San Antonio March 10, 2010, no pet.) (discussing § 107.021(a-1)). Indeed, it has been rec ognized that where parents are adversaries in a suit to terminate one parent’s rights, the trial court can seldom find that one party adequately represents the interests of the children involved or that their interests are not adverse. In re M.D.S., 1 S.W.3d at 195 n. 2; Barfield v. White, 647 S.W.2d 407, 409 (Tex.App.-Austin 1983, no writ). Moreover, the failure to abide by § 107.021 may be raised for the first time on appeal. Turner v. Lutz, 654 S.W.2d 57, 58 (Tex.App.-Austin 1983, no writ) (discussing former § 11.10 of the Family Code, a provision containing similar language); Arnold v. Caillier, 628 S.W.2d 468, 469-70 (Tex.App.-Beaumont 1981, no writ) (discussing the same).

Katrina nonetheless urges us to imply that the trial court made the requisite finding and concluded that a home study conducted before the court terminated Jimmy’s parental rights constituted the appointment of a disinterested party to represent E.J.G. Yet, we can do neither. Because no specific finding entered by the trial court encompassed an element of whether Katrina could adequately represent E.J.G., no finding may be implied on the matter. Turner v. Lutz, 654 S.W.2d at 58. Furthermore, the legislature mandated the appointment of an attorney unless the requisite finding was made. That mandate said nothing about a home study-being sufficient, and we care not to rewrite the statute ourselves. So too do the duties of an attorney ad litem or amicus lend further basis for rejecting Katrina’s argument. They include the obligation to participate in the conduct of the litigation to the same extent as an attorney for a party. Tex. Fam.Code Ann. § 107.003(1)(F) (Vernon 2008). Nothing of record illustrates that the entity conducting the home study at bar had or was granted such authority or opportunity.

Simply put, the failure to comply with § 107.021 is error that cannot be treated as harmless due to the serious nature of the proceedings involved. In re M.D.S., 1 S.W.3d at 195. Accordingly, we reverse that portion of the final judgment that orders the termination of the parental relationship between E.J.G. and Santiago Jimmy Montoya and remand it for a new trial. The remainder of the final judgment is affirmed.

      . To the extent that Katrina questions Jimmy's standing to seek the adjudication of himself as a parent because she alleged he was not, we note that he averred in answer to her petition that he was the "presumed” father. More importantly, in granting the spouses a divorce, the trial court found that two children were born to the marriage, one of whom was EJ.G. No one attacked that fact finding in the divorce decree. And, no one can reasonably dispute that a biological father generally has standing to intervene in an effort to terminate the parent-child relationship between him and his children. See Tex. Fam. Code Ann. § 102.003(a)(1) (Vernon 2008) (stating that the parent of a child has standing to file a petition in a suit affecting the parent-child relationship); Tex. Fam.Code Ann. § 101.024(a) (stating that a parent includes a man adjudicated to be the father).