author:
TOM GRAY, Chief Justice.
      REX D. DAVIS, Justice,

text:
    Mike USTANIK and Wife, Teresa Ustanik, Appellant, v. NORTEX FOUNDATION DESIGNS, INC., Jerry L. Coffee, P.E., and Ready Cable, Inc., Appellee.
    No. 10-09-00272-CV.
    Court of Appeals of Texas, Waco.
    June 16, 2010.

      Jim Hering, Pakis Giotes Page & Burle-son PC, Waco, for Appellant.
    C.D. Peebles, Peebles Law Firm, South-lake, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

TOM GRAY, Chief Justice.

Mike and Teresa Ustanik sued Nortex Foundation Designs, Inc. and Jerry Coffee when the foundation on their newly built house failed. When the trial court granted Nortex’s and Coffee’s motion to dismiss, the Ustaniks appealed. Because the trial court did not err in dismissing the Ustan-iks’s suit against Nortex and Coffee, we affirm the judgment of the trial court.

Section 150.002

At the time the Ustaniks filed their suit against Nortex and Coffee, Texas Civil Practice and Remedies Code section 150.002 required that a plaintiff, in a suit for damages arising out of services by a design professional, file with the complaint a “certificate of merit” — the affidavit of a third-party licensed professional engineer. See Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 370 (amended 2009) (current version at Tex. Civ. PRAC. & Rem.Code Ann. § 150.002(a) (Vernon Supp. 2009)). The current version of Section 150.002 applies to a suit filed or commenced on or after September 1, 2009, the effective date of the amendments. Here, the Ustaniks originally filed their suit against Nortex and Coffee on February 8, 2007. Accordingly, we apply the former version of section 150.002 in this case.

The parties do not dispute that the Us-taniks failed to file the certificate of merit with their suit. The required result of that failure is a “dismissal of the complaint,” with or without prejudice. See id. (current version at § 150.002(e)). The trial court dismissed the claims without prejudice.

Standard of Review

We review a trial court’s decision on a motion to dismiss a case for failure to comply with section 150.002 for an abuse of discretion. Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex.App.-Fort Worth 2005, no pet.); see also Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006) (applying similar statute in context of healthcare liability suits). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules or principles when it dismisses, or refuses to dismiss, a claim. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003); Palladian Bldg., 165 S.W.3d at 433. However, if resolution of the issue requires us to construe statutory language, we review under a de novo standard. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009); Palladian Bldg., 165 S.W.3d at 436 (citing Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002)). Once we determine the proper construction of the statute, we determine whether the trial court abused its discretion in the manner in which it applied the statute to the instant case. See Palladian Bldg., 165 S.W.3d at 436.

Waiver

In their first issue, the Ustaniks argue that the trial court erred in granting Nor-tex’s and Coffee’s motion to dismiss because Nortex and Coffee waived their right to contest the Ustaniks’ failure to file a certificate of merit with their original petition.

The Fort Worth Court was the first appellate court in the State to analyze the doctrine of waiver in conjunction with a motion to dismiss pursuant to section 150.002. Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 434-435 (Tex.App.-Fort Worth 2005, no pet.). Following the Texas Supreme Court’s method of analyzing waiver regarding the right to dismiss in a medical liability act case, the Forth Worth Court held that the defendant took no action that would preclude it from requesting a dismissal. Id. See Jernigan v. Langley, 111 S.W.3d 153 (Tex.2003). We, too, will follow that same analysis.

Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex.2003); Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 434 (Tex.App.-Fort Worth 2005, no pet.). Although waiver is ordinarily a question of fact, when the facts and circumstances are admitted or clearly established, the question becomes one of law. Jernigan, 111 S.W.3d at 156; Palladian Bldg., 165 S.W.3d at 434. Waiver is largely a matter of intent, and for implied waiver to be found through a party’s actions, intent must be clearly demonstrated by the surrounding facts and circumstances. Jemigan, 111 S.W.3d at 156. There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right. Jernigan, 111 S.W.3d at 156; Palladian Bldg., 165 S.W.3d at 434.

The Ustaniks argue that Nortex and Coffee waived their right to a dismissal because Nortex and Coffee waited almost two years and five month to file a motion to dismiss after raising a certificate of merit defense in their original answer and because Nortex and Coffee participated in discovery, designated their expert witness, filed traditional and no evidence motions for summary judgment, participated in mediation, participated in various pre-trial activities, and requested the amending of the Ustaniks’ expert report. Some of the claimed actions taken are not supported by the record. See Palladian Bldg., 165 S.W.3d at 434-435.

Like a former version of the Medical Liability Act, former Tex.Rev.Civ. Stat. art. 4590i, § 13.01(d), repealed and recodified as amended by Act of June 2, 2003, 78th Leg., ch. 204, § 10.09, eff. Sept. 1, 2003, section 150.002 does not contain a deadline to file a motion to dismiss. See Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 370 (amended 2009) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 150.002(b) (Vernon Supp. 2009)). When a statute does not contain a deadline, the mere fact that a defendant waits to file a motion to dismiss is insufficient to establish waiver. See Jernigan, 111 S.W.3d at 157; see also Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 500-501 (Tex.App.-Corpus Christi 2009, no pet.). The Ustaniks find it significant that in Landreth, the court found no waiver when the defendant waited only 8 days before filing a motion to dismiss after discovering that the affiant did not practice in the same area of practice as the defendant. We do not. The Landreth court acknowledged that the certificate of merit statute does not have a deadline and that the Texas Supreme Court found no waiver when a doctor waited 600 days to file a motion to dismiss under the healthcare liability statute, a statute similar to this one. Landreth, 285 S.W.3d at 500-501; see Jernigan v. Langley, 111 S.W.3d 153 (Tex.2003). The Landreth court only mentioned the 8 day delay while discussing the action of participating in discovery, finding that there was no intent on Landreth’s part to waive its right to file a dismissal. Id. at 501. The court did not find that a defendant could not wait any longer than a certain period of time. Accordingly, the fact that Nortex and Coffee waited 2 years and five months to file the motion to dismiss is insufficient, by itself, to establish waiver. The critical question is whether Nortex and Coffee took actions that were inconsistent with exercising their right to file a motion to dismiss.

Further, participation in discovery and filing motions for summary judgment do not necessarily demonstrate an intent to waive the right to move for a dismissal. See Jernigan, 111 S.W.3d at 157; see also Perry Homes v. Cull, 258 S.W.3d 580, 590 (Tex.2008) (citing examples of participation in discovery where the Court did not find waiver of an arbitration clause). Attempting to learn more about the case in which one is a party does not demonstrate an intent to waive the right to move for a dismissal. See id. And even though Nortex and Coffee filed motions for summary judgment, none of the motions were ever ruled on; however, we are not prepared to say that obtaining a ruling on a summary judgment motion is necessarily inconsistent with the right to file a motion to dismiss. Finally, the Ustaniks have not pointed to anything in the remaining documents that shows actions inconsistent with an intent to rely upon the right to seek a dismissal. We have not found anything either. Even the provided portions of the deposition of Coffee do not show an intent to waive the right to seek a dismissal.

In sum, we conclude that Nortex’s and Coffee’s actions were not so inconsistent with an intent to assert the right to a dismissal under section 150.002 as to amount to a waiver of that right. The Ustaniks’ first issue is overruled.

Laches

In their second issue, the Us-taniks allege that the trial court abused its discretion in granting the motion to dismiss because the doctrine of laches precluded Nortex’s and Coffee’s right to seek a dismissal. Laches is an affirmative defense akin to estoppel. Ft. Worth v. Johnson, 388 S.W.2d 400, 403 (Tex.1964); Tex.R. Civ. P. 94. Assuming without deciding that the Ustaniks, as plaintiffs, may use this affirmative defense to prevent the dismissal of their suit, the burden was on the Ustaniks to prove the essential elements of laches. See id. The two essential elements are (1) unreasonable delay by one having legal or equitable rights in asserting them, and (2) a good faith change of position by another to his detriment because of the delay. Id.; see also Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex.1998); Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 80 (Tex.1989).

We have already held that Nortex and Coffee did not waive their rights to pursue a motion to dismiss. Upon the same basis, arguments, and evidence, we also find that there was not an unreasonable delay by them in filing them motion to dismiss. The Ustaniks did not prove the first element of laches. In attempting to establish the second element, the Ustaniks stated in their response to the motion to dismiss that they hired a new attorney and incurred an additional $22,000 in fees and costs. This is not the type of “change in position” sufficient to establish the second element. Further, the Ustaniks provided no evidence to support this statement. Accordingly, the Us-taniks’s second issue is overruled.

Non-negligence Claims

In their third issue, the Ustaniks argue that the trial court erred in dismissing the remainder of their claims because those claims are non-negligence claims and are not subject to the requirement for a certificate of merit. In addition to a claim of negligence, the Ustaniks allege in their second amended petition claims for Deceptive Trade Practices Act violations, negligent misrepresentation, and breach of contract.

Some courts have held that, under the 2005 version of section 150.002, the filing of a certificate of merit is not required for non-negligence claims. See Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 500 (Tex.App.-Corpus Christi 2009, no pet.); Consol. Reinforcement v. Carothers Exec. Homes, Ltd., 271 S.W.3d 887, 894 (Tex.App.-Austin 2008, no pet.); Kniestedt v. Sw. Sound & Elecs., 281 S.W.3d 452, 455 (Tex.App.-San Antonio 2007, no pet.). In 2009, the statute was amended to specifically address this determination initiated by the San Antonio Court in 2007. See 2009 Legis. Bill Hist. TX S.B. 1201 (“This issue arose out of a couple of 2007 court cases from the San Antonio 4th Court of Appeals, which said that although the statute was broadened in 2005 from ‘negligence’ actions to ‘any action arising out of the provision of professional services,’ the affidavit requirement still spoke only to negligence. Therefore, the court did not agree that it applied to actions other than negligence, despite clear language in the statute and the fact that it was specifically amended to broaden it in 2005 (HB 1573)”). Thus, under a proper analysis of the 2005 act it may be that if there is not a certificate of merit for the negligence claim, the trial court is required to dismiss not only the negligence claim but to also dismiss “any action arising out of the provision of professional services.” As will be explained, we find it unnecessary in this proceeding to resolve that question.

The Ustaniks urge us to follow specific opinions from the Austin and San Antonio courts and hold that, without any analysis of the claims, their other claims are not negligence claims and therefore are not subject to the requirement of a certificate of merit. See Consol. Reinforcement, 271 S.W.3d at 894; Gomez v. STFG, Inc., No. 04-07-00223-CV, 2007 WL 2846419, *2-3, 2007 Tex.App. LEXIS 7860, *6-7 (Tex.App.-San Antonio Oct. 3, 2007, no pet.). However, the First Court, relying on the Fort Worth Court’s opinion in Parker County Veterinary Clinic, Inc. v. GSBS Batenhorst, Inc., No. 2-08-380-CV, 2009 WL 3938051, 2009 Tex.App. LEXIS 8986 (Tex.App.-Fort Worth Nov. 19, 2009, no pet.) (mem.), held that it was not bound by the labels of claims used by the plaintiff and looked to the plaintiffs pleadings to determine whether the additional claims asserted were non-negligence claims. Ashkar Eng’g Corp. v. Gulf Chem. & Metallurgical Corp., No. 01-09-00855-CV, 2010 WL 376076, *8, 2010 Tex.App. LEXIS 769, *22 (Tex.App.-Houston [1st Dist] Feb. 4, 2010) (mem.) (appeal dism’d, 2010 WL 1509287, 2010 Tex.App. LEXIS 2807, April 15, 2010). We believe this to be the better approach.

In many areas of the law, reviewing courts have not bound themselves by the labels given to a party’s claims. See Zurich Am. Ins. Co. v. Nokia, Inc., 268 S.W.3d 487, 495 (Tex.2008) (‘“[W]e have said that the label attached to the cause of action-whether it be tort, contract, or warranty-does not determine the duty to defend,’ ” quoting Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 13 (Tex.2007) and Farmers Tex. County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 82 (Tex.1997)); Duerr v. Brown, 262 S.W.3d 63, 70 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (legal malpractice); Anglo-Dutch Petroleum Int’l, Inc. v. Haskell, 193 S.W.3d 87 (Tex.App.-Houston [1st Dist.] 2006, pet. denied) (loan agreements); In re Conseco Fin. Servicing Corp., 19 S.W.3d 562, 568 (Tex.App.-Waco 2000, orig. proceeding) (arbitration agreements). We see no reason in these types of cases to be bound by the labels attached to the claims so as to keep us from looking at the pleadings to determine whether the claims asserted are actually non-negligence claims. Thus, we will not follow the methods used by Con-sol. Reinforcement and Gomez which looked only to the label used by the party for a claim.

Factual Allegations

According to the Ustaniks’s second amended petition, in January of 2004, they hired Graphic Homes, Inc. to rebuild their home that had burned down. Graphic Homes hired Nortex and Coffee to design and draft the foundation plans for the new house. Nortex and Coffee were also hired to inspect the construction of the foundation before the concrete was poured. The Ustaniks contended that they relied on Nortex and Coffee, as engineers, to design and inspect the foundation. The Ustaniks also claimed that they relied on the expertise of Nortex and Coffee to ensure that the foundation was structurally sound and capable of performing its intended purpose.

Coffee provided Graphic Homes with a set of foundation plans with an engineering certificate stamped thereon. The plans provided a specific depth by which the beams should extend into the soil, a specific thickness for the slab, and the requirement that all inspections for the foundation that require an engineering seal “must be accomplished by the design engineer of record for the foundation.” The plans included post-tension cables. They did not, however, include the use of piers which was suggested by a geotechnical engineer. Before the foundation was poured, Steve Jopling, an employee of Nortex inspected the construction of the foundation. Jo-pling recorded his findings on an inspection form which, at the time the petition was filed, could not be located. The foundation was poured the next day.

Within 7 months of the house being completed, the Ustaniks began to notice the floors cracking, doors jamming, sheet rock and moldings separating, and exterior mortar and rocks cracking. The Ustaniks complained to Graphic Homes which contacted Nortex. Nortex made two separate inspections, four months apart, of the house. Coffee noticed unlevelness ranging from 2 to 3 inches but denied that either he or Nortex had any responsibility for the cracked and unlevel foundation.

Negligence

For its negligence claim, the Ustaniks contended that Nortex and Coffee owed them a duty to design and inspect their foundation as reasonable and prudent engineers acting under the same or similar circumstances. They claimed that Nortex and Coffee breached their duty when they failed to design the foundation with the use of piers despite a geotechnical engineer’s recommendation. The Ustaniks alleged that Nortex’s and Coffee’s breach of this duty caused the foundation to fail.

The Ustaniks also alleged that Nortex and Coffee owed them the duty to perform a proper pre-pour foundation inspection. As per the plans, an engineer was to perform the pre-pour inspection. Steve Jo-pling, who had no expert training or certification, performed the inspection. Thus, the Ustaniks allege Nortex and Coffee breached their duty to properly inspect the foundation prior to it being poured because an engineer did not perform the inspection. The failure to perform a proper inspection contributed to the proximate cause of the foundation failure.

DTPA

The Ustaniks alleged that Nortex and Coffee also violated the Deceptive Trade Practices Act. See Tex. Bus. & Com.Code Ann. § 17.46(b)(5) (Vernon Supp. 2009). Specifically, they alleged that according to the stamped engineered plans, all inspections were to be performed by the design engineer of record for the foundation. They further contended that “sponsorship and approval” of the plans was false, misleading, and deceptive because a Nortex employee, Steve Jopling, who was not an engineer, conducted the pre-pour inspection. The Ustaniks alleged that they relied on the representation in the plans and that the misrepresentation could not be characterized as advice, judgment, or opinion, taking it out of the professional services exemption of the DTPA.

Negligent Misrepresentation

The Ustaniks also claimed that Nortex and Coffee were liable for negligent misrepresentation. Specifically, they alleged that Nortex and Coffee negligently represented to them that all inspections of the foundation would be accomplished by the design engineer of record. They claimed that the representation was made in the course of business and as part of a transaction for which Nortex and Coffee had a pecuniary interest. The Ustaniks alleged that the representations supplied them with false information upon which they relied to their detriment. They also claimed that in making the representation that an engineer would perform the inspection Nortex and Coffee did not exercise reasonable care or competence in communicating the correct information to them.

Breach of Contract

In their last claim, the Ustaniks alleged that Nortex and Coffee both expressly and impliedly contracted with Graphic Homes to design a foundation plan that if inspected and constructed properly would fulfill its intended use. They alleged that Nor-tex and Coffee breached their contract with Graphic Homes by designing foundation plans that were inadequate for the geographic location of the Ustaniks’s home and for failing to perform a proper pre-pour inspection by a licensed engineer which did not reveal a lack of piers, lack of additional reinforcement, or excessive slab thickness. The Ustaniks alleged that these deficiencies caused the foundation to fail.

The Ustaniks further alleged that as intended third party beneficiaries, they asserted their own direct breach of contract claims against Nortex and Coffee. Specifically, they alleged that they were to receive the primary benefit of Nortex’s and Coffee’s presumed obligation to properly design and inspect the foundation for their home. By failing to design and properly perform a pre-pour inspection of the foundation, Nortex and Coffee breached their express and implied contractual obligations owed to the Ustaniks.

In reviewing all of these claims and factual allegations in the Ustaniks’s second amended petition, we conclude the underlying complaint is that the Ustaniks were injured by Nortex’s and Coffee’s breach of the duty owed to the Ustaniks as a result of their engagement as professional engineers by failing to design a proper foundation and in not properly conducting a pre-pour foundation inspection. Thus, like the First Court in Ashkar, we believe that the Ustaniks’s additional claims of DTPA violations, negligent misrepresentation, and breach of contract, regardless of how they are labeled, all constitute claims of professional negligence which require a certificate of merit. Cf. Black v. Wills, 758 S.W.2d 809, 814 (Tex.App.-Dallas 1988, no pet.) (In the context of a legal malpractice claim, the court stated, “Whichever label Black places on this cause of action, it is in the nature of a tort action.... We also reject the view that Black’s claim is technically an ‘action for debt ... ’ ”). Accordingly, the trial court did not err in dismissing all of the Ustaniks’s claims, and their third issue is overruled.

Conclusion

Having overruled each of the Ustaniks’s issues on appeal, we affirm the judgment of the trial court.

Justice DAVIS concurring and dissenting.

REX D. DAVIS, Justice,

concurring and dissenting.

I join the majority’s opinion on the resolution of the first and second issues. I concur in part and dissent in part to the majority’s opinion and judgment on the third issue.

I agree with the majority that the former version of section 150.002, with the 2005 amendments, applies to this case. I join the majority opinion’s ruling that the negligent misrepresentation and breach of contract causes of action should be dismissed. But I believe the DTPA cause of action should not be dismissed and therefore dissent.

In this case, under the necessary analysis of the 2005 act, negligent misrepresentation and breach of contract are “[actions] arising out of the provision of professional services.” However, the 2005 act goes further and states that the certificate of merit affidavit “shall set forth specifically at least one negligent act, error or omission claimed to exist and the factual basis for each such claim.” How then do we square the “arising” language and the “negligent” language in a review of an alleged non-negligence cause of action for the necessity of certification? Our sister courts have struggled at this point. The analyses by the majority and the dissent in Consolidated Reinforcement are excellent examples of that struggle. See Consolidated Reinforcement, L.P. v. Carothers Executive Homes, Ltd., 271 S.W.3d 887 (Tex.App.-Austin 2008, no pet.). Ultimately, I agree with the dissent in that case that the reconciliation of the language and its application, as stated above, rests on the characterization of the supporting alleged facts behind the labeled causes of action and the breaches of duty that are involved. See id. at 896-97 (Waldrop, J., dissenting); see also Parker County Veterinary Clinic, Inc. v. GSBS Batenhorst, Inc., No. 2-08-380-CV, 2009 WL 3938051, at *3-5 (Tex.App.-Fort Worth, Nov. 19, 2009, no pet. h.).

In the present case, the pleaded breaches of duty, by errors of omission or commission, speak to tort concepts, even if one of the alleged theories was breach of contract. Presently, the elements of negligent misrepresentation, particularly the namesake element, rely in part on the provision of professional services while alleging negligence. Looking backward at the breach of contract pleading, it too relies heavily on the provision of professional services. In summary, the majority, in the present case, summarizes the overall breach of the duty owed as being “by failing to design ... and not properly conducting ... inspection.” That characterization is consistent with both negligent misrepresentation and breach of contract as alleged.

However, the DTPA claim is a legislatively crafted cause of action that relies on “sponsorship and approval” in this case and has an exemption for a professional opinion that further buffers it from the statutory professional services concept that would otherwise have required certification. See Tex. Bus. & Comm.Code Ann. §§ 17.46(b)(5), 17.49(c)(1) (Vernon Supp. 2009). And the laundry list of “false, misleading, or deceptive acts or practices” significantly emphasizes misrepresentation. See id. § 17.46(b).

I believe the DTPA claim is a non-negligence claim that does not need a certificate of merit and may be pursued. Because the majority affirms the complete dismissal by the trial court and I cannot, I respectfully concur and dissent accordingly-

      . Subsequent to the filing of the original petition in Jernigan v. Langley, the legislature amended the Medical Liability Act to require an “objection” to an expert report to be made not later than the 21st day after the report is served. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, eff. Sept. 1, 2003 (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon Supp. 2009)). The amendment did not address the time frame within which a motion to dismiss must be filed.


source: Caselaw Access Project

author: ANN CRAWFORD McCLURE, Justice.

license: Public Domain

text:
    Enes KANLIC, M.D., Appellant, v. Shirley MEYER, Appellee.
    No. 08-09-00235-CV.
    Court of Appeals of Texas, El Paso.
    June 23, 2010.

      Ken Slavin, Kemp Smith, El Paso, TX, for Appellant.
    Jay L. Gueck, Dallas, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Enes Kanlie, M.D. appeals from an order denying his motion to dismiss this medical malpractice action pursuant to Section 74.351(b) of the Civil Practice and Remedies Code. For the reasons that follow, we affirm.

FACTUAL SUMMARY

Shirley Meyer filed this lawsuit alleging malpractice arising from Dr. Kanlic’s treatment of various medical conditions related to her right hip. According to the pleadings and the expert report, Meyer suffered a comminuted right pelvis/aceta-bulum fracture which was treated with an open reduction internal fixation on May 24, 2000. In June 2000, Dr. Kanlie diagnosed Meyer as having a failure of the internal fixation, a dislocation of her right hip, and an infection in the fracture region of her right pelvis. Meyer underwent several operations to treat the persistent infection and she suffered several dislocations of the hip in 2000 and 2001. In October 2001, Dr. Kanlie performed a right total hip arthroplasty. Meyer suffered several additional hip dislocations between 2001 and August 2004. In August 2004, Meyer saw Dr. Kanlie following the most recent dislocation. He reviewed x-rays made on the date of her visit but did not note any infection or loosening of the hip. Meyer consulted Dr. Eric Sides the following day and he concluded — after reviewing the x-rays — that she had a loose acetabular component with loose plate and screws and a persistent fracture. He also determined that the loose acetabular cup accounted for the dislocations and he believed that she had a comminuted fracture of the acetabu-lum which had never healed. Dr. Sides also found that Meyer’s hip was infected. Meyer subsequently underwent treatment for infection in the hip and had revision hip arthroplasty.

In her petition, Meyer complained that Dr. Kanlic (1) failed to adequately and properly diagnose and treat her following her initial surgery for hip fractures; (2) failed to provide necessary follow-up review and treatment; and (3) failed to adequately treat the complications which developed following surgery. In accordance with Section 74.351 of the Civil Practice and Remedies Code, she provided an expert report prepared by Theodore W. Crofford, M.D. Dr. Kanlic objected to the report and filed a motion to dismiss, alleging that the report did not set forth the applicable standard of care and did not state the manner in which the care rendered by him failed to meet that standard. He also argued that Dr. Crofford failed to conclude that the treatment rendered by Dr. Kanlic was a proximate cause of Meyer’s injuries or damages. The trial court found the report inadequate but granted Meyer’s request for a thirty-day extension pursuant to Section 74.351(c). After Meyer submitted a revised expert report prepared by Dr. Crofford, Dr. Kanlic filed written objections and another motion to dismiss. The trial court overruled the objections and denied the motion to dismiss. This appeal follows.

ADEQUACY OF THE EXPERT REPORT

In his sole issue for review, Dr. Kanlic challenges the sufficiency of the revised expert report. He contends that it inadequately addressed the applicable standard of care, what conduct of his breached it, and how that breach caused injury.

Statutory Requirements

In a healthcare liability claim, a claimant is required to serve on each party an expert report no later than 120 days after the original petition is filed. Tex.Civ. Prac. & Rem.Code Ann. § 74.351(a)(Vernon Supp. 2009). Section 74.351(r)(6) defines “expert report” as a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. Tex.Civ.Prac. & Rem.Code Ann. § 74.351(r)(6). A defendant may file a motion challenging the adequacy of the report. Tex.Civ.Prac. & Rem.Code Ann. § 74.351(£). The trial court is required to grant the motion only if it finds, after a hearing, that the report does not represent an objective good faith effort to comply with Section 74.351(r)(6)’s definition of an expert report. Tex.Civ.Prac. & Rem.Code Ann. § 74.351(0- To constitute a “good-faith effort,” the report must provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into question, and (2) it must provide a basis for the trial court to conclude that the claims have merit. Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 52 (Tex.2002); American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex.2001).

The trial court should look no further than the report itself because all the information relevant to the inquiry is contained within the four corners of the document. Bowie Memorial Hospital, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. The report need not marshal all the plaintiffs proof, but it must include the expert’s opinion on each of the three statutory elements: standard of care, breach, and causal relationship. Bowie Memorial Hospi tal, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. A report cannot merely state the expert’s conclusions; it must explain the basis of the expert’s statements to link the conclusions to the facts. Bowie Memorial Hospital, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879.

Standard of Review

We review a trial court’s order either dismissing or refusing to dismiss a medical malpractice claim for an abuse of discretion. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003); Palacios, 46 S.W.3d at 877. An abuse of discretion occurs when a trial court acts arbitrarily or unreasonably and without reference to any guiding rules or principles. Walker, 111 S.W.3d at 62.

Standard of Care and Breach Thereof

Dr. Kanlic suggests that the revised expert report failed to identify the applicable standard of care or how he breached it. We agree that the report does not precisely identify the standard of care using legal terminology, but Dr. Crof-ford clearly opined that the standard of care required a physician who specializes in hip replacement surgery to evaluate ra-diographs of a patient’s hip and identify looseness of the acetabular component, malpositioning of the hip, and infection. With respect to the breach element, the report recounted that “Dr. Kanlic made an incorrect diagnosis in July 2004 when he stated that there were no problems or no loosening of the total hip.” Thus, the report identified the specific conduct Meyer has called into question, i.e., the doctor’s failure to diagnose and treat the conditions causing instability in her hip, and it provided a basis for the trial court to conclude that the claim has merit.

Dr. Kanlic additionally argues that Dr. Crofford relied upon the opinion of Dr. Sides but failed to append either Dr. Sides’ qualifications or opinions. Citing Jones v. King, Dr. Kanlic maintains that Dr. Sides’ input cannot be used to cure deficiencies in Dr. Crofford’s report. Jones v. King, 255 S.W.3d 156, 160 (Tex.App.-San Antonio 2008, pet. denied). In Jones, the expert “relied heavily” on an opinion and documentation by another doctor that failure to turn off a morphine pump caused diabetes insipidus. Id. The court of appeals noted that the other doctor’s qualifications were not established in the expert report and the documentation was not attached. Id. Given that the sufficiency of a report must be judged solely by its four corners, the court of appeals held that the missing documentation could not cure its deficiencies. Id. Here, Dr. Crofford stated his agreement with Dr. Sides but he did not rely on Dr. Sides’ opinion or documentation to establish any of the statutory elements. Instead, the report indicated Dr. Crofford formed his own opinion — based upon his examination of the radiographs — that the acetabular component was loose.

Causation

We turn now to Dr. Kanlic’s primary assertion that the expert report is inadequate because it failed to explain how a breach of the standard of care caused Meyer’s injuries. An expert report should explain how the defendant’s action or inaction caused injury. Bowie Memorial Hospital, 79 S.W.3d at 53. We are not permitted to fill in the gaps of an expert report by drawing inferences or guessing as to what the expert likely meant or intended. Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.). Nor may we infer causation. Castillo v. August, 248 S.W.3d 874, 883 (Tex.App.-El Paso 2008, no pet.).

After stating his qualifications and Meyer’s medical history relating to her hip arthroplasty, Dr. Crofford opined:

Following her right hip arthroplasty, Ms. Meyer, unfortunately, suffered several dislocations of her hip. In July of 2004, she saw Dr. Kanlic after dislocation of her hip, which I believe was the last issue treated by Dr. Kanlic for Ms. Meyer. In August of 2004, Dr. Kanlic saw her in his office and gave her hip position precautions and told her to go home and be careful with the position of her hip. Dr. Kanlic noted in x-rays from August 25, 2004 that there were no significant problems or loosening of her hip. He made no mention of infection of her right hip when he saw her in August of 2004.
Ms. Meyer then went on to be seen by Dr. Sides on August 25, 2004 who felt, just one day after the visit by Dr. Kan-lic, that she had a loose acetabular component with loose plate and screws and that the stem of the femur ‘did not appear to be involved.’ According to the records, Dr. Sides apparently continued to provide follow-up treatment and evaluation of Ms. Meyer and expressed some disagreement with the diagnosis and treatment determined by Dr. Kan-lic. Ultimately, Ms. Meyer was referred to see me in November of 2004.
My treatment of Ms. Meyer included debridement of her hip and treatment for an infection. She was subsequently referred to my partner, Dr. Steve Wee-den, for revision hip arthroplasty of this complex situation. She has apparently undergone revision of her hip arthro-plasty, but I have no records regarding this procedure in my possession.
I think that Dr. Kanlic made an incorrect diagnosis in July of 2004 when he stated that there were no problems or no loosening of the total hip. I agree with Dr. Sides that the x-rays from that time demonstrate that the acetabular component was loose. Additionally, with Ms. Meyer’s history of infection, the possible diagnosis of recurrent infection certainly should have been entertained by Dr. Kanlic. The malposition of the hip and the loosening of the acetabular component together with the presence of infection in the right hip created the specter of continued and recurrent instability in the hip, with resultant persistent pain from recurrent dislocations. Although the evaluation of radiographs following hip arthroplasty sometimes is difficult, I think that if Dr. Kanlic specializes in hip replacement surgery the standard of care would dictate that such a trained physician should be expected to recognize this problem. That failure to meet this standard of care caused a delay in the diagnosis of the aforementioned malpositioning, loosening, and infection. This delay lead [sic] to a period of recurrent hip instability and hip pain until the problems were diagnosed and treated.
While the failure to accurately diagnose and treat Ms. Meyer’s hip caused her to suffer continued instability and pain until the condition was corrected to prevent recurrent dislocations, I cannot state that the delay in diagnosis from the time she was seen by Dr. Kanlic in August of 2004 until she present to me in November of 2004 substantially changed her ultimate treatment or the outcome of her hip replacement surgery. Ms. Meyer had a complex problem with deficiencies of bone stock, particularly in the acetabulum. I do not think that recurrent dislocations or a several week delay of the diagnosis of.an infection substantially altered the eventual course of Ms. Meyer’s treatment or eventual outcome. This delay, however, did result in a period of continued instability and hip pain until the conditions were treated.

Dr. Kanlic focuses on August 25, 2004, the day he noted in x-rays that there were no significant problems or loosening of the hip. Meyer saw Dr. Sides either the same day or the next day. From this, Dr. Kan-lic concludes that there was no delay in treatment, there was no pain associated with any delay in treatment, and thus there is no causal connection. He faults Dr. Crofford’s report because the only breach articulated is the failure to properly read the x-rays and x-rays cannot show infection.

In support of this argument, Dr. Kanlic directs to our decision in Castillo v. August, 248 S.W.3d 874 (Tex.App.-El Paso 2008, no pet.). There, the plaintiff underwent spinal surgery and was subsequently transferred to a rehabilitation facility under the care of Dr. August. The plaintiff developed a staph infection in the surgical site and meningitis. She sued Dr. August and other defendants alleging that Dr. August had a duty to “observe and monitor” her incision for any sign of infection and that his failure to do so resulted in the staph infection and life-threatening meningitis. The expert report opined that the standard of care required Dr. August to personally and vigilantly monitor the plaintiffs status because she had presented upon admission with signs and symptoms of infection. The standard of care also required that he identify, examine, diagnose, and take measures to treat the infection. Id. at 882. The trial court denied Dr. August’s motion to dismiss because the report did not adequately delineate either the standard of care or how a breach thereof harmed the plaintiff. Id. at 878. Noting that causation could not be inferred, we concluded that the report did not adequately address causation because it did not explain how the staff infection caused the meningitis. Id. at 882-83.

Dr. Kanlic also relies on the San Antonio Court of Appeals’ opinion in Jones v. King, 255 S.W.3d 156 (Tex.App.-San Antonio 2008, pet. denied). The plaintiff sought treatment for chronic pain from an anesthesiologist who recommended the implantation of an intrathecal morphine pump. The plaintiff later filed suit claiming she developed meningitis, diabetes in-sipidus, and other health problems as a result of complications from the surgical implantation of the morphine pump and subsequent treatment. The court of appeals determined that the expert report offered a series of conclusory statements that (1) the morphine pump should never have been placed and its placement proximately caused all of the injuries and damages alleged by the plaintiff, (2) the failure to timely detect the meningitis and treat it for more than forty-eight hours caused it to become worse and resulted in numerous additional complications and injuries including decreased vision, diabetes insipidus, and pain, and (3) the failure to turn off the morphine pump when the catheter was removed caused diabetes in-sipidus. Id. at 159. The report thus failed to adequately address causation because it offered no medical explanation about whether earlier treatment would have been effective in shortening the duration of the meningitis. Id. at 159-60. The report was also deficient despite the expert’s opinion that the continued morphine flow caused the hypothalamus “to go to sleep” resulting in diabetes insipidus because it did not explain how the continued morphine flow caused the hypothalamus “to go to sleep” or how a “sleeping” hypothalamus could cause diabetes insipi-dus. Id. at 160-61.

Dr. Crofford’s report stated that Dr. Kanlic failed to correctly diagnose and treat malpositioning of the hip, looseness in the acetabular component, and infection in Meyer’s hip, which caused her to suffer continued instability and pain until the condition was corrected. We agree that the report does not explain how Dr. Kan-lic’s failure to diagnose the infection caused instability in the hip. Nor does the report advise that surgery was delayed three months because of the untreated infection. Of course, we are prohibited from filling in these analytical gaps or stacking these inferences. But in contrast to the expert reports in Castillo and Jones, Dr. Crofford did explain how Dr. Kanlic’s misdiagnosis of looseness in the acetabular component and malpositioning of the hip and his failure to treat the condition caused Meyer to suffer from continued instability and hip pain until the condition was surgically corrected. Likewise, his report stated that Dr. Kanlic’s failure to diagnose the hip infection caused her to suffer pain until the infection was treated. We conclude that the report sufficiently establishes how Dr. Kanlic’s action caused Meyer’s injury. We overrule the sole issue and affirm the trial court’s order denying Dr. Kanlic’s motion to dismiss.

      . According to the pleadings, Meyer's hip was infected with Pseudomonas aeruginosa.

      . Tex. Civ. Prac. a Rem.Code Ann § 74.35 l(Vernon Supp. 2009).

      . The report is unclear whether Meyer saw Dr. Kanlic on August 24 or 25. It is clear that she consulted with Dr. Sides on August 25.


author: BILL MEIER, Justice.

text:
    William Luther WITKOVSKY, Appellant, v. The STATE of Texas, State.
    No. 2-09-259-CR.
    Court of Appeals of Texas, Fort Worth.
    June 24, 2010.
    Rehearing Overruled July 15, 2010.
    Discretionary Review Dismissed Oct. 20, 2010.

      Robert W. Buchholz, The Law Office of Robert W. Buchholz, P.C., Dallas, TX, for Appellant.
    Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallín, Chief of the Appellate Section, Andy Porter, Lloyd Whelchel, Kacey Fickes, Asst. Criminal District Attorneys, Fort Worth, TX, for Appellee.
    PANEL: WALKER, McCOY, and MEIER, JJ.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

BILL MEIER, Justice.

Pursuant to rule of appellate procedure 50, we have reconsidered our previous opinion upon reviewing the State’s petition for discretionary review. See Tex.R.App. P. 50. We withdraw our April 22, 2010 opinion and judgment, and we substitute the following.

I. IntRoduction

Appellant William Luther Witkovsky appeals from a judgment revoking his community supervision. In four issues, Wit-kovsky argues (1) that the trial court abused its discretion by revoking his community supervision because he completed a sex offender treatment program, (2) that a term used in the condition of his community supervision requiring that he attend and participate in a sex offender treatment program is so vague as to render the condition unenforceable, (3) that the trial court abused its discretion by revoking his community supervision because a second sex offender treatment program that he participated in was not administered in accordance with applicable guidelines, and (4) that the condition of his community supervision requiring that he attend and participate in a sex offender treatment program violates part of the code of criminal procedure. We will reverse and remand.

II. Factual and Procedural Background

In February 2003, Witkovsky pleaded guilty to the offense of injury to a child. The trial court sentenced him to ten years’ confinement, suspended imposition of the sentence, and placed him on community supervision for ten years. One of the conditions of Witkovsky’s community supervision required of him as follows:

2. Submit to evaluation for sex offenders as directed by the supervision officer. Attend and participate fully in and successfully complete psychological counseling/treatment sessions (including aftercare) for sex offenders with an individual or organization which provides sex offender treatment or counseling as specified by or approved by the judge or the supervision officer. Assume responsibility for your offense. Pay all costs of evaluation/counseling/ treatment. Treatment must be completed within three years of its initiation.

In September 2008, the State filed a petition to revoke Witkovsky’s community supervision, alleging that he had violated the terms and conditions of his community supervision for being “discharged unsuccessfully from Michael Strain and Associates Sex Offender Treatment, due to his poor progress on treatment plan goals and for his failure to be honest about and take responsibility for his sexual offense.” The State did not allege a violation of any other condition of community supervision.

At the hearing on the State’s petition, DeAnn Sheid-Cross, a supervisor with the Tarrant County Community Supervision and Corrections Department, testified that she had attended a “chaperone approval meeting” in February 2007 with Witkov-sky, Witkovsky’s wife, and Yolanda Slaw-son, Witkovsky’s assigned community supervision officer. At the time of the meeting, Witkovsky had completed sex offender counseling with Jeff Clark at “Towards Healing” and was attending the “Aftercare” part of Clark’s program. Cross testified that her conversation with Witkovsky at the February 2007 meeting caused her “major concern” because he had denied committing the offense for which he was on probation and could not give examples of the homework assignments that he had completed as part of his counseling. Cross opined that Witkov-sky had “regressed” in regard to assuming responsibility for the offense that he had committed and in regard to the things that he had learned at treatment. She concluded that he needed additional counseling and recommended that he be placed in a different program to begin counseling “all over again.”

Slawson testified that she was Witkov-sky’s primary community supervision officer from June 2002 to June 2007; that she attended the February 2007 meeting with Witkovsky, his wife, and Cross; and that Witkovsk/s comments at the meeting also caused her concern. Slawson opined that Witkovsky had not been successfully treated in Clark’s program, and she agreed to send Witkovsky to counseling with Michael Strain & Associates.

Michael Strain, an approved sex offender treatment provider, testified that Slaw-son had referred Witkovsky to him for sex offender counseling; that Witkovsky needed to work on accepting responsibility for his offense, criminal thinking errors, and child avoidance; and that Strain had ultimately discharged Witkovsky from counseling after unsuccessfully treating him for one and one-half years because Witkovsky had categorically denied ever inappropriately touching his granddaughter.

Jaye Crowder, a forensic psychiatrist, testified that Witkovsky was not treated in a sex offender treatment program as mandated by the guidelines set forth by the Texas Department of State Health Services, Council on Sex Offender Treatment. Stephen Finstein, a licensed clinical social worker, marriage family therapist, and sex offender treatment provider, testified that Witkovsky fully completed the requirements of his sex offender treatment. Wit-kovsky testified that Strain had asked him to admit certain things about his offense that he could not remember or that were not true, and Witkovsky opined that he had successfully completed Clark’s sex offender program.

The trial court found that Witkovsky had violated his community supervision as alleged in the State’s revocation petition, and it sentenced him to ten years’ confinement.

III. State’s Motion to Strike

The State filed a motion to strike two exhibits contained in the appendix to Witkovsky’s brief. It argues that the exhibits should be struck because they are not part of the appellate record in this case. Exhibit “1” is the affidavit of Michael E. Harssema dated December 3, 2009, and Exhibit “2” is the affidavit of Jaye Crowder dated December 3, 2009. Neither exhibit is part of the appellate record in this case. Therefore, we grant the State’s motion to strike the two exhibits contained in the appendix to Witkov-sky’s brief. See Tex.R.App. P. 34.1 (“The appellate record consists of the clerk’s record and, if necessary to the appeal, the reporter’s record.”); Rasberry v. State, 535 S.W.2d 871, 873 (Tex.Crim.App.1976) (reasoning that documents attached to pro se brief could not be considered on appeal because they were not part of the record); Grimes v. State, 135 S.W.3d 803, 816 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (stating that appellate court cannot consider an item that is not part of the record on appeal).

IV. Standard of Review

We review an order revoking community supervision under an abuse of discretion standard. Rickets v. State, 202 S.W.3d 759, 763 (Tex.Crim.App.2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.1984); Cherry v. State, 215 S.W.3d 917, 919 (Tex.App.-Fort Worth 2007, pet. ref'd). In a revocation proceeding, the State must prove by a preponderance of the evidence that the defendant violated the terms and conditions of community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.1993); Cherry, 215 S.W.3d at 919. The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and we review the evidence in the light most favorable to the trial court’s ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1981); Cherry, 215 S.W.3d at 919. If the State fails to meet its burden of proof, the trial court abuses its discretion in revoking the community supervision. Cardona, 665 S.W.2d at 493-94.

V. Modification of Witkovsky’s Community Supervision

In his first issue, Witkovsky argues that the trial court abused its discretion by revoking his community supervision on the basis of his failure to successfully complete Strain’s sex offender treatment program. He contends that he had already successfully completed Clark’s sex offender treatment program and that his conditions of community supervision were never properly modified to require him to attend a second sex offender treatment program, as required by code of criminal procedure article 42.12, sections 10(d) and 10(e).

Code of criminal procedure article 42.12, section 10(a) provides that “[o]nly the court in which the defendant was tried may ... impose conditions” of community supervision. Tex.Code Crim. Proc. Ann. art. 42.12, § 10(a) (Vernon Supp. 2009); see DeGay v. State, 741 S.W.2d 445, 449 (Tex.Crim.App.1987). And “[e]xcept as provided by Subsection (d) of [section 10], only the judge may alter conditions of community supervision.” Tex.Code Crim. Proc. Ann. art. 42.12, § 10(a) (emphasis added); see also id. art. 42.12, § 11(a) (“The judge of the court having jurisdiction of the case shall determine the conditions of community supervision and may ... alter or modify the conditions.”). Subsection (d)’s exception to subsection (a)’s requirement that only a judge may alter conditions of community supervision provides, “A judge that places a defendant on community supervision may authorize the supervision officer supervising the defendant ... to modify the conditions of community supervision for the limited pur-pose of transferring the defendant to different programs within the community supervision continuum of programs and sanctions.” Id. art. 42.12, § 10(d) (emphasis added). Thus, the exception in subsection (d) to the general rule that only a judge may alter a defendant’s conditions of community supervision permits a supervision officer to modify a defendant’s conditions of community supervision (1) when authorized by the trial court and (2) for the limited purpose of transferring the defendant to different programs within the community supervision continuum of programs and sanctions. Id.

Subsection (e) of section 10 explains the procedure that a supervision officer must follow if, pursuant to subsection (d), he or she has been authorized by the trial court to modify a defendant’s conditions of community supervision. It provides,

If a supervision officer ... modifies the conditions of community supervision, the officer ... shall deliver a copy of the modified conditions to the defendant, shall file a copy of the modified conditions with the sentencing court, and shall note the date of delivery of the copy in the defendant’s file. If the defendant agrees to the modification in writing, the officer ... shall file a copy of the modified conditions with the district clerk and the conditions shall be enforced as modified. If the defendant does not agree to the modification in writing, the supervision officer ... shall refer the case to the judge of the court for modification in the manner provided by Section 22 of this article.

Id. art. 42.12, § 10(e).

In this case, one of Witkovsky’s conditions of community supervision required that he attend and successfully complete a sex offender treatment program, including aftercare, as specified by or approved by the judge or his community supervision officer. The evidence introduced at the hearing on the State’s petition to revoke showed that Witkovsky had completed Clark’s counseling program and that he was participating in Clark’s Aftercare program at the time of the “chaperone approval meeting” with Slawson and Cross in February 2007. After the “chaperone approval meeting,” Slawson — not Clark— transferred Witkovsky to Strain’s sex offender treatment program because she and Cross opined that Witkovsky had regressed in regard to assuming responsibility for the offense that he had committed and in regard to the things that he had learned at treatment. The State concedes that Slawson’s transfer of Witkovsky from Clark’s sex offender treatment program to Strain’s sex offender treatment program constituted a transfer of “the defendant to [a] different program! ] within the community supervision continuum of programs,” as contemplated by article 42.12, section 10(d). See id. art. 42.12, § 10(d). Indeed, the State argues in its brief that Witkov-sky’s “probation officer ‘transferred’ him from one sex offender treatment program (Clark’s) to another (Strain’s) within the continuum of such sex offender treatment programs offered through Tarrant County’s Community Supervision and Corrections Department.” [Emphasis added.]

Although it is undisputed that Slawson performed a section 10(d) transfer of Wit-kovsky from one sex offender treatment program to another, thus modifying his community supervision, there is no evidence that the trial judge had authorized Slawson to make such a transfer or modification, as expressly required by section 10(d). See id. (stating that a judge “may authorize” a supervision officer to modify defendant’s condition of community supervision). The condition of community supervision requiring that Witkovsky attend and participate in a sex offender treatment program permits Slawson to only specify or approve the individual or organization that will conduct Witkovsky’s treatment, which Slawson had obviously done because Witkovsky had completed counseling with Clark and was participating in Aftercare when Slawson transferred him to Strain’s program. Unlike the community supervision order in Mayfield v. State, 167 S.W.3d 585, 586 (Tex.App.-Beaumont 2005, no pet.) — in which the trial court had specifically included language providing that it “authorizes [Mayfield’s] community supervision officer to modify conditions of community supervision and to transfer [Mayfield] to any community supervision program or residential facility deemed appropriate” — the order and its supplements and amendments thereto in this case setting the terms and conditions of Witkov-sky’s community supervision contain no such modification authorization. In the absence of any evidence demonstrating that the trial court had authorized Slawson to modify Witkovsky’s community supervision by transferring him “to different programs within the community supervision continuum of programs and sanctions,” section 10(a)’s default rule that “only the judge may alter conditions of community supervision” controls. See Tex.Code Crim. Proc. Ann. art. 42.12, § 10(a).

Further, even if the trial court had authorized Slawson to perform a section 10(d) transfer of Witkovsky from one sex offender treatment program to another, and thus implemented the exception to section 10(a)’s requirement that only a judge may alter conditions of community supervision, there is no evidence that Slawson additionally complied with the requirements of section 10(e) by delivering a copy of the modified condition to Witkov-sky; filing a copy of the modified condition with the sentencing court; noting the date of delivery of the copy in Witkovsky’s file; and, if necessary, referring the case to the judge for modification in the manner provided by code of criminal procedure article 42.12, section 22. See id. art. 42.12, § 10(e) (providing that a supervision officer “shall” perform each of these actions). In other words, despite having a condition of his community supervision modified, there is nothing in the record to indicate that Witkovsky was afforded the opportunity to express in writing his agreement or disagreement with the modification and, if he disagreed, to have the modification referred to the judge for modification as provided by section 22. See id.; see also Taylor v. State, 592 S.W.2d 614, 616, n. 1 (Tex.Crim.App.1980) (“We pause to note our disapproval of an oral modification of the terms of probation.”).

We note that the record shows that Wit-kovsky participated in Strain’s sex offender treatment program for one and one-half years before being discharged from the program. In Brown v. State, the court of criminal appeals held that the trial court abused its discretion by revoking Brown’s probation on the basis of his failure to comply with the condition of probation that he “[rjeport to the probation officer [a]s directed” because “[s]uch requirement standing alone constitutes an improper delegation of the setting of terms of probation to the probation officer.” 508 S.W.2d 366, 368 (Tex.Crim.App.1974); see also Parsons v. State, 513 S.W.2d 554, 555 (Tex.Crim.App.1974) (holding that the condition in appellant’s probation order that he report to the probation officer “as directed” was unenforceable as an improper delegation of authority to the probation officer). The court observed, however,

The exercise of improperly delegated authority by a probation officer cannot make the delegation effective, although on different facts, where parties over a period of time have accepted such a delegation of authority as shown by the course of conduct between them, a probationer may be estopped from objecting to being held to the duty assumed.

Broim, 508 S.W.2d at 368 (emphasis added). In this case, although Witkovsky participated in Strain’s sex offender treatment program for one and one-half years, we cannot conclude that the estoppel consideration detailed in Brown applies to preclude Witkovsky from challenging the validity of the modified condition for which his community supervision was revoked because, unlike the condition in Brown, the modified condition on which the trial court revoked Witkovsky’s community supervision in this case — failing to complete a sex offender treatment program due to an unsuccessful discharge from Strain’s program — does not constitute or involve an improper delegation of the trial court’s authority. Rather, as explained above, the modified condition in this case involves no delegation of the trial court’s authority at all — whether improper or otherwise. In contravention of article 42.12, section 10(a)’s requirement that only the judge may alter conditions of community supervision, Slawson unilaterally modified Witkovsky’s condition of community supervision requiring that he attend and successfully complete a sex offender treatment program when she transferred him from Clark’s sex offender treatment program to Strain’s sex offender treatment program.

Where there is no showing that the terms or conditions of community supervision were modified, a person’s community supervision cannot be revoked for failure to meet the modified terms. See Kelly v. State, 627 S.W.2d 826, 827 (Tex.App.-Tyler 1982, no pet.) (citing Ivy v. State, 545 S.W.2d 827 (Tex.Crim.App.1977)). Here, Witkovsky’s community supervision was modified, but it was modified unilaterally, without court authorization. Accordingly, because Slawson was not authorized to modify Witkovsky’s community supervision by transferring him from Clark’s sex offender treatment program to Strain’s sex offender treatment program, we hold that the trial court abused its discretion by revoking Witkovsky’s community supervision on the basis of his failure to successfully complete Strain’s sex offender treatment program. See Tex.Code Crim. Proc. Ann. art. 42.12, § 10(a), (d); Rickets, 202 S.W.3d at 768; Cobb, 851 S.W.2d at 873. We sustain Witkovsky’s first issue. Having sustained Witkovsky’s first issue, we need not address his second, third, and fourth issues. See Tex.R.App. P. 47.1.

VI. Petition for Discretionary Review

The State has filed a petition for discretionary review. It does not challenge any of the analysis above regarding Slawson’s unilateral modification of Wit-kovsky’s community supervision. Instead, it argues that this court failed to consider “alternative reasons” for concluding that the trial court did not abuse its discretion by revoking Witkovsky’s community supervision. The lone “alternative reason” identified by the State for concluding that the trial court did not abuse its discretion by revoking community supervision concerns the requirement contained in condition number two of Witkovsky’s community supervision (set out in full in section II above) providing that he “[ajssume responsibility for [his] offense.” Assuming, as the State contends, that this part of condition number two is an independent ground or condition on which the trial court could have revoked Witkovsky’s community supervision, the unchallenged analysis above regarding Slawson’s unilateral modification of Witkovsky’s community supervision forecloses any possibility that the trial court could have based its decision to revoke Witkovsky’s community supervision on his failure to assume responsibility for his offense. This is because the only grounds alleged by the State in support of its petition to revoke complain of Witkov-sky’s poor progress on treatment plan goals and his failure to be honest about and take responsibility for his offense in regard to his unsuccessful discharge from Strain’s sex offender treatment program The State accordingly expressly limited the grounds on which it sought to have Witkovsky’s community supervision revoked to only those relating to and underlying his unsuccessful discharge from Strain’s sex offender treatment program. Having determined above that Slawson was never even authorized to modify Wit-kovsky’s community supervision by transferring him from Clark’s sex offender treatment program to Strain’s sex offender treatment program, it makes no difference in this appeal whether or not Witkovsky assumed responsibility for his offense while participating in Strain’s sex offender treatment program. Accordingly, there is no “alternative reason” alleged in the State’s petition to revoke on which the trial court could have properly revoked Witkovsky’s community supervision.

VII. Conclusion

Having sustained Witkovsky’s first issue, we reverse the trial court’s judgment revoking Witkovsky’s community supervision and remand the cause to the trial court.

      . Both Cross and Slawson testified that Wit-kovsky was in Aftercare at the time of the "chaperone approval meeting” on February 8, 2007. Their testimony is consistent with several letters that Clark sent to Slawson. The trial court admitted a July 11, 2006 letter from Clark to Slawson stating that "Witkov-sky has successfully completed his treatment plan” and that he "is now being transferred to Aftercare.” The trial court admitted another letter dated October 11, 2006, from Clark to Slawson updating Slawson on Witkovsky's attendance in Aftercare, stating that Witkov-sky "is now only required to attend Aftercare once per month” and that he "will attend Aftercare on the third Wednesday of every month at 8 p.m.”

      . Even if the trial court had authorized Slaw-son to transfer Witkovsky to a different program within the community supervision continuum of programs pursuant to section 10(d), which it did not, we question whether Slawson's action of assigning Witkovsky to Strain's sex offender treatment program to begin counseling "all over again” (as characterized by Cross) instead of assigning Witkov-sky to an Aftercare program constituted a "transfer” as contemplated by section 10(d) because Witkovsky had already completed sex offender counseling with Clark and was participating in Clark's Aftercare program.

      . Specifically, the State alleged that Witkov-sky had violated condition number two of his community supervision only as follows:
      [0]n or about August 5, 2008 the defendant was discharged unsuccessfully from Michael Strain and Associates Sex Offender Treatment, due to his poor progress on treatment plan goals and for his failure to be honest about and take responsibility for his sexual offense. [Emphasis added.]
      We further note that although the State’s petition to revoke alleges Witkovsky’s "failure to ... take responsibility for his sexual offense,” the offense Witkovsky pleaded guilty to was injury to a child.