author: Justice MOSELEY.

text:
    Doyle Lee McCRARY, Appellant, v. The STATE of Texas, Appellee.
    No. 06-09-00232-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted: Sept. 16, 2010.
    Decided: Nov. 2, 2010.

      William M. Curley, Palestine, for appellant.
    Donna Raspar, Dist. Atty., Crockett, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice MOSELEY.

In a single jury trial, Doyle Lee McCrary was tried and convicted, and his punishment was assessed, for aggravated assault with a deadly weapon, injury to an elderly person, and aggravated robbery, arising from his role in the botched attempt to steal thousands of dollars from Hollis Ellis, an elderly person, who was repeatedly struck in the head with a hammer by Rebecca Cleveland on December 9, 2008. We affirm the judgment of the trial court because McCrary’s convictions do not violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and because McCrary was not entitled to the inclusion of certain purported lesser-included offenses in the charge of the court.

1. FACTS AND PROCEDURAL POSTURE

In a multi-count indictment, McCrary was charged with aggravated assault with a deadly weapon, injury to an elderly person, and aggravated robbery, committed against the same victim on the same date. The jury charge authorized the jury to convict McCrary of all three offenses, which it did. The jury assessed punishment at fifteen years’ imprisonment in the Texas Department of Corrections — Institutional Division — for the aggravated assault conviction, thirty years’ imprisonment for the injury to an elderly person conviction, and twenty-five years’ imprisonment for the aggravated robbery conviction. All sentences are to run concurrently. McCrary contends on appeal that he could not be punished for all three offenses consistent with the Fifth Amendment prohibition against double jeopardy. He further contends the trial court erred in failing to submit certain lesser-included charges to the jury for consideration.

The evidence at trial showed that during the afternoon hours of December 9, 2008, Eric Cleveland and his wife, Rebecca, along with McCrary, traveled to Ellis’ home in Houston County, Texas, with the intention of robbing Ellis of the thousands of dollars he was known to routinely carry in his pants pocket. The three planned the robbery the preceding day, and determined that Rebecca would hit Ellis with a hammer she had hidden in the sleeve of her pullover jacket, take his money, and leave. McCrary was to attack Jimmy Le-nox if he got in the way and Cleveland was to act as a lookout and drive the car. As they arrived at Ellis’ house, McCrary grabbed the hammer and told Rebecca to hit Ellis with it, but not to kill him. Rebecca told Lenox, who answered the door, that she was having car trouble and asked him to go out and take a look at it.

Once outside, Lenox saw Cleveland and McCrary, .who was wearing a bandana around his face. After McCrary (who knew Lenox and Ellis) explained it was a joke, Lenox proceeded to check the car for problems. Meanwhile, inside the house, Rebecca approached eighty-one-year-old Ellis and asked for money. When Ellis stated that he did not have any money, Rebecca retrieved a hammer from under her shirt, fell in Ellis’ lap, and beat him in the head with the hammer. Here, the testimony differs. According to Ellis, he caught the hammer and she ran from the house. According to Cleveland, who entered the house when he heard Ellis shout for help, he grabbed his wife’s wrist and pulled her out of the house. When they saw Lenox approach with a gun, the three ran from the house and sped away in the car in which they arrived — one that had no problems, according to Lenox. Even though Lenox fired on the car as the three made their getaway, they were able to escape without injury. Each of the three were arrested a short time later for the actions committed on that December afternoon. Ellis was hospitalized in the intensive care unit of the local hospital overnight, but recovered from his injuries and testified at trial.

II. ANALYSIS

A. Double Jeopardy

The indictment contained three counts accusing McCrary of aggravated assault with a deadly weapon (count one), injury to an elderly person (count two), and aggravated robbery (count three). McCrary made no objection at trial regarding the submission of each of the three counts to the jury, and all counts were therefore submitted. The jury convicted McCrary on each count. On appeal, McCrary claims all three charges are the result of conduct-oriented behavior, and allege the same act, the same injury, and the same individual, thus violating the protections afforded by the Double Jeopardy Clause of the Fifth Amendment.

While McCrary did not raise his double jeopardy claim in the trial court, under certain circumstances, a double jeopardy claim may be raised for the first time on appeal when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serve no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000).

The Fifth Amendment guarantee against double jeopardy protects against a second prosecution for the same offense following conviction, a second prosecution for the same offense following an acquittal, and against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex.Crim.App.2006). McCrary invokes the third of these protections. For convictions involving multiple punishments for the same offense, the double jeopardy violation is clearly apparent on the face of the record when the record affirmatively shows multiple punishments resulting from the commission of a single act that violated two separate penal statutes, one of which is subsumed in the other. See Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Crim.App.1991). Because it is apparent that McCrary’s convictions are based on the same conduct, if there is a double jeopardy violation, it is apparent on the face of the record. See, e.g., Johnson v. State, 208 S.W.3d 478, 510 (Tex.App.-Austin 2006, no pet.). McCrary is therefore entitled to raise his double jeopardy complaints for the first time on appeal.

(1) Conviction for Injury to an Elderly Individual is Not a Double Jeopardy Violation

We begin our analysis of McCrary’s double jeopardy claim by looking to the second count of the indictment, which alleges injury to an elderly person, pursuant to Section 22.04 of the Texas Penal Code. Tex. Penal Code Ann. § 22.04 (Vernon Supp.2010). McCrary was convicted of “[i]ntentionally or knowingly causing] serious bodily injury to Hollis Ellis, an individual 65 years of age or older, by hitting him in the head with a hammer.” Section 22.04(h) plainly authorizes multiple punishments when a defendant’s conduct violates both Section 22.04 and another Penal Code section:

A person who is subject to prosecution under both this section and another section of this code may be prosecuted under either or both sections....

Tex. Penal Code Ann. § 22.04(h).

The double jeopardy guarantee against multiple punishments for the same offense is designed to prevent the sentencing court from prescribing greater punishment than the Legislature intended. Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Ex parte Kopecky, 821 S.W.2d 957, 959 (Tex.Crim.App.1992). When the same conduct violates more than one distinct penal statute and each statute requires proof of a fact that the other does not, it is presumed that the two offenses are not the same and that the Legislature intended to authorize multiple punishments. Hunter, 459 U.S. at 366, 103 S.Ct. 673; Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Conversely, if all the elements of one statutory offense are contained within the other, it is presumed that the two offenses are the same and that the Legislature did not intend to authorize punishment for both. Whalen v. United States, 445 U.S. 684, 693-94, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). An accused may be punished for two offenses that would be regarded as the same offense if the Legislature has manifested its intention that he should be. Littrell v. State, 271 S.W.3d 273, 276 (Tex.Crim.App.2008).

Because the Legislature has clearly stated that an accused may be punished for two offenses that could be regarded as the same offense, we find no double jeopardy violation based on McCrary’s punishment for injury to an elderly individual in addition to the punishment received for violation of another section of the Texas Penal Code. When the Legislature specifically authorizes multiple punishments under two statutes, even if those two statutes proscribe the same conduct, “a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” Hunter, 459 U.S. at 368-69, 103 S.Ct. 673; Johnson, 208 S.W.3d at 511 (conviction for violation of injury to elderly individual and capital murder did not violate double jeopardy protections; multiple convictions plainly authorized under statute). Thus, we find no violation of. McCrary’s double jeopardy protections as a result of his conviction of and punishment for injury to an elderly person in conjunction with additional punishment resulting from violations of other Penal Code provisions.

(2) Convictions for Aggravated Assault and Aggravated Robbery Do Not Violate Double Jeopardy

The remaining issue in our double jeopardy analysis is whether McCrary’s double jeopardy protections were violated as a result of his conviction and punishment for both aggravated assault with a deadly weapon and aggravated robbery. The principal test for determining whether two offenses are the same for the purpose of double jeopardy was set out by the United States Supreme Court in Blockburger:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

284 U.S. at 304, 52 S.Ct. 180. Greater and lesser-included offenses are the “same” offense for double jeopardy purposes. Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App.1994). What is considered the same offense in the multiple-punishments context is a matter of legislative intent. Littrell, 271 S.W.3d at 276; Rogers v. State, 305 S.W.3d 164, 168 (Tex.App.-Houston [1st Dist.] 2009, no pet.). Although Blockburger provides the definitive test, the test is not exclusive, and an accused may be punished for two offenses that would be regarded as the same under a Blockburger analysis if the Legislature has made this intention clear. Littrell, 271 S.W.3d at 276.

To determine whether an offense is a lesser-included offense of another offense, we- begin by “comparing the elements of the greater offense, as the State pled it in the indictment, with the elements in the statute that defines the lesser offense.” Hall v. State, 225 S.W.3d 524, 525 (Tex.Crim.App.2007). The elements of the offenses, as they are pled in the indictment, also are compared to decide whether multiple punishments violate the Double Jeopardy Clause. Id. at 532-33. When the greater offense may be committed in more than one manner, the manner alleged determines whether the other offense alleged is a lesser-included offense. Id. at 531.

Thus, we compare the elements of aggravated assault and aggravated robbery as the State alleged those offenses in the indictment. McCrary’s indictment in the aggravated assault case alleged that on or about the 9th day of December, 2008, McCrary

Intentionally, knowingly, or recklessly causefd] serious bodily injury to Hollis Ellis by hitting him in the head, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a hammer, during the commission of said assault.

See Tex. Penal Code Ann. § 22.02 (Vernon Supp.2010). The indictment in the aggravated robbery case alleged that on or about the 9th day of December, 2008, McCrary

While in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally, knowingly, or recklessly cause[d] bodily injury to Hollis Ellis, a person 65 years of age or older, by hitting him with a hammer.

See Tex. Penal Code Ann. § 29.03 (Vernon 2003). The Texas Penal Code states that a person commits aggravated robbery if he commits robbery as defined in Section 29.03, and he:

(1) causes serious bodily injury to another;
(2) uses or exhibits a deadly weapon; or
(3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is ... 65 years of age or older....

Tex. Penal Code Ann. § 29.03. Here, McCrary was indicted under subpart three of the statute, alleging bodily injury (as opposed to serious bodily injury) and that Ellis was sixty-five years of age or older at the time of the offense.

According to the language of the indictment, for aggravated assault, the State had to prove McCrary caused serious bodily injury and used or exhibited a deadly weapon (“to wit: a hammer”). For the aggravated robbery charge, the State had to prove that this same act occurred in the commission of a theft and that Ellis was age sixty-five or older. The difference, however, in the aggravated robbery charge is that the State was required to prove “bodily injury” as opposed to “serious bodily injury” as an element of proof in the aggravated assault charge. “We then ask the question that Article 37.09(a) poses: are the elements of the lesser offense ‘established by proof of the same or less than all the facts required to establish ] the commission of the offense charged?’ ” Hall, 225 S.W.3d at 536. Under the cognate pleadings approach adopted by the Texas Court of Criminal Appeals, double jeopardy challenges should be made even to offenses that have differing elements under Blockburger, if the same “facts required” are alleged in the indictment. The term “facts required” under Article 37.09 means the evidence legally required to prove the elements of the offense. Hall, 225 S.W.3d at 536; Miles v. State, 259 S.W.3d 240, 246 (Tex.App.-Texarkana 2008, pet. ref'd).

It is clear that when comparing the two charges indicted, and taking into account all of the elements that the State must prove for each charge, the two offenses are substantially similar. That is, proof of each of the elements of aggravated robbery, as indicted, would also prove each of the elements of aggravated assault, as indicted, with the exception of the degree of bodily injury alleged. Because aggravated assault requires proof of “serious bodily injury” and aggravated robbery, as indicted, only requires proof of “bodily injury,” the elements of aggravated robbery (the greater offense) do not prove aggravated assault.

The manner and means of alleging aggravated robbery is determinative of our double jeopardy analysis. The manner and means can affect the availability of lesser-included offenses. See Hall, 225 S.W.3d at 531 (noting “[a]ssault by committing bodily injury is a lesser-included offense of aggravated assault by inflicting serious bodily injury, but not of aggravated assault by threat with a deadly weapon”). For example, aggravated assault was treated as a lesser-included offense of aggravated robbery in Jefferson v. State, 144 S.W.3d 612 (Tex.App.-Amarillo 2004, no pet.). In that case, the elements of aggravated robbery as alleged in the indictment were that the defendant, at the stated time and place, while in the course of committing theft of property and with intent to obtain or maintain control of the property, intentionally or knowingly threatened or placed the victim in fear of imminent bodily injury or death while exhibiting or using a deadly weapon in the form of a firearm. Id. at 613. The elements of aggravated assault, as alleged in Jefferson, were that the defendant intentionally or knowingly threatened another with imminent bodily injury, and used or exhibited a deadly weapon. Id.

Here, aggravated robbery was pled as causing bodily injury to Ellis, a person sixty-five years of age or older, by hitting him with a hammer. This allegation, pled in accordance with the statute, does not include the element of serious bodily injury. See Tex. Penal Code Ann. § 29.08(a)(3). The term “bodily injury” is defined as “physical pain, illness, or any impairment of physical condition.” Tex. Penal Code Ann. § 1.07(a)(8) (Vernon Supp.2010). The term “serious bodily injury” is defined as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Tex. Penal Code Ann. § 1.07(a)(46). By definition, these statutory elements differ by degree of severity. The allegation of “bodily injury” does not include “serious bodily injury.”

The two offenses are distinct under a strict application of the Blockburger test, but the Blockburger test is a rule of statutory construction and is not the exclusive test for determining if two offenses are the same. Bigon v. State, 252 S.W.3d 360, 370 (Tex.Crim.App.2008). That is, offenses may be the same for double jeopardy principles even when their elements differ under Blockburger, if there are other indicia of legislative intent to treat the offenses as the same. Ervin v. State, 991 S.W.2d 804, 810-11 (Tex.Crim.App.1999).

In Ervin, the Texas Court of Criminal Appeals set forth a nonexclusive list of factors to consider when examining the issue of whether two offenses are the same in the context of multiple punishment. These factors include: (1) whether the offenses provisions are contained within the same statutory section; (2) whether the offenses are phrased in the alternative; (3) whether the offenses are named similarly; (4) whether the offenses have common punishment ranges; (5) whether the offenses have a common focus (i.e., whether the “gravamen” of the offense is the same); (6) whether that common focus tends to indicate a single instance of conduct; (7) whether the elements that differ between the offenses can be considered the “same” under an imputed theory of liability which would result in the offenses being considered the same under Blockburger (i.e., a liberalized Blockburger standard utilizing imputed elements); and (8) whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different for double jeopardy purposes. Bigon, 252 S.W.3d at 371.

Aggravated assault and aggravated robbery are not in the same statutory section, as aggravated assault is listed as an offense against the person under Title 5 of the Texas Penal Code and aggravated robbery is listed as an offense against property under Title 7 of the Texas Penal Code. See Tex. Penal Code Ann. §§ 22.02, 29.03. Because these offenses are not in the same statutory section, they are not named in the alternative. Because aggravated assault is a second-degree felony and aggravated robbery is a first-degree felony, they do not have common punishment ranges. With the exception of the aggravated nature of these crimes, the factors mentioned above indicate the Legislature intended to impose multiple punishments for the violation of each statute.

Both aggravated assault and aggravated robbery have a common focus as pled: bodily injury to Ellis. Both crimes are result-oriented crimes with injury being the result. Given that the result is the focus of these offenses, the sameness of the result is some indication that the Legislature did not intend to impose multiple punishments. In this regard, we recognize the changes in the law of robbery that were made in the Penal Code of 1974. Prior to those changes, theft was an integral part of robbery. However, the Penal Code of 1974 required that theft only has tó be attempted. Ex parte Hawkins, 6 S.W.3d 554, 560 (Tex.Crim.App.1999). Under the current Penal Code, robbery is a form of assault:

The common law analysis of the nature of a robbery offense was correct under Art. 1408, supra, as the offense required a completed theft as an element of the crime. Under Sec. 29.03, however, no completed theft is required. Under the new Penal Code, the offense is no longer an aggravated form of theft....
A description of the property involved in the robbery was required under Art. 1408 because the offense was characterized as a theft. The change in the focus of the statute, coupled with this Court’s decision [that no description of the property was required] in Reese [v. State], [531 S.W.2d 638 (Tex.Crim.App.1976)] compels the conclusion that the present robbery offense is assaultive in nature.

Hawkins, 6 S.W.3d at 559-60 (Tex.Crim.App.1999) (citing Ex parte Lucas, 574 S.W.2d 162, 163-64 (Tex.Crim.App.1978)); accord Hightower v. State, 629 S.W.2d 920, 922 (Tex.Crim.App. [Panel Op.] 1981) (robbery is form of assault); Rohlfing v. State, 612 S.W.2d 598, 602 (Tex.Crim.App. [Panel Op.] 1981) (“The current penal code robbery offenses are assaultive in nature and are not aggravated forms of theft.”).

In Hawkins, the Texas Court of Criminal Appeals recognized that even though aggravated robbery is recognized as an offense against property due to its placement in Title 7 of the Texas Penal Code, the primary interest protected by this offense is “the security of the person from bodily injury or threat of bodily injury that is committed in the course of committing theft.” Hawkins, 6 S.W.3d at 560 (citing Chestnut v. State, 567 S.W.2d 1, 2 (Tex.Crim.App. [Panel Op.] 1978)).

Moreover, the placement of aggravhted robbery in Title 7 of the Texas Penal Code, although a form of assault, “allowed the joinder of repeated robberies under the original statutes for the joinder of offenses which allowed the joinder of only Title 7 offenses.” Hawkins, 6 S.W.3d at 560. Thus, the legislative decision to place robbery in Title 7 of the Code is not necessarily indicative of the Legislature’s intent to impose multiple punishments for aggravated robbery and aggravated assault.

Next, we address whether the common focus tends to indicate a single instance of conduct. In this regard, we examine the “allowable unit of prosecution,” which is defined by the Legislature and determines if one course of conduct results in more than one offense. Ex parte Cavazos, 203 S.W.3d 333 (Tex.Crim.App.2006). As recognized in Bigon, “[u]sually analysis of an allowable unit of prosecution involves a situation in which two offenses from the same statutory section are charged, but the spirit behind the principle is fitting here.” Bigon, 252 S.W.3d at 371-72 (double jeopardy analysis regarding convictions for felony murder, intoxication manslaughter, and manslaughter).

The allowable unit of prosecution for an assaultive offense is each victim. Hawkins, 6 S.W.3d at 560. Because robbery is a form of assault, the allowable unit of prosecution for robbery likewise is each victim. Id. (holding that defendant’s prosecution for robbery twice when two victims were assaulted in course of committing theft did not violate Double Jeopardy Clause). Because aggravated robbery is an assaultive offense, with the unit of prosecution being one victim (as is the case for aggravated assault), the common focus of each offense in conjunction with the fact that the common focus tends to indicate a single instance of conduct, are indicia of legislative intent not to permit multiple punishments in this circumstance.

We must also determine whether the elements that differ between the offenses can be considered the “same” under an imputed theory of liability which would result in the offenses being considered the same under Blockburger. In this case, those differing elements are “bodily injury” and “serious bodily injury.” Aggravated robbery was pled as causing bodily injury to Ellis, a person sixty-five years of age or older, by hitting him with a hammer. This allegation,- pled in accordance with the statute, does not include the element of serious bodily injury. See Tex. Penal Code Ann. § 29.03(3).

The concept of imputing elements into an offense in order to determine if the offenses are the “same offenses” for purposes of double jeopardy has not been widely explored in caselaw. In fact, Ervin is the only reported case that has positively determined this factor. In that case, the court concluded that manslaughter and intoxication manslaughter are the same offense for double jeopardy purposes when they involve the same victim, and imposing convictions for both violates the Double Jeopardy Clause. Ervin, 991 S.W.2d at 817.

In arriving at this conclusion, the court recognized that the statute defining intoxication manslaughter does not include a mental state, while the statute defining manslaughter requires a mental state of “recklessly.” In finding the two offenses were nevertheless the “same offense” for double jeopardy purposes, the Ervin court found that intoxication manslaughter can be viewed as having the element of recklessness by imputation, thus making the offenses the same under the liberalized, “imputation” version of the Blockburger test (finding that intoxication was an imputed form of recklessness). Id. at 816.

Ervin involved the imputation of a culpable mental state. Here, the differing element is the degree of bodily injury. While imputation of a culpable mental state in Ervin made logical sense, we see no logic in imputing the element of “serious bodily injury” in the charge of aggravated robbery when that charge already includes the element of “bodily injury.”

Logic would seem to dictate, however, that because the proof at trial established that Ellis suffered serious bodily injury, such proof should be sufficient to answer the issue at hand. To take into account such proof, however, would require the application of the “cognate evidence” analysis, an approach in which the court includes the facts adduced at trial in its lesser-included offense analysis. Hall, 225 S.W.3d at 526. Because we are bound to apply the cognate pleadings approach to lesser-included offenses, we find that aggravated assault in this case is not a lesser-included offense of aggravated robbery. See id. at 535. To conclude otherwise would require a finding of legislative intent not to permit multiple punishments for each offense alleged, when we remain unconvinced of such intent. While double jeopardy precludes a defendant from being punished twice for the same offense, it does riot prevent a second punishment for the same conduct. E.g., Blockburger, 284 U.S. at 303-04, 52 S.Ct. 180 (holding two convictions for one sale of narcotics that violated two statutory provisions did not violate double jeopardy). Accordingly, we conclude that McCrary’s double jeopardy protections were not violated.

B. Lesser-included Offenses

In his next three points of error, McCrary complains that the trial court erred in failing to instruct the jury on certain purported lesser-included offenses. Under certain, limited circumstances, a criminal defendant in Texas will be entitled to a jury charge on a lesser-included offense of the offense charged. See, e.g., Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App.2002). The first step in determining whether an offense is a lesser-included offense of the alleged offense is a question of law. It must “be, capable of being performed before trial by comparing the elements of the offense as they are alleged in the indictment or information with the elements of the potential lesser-included offense.” Hall, 225 S.W.3d at 535-36. The second step in this analysis asks whether there is evidence that supports giving the instruction to the jury. Id. at 536. That is, there must be evidence in the record that would permit a jury to rationally find that the defendant is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.1993). Appellate courts should review all the evidence presented in trial in making this determination. Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App.1994).

(1) Aggravated Assault/Assault

McCrary first contends that he was entitled to a lesser-included offense instruction on assault on the indicted charge of aggravated assault. The State concedes that because assault is a lesser-ineluded offense of aggravated assault, McCrary has met the first prong of the Royster-Rousseau test. The State nevertheless disputes entitlement to the lesser-included offense charge because it maintains there is either no evidence or no more than a scintilla of evidence that would permit a jury to rationally find that if McCrary is guilty, he is guilty of only the lesser charge.

Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Bignall, 887 S.W.2d at 23. However, it is not sufficient that the jury might have disbelieved evidence pertaining to the greater offense. Hampton v. State, 109 S.W.3d 437, 441 (Tex.Crim.App.2003). There must be some evidence directly germane to a lesser-included offense for the fact-finder to consider before an instruction on a lesser-included offense is warranted. Id. McCrary points to certain evidence at trial that he maintains is sufficient to entitle him to a lesser charge. Because McCrary was charged with a conspiracy theory of liability for aggravated assault, the second prong is met only if there is evidence in the record showing either (1) there was no aggravated assault; (2) the aggravated assault was not committed in furtherance of a conspiracy; or (3) the aggravated assault should not have been anticipated. McCrary contends that the aggravated assault should not have been anticipated. We disagree.

The testimony at trial indicated the initial plan for stealing Ellis’ money was to have Ellis pay to have sex with Rebecca. The plan changed to one in which Rebecca would offer to have sex with Ellis for money and then, at the opportune time, hit Ellis in the head to knock him out and take his money. It is unclear whether this plan included the use of a hammer. Finally, the last plan, and the one implemented, was for Rebecca to hit Ellis in the head with a hammer and take the money away from him while Cleveland and McCrary dealt with Lenox. The evidence further indicates that as McCrary, Cleveland, and Rebecca arrived at Ellis’ house on December 9, McCrary handed the hammer to Rebecca and instructed her to hit Ellis with it, but not to kill him.

McCrary himself, in statements to law enforcement officers, indicated the plan was to sell sexual favors for money. McCrary contends that the jury could have believed this was the only plan and could therefore have found him guilty only of assault. In conjunction with this contention, McCrary maintains that the jury could have believed that he could not have anticipated that in carrying out the plan to obtain Ellis’ money, Rebecca would have hit Ellis in the head with a hammer.

We do not find the evidence here to be directly germane to the lesser-included offense of assault. Criminal responsibility for the conduct of another is set forth in Section 7.02 of the Texas Penal Code. It requires, in pertinent part, that:

If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of carrying out the conspiracy.

Tex. Penal Code Ann. § 7.02(b). Accordingly, McCrary could not have been found guilty as a party to the offense of aggravated assault with a deadly weapon unless he intended to commit a felony offense. McCrary’s statement to law enforcement— that Rebecca intended to sell sexual favors for money — indicates McCrary only intended to commit the misdemeanor offense of prostitution. Under this scenario, Section 7.02(b) of the Penal Code would not apply, as by definition, it applies only to felony offenses. Said another way, if McCrary’s statement that he only intended for Rebecca to commit prostitution was believed by the jury, he would then not be guilty of any offense under Section 7.02(b), nor would he be guilty of assault, the very offense he urges should have been included in the jury charge. McCrary could not be found guilty of any greater offense he did not intend to commit, and would not be entitled to a lesser-included charge on assault.

According to the second plan, Rebecca would offer sex for money and then use some force to take the money at an opportune time. In this case, because McCrary would have intended to commit the felony offense of theft from the elderly, Section 7.02 applies. Both assault and aggravated assault are foreseeable consequences of the outcome of this plan. Moreover, the charge instructed the jury on the law of parties, and it is uncontroverted that Rebecca used a hammer during the robbery.

The question concerning entitlement to the lesser-included offense of assault is whether the evidence would permit a rational jury to make a contrary finding. That is, could a rational jury determine, based on the evidence of this plan, that McCrary did not intend or anticipate serious bodily injury to Ellis? Such evidence must be only more than a scintilla, and may be impeached or contradicted, but it must be sufficient, if believed, to at least permit a rational jury to return a verdict on the lesser-included offense. Ex parte Thompson, 179 S.W.3d 549, 560 (Tex.Crim.App.2005). On these facts, no evidence exists that McCrary is guilty only of assault.

(2) Bodily Injury to an Elderly Individual/Serious Bodily Injury to an Elderly Individual

McCrary contends the trial court erred in failing to instruct the jury on the offense of causing bodily injury to an elderly individual as a lesser-included of-' fense of the indicted charge of causing serious bodily injury to an elderly individual. The State concedes that McCrary has met the first prong of the Royster-Rousseau test. The State nevertheless disputes entitlement to the lesser-included offense charge of bodily injury to an elderly individual because it maintains there is either no evidence or no more than a scintilla of evidence that would permit a jury to rationally find that if McCrary is guilty, he is guilty of only the lesser charge. McCrary points to the changing plans of his co-conspirators, Cleveland and Rebecca, referenced in the preceding section, as sufficient evidence to entitle him to the lesser' charge of bodily injury to an elderly individual. Based on the foregoing analysis, we overrule this point of error. Both bodily injury and serious bodily injury to an elderly individual are foreseeable consequences of the aforementioned plan to steal money from Ellis.

(3) Aggravated Robbery/Assault

In Ms final point of error, McCrary complains of the trial court’s refusal to instruct the jury on the offense of assault as a lesser-included offense of the indicted charge of aggravated robbery. The State concedes that McCrary has met the first prong of the Royster-Rousseau test. The State nevertheless disputes entitlement to the lesser-included offense charge of assault because it maintains there is either no evidence or no more than a scintilla of evidence that would permit a jury to rationally find that if McCrary is guilty, he is guilty of only the lesser charge. Here again, McCrary points to the changing plans of his co-conspirators, Cleveland and Rebecca, referenced in the preceding section, as sufficient evidence to entitle him to the lesser charge of bodily injury to an elderly individual.

Contrary to McCrary’s contention, it matters not that the offense he may have originally intended — theft from the elderly — subsequently escalated into aggravated robbery. Where several people act together in pursuit of an unlawful act, each one is liable for collateral crimes, even though they may have been unplanned and unintended, if those crimes are foreseeable, ordinary, and probable consequences of the execution of the unlawful act. Curtis v. State, 573 S.W.2d 219 (Tex.Crim.App. [Panel Op.] 1978); Gutierrez v. State, 681 S.W.2d 698, 702 (Tex.App.-Houston [14th Dist.] 1984, pet. ref'd). Here, aggravated robbery was alleged in the indictment as “causing] serious bodily injury to another ... or threatening] or placing] another person in fear of imminent bodily injury or death, if the other person is ... 65 years of age or older_” Tex. Penal Code Ann. § 29.03. Aggravated robbery is a foreseeable consequence of the plan to steal money from Ellis, an elderly individual. Based on the foregoing analysis, we overrule this point of error.

We affirm the judgment of the trial court.

      . 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.

      . McCrary was charged under the law of parties; by acting with intent to promote the commission of the listed offenses, McCrary was found to have solicited, encouraged, directed, aided, or attempted to. aid Rebecca Cleveland in committing these offenses. See Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003).

      . U.S. Const. amend. V.

      . In her initial statement to law enforcement, Rebecca indicated that the plan was to proposition Ellis for sex and take his money. Rebecca's final statement to law enforcement did not involve any sexual favors; it involved taking money directly from Ellis.

      . In December 2008, Lenox lived with Ellis.

      . Count one of the indictment charges that McCrary did then and there:
      Intentionally, knowingly, or recklessly cause serious bodily injury to Hollis Ellis by hitting him in the head, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a hammer, during the commission of said assault.

      . Count two of the indictment charges that McCrary did then and there:
      Intentionally or knowingly cause serious bodily injury to Hollis Ellis, an individual 65 years of age or older, by hitting him in the head with a hammer.

      . Count three of the indictment charges that McCrary did then and there:
      While in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally, knowingly, or recklessly cause bodily injury to Hollis Ellis, a person 65 years of age or older, by hitting him with a hammer.

      . This Penal Code provision provides that ‘‘[a] person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, ... causes ... [an] elderly individual ... serious bodily injury....” Tex. Penal Code Ann. § 22.04(a)(1).

      . In Gonzalez v. State, 973 S.W.2d 427 (Tex.App.-Austin 1998), aff'd, 8 S.W.3d 640 (Tex.Crim.App.2000), the court touched on the issue of whether injury to an elderly individual was a lesser-included offense of aggravated robbery, but stated that:
      We express no opinion on whether the injury to an elderly individual offense is a lesser included offense of, and, therefore, could be considered the "same offense” as, the aggravated robbery offense as set out in any of the three paragraphs as we did not grant discretionary review on this issue. We note, however, that the Legislature apparently has authorized multiple punishments even if these offenses could be considered the “same” under double jeopardy principles. See Tex. Penal Code Ann. § 22.04(h) (person "subject to prosecution” for injury to elderly individual and "another section of this code may be prosecuted under either or both sections”); Hunter, 459 U.S. at 366, 103 S.Ct. 673; Whalen, 445 U.S. at 693-94, 100 S.Ct. 1432.

        Id. at 641 n. 4.

      . An offense is a lesser-included offense if:
      (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
      (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
      (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
      (4) it consists of an attempt to commit the offense charged or an otherwise included offense.
      Tex.Code Crim. Proc. Ann. art. 37.09 (Vernon 2006); Aguilar v. State, 263 S.W.3d 430, 435 (Tex.App.-Houston [1st Dist.] 2008, pet. ref'd).

      . Tex. Penal Code Ann. § 49.08 (Vernon Supp.2010).

      . Tex. Penal Code Ann. § 19.04 (Vernon 2003).

      . Ellis suffered blunt trauma injuries to the head, of such severity as to reach the skull. This level of trauma has been known to cause death.

      . Under this approach, a lesser-included offense instruction may be given even though all of' the statutory elements of the lesser offense are not contained in the greater offense, if the "overlapping elements relate to the common purpose of the statutes” and the specific evidence adduced would support an instruction on the cognate offense. Hall, 225 S.W.3d at 526 n. 8.
      We also note that to the extent McCrary’s double jeopardy claim is based on the same conduct, i.e., hitting Ellis in the head with a hammer, such contention is without merit. As the Texas Court of Criminal Appeals explained in Ortega v. State, 171 S.W.3d 895, 901 (Tex.Crim.App.2005), the "same conduct” rule announced in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), was overruled by the Supreme Court in United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). In Corbin, the defendant drove a vehicle that crossed the center line of a highway and struck another vehicle, killing the driver and injuring her passenger. He was convicted of driving while intoxicated and failing to keep right of the median. Then he was indicted for homicide and assault offenses. He moved to dismiss the indictment on double jeopardy grounds. Corbin, 495 U.S. at 511-14, 110 S.Ct. 2084. The Corbin Court stated that "[t]he critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct.” Id. at 521, 110 S.Ct. 2084. The Court said that "the State has admitted that it will prove the entirety of the conduct for which Corbin was committed — driving while intoxicated and failing to keep right of the median — to establish essential elements of the homicide and assault offenses. Therefore, the Double Jeopardy Clause bars this successive prosecution. ...” Id. at 523, 110 S.Ct. 2084. In rejecting this reasoning, the Dixon Court stated:
      We have concluded, however, that Grady [v. Corbin] must be overruled. Unlike Blockburger analysis, whose definition of what prevents two crimes from being the "same offence,” U.S. Const., Amdt. 5, has deep historical roots and has been accepted in numerous precedents of this Court, Grady lacks constitutional roots. The "same-conduct” rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy.

        Ortega, 171 S.W.3d at 899 (citing Dixon, 509 U.S. at 704, 113 S.Ct. 2849).

      . Tex. Penal Code Ann. § 22.02.

      . McCrary also contends that the jury could have believed, given the evidence of changing plans, that he intended for Rebecca to knock the money out of Ellis' hand and/or use some type of force to steal it, and that he had no knowledge that Rebecca would use a hammer hit Ellis.

      . Tex. Penal Code Ann. § 43.02 (Vernon Supp.2010).

      . Tex. Penal Code Ann. § 31.03(f)(3) (Vernon Supp.2010). The evidence at trial indicated that McCrary intended to steal as much as $25,000.00 from Ellis.

      . Tex. Penal Code Ann..§ 22.04.

      . Tex. Penal Code Ann. § 29.03.


source: Caselaw Access Project

author: REBECCA SIMMONS, Justice.

license: Public Domain

text:
    In re NORTHERN NATURAL GAS CO.
    No. 04-09-00284-CV.
    Court of Appeals of Texas, San Antonio.
    March 3, 2010.

      Marc F. Wiegand, John G. George, Ray B. Jeffrey, Stumpf Farrimond, P.C., Dan Pozza, Law Offices of Dan Pozza, San Antonio, TX, for Appellant.
    Jack Paul Leon, Law Offices of Jack Paul Leon, Curtis L. Cukjati, Martin, Cukjati & Richman, L.L.P., John F. Carroll, Law Offices of John F. Carroll, R. Glen Ayers, Langley & Banack, Inc., San Antonio, TX, for Appellee.
    Sitting: SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

REBECCA SIMMONS, Justice.

We withdraw our opinion of December 23, 2009, and issue this opinion in its place. Relator Northern Natural Gas Co. (“Northern”), plaintiff in the underlying proceeding, filed a petition for writ of mandamus seeking to compel the trial court to vacate the December 16, 2008 “Order Granting Motion for New Trial.” We conditionally grant mandamus relief in part.

BACKGROUND

The underlying suit was filed by Northern on November 13, 2002, and alleges that Betty Lou Sheerin (“Sheerin”) breached a promissory note. Northern’s original petition claims that Sheerin, the majority shareholder of McDay Energy Partners, Ltd. (“McDay”), and McDay executed a promissory note in the amount of $1,950,000, payable to Northern, for the purchase of a natural gas pipeline system. After the loan was in default, Sheerin asserts McDay and Northern executed a First Amendment to the Agreements, which, among other changes, made changes to the terms of the note without her consent. In May of 2000, McDay filed for bankruptcy. In September of 2002, Northern sought payment of the $1,950,000 note from Sheerin, and the underlying suit .ensued.

In January of 2008, the Honorable Lori Massey presided over a four week jury trial on the merits. The jury returned a verdict in favor of Northern as follows: (1) $1,950,000 in contract damages; (2) $2,250,000 in fraud damages; and (3) $500,000.in attorney’s fees, with conditional awards for appellate attorneys’ fees.

Following the jury trial, Northern filed “Alternative Motions to Disregard the Jury Findings or for Entry of Judgment on the Verdict,” requesting $2,655,935 in breach of contract damages. Approximately seven months later, Northern filed its “First Amended Alternative Motion to Disregard the Jury Findings or for Entry of Judgment on the Verdict” that requested the trial court disregard the jury’s award of $1,950,000 in contract damages because that amount neither reflected the principal owed, after offsetting payments and credits, nor the accrued but unpaid interest on the note. In the motion, Northern referenced five alternative damage scenarios, asserting the evidence conclusively established Northern’s actual damages as a matter of law by a mathematical calculation (unpaid principal and interest on the note, less payments made).

Additionally, Sheerin filed a motion for judgment notwithstanding the verdict. After reviewing the transcript of the trial, the motions, and conducting a hearing on both Northern and Sheerin’s motions, Judge Massey (1) denied in part Sheerin’s motion for judgment notwithstanding the verdict, and (2) disregarded the jury findings as to the contractual damages, awarding additional damages to Northern after calculating the principal amount owed on the note, plus any accrued but unpaid interest. As a result, on October 3, 2008, Judge Massey entered a judgment in favor of Northern as follows: (1) $3,010,515 in contract damages; and (2) $500,000 in attorney’s fees, with conditional awards for appellate attorneys’ fees. On October 4, 2008, Judge Massey retired from the bench.

On October 31, 2008, Sheerin filed a motion for new trial asserting ten separate grounds. Grounds one through three relate to damages, and grounds four through ten relate to liability and attorneys’ fees. Because Judge Massey retired, the motion for new trial was assigned to Judge Neller-moe. On December 15th and 16th of 2008, the seventy fourth and seventy fifth days after Judge Massey signed the judgment notwithstanding the verdict, Judge Neller-moe conducted a hearing on grounds one through three (damages) and ordered that a new trial be granted as to those grounds. Judge Nellermoe acknowledged on the record that she had not reached grounds four through ten (liability and attorneys’ fees), and that those grounds would be overruled by operation of law if she did not enter an order that day. Judge Nellermoe then, in the same order, set grounds four through ten of the motion for new trial for a hearing on March 2, 2009. The order entitled “Order Granting Motion for New Trial” forms the basis of this petition for writ of mandamus.

ANALYSIS

I. Standard of Review

Mandamus will issue only to correct a clear abuse of discretion for which the relator has no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex.2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig. proceeding). However, when an order of the trial court is void, mandamus relief is available regardless of whether there is an adequate remedy by appeal. In re Vlasak, 141 S.W.3d 233, 235 (Tex.App.-San Antonio 2004, orig. proceeding) (citing Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973) (orig. proceeding)).

Northern contends mandamus relief is available based on the following grounds: (1)Judge Nellermoe’s order purportedly granting the new trial is void because it is not sufficiently explicit, express, and specific enough to grant a new trial; (2) the order is void because it expands the seventy five day deadline for consideration of a motion for new trial in violation of Texas Rules of Civil Procedure 5 and 329b(e); (3) because the damages are liquidated, a separate new trial can be granted on damages alone under Texas Rule of Civil Procedure 320; (4) mandamus should issue to preclude the trial court from taking further action because the trial court’s plenary power has expired; and (4) the order violates Northern’s procedural and substantive due process rights. Sheerin asserts the following defenses: (1) Northern waived its right to mandamus relief; and (2)Northern was required to request relief from the trial court prior to seeking mandamus relief.

II. Northern’s Grounds for Seeking Mandamus Relief

(1) Is the order void because it is not sufficiently explicit, express, and specific?

Rule 329b(c) requires a written order to grant a new trial. See Tex.R. Civ. P. 329b(c); In re Lovito-Nelson, 278 S.W.3d 773, 775 (Tex.2009) (orig. proceeding) (per curiam). “[A] motion for new trial is not granted without a signed, written order explicitly granting the motion.” In re Lovito-Nelson, 278 S.W.3d at 776. Northern contends the order purportedly granting a new trial does not meet the explicit, express, and specific requirements. Specifically, Northern asserts the order is defective for the following reasons: (1) the order confirms that Sheerin has not yet proved that she is entitled to a new trial as to grounds four through ten; (2) the order is conditioned on a future event that may not occur — the proof that Sheerin is entitled to the relief requested; (3) the order is not clear as to whether the court has granted a new trial, or will do so in the future; and (4) the order is ambiguous as to whether the court has granted or will grant a new trial as to one, some, or all of the grounds four through ten.

Based on a review of the record and the order, we conclude the trial court explicitly granted a new trial as to damages based on grounds one through three in Sheerin’s motion for new trial. See id. The order in part provides:

On December 15th and 16th, 2008, came before the Court the Motion for New Trial filed by Betty Lou Sheerin and the Court having reviewed said Motion and hearing the argument of the parties as to Grounds One, Two and Three of the Motion for New Trial finds that said Grounds should be sustained and it is hereby Ordered that New Trial is Granted.

However, as to liability issues contained in grounds four through ten of Sheerin’s motion, we conclude the order does not explicitly, expressly, and specifically grant a new trial. The pertinent portion of the order provides:

The Court hereby states that it has not yet heard argument on the Requests for New Trial set forth in Grounds Four, Five, Six, Seven, Eight, Nine and Ten of the Motion for New Trial. The Court will reinstate the jury findings challenged in each of grounds Four, Five, Six, Seven, Eight, Nine and Ten unless, upon consideration of those grounds in Betty Lou Sheerin’s Motion for New Trial in a hearing scheduled before the Court for 9:30 O’Clock A.M. on the 2nd day of March, 2009, or another date to be scheduled by the Court, the Court finds that Betty Lou Sheerin has established her right to the granting of a Motion for New Trial on one or more of those grounds.

The order specifically states that the trial court has not yet considered grounds four through ten. However, the trial court entered an order conditionally granting a new trial as to those liability issues that it had not considered. Specifically, the order conditions a new trial as to grounds four through ten on Sheerin’s ability to establish “her right” to a new trial at a later date. Based on the foregoing, we conclude the order purporting to grant a new trial did not explicitly, expressly, and specifically grant a new trial on grounds four through ten. Id.

(2) Does the order violate Texas Rules of Civil Procedure 5 and 329b (c)?

Even if the order was sufficiently explicit, Northern further contends the order is void because it violates Texas Rules of Civil Procedure 5 and 329b(c). See Tex.R. Civ. P. 5, 329b(c), (e). Rule 329b(c) and (e) provides as follows:

(c) In the event an original or amended motion for new trial or a motion to modify, correct or reform the judgment is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period.
(e) If a motion for new trial is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days after all such timely-filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.

Tex.R. Crv. P. 329b(c), (e). Rule 5 prohibits increasing the time period set forth in Rule 3 “The court may not enlarge the period for taking any action under the rules relating to new trials except as stated in these rules.” Tex.R. Civ. P. 5.; Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex.2003) (holding that “Rule 5 prohibits a trial court from enlarging the period for taking action under the rules relating to new trials”).

As to damages in grounds one through three, the trial court expressly granted a new trial on those grounds in accordance with the time limits as set out by Rule 329b. See Tex.R. Civ. P. 329b. However, as to the other grounds, Judge Nellermoe states the court has not yet heard argument regarding liability in grounds four through ten. It is clear from the record and the conditional nature of the order that the trial court was attempting to extend the seventy five day deadline as to those grounds in direct contradiction of Rule 5 and Rule 329b(c). See Tex.R. Civ. P. 5, 829b(c). As a result, we further conclude that as to grounds four through ten the order violates Rules 5 and 329b(c) of the Texas Rules of Civil Procedure.

(3) Can a separate trial be granted on damages alone?

In light of our holding that the trial court granted a new trial as to damages but not as to liability, we must now consider whether a separate new trial can be granted on damages alone.

Rule 320 of the Texas Rules of Civil Procedure provides as follows:

When it appears to the court that a new trial should be granted on a point or points that affect only a part of the matters in controversy and that such part is clearly separable without unfairness to the parties, the court may grant a new trial as to that part only, provided that a separate trial on unliquidated damages alone shall not be ordered if liability issues are contested.

Tex.R. Civ. P. 320. Sheerin asserts that once the trial court granted a new trial as to damages, the remaining grounds relating to liability were moot because Northern’s damages were unliquidated. Therefore, Sheerin contends that under Rule 320, a separate trial could not be granted solely on the damages.

We disagree and conclude that based on the arguments and the record before us, Northern’s damages are liquidated. Typically, a balance on a promissory note is a liquidated damage because the difference between the amount of indebtedness alleged to be due and the face amount of the note does not create ambiguity or raise a question of fact regarding payment credits. See Watson v. Sheppard Fed. Credit Union, 589 S.W.2d 742, 744 (Tex.Civ.App.-Fort Worth 1979, writ ref'd n.r.e.) (default judgment context). Based on the record before us, the contractual damages in this case were based on a promissory note and were able to be calculated as a matter of law. Because we have determined the damages were liquidated, we conclude that it is proper to have a new trial on damages without requiring a new trial on liability in accordance with Rule 320. See Tex.R. Civ. P. 320; see also In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 230-31 (Tex.2008) (orig. proceeding).

(4) Should mandamus issue to preclude the trial court from taking further action because the trial court’s plenary power has expired?

Northern further asserts that because the order granting a new trial is a nullity or void, the trial court’s plenary power expired thirty days after the order was signed. As a result, Northern contends that unless this court acts to preclude the trial court from setting another hearing date and conducting a hearing on the motion for new trial, the trial court will be exercising jurisdiction it does not have. Northern relies on case law that provides that mandamus relief is appropriate when a trial court has acted after its plenary power has expired. See In re Brookshire Grocery Co., 250 S.W.3d 66, 68 (Tex.2008) (orig. proceeding); In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.2000) (orig. proceeding). Northern asserts that “[s]imi-larly, mandamus relief is appropriate to prevent a trial court from acting after its plenary power has expired where, as here, it is obvious that the trial court intends to do so.” However, in light of our holding that a new trial was granted as to damages, it is not necessary to consider this issue.

(5) Does the order violate Northern’s procedural and substantive due process rights?

Northern asserts the trial court’s order denies Northern its constitutional rights to procedural and substantive due process. See U.S. Const. amend. XIV; Tex. Const. art. I, § 19. According to Northern, its procedural due process rights were violated because it did not have notice and an opportunity to be heard regarding grounds four through ten. As a result, Northern contends its substantive due process rights were violated because it was deprived of property, its rights in the final judgment rendered by Judge Massey. However, in light of our holding that a new trial was not granted as to grounds four through ten, it is not necessary to further consider this issue.

III. Sheerin’s Defenses

(1) Waiver

Sheerin asserts Northern waived its right to mandamus relief by waiting more than five months from the date of the trial court’s order to file its petition for writ of mandamus. When analyzing whether a relator’s delay in filing a mandamus prevents. the writ from being issued, the Texas Supreme Court has held that “[although mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles. One such principle is that ‘[e]quity aids the diligent and not those who slumber on their rights.’” Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex.1998) (orig. proceeding) (quoting Callahan v. Giles, 137 Tex. 571, 576, 155 S.W.2d 793, 795 (1941) (orig. proceeding)). In determining if a relator’s delay prevents the issuance of the writ, courts have analogized it to the doctrine of laches. In re Hinterlong, 109 S.W.3d 611, 620 (Tex.App.-Fort Worth 2003, orig. proceeding); Sanchez v. Hester, 911 S.W.2d 173, 177 (Tex.App.-Corpus Christi 1995, orig. proceeding). A party asserting the defense of laches must show: (1) unreasonable delay by the other party in asserting its rights, and (2) harm resulting to the party as a result of the delay. See In re Hamel, 180 S.W.3d 226, 230 (Tex.App.-San Antonio 2005, orig. proceeding); In re Bahn, 13 S.W.3d 865, 871 (Tex.App.-Fort Worth 2000, orig. proceeding).

In the case at hand, the trial court signed the order purporting to grant a new trial on December 16, 2008. The order specifies that a hearing was set for March 2, 2009, or another date to be scheduled by the court, to consider the remaining grounds four through ten. However, a hearing was never held. Instead, Northern filed its petition for writ of mandamus on May 15, 2009. While approximately five months passed between when the trial court signed the order and the filing of the mandamus, Northern did not unreasonably delay in the filing of the mandamus because the parties were waiting for the trial court to conduct a hearing on grounds four through ten as per the terms of the order. Accordingly, Northern did not waive its right to mandamus relief.

(2) Was Northern required to request relief from, the trial court first?

Sheerin asserts Northern was required to first present its complaint to the trial court and the trial court had to refuse the complaint before Northern sought mandamus relief. See In re Perritt, 992 S.W.2d 444, 446 (Tex.1999) (orig. proceeding). Sheerin claims that to the extent that Northern claims the trial court intends to take action, Northern should wait until that action has been taken and then should present its plenary power argument to the trial court to give the court an opportunity to consider it.

In In re Perritt, the Texas Supreme Court held that “[a] party’s right to mandamus relief generally requires a predicate request for some action and a refusal of that request.” Id. However, the court went on to hold that “[o]n rare occasions we have relaxed this predicate when the circumstances confirmed that ‘the request would have been futile and the refusal little more than a formality.’” Id. (quoting Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex.1991)(orig. proceeding)). Additionally, typically in a mandamus situation, the request and the refusal of the request comes in the form of an order that is granted or not granted. See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex.1990) (holding that in order to have the ability to seek mandamus relief regarding compelling a deposition, the trial court had to have explicitly denied the motion to compel the deposition); see also In re Perritt, 992 S.W.2d at 446 (holding that where the judge refused to disqualify himself, relator who sought judge’s disqualification was not required to join in the other party’s objection because any additional objection would have been futile). Overall, Northern’s complaint in this mandamus is that the trial court improperly granted a new trial. Northern opposed the granting of a new trial, which was to no avail when the trial court signed an order purportedly granting the new trial subject to further consideration. Therefore, we conclude Northern was not required to ask the trial court to reconsider the decision.

CONCLUSION

We conclude the trial court abused its discretion in signing the December 16, 2008 “Order Granting Motion for New Trial” because it is void as to grounds four through ten, concerning liability and attorneys’ fees. Accordingly, we conditionally grant the writ of mandamus in part. The trial court is ordered to vacate its order as to grounds four through ten. The writ will issue only if the trial court fails to withdraw that portion of its December 16, 2008 order within 10 days.

      . Throughout the seven years of litigation, other parties were added and severed out of the case. At the time of trial, only Northern’s claims against Sheerin and Sheerin's claims against Northern and Ken Lay remained.


author: CATHERINE STONE, Chief Justice.

text:
    Irma GOMEZ, Appellant, v. Luis Antonio GOMEZ, Appellee.
    No. 04-09-00641-CV.
    Court of Appeals of Texas, San Antonio.
    May 26, 2010.

      Jay R. Brandon, Law Office of Jay Brandon, Joe G. Cumpian, Attorney At Law, San Antonio, TX, for Appellant.
    James L. Bruner, Law Offices of James L. Bruner, San Antonio, TX, for Appellee.
    Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

CATHERINE STONE, Chief Justice.

Irma Gomez appeals from a final decree of divorce dissolving the marriage of Irma and Luis Antonio Gomez and dividing the property of the community estate. On appeal Irma contends the trial court erred when it found that I.G., a minor child born during the marriage of Irma and Luis, is not the child of Luis. In accord with this finding, the trial court also applied an offset in the property division for “back child support” previously paid by Luis in the form of expenses of raising I.G. as his child for thirteen years. Irma challenges this property division, as well as the trial court’s failure to address whether Luis converted approximately $50,000 in community property. We reverse the portions of the trial court’s judgment that: (1) find that I.G. is not a child of the marriage; and (2) divide the property. We render judgment that I.G. is a child of the marriage; however, we remand the cause to the trial court to reconsider the division of property and to consider issues relating to child support and visitation.

PATERNITY OF I.G.

Irma raises several complaints relating to the trial court’s finding that I.G. is not Luis’s child. Irma contends Luis was precluded from disproving the father-child relationship because he failed to prove the statutory exception to the four-year limitations bar. Irma further contends the trial court erred in admitting DNA test results in the absence of expert testimony to authenticate the test results.

A presumption of paternity exists if a man is married to the mother of the child and the child is born during the marriage. Tex. Fam.Code Ann. § 160.204(a) (Vernon 2008). This presumption legally establishes the father-child relationship between the man and the child. Id. at § 160.201(b)(1). In this case, the evidence is undisputed that Irma and Luis were married on June 16,1973, and separated in 2007. I.G. was born on January 28, 1996, during the marriage. Accordingly, Luis is presumed to be I.G.’s father.

When a child has a presumed father, a proceeding to adjudicate the parentage of that child must be commenced not later than the fourth anniversary of the date of the birth of the child. Tex. Fam.Code Ann. § 160.607(a) (Vernon 2008). In this case, the divorce proceeding giving rise to the parentage challenge was filed in June of 2007, more than four years after I.G. was born. A statutory exception to the four-year limitations bar, however, permits a proceeding seeking to disprove the father-child relationship between a child and a child’s presumed father to be maintained at any time if the court determines that:

(1) the presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception; and
(2) the presumed father never represented to others that the child was his own.

Id. at § 160.607(b). Luis had the burden to prove the two requirements necessary to establish this exception to the limitations bar. See In re Rodriguez, 248 S.W.3d 444, 451-52 (Tex.App.-Dallas 2008, orig. proceeding).

In the divorce decree, the trial court expressly found the following:

Pursuant to Texas Family Code Section 160.607, the Court finds that the parties did not engage in sexual intercourse with each other during the probable time of conception. The Court finds that the child, [I.G.], is not the child of Respondent, Luis Antonio Gomez.
The Court further finds that there was no bonding between the child and the Respondent, Luis Antonio Gomez, as testified to by the Petitioner, Irma Gomez. The Court further finds that Petitioner did not want to grant Respondent any possession and access to the child as testified to by Petitioner, Irma Gomez.

Even assuming the evidence is sufficient to support the trial court’s finding that Luis and Irma did not engage in sexual intercourse during the time of I.G.’s conception, the trial court did not find that Luis never represented to others that I.G. was his own. Finding that no bond existed between I.G. and Luis does not equate to such a finding. Moreover, such a finding would have been unsupported by the evidence because the evidence established that Luis was listed as I.G.’s father on I.G.’s birth certificate, in school records, and in tax returns. See In re R.O., No. 03-04-00506-CV, 2005 WL 910231, at *3 (Tex.App.-Austin Apr. 21, 2005, no pet.) (relying on presumed father’s name on child’s birth certificate as some evidence that presumed father treated child as his own) (mem. op.). Therefore, the evidence is legally insufficient to prove the exception to the four year limitations bar. As a result, Luis was barred from seeking to adjudicate I.G.’s parentage, and the trial court erred in finding I.G. is not a child of the marriage. Accordingly, the provisions of the divorce decree relating to the child of the marriage, including the failure to award child support and visitation, are reversed. We do not address Irma’s issue pertaining to the admission of the DNA test results because its resolution is not necessary to the disposition of this appeal. See Tex.R.App. P. 47.1.

PROPERTY Division

With regard to the trial court’s division of property, Irma contends that the trial court improperly awarded an offset in the property division for “back child support” based on its erroneous finding that I.G. is not Luis’s child. In addition, Irma contends the trial court erroneously failed to address her contention that Luis converted approximately $50,000 of community funds.

In reviewing a trial court’s division of property, we must consider whether the evidence in the record demonstrates that the division was so unjust and unfair as to constitute an abuse of discretion. Lifshutz v. Lifshutz, 199 S.W.3d 9, 18 (Tex.App.-San Antonio 2006, pet. denied); Pletcher v. Goetz, 9 S.W.3d 442, 446 (Tex.App.-Fort Worth 1999, pet. denied). The test for whether the trial court abused its discretion is whether the court acted arbitrarily or unreasonably. Lifshutz, 199 S.W.3d at 18; Pletcher, 9 S.W.3d at 446.

A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support its decision. Garza v. Garza, 217 S.W.3d 538, 549 (Tex.App.-San Antonio 2006, no pet.). Because in family law cases the abuse of discretion standard of review overlaps the traditional sufficiency standards of review, legal and factual insufficiency are not independent grounds of reversible error; instead, they constitute factors relevant to our assessment of whether the trial court abused its discretion. Id. Therefore, in considering whether the trial court abused its discretion because the evidence is legally or factually insufficient, we apply a two-prong test: (1) did the trial court have sufficient evidence upon which to exercise its discretion, and (2) did the trial court err in its application of that discretion? Id.

With regard to the offset for “back child support,” evidence was introduced at trial that during the marriage, Luis purchased a 170 acre tract of property in Frio County with his brothers. Luis used community funds to pay his portion of the purchase price. With regard to the division of the Frio County property, the trial court stated:

This was at the very beginning of the testimony and that was the impression I had: That she was aware that this had been bought by Mr. Gomez and his brothers. However, of course, the money [Luis] paid was community funds. So I’m going to award the property to him, and I’m not going to require reimbursement of the $26,500, or whatever it was that was paid. But I’m also not going to require Ms. Gomez to reimburse him for the child support that’s been paid to date. I’m going to count that as a wash.

Because we hold the trial court erred in finding that I.G. is not Luis’s child, this offset also was erroneous.

Once reversible error affecting the “just and right” division of the community estate is found, the court of appeals must remand the entire community estate for a new division. Jacobs v. Jacobs, 687 S.W.2d 731, 738 (Tex.1985); In re Marriage of Taylor, 992 S.W.2d 616, 621 (Tex.App.-Texarkana 1999, no pet.). Because the “back child support” offset was erroneous, we must remand the case for a new property division; therefore, we do not address Irma’s issue regarding Luis’s alleged conversion of $50,000 of community funds. See Tex.R.App. P. 47.1 (noting opinions should only address issues necessary to final disposition of the appeal).

Conclusion

The provisions of the divorce decree relating to the child of the marriage and the division of property are reversed. Judgment is rendered that I.G. is a child of the marriage. The cause is remanded to the trial court to reconsider the property division and to consider issues pertaining to the child of the marriage such as child support and visitation.

      . In his brief, Luis refers to equitable estoppel as a defense to the limitations bar. Equitable estoppel, however, is an affirmative defense that must be pled or it is waived. See In re G.T.S., No. 01-09-00212-CV, 2009 WL 3248199, at *4 n. 9 (Tex.App.-Houston [1st Dist.] Oct. 8, 2009, no pet.) (mem. op.); Daniel v. Falcon Int. Realty Corp., 190 S.W.3d 177, 188 (Tex.App.-Houston [1st Dist.] 2005, no pet.); City of Univ. Park v. Van Doren, 65 S.W.3d 240, 251 (Tex.App.-Dallas 2001, pet. denied). The clerk’s record contains no pleading filed by Luis that refers to equitable estoppel. In fact, the last pleading filed by Luis before trial, his first amended original counterpetition for divorce, asserts that Irma and Luis are I.G.’s parents and requests that they be appointed as joint managing conservators. Therefore, Luis has waived any argument based on equitable estoppel.


author: PHYLIS J. SPEEDLIN, Justice.

text:
    SAN ANTONIO EXTENDED MEDICAL CARE, INC. d/b/a Med Mart, Appellant v. Ruben VASQUEZ, Individually, and as Administrator of the Estate of Ruben Vasquez, Jr., Deceased, and Oralia Vasquez, Joe Jimenez, and Rosa Ward, Appellees.
    No. 04-09-00546-CV.
    Court of Appeals of Texas, San Antonio.
    May 26, 2010.

      Michael E. Flume, Flume Law Firm, LLP, San Antonio, TX, for Appellant.
    Andrew E. Toscano, Gene Toscano, Inc., San Antonio, TX, for Appellee.
    Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

PHYLIS J. SPEEDLIN, Justice.

The motion for rehearing filed by appel-lees, Ruben Vasquez, individually and as administrator of the Estate of Ruben Vasquez, Jr., deceased, and Oralia Vasquez, Joe Jimenez, and Rosa Ward, is granted. This court’s opinion and judgment dated February 3, 2010, are withdrawn, and this opinion and judgment are substituted.

In this interlocutory appeal, San Antonio Extended Medical Care, Inc. d/b/a Med Mart (“Med Mart”) challenges the trial court’s order denying its motion to dismiss filed pursuant to section 74.351(a) of the Texas Civil Practice and Remedies Code. Tex. Crv. Prac. & Rem.Code Ann. § 74.351(a) (Vernon Supp.2009). Because we conclude the trial court erred in finding that Med Mart did not meet the definition of a health care provider, we reverse the judgment of the trial court and remand the cause to the trial court for further proceedings.

BACKGROUND

On April 7, 2008, Ruben Vasquez, Jr. (“Mr. Vasquez”) underwent a tracheosto-my. Ten days after the surgery, he was discharged from the hospital under doctor’s orders to receive home oxygen therapy and trachea care. Med Mart delivered two oxygen tanks to Mr. Vasquez’s home on April 17, 2008. The following day, Mr. Vasquez’s wife called Med Mart and informed them that her husband was running low on oxygen. She again informed Med Mart that the oxygen supply was low on April 19, but another delivery was not made. Later that day, Mr. Vasquez became unconscious and was transported to the hospital by EMS. He died the next day.

Thereafter, on December 9, 2008, Ruben Vasquez, individually, and as administrator of the Estate of Ruben Vasquez, Jr., deceased, and Oralia Vasquez, Joe Jimenez, and Rosa Ward (collectively, “Vasquez”) sued Med Mart alleging, among other claims, that Mr. Vasquez’s death was proximately caused by the negligent acts and/or omissions of Med Mart, including: failing to' provide adequate oxygen tanks as ordered; failing to respond to requests by Mr. Vasquez’s family for an adequate oxygen supply; failing to institute safeguards to insure that patients such as Mr. Vasquez would always have an adequate supply of medical supplies, including oxygen; and failing to provide an adequate oxygen supply as ordered by his treating doctors.

On May 14, 2009, Med Mart filed a motion to dismiss claiming Vasquez failed to serve his 120-day expert report as required by section 74.351(a) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). Vasquez filed a motion to strike the motion to dismiss and a response to the motion to dismiss claiming that he is not subject to the requirements of section 74.351 because he did not assert a health care liability claim against Med Mart and because Med Mart is not a health care provider. Alternatively, Vasquez argued in the motions that he complied with section 74.351 by filing an autopsy report attached to a Stowers demand letter within the 120-day expert report deadline and that the report was not objected to by Med Mart. The trial court denied the motion to dismiss for failure to file an expert report without making findings of fact or conclusions of law, but orally stated that the evidence did not demonstrate Med Mart to be a health care provider. The trial court’s order specifically stated that “[t]he Court makes no ruling on Plaintiffs Motion to Strike Defendant’s Motion to Dismiss.”

Standard of Review and Applicable Law

We generally review a trial court’s order granting a motion to dismiss for failure to timely file a section 74.351(a) expert report under an abuse of discretion standard. Pedroza v. Toscano, 293 S.W.3d 665, 666 (Tex.App.-San Antonio 2009, no pet.); Holguin v. Laredo Reg’l Med. Centr., L.P., 256 S.W.3d 349, 352 (Tex.App.-San Antonio 2008, no pet.). However, when the issue presented requires a statutory interpretation or a determination of whether Chapter 74 applies to a claim, ie., questions of law, we use a de novo standard of review. Brown v. Villegas, 202 S.W.3d 803, 805 (Tex.App.-San Antonio 2006, no pet.). Whether a claim is a health care liability claim is a question of law. Inst. for Women’s Health, P.L.L.C. v. Imad, No. 04-05-00555-CV, 2006 WL 334013, *1 (Tex.App.-San Antonio Feb. 15, 2006, no pet.) (mem.op.); Lee v. Boothe, 235 S.W.3d 448, 451 (Tex.App.-Dallas 2007, pet. denied).

Section 74.351(a) provides that a health care liability claimant must file an expert report for each physician or health care provider defendant within 120 days after filing the claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). If the required report has not been served by the 120-day deadline, on proper motion by a defendant, the trial court must dismiss the action with prejudice and award reasonable attorney’s fees and court costs incurred by the defendant. Id. § 74.351(b) (Vernon Supp.2009).

A “health care liability claim” is defined as:

[A] cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.

Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13) (Vernon 2005). Whether a claim falls within the definition of a health care liability claim requires an examination of the “essence” or “underlying nature” of the claim. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex.2005); Holguin, 256 S.W.3d at 352. “A cause of action against a health care provider is a health care liability claim ... if it is based on a claimed departure from an accepted standard of medical care, health care, or safety of the patient, whether the action sounds in tort or contract.” Diversicare, 185 S.W.3d at 848. “A cause of action alleges a departure from accepted standards of medical care or health care if the act or omission complained of is an inseparable part of the rendition of medical services.” Id. The necessity of expert testimony from a medical or health care professional may be a factor in determining whether a claim is an inseparable part of the rendition of medical or health care services. Id. However, the fact that expert testimony may not ultimately be necessary to support a verdict at trial does not necessarily mean the claim is not a health care liability claim. Murphy v. Russell, 167 S.W.3d 835, 838 (Tex.2005) (per curiam).

Discussion

On appeal, Med Mart argues the trial court abused its discretion in denying its motion to dismiss because Vasquez asserted a health care liability claim and was therefore required to serve an expert report. In support, Med Mart asserts that Vasquez’s claims for negligence based on Med Mart’s alleged failure to furnish adequate oxygen to Mr. Vasquez meet all three prongs of a health care liability claim. It is undisputed that Vasquez alleged that Med Mart caused Mr. Vasquez’s death by failing to deliver oxygen; thus, the third element necessary to establish a health care liability claim — that the plaintiff must allege that the defendant’s action proximately caused injury to or death of a claimant — has been satisfied. Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13). Accordingly, we must determine whether Med Mart is a health care provider, and, if so, whether the claims asserted by Vasquez claimed a departure from the accepted standards of health care. See id.

1. Health Care Provider

A health care liability claim is a cause of action against a health care provider or physician. Id. A “health care provider” is defined as:

[A]ny person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including: (i) a registered nurse; (ii) a dentist; (iii) a podiatrist; (iv) a pharmacist; (v) a chiropractor; (vi) an optometrist; or (vii) a health care institution.

Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(12)(A) (Vernon 2005). The list is not exclusive. See Christus Health v. Beal, 240 S.W.3d 282, 286 (Tex.App.Houston [1st Dist.] 2007, no pet.) (citing Tex. Gov’t Code Ann. § 311.005(13) (Vernon 2005), which provides that “including” is a term of enlargement and not of limitation). The statute defines “health care” as “any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(10) (Vernon 2005).

At the hearing on the motion to dismiss, Carlos Barrera, Med Mart’s vice president, testified that Med Mart is a company licensed by the Texas Department of Health and licensed as a prescription drug firm. Barrera further stated that oxygen is a drug which requires a doctor’s prescription. It is undisputed that Mr. Vasquez was prescribed oxygen by his treating physician, Dr. Mark W. Hatch, who ordered that he be released from the hospital and treated at home with oxygen therapy. It is likewise undisputed that Med Mart was the entity selected to provide home health care services for Mr. Vasquez. Physicians’ orders were faxed to Med Mart by the hospital. Med Mart contends that these attributes make it a health care provider. Vasquez counters that Med Mart cannot be a health care provider because it is not specifically listed as such in the statute and because it is merely licensed by the State as a distributor or manufacturer, not as a health care provider.

We agree that Med Mart qualifies as a health care provider. The record here contains evidence that Med Mart is licensed by the Texas Department of State Health Services as a prescription drug firm (manufacturer) and as a licensed device firm (distributor and manufacturer). Further, the record contains testimony from Med Mart’s vice president, who stated that a prescription drug firm license is the same license held by pharmacies. Unlike in Brown v. Villegas, where we held that the alleged health care provider failed to prove its status as such by not including proof that it was “licensed, certified, registered, or chartered by the State of Texas to provide health care,” Med Mart met its burden of establishing licensure by the State. See Brown, 202 S.W.3d at 806. Vasquez contends that the evidence here merely demonstrates Med Mart held a license to distribute and manufacture drugs — not to provide health care — our reading of the statute leads us to conclude that such licenses meet the definition of a health care provider. See Pedroza, 293 S.W.3d at 668 (noting that to ascertain the legislative intent of a statute, we begin with its plain language); Marks v. St. Luke’s Episcopal Hosp., No. 07-0783, 2009 WL 2667801, at *3 (Tex. Aug. 28, 2009) (“When interpreting a statute, we read words and phrases in context and construe them according to the rules of grammar and common usage.”). The statute merely requires that the provider be licensed to “provide health care.” Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(12)(A). “Health care means any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(10). As will be discussed below, Med Mart supplied prescription-ordered oxygen therapy to Mr. Vasquez. At a minimum, the delivery of the oxygen constituted an “act” performed by Med Mart for Mr. Vasquez during his treatment. See id. Even though the oxygen was delivered to Mr. Vasquez’s home, he was released from the hospital under doctor’s orders to receive home oxygen therapy, without which he was incapable of breathing. See, e.g., Te soro v. Alvarez, 281 S.W.3d 654, 660 (Tex.App.-Corpus Christi 2009, no pet.) (location at which health care is performed or furnished is not determinative of whether claim constitutes a health care liability claim). Accordingly, we hold that on this record there was sufficient evidence to prove Med Mart’s status as a health care provider. We next examine whether Vasquez’s claims alleged a claimed departure from the accepted standards of health care.

2. Claimed Departure from Accepted Standards of Health Care

To establish a health care liability claim, the act or omission complained of must be an inseparable part of the rendition of health care services. See Diversicare, 185 S.W.3d at 848; Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 544 (Tex.2004). A factor in considering whether a cause of action is an inseparable part of the rendition of health care services is whether expert testimony from a medical or health care professional is necessary to prove a claim. Diversicare, 185 S.W.3d at 848; Espinosa v. Baptist Health Sys., No. 04-05-00131-CV, 2006 WL 2871262, at *1 (Tex.App.-San Antonio Oct. 11, 2006, pet. denied) (mem.op.). Here, Vasquez alleged that Mr. Vasquez’s death was proximately caused by the negligent acts and/or omissions of Med Mart, including: failing to provide adequate oxygen tanks as ordered; failing to respond to requests by Mr. Vasquez’s family for an adequate oxygen supply; failing to institute safeguards to insure that patients such as Mr. Vasquez would always have an adequate supply of medical supplies, including oxygen; and failing to provide an adequate oxygen supply as ordered by his treating doctors. On appeal, Med Mart contends that Vasquez’s claims are inseparably and inextricably linked to the rendition of Mr. Vasquez’s health care because his death is alleged to have been caused, at least in part, by Med Mart’s failure to provide him with oxygen which was prescribed by his doctor as post-operative treatment. In response, Vasquez maintains that Med Mart was merely delivering oxygen to Mr. Vasquez and was not required to remain at his bedside as the oxygen was used; therefore, the delivery of oxygen tanks cannot be an inseparable part of the rendition of medical or health care services.

The facts of this case are similar to those in Valdez v. Lopez Health Systems, where the plaintiffs daughter died after a home health care service worker removed the portable suction machine required for her survival. Valdez v. Lopez Health Sys., Inc., No. 04-04-00023-CV, 2005 WL 1629803, at *1 (Tex.App.-San Antonio July 13, 2005, no pet.) (mem.op.). The plaintiff alleged that the home health service was negligent in failing to provide necessary medical equipment. Id. This court held that the plaintiffs claims were governed.by section 74.351 because in order to establish liability, the plaintiff would have to prove the standard of care applicable to home health care providers and then show that the standard was breached. Id. at *2. Similarly, in order to establish that Med Mart was negligent in failing to provide necessary medical equipment to Mr. Vasquez, Vasquez would have to prove that the standard of care applicable to a health care provider required Med Mart to deliver oxygen and that Med Mart breached that standard. Thus, Vasquez has complained of acts or omissions that occurred during Mr. Vasquez’s treatment by Med Mart. See Rose, 156 S.W.3d at 544. Accordingly, we conclude Vasquez’s claims against Med Mart asserted an alleged departure from the accepted standards of health care.

This conclusion is further bolstered by the fact that expert testimony will be required to prove Vasquez’s claims. See id. (noting that one consideration in determining whether alleged act or omission is inseparable part of health care is proving claim would require specialized knowledge of an expert). As Med Mart notes, Vasquez alleged more than a mere failure to deliver oxygen. It is undisputed that Med Mart delivered two oxygen tanks to Mr. Vasquez. One was half full and the other was a quarter full. The Med Mart technician set the flow rate of the tanks at two liters per minute. The question, therefore, is whether an adequate supply of oxygen was delivered. Med Mart argues that it is not within the common knowledge of the general public to know whether the correct flow rate was set or whether there was an adequate supply of oxygen delivered in the first instance. See Diversicare, 185 S.W.3d at 848, 851. We agree. Expert testimony is required to establish whether the oxygen tanks were set at the correct flow level or whether an adequate supply of oxygen was delivered to Mr. Vasquez. Such information is not within the common knowledge of the general public. See Rose, 156 S.W.3d at 544; Imad, 2006 WL 334013, at *3.

Conclusion

Based on the reasons stated above, we conclude Vasquez was subject to the requirements of section 74.351 because Vasquez’s suit asserts a health care liability claim against Med Mart, a health care provider. See Rose, 156 S.W.3d at 546; Holguin, 256 S.W.3d at 353. The trial court erred when it denied Med Mart’s Motion to Dismiss on the basis that Med Mart did not meet the statutory definition of a health care provider. Because of the trial court’s erroneous conclusion on this issue, it never considered Med Mart’s Motion to Dismiss or Vasquez’s responsive Motion to Strike Med Mart’s Motion to Dismiss. Accordingly, we reverse the trial court’s order denying Med Mart’s motion to dismiss, and remand the cause to the trial court for further proceedings.

      . The term “health care provider” also includes: "(i) an officer, director, shareholder, member, partner, manager, owner, or affiliate of a health care provider or physician; and (ii) an employee, independent contractor, or agent of a health care provider or physician acting in the course and scope of the employment or contractual relationship." Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(12)(B) (Vernon 2005).