author: TERRIE LIVINGSTON, Chief Justice.

text:
    John Dan HOGAN, Appellant, v. The STATE of Texas, State.
    No. 02-09-00387-CR.
    Court of Appeals of Texas, Fort Worth.
    Nov. 18, 2010.

      Matthew McConahay, The Myers Law Firm, Aledo, G. Alan Steele, Fort Worth, for Appellant.
    Joe Shannon, Jr., Crim. Dist. Atty., Charles M. Mallín, Asst. Crim. Dist. Atty., Chief of Appellate Section, Tanya S. Doho-ney, Jon Michael O’Toole & Carl J. Lazarus, Asst. Crim. Dist. Attys., Tarrant County, Fort Worth, for State.
    PANEL: LIVINGSTON, C.J.; McCOY and MEIER, JJ.
   OPINION

TERRIE LIVINGSTON, Chief Justice.

In three related issues, appellant John Dan Hogan appeals his conviction for driving while intoxicated (DWI). He contends that the trial court erred by denying his motion to suppress evidence that the police obtained after arresting him. We affirm.

Background Facts

On an early fall morning in 2008, Fort Worth Police Department Officer C.D. Harris was on patrol when he heard another officer, who was on a bike, say on the radio that a car was driving dangerously and going the wrong way on a one-way street. Officer Harris found a car that matched the description that he had been given; the car had just been stopped because of another patrol officer’s command. As appellant stepped out of the car, Officer Harris placed handcuffs on him. Officer Harris noticed that appellant smelled like alcohol, had bloodshot and watery eyes, had slurred speech, and was swaying and unsteady. Appellant failed three field sobriety tests; he showed six clues of intoxication on the horizontal-gaze-nystagmus test, six clues on the walk-and-turn test, and three clues on the one-leg-stand test.

Officer Harris placed appellant in the patrol car and took him to jail. Officer Harris then read the statutory warning to appellant about providing a breath specimen, and appellant refused to give one. After giving appellant the walk-and-turn and one-leg-stand tests again in an intoxi-lyzer room, Officer Harris placed appellant in a holding cell while he typed a search warrant affidavit to draw appellant’s blood because appellant had refused the breath test. A municipal magistrate read the affidavit and signed the warrant, and Officer Harris took appellant to a hospital, where a medical professional took appellant’s blood sample.

The State charged appellant with DWI. Appellant filed a motion to suppress evidence related to his blood draw and statements that he made to the police after his arrest. After an evidentiary hearing, the trial court granted the suppression of appellant’s statements but denied appellant’s motion relating to the blood draw. About a month later, under a plea agreement, appellant pled nolo contendere. The trial court sentenced him to 365 days’ confinement, but it suspended the sentence and placed him on two years’ community supervision. Appellant preserved his right to bring this appeal.

The Denial of Appellant’s Motion to Suppress

In three related issues, appellant argues that (1) the search warrant issued to obtain his blood specimen was not supported by probable cause and therefore violated the United States and Texas constitutions, and (2) the affidavit supporting the warrant did not comply with article 18.01 of the code of criminal procedure because it did not contain sufficient facts showing probable cause that an offense had been committed.

Standard of review and applicable law

The police may obtain a defendant’s blood for a DWI investigation through a search warrant. Beeman v. State, 86 S.W.3d 613, 616 (Tex.Crim.App.2002); see Tex.Code Crim. Proc. Ann. art. 18.01(j) (Vernon Supp.2010); State v. Johnston, 305 S.W.3d 746, 750 (Tex.App.Fort Worth 2009, pet. granted). A search warrant cannot issue unless it is based on probable cause as determined from the four corners of an affidavit. U.S. Const, amend. IV; Tex. Const, art. I, § 9; Tex. Code Crim. Proc. Ann. art. 18.01(b) (“A sworn affidavit ... establishing probable cause shall be filed in every instance in which a search warrant is requested.”); Nichols v. State, 877 S.W.2d 494, 497 (Tex.App.-Fort Worth 1994, pet. refd). When reviewing a magistrate’s decision to issue a warrant, we apply a highly deferential standard in keeping with the constitutional preference for a warrant. Rodriguez v. State, 232 S.W.3d 55, 59-60 (Tex.Crim.App.2007) (“[E]ven in close cases we give great deference to a magistrate’s determination of probable cause to encourage police officers to use the warrant process rather than making a warrantless search and later attempting to justify their actions by invoking some exception to the warrant requirement.”); Swearingen v. State, 143 S.W.3d 808, 810-11 (Tex.Crim.App.2004); Emenhiser v. State, 196 S.W.3d 915, 924-25 (Tex.App.-Fort Worth 2006, pet. ref d).

Under the Fourth Amendment and the Texas constitution, an affidavit supporting a search warrant is sufficient if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed. Swearingen, 143 S.W.3d at 810-11; Nichols, 877 S.W.2d at 497. Probable cause exists to issue an evidentiary search warrant if the affidavit shows facts and circumstances to warrant a person of reasonable caution to believe that the criteria set forth in article 18.01(c) of the code of criminal procedure have been met. Tolen-tino v. State, 638 S.W.2d 499, 501 (Tex.Crim.App. [Panel Op.] 1982); see Tex.Code Crim. Proc. Ann. art. 18.01(c). The affidavit must set forth facts establishing that (1) a specific offense has been committed, (2) the item to be seized constitutes evidence of the offense or evidence that a particular person committed the offense, and (3) the item is located at or on the person, place, or thing to be searched. See Tex.Code Crim. Proc. Ann. art. 18.01(c); Tolentino, 638 S.W.2d at 501.

A reviewing court should not invalidate a warrant by interpreting the affidavit in a hypertechnical manner. See Rodriguez, 232 S.W.3d at 59; Tolentino, 638 S.W.2d at 501 (explaining that “[n]o magical formula exists” for an affidavit’s explanation of probable cause); Nichols, 877 S.W.2d at 498. Rather, when a court reviews an issuing magistrate’s determination, the court should interpret the affidavit in a commonsense and realistic manner, recognizing that the magistrate may draw reasonable inferences. See Rodriguez, 232 S.W.3d at 61 (“When in doubt, we defer to all reasonable inferences that the magistrate could have made.”); Davis v. State, 202 S.W.3d 149, 154 (Tex.Crim.App.2006); Nichols, 877 S.W.2d at 498. “The issue is not whether there are other facts that could have, or even should have, been included in the affidavit; we focus on the combined logical force of facts that are in the affidavit, not those that are omitted from the affidavit.” Rodriguez, 232 S.W.3d at 62; see Nichols, 877 S.W.2d at 498 (“A warrant is not invalid merely because the officer failed to state the obvious.”). The magistrate’s determination should prevail in doubtful or marginal cases. Flores v. State, 319 S.W.3d 697, 702 (Tex.Crim.App.2010).

Analysis

Officer Harris’s affidavit included the following facts:

I am a peace officer of the State of Texas, ... and I have good reason to believe that heretofore, ... HOGAN, JOHN DAN ... did ... commit an offense relating to the operating of a motor vehicle while intoxicated namely:
On October 26, 2008 I Officer CD Harris was assisting A633 (Officer EA Bentley # 3480) who had called out with a wrong way driver. Officer Bentley stated that the IMP [] was traveling westbound in the 200 block of W. 5th St which is for eastbound traffic only.... The IMP then turned westbound onto 300 W. 6th ST and ran two red lights.... The IMP was also driving recklessly as it swerved around other cars on the roadway.... The IMP then turned southbound onto Forest Park Blvd where Officer’s [sic] were able to finally catch up to the IMP and conduct a traffic stop. I was on scene ... by this time and I was able to make contact with [appellant]. While speaking with him I could smell the strong odor of an alcoholic beverage on or about the person of [appellant] as well as observed that he had bloodshot, watery[,] and heavy eyes. [Appellant] had swayed and unsteady balance as well as swayed, unsteady[,] and staggered walk. At that time I believed he was possibly intoxicated by means of alcohol and requested that [appellant] perform a field sobriety evaluation which yielded the following results: HGN-6 clues with vertical nystagmus, WAT-6 clues, OLS-3 clues. At that time I placed [appellant] under arrest for driving while intoxicated and transported him to [jail] ... where he refused to provide a breath specimen.

The affidavit concluded by requesting a warrant to seize appellant’s blood and therefore gain evidence for a DWI charge.

The warrant that the magistrate signed incorporated Officer Harris’s affidavit and said that the facts contained within it were sufficient to establish probable cause for medical personnel to draw a specimen of appellant’s blood. The trial court’s conclusions of law state in part,

Judge Reims was a neutral, impartial magistrate when she issued the warrant.
The search warrant was lawful and valid.
[Appellant’s] blood sample was seized pursuant to a search warrant validly executed in accordance with Articles
18.01 and 18.02 of the Code of Criminal Procedure....

Appellant contends that the affidavit did not establish probable cause to issue the warrant for his blood specimen because it contained “conclusory and nonsensical statements.” Specifically, appellant asserts that the affidavit is defective because it

• describes the driving path of an “IMP” but does not explain to the magistrate what “IMP” means and does not explicitly state that appellant was driving the “IMP” or was otherwise operating a motor vehicle;

• uses “HGN,” “WAT,” and “OLS” without defining those acronyms or explaining the significance of the number of “clues” as related to the acronyms, and therefore the affidavit does not show appellant’s intoxication; and

• does not state that Officer Harris is qualified to conduct field sobriety tests or that he has experience in DWI cases.

While the affidavit could have been clearer, in according deference to the magistrate’s determination, we cannot agree with appellant that it failed to establish probable cause to show that he had committed DWI and that his blood could provide evidence of that offense. Although the affidavit never specifically stated that appellant was the person who was driving the “IMP,” it explained that Officer Harris had good reason to believe that appellant had operated a motor vehicle, described how officers saw a car progress recklessly and illegally through the streets of Fort Worth, explained that officers stopped the car that they observed being driven recklessly and illegally, and then said that at the scene of the stop, Officer Harris made contact with appellant. The affidavit does not indicate that anyone other than appellant (and other police officers) was at the scene (and therefore does not create doubt that someone else could have driven the “IMP”). Thus, we conclude that the magistrate could have reasonably inferred that appellant drove the vehicle described in the affidavit. See Rodriguez, 232 S.W.3d at 61.

Next, we acknowledge that the affidavit could have been more explicit concerning appellant’s performance on the field sobriety tests because it did not define the sobriety tests’ acronyms or explain the nature or significance of the tests. But even if we assume that the magistrate did not understand Officer Harris’s acronyms or know about the tests, the affidavit still informed the magistrate in plain language that appellant showed fifteen combined clues of intoxication on the tests. And apart from the sentence concerning the tests, the affidavit stated that appellant recklessly drove a vehicle; that he had a “strong odor” of alcohol, “bloodshot, watery[,] and heavy eyes,” a swayed and unsteady balance, and a staggered walk; and that he had refused to provide a breath specimen. These facts alone were sufficient to show probable cause that appellant committed DWI. See State v. May, 242 S.W.3d 61, 62 (Tex.App.-San Antonio 2007, no pet.) (mem.op.); Learning v. State, 227 S.W.3d 245, 249 (Tex.App.-San Antonio 2007, no pet.) (mem.op.); Reynolds v. State, 902 S.W.2d 558, 560 (Tex.App.-Houston [1st Dist.] 1995, pet. refd); see also Tex. Dep’t of Pub. Safety v. Gilfeather, 293 S.W.3d 875, 880-81 (Tex.App.Fort Worth 2009, no pet.) (en banc op. on reh’g) (holding that there was substantial evidence to show probable cause for DWI when the appellee was stopped for speeding, had bloodshot eyes, swayed, smelled like alcohol, and refused to participate in field sobriety tests).

Finally, although the affidavit might have been more complete if it had detailed Officer Harris’s experience in DWI cases, we hold that such information was not required to make the affidavit adequate. See Davis, 202 S.W.3d at 156 (explaining that an officer’s statement that he recognized the odor of methamphetamine reasonably implied that he had experience with the odor generated by the process of cooking methamphetamine). Many of the facts included in Officer Harris’s affidavit would lead an untrained, common person to believe that appellant was driving the vehicle while he was intoxicated. See Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949) (“In dealing with probable cause ... we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”); Small v. State, 977 S.W.2d 771, 774 (Tex.App.-Fort Worth 1998, no pet.) (citing Brinegar and explaining that probable cause is a “common sense standard requiring only a probability of criminal activity rather than an actual showing of such activity”).

Appellant cites a decision from the court of criminal appeals to conclude that Officer Harris’s affidavit was invalid because it was conclusory. See Jones v. State, 833 S.W.2d 118, 124 (Tex.Crim.App.1992), cert. denied, 507 U.S. 921, 113 S.Ct. 1285, 122 L.Ed.2d 678 (1993). In Jones, an officer’s search wax-rant affidavit in a murder case attempted to link the defendant to the murder by stating only that the defendant’s fingerprints matched fingei-prints taken from the scene. Id. The court of criminal appeals held that the affidavit was insufficient because there “were no facts that would lead a neutral and detached magistrate to conclude that appellant was the pei’petrator of the crime and not merely an oi*dinary houseguest.” Id. In contrast, as explained above, Officer Harris’s affidavit provided sufficient facts to allow the magistrate to reasonably infer that appellant committed a crime by operating a motor vehicle in a public place while intoxicated. Other cases relied on by appellant are similarly distinguishable. See Cassias v. State, 719 S.W.2d 585, 590 (Tex.Crim.App.1986) (op. on reh’g) (holding that an affidavit to search a house for drugs was insufficient because it was “too disjointed and imprecise to warrant a man of reasonable caution in the belief that marihuana and cocaine would be found” there); Taylor v. State, 54 S.W.3d 21, 27 (Tex.App.-Amarillo 2001, no pet.) (holding that there was no probable cause to search a defendant’s home for child pornography based only on the facts that governmental authorities received contraband by someone using an alias, obtained information that the defendant used the alias at some time, and knew where the defendant lived).

For these reasons, we hold that the facts contained within Officer Harris’s affidavit, along with reasonable inferences from those facts, allowed the magistrate to conclude that there was probable cause to sign the search warrant. See Rodriguez, 232 S.W.3d at 61. The affidavit and warrant complied with the United States and Texas constitutions and article 18.01 of the code of criminal procedure; therefore, the trial court did not err by denying appellant’s motion to suppress. See U.S. Const, amend. IV; Tex. Const, art. I, § 9; Tex. Code Crim. Proc. Ann. art. 18.01. We overrule appellant’s three issues.

Conclusion

Having overruled appellant’s issues, we affirm the trial court’s judgment.

      . See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003) ("A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”).

      . Officer Harris said that he placed handcuffs on appellant because appellant had evaded arrest.

      .Officer Harris opined during the motion to suppress hearing that appellant was "highly intoxicated.”

      . The parties did not present evidence during the suppression hearing about the result of appellant's blood test.

      . Appellant states that his issues, which all concern probable cause, rely on "identical facts.” Although appellant contends that the Texas constitution provides greater protection regarding search warrants than the United States Constitution, he does not particularly explain what that greater protection comprises or how it affects the probable cause standard. Thus, we will examine appellant's issues together. See Arnold, v. State, 873 S.W.2d 27, 33 & n. 4 (Tex.Crim.App.1993), cert. denied, 513 U.S. 830, 115 S.Ct. 103, 130 L.Ed.2d 51 (1994); Garcia v. State, 239 S.W.3d 862, 868 n. 3 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd), cert. denied, - U.S. -, 129 S.Ct. 505, 172 L.Ed.2d 371 (2008).

      . "IMP" is not defined in Officer Harris's affidavit. He testified that "IMP” means an impounded vehicle.


source: Caselaw Access Project

author: JAMES T. CAMPBELL, Justice.

license: Public Domain

text:
    In the Matter of the GUARDIANSHIP OF Loyce Juanita PARKER, an Incapacitated Person.
    No. 07-09-00235-CV.
    Court of Appeals of Texas, Amarillo, Panel D.
    Nov. 22, 2010.

      A.L. (Dusty) Rhodes, A.L. Dusty Rhodes & Associates, Abilene, Rodney Quinn Smith, Smith International Legal, Legal Consultants, P.A., Miami, FL, for Appellant.
    R. John Cullar, Cullar & McLeod, L.L.P., Waco, for Appellee.
    Marshall Capps, Crowell, for Ad Litem.
    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
   OPINION

JAMES T. CAMPBELL, Justice.

Loyce Juanita Parker’s daughter Linda S. Jones was appointed guardian of her mother’s person and estate by the district court of Wilbarger County, Texas. Mrs. Parker’s son Alvin Edward Parker, Jr. (Parker) later was appointed guardian of their mother’s person and estate by an Oklahoma district court. Parker sought to domesticate the Oklahoma order in Texas under the Uniform Enforcement of Foreign Judgments Act, and the Wilbarger County district court denied it full faith and credit. Parker appeals. We will affirm the trial court’s order.

Background

This is the second appeal to this Court arising from the Wilbarger County guardianship proceeding. In the first appeal, we affirmed in 2008 the court’s order appointing Jones guardian. Background facts beyond those discussed here may be gleaned from our 2008 opinion.

Germane to the present appeal, Jones was appointed permanent guardian of Mrs. Parker’s person and estate by the March 8, 2007, order of the 46th Judicial District Court of Wilbarger County, Texas (the trial court). Parker obtained appointment as guardian of Mrs. Parker’s person and estate through the June 7, 2007, order of the district court of Jefferson County, Oklahoma. Jones unsuccessfully appealed Parker’s appointment.

Parker then sought enforcement of the Oklahoma order in the trial court under the Uniform Enforcement of Foreign Judgments Act (UEFJA). Jones answered and sought vacation of the Oklahoma order in Texas. After a hearing, the trial court ordered the Oklahoma order vacated and “of no consequence or effect in the State of Texas.”

The trial court’s order denying enforcement to the Oklahoma order contains lengthy findings of fact and conclusions of law. Among others, the trial court found Jones applied for guardianship of Mrs. Parker in Wilbarger County on December 1, 2006. On the same date, an attorney ad litem was appointed for Mrs. Parker. Also on that date, Mrs. Parker received personal service of the suit by citation at an assisted living center in Vernon, Texas, at which she was then living. Parker filed an answer in opposition to Jones’s application on December 15. The following day, he removed Mrs. Parker from the assisted living center in Vernon and took her to Oklahoma. Parker obtained a special (temporary) guardianship in the district court of Jefferson County, Oklahoma on December 19. He applied for guardianship of Mrs. Parker in Jefferson County on December 21 and in Wilbarger County on December 27. On January 9, 2007, the trial court appointed Jones temporary guardian of Mrs. Parker. Parker non-suited his contest of Jones’s application and his application for appointment in Wil-barger County on February 8. The trial court appointed Jones guardian of Mrs. Parker’s person and estate on March 8. Mrs. Parker filed a notice of appeal through an attorney retained by Parker. The Jefferson County district court appointed Parker guardian of Mrs. Parker’s person and estate by order of June 7. This order was affirmed by the Oklahoma Court of Civil Appeals and certiorari was denied by the Supreme Court of Oklahoma. In a conclusion of law, the trial court concluded recognizing the Oklahoma order in Texas would involve an improper interference with important interests of Texas.

Analysis

Standard of Review

A motion contesting enforcement of the judgment of a court of a sister state operates as a motion for new trial. Karstetter v. Voss, 184 S.W.3d 396, 401 (Tex.App.-Dallas 2006, no pet.). A trial court has broad discretion in ruling on such a motion, and we may not disturb its ruling absent manifest abuse of discretion. Id. at 402. A trial court abuses its discretion when it acts without reference to any guiding rales or principles or acts arbitrarily or unreasonably under the circumstances. See id. Because our disposition of the present matter chiefly turns on the application of law to uncontested facts, we add that a trial court has no “discretion” to improperly determine the law or misapply the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding).

We first consider Parker’s argument that the trial court erred in denying the Oklahoma order full faith and credit because the Texas order appointing Jones guardian is void. Parker contends the trial court did not have personal jurisdiction of Mrs. Parker when it rendered the Texas order, nor did it possess jurisdiction of the estate of Mrs. Parker.

“[A] judgment is void when it is apparent that the court rendering judgment had no jurisdiction of the subject matter, no jurisdiction of the parties, no jurisdiction to enter the judgment, or no capacity to act as a court.” Garza v. Maverick Market, Inc., 768 S.W.2d 273, 279 (Tex.1989) (citing Cook v. Cameron, 733 S.W.2d 137, 140 (Tex.1987)).

In our 2008 opinion, we overruled Mrs. Parker’s issue challenging the trial court’s exercise of personal jurisdiction. 275 S.W.3d at 628. Our prior disposition of the jurisdictional issue is now the law of the case in this proceeding. According to the law of the case doctrine, the decision of a court of last resort on a question of law will govern a case throughout its subsequent stages. Hudson v. Wakefield, 711 S.W.2d 628, 630, (Tex.1986). The decision of an intermediate appellate court does not preclude reconsideration of the same issue on a second appeal, Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex.2003), and the doctrine manifestly does not require the appellate court to adhere to an original ruling that was clearly erroneous. Id. See also City of Houston v. Jackson, 192 S.W.3d 764, 769 (Tex.2006). But nothing in this record demonstrates our 2008 conclusion that the trial court possessed personal jurisdiction of Mrs. Parker was erroneous.

Also in 2008, we overruled Mrs. Parker’s issue that the trial court could not appoint a guardian of her estate because she possessed no property in Texas. 275 5.W.3d at 633. Parker now argues the Texas order is void because the trial court did not acquire jurisdiction of Mrs. Parker’s estate. As authority for his argument, Parker cites Probate Code § 684(a)(3), which provides before a court appoints a guardian it must find by clear and convincing evidence that “the rights of the proposed ward or the proposed ward’s property will be protected by the appointment of a guardian.” Tex. Prob.Code Ann. § 684(a)(3) (Vernon 2003). Parker emphasizes that Mrs. Parker’s property is held in trust. The argument ignores the guardian’s inventory Jones filed in the trial court listing property not held by the trustee, that being the personal property Mrs. Parker had with her at the assisted living center in Vernon, and her social security payments. That her property not held by the trustee is not of great value might have been a factor to be taken into account in the determination whether appointment of a guardian of her estate was necessary, but it did not deprive the trial court of jurisdiction to appoint a guardian of the estate.

Parker further contends because the Texas order is void, he was denied due process of law under the Fourteenth Amendment to the United States Constitution. Because the Texas order is not void, discussion of this issue is unnecessary to the disposition of the case. See Tex. R.App. P. 47.1.

We turn now to the essence of Parker’s complaint, that by denying enforcement of the Oklahoma order, the trial court violated its obligations under the Full Faith and Credit Clause of the United States Constitution, which requires each state give full faith and credit to the public acts, records, and judicial proceedings of every other state. U.S. Const, art. IV, .§ 1; see Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791, 794 (Tex.1992); Reading & Bates Constr. Co. v. Baker Energy Resources Corp., 976 S.W.2d 702, 712 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (applying Full Faith and Credit Clause).

Under the UEFJA, “[a] filed foreign judgment has the same effect and is subject to the same procedures, defenses, and pi-oceedings for reopening, vacating, staying, enforcing, or satisfying a judgment as a judgment of the court in which it is filed.” Tex. Civ. Prac. & Rem. Code Ann § 35.003(c) (Vernon 2008). The UEFJA defines “foreign judgment” as “a judgment, decree, or order of a court of the United States or of any other court that is entitled to full faith and credit in this state.” Tex. Civ. Prac. & Rem.Code Ann. § 35.001 (Vernon 2008). A party seeking enforcement under the UEFJA of a sister state’s judgment assumes the initial burden of presenting a judgment that appears on its face to be final, valid, and subsisting. Russo v. Dear, 105 S.W.3d 43, 46 (Tex.App.-Dallas 2003, pet. denied). The burden then shifts to the party resisting enforcement in the forum state to prove by clear and convincing evidence that the foreign judgment is not entitled to full faith and credit. Mindis Metals, Inc. v. Oilfield Motor & Control, Inc., 132 S.W.3d 477, 484 (Tex.App.-Houston [14th Dist.] 2004, pet. denied). In her motion to vacate, Jones argued recognition of the Oklahoma order in Texas would involve an improper interference with important interests of Texas.

There no longer is any dispute that Mrs. Parker is incapacitated, or that appointment of a guardian for her was appropriate. What is in dispute is who should serve as guardian. Clearly, through his effort to domesticate the Oklahoma order, Parker attempts to enforce his appointment, in Texas, as guardian for his mother, in place of the guardian currently serving under the Texas court’s supervision. We agree with Jones that enforcement of the Oklahoma order in that manner would involve an improper interference with important interests of Texas, and so is not required by the Full Faith and Credit Clause. Reading & Bates, 976 S.W.2d at 713.

A sister state judgment filed in Texas in compliance with the UEFJA becomes enforceable as a Texas judgment. Reading & Bates, 976 S.W.2d at 712 (citing Walnut Equip. Leasing Co. v. Wu, 920 S.W.2d 285, 286 (Tex.1996)). But the requirement of full faith and credit “does not mean that States must adopt the practices of other States regarding the time, manner, and mechanisms for enforcing judgments. Enforcement measures do not travel with the sister state judgment as preclusive effects do; such measures remain subject to the even-handed control of forum law.” Baker by Thomas v. General Motors, 522 U.S. 222, 235, 118 S.Ct. 657, 665, 139 L.Ed.2d 580 (1998) (citations omitted). Here, Parker does not merely seek recognition of a preclusive effect of the Oklahoma order, he seeks its enforcement by his substitution as guardian in place of Jones. The effective result of the Texas court’s denial of domestication of the Oklahoma order simply was its choice to retain as guardian the person the Texas court previously had appointed.

As a general rule a sister state is not required by full faith and credit to enforce a judicial action that is subject to modification under the law of the rendering state. Reading & Bates, 976 S.W.2d at 713 (citing Bard, 839 S.W.2d at 794); see In re Guardianship of Replogle, 164 Ohio App.3d 54, 2005-Ohio-5530, 841 N.E.2d 330, 334 (“Because a guardianship order is obviously modifiable in the rendering state, it is necessarily modifiable in the forum state”). Under the Oklahoma and Texas guardianship statutes, the appointment of a guardian is subject to modification. Okla. Stat. tit. 30, § 1-114 (Lexis 2010) (general powers of the court); Tex. Prob.Code Ann. § 761 (Vernon Supp. 2010) (removal).

More importantly, however, Texas has adopted specific provisions of its guardianship statutes that provide for acceptance and full faith and credit by a Texas court of a foreign guardianship. See Tex. Prob. Code Ann. § 892 (Vernon 2003) (entitled receipt and acceptance of foreign guardianship). In attempting enforcement of the Oklahoma guardianship through the UEFJA, Parker ignores these provisions of Texas guardianship law. Section 892 contains guidance for Texas courts reviewing an application for receipt and acceptance of a foreign guardianship, and provides that such an application shall be granted if the court finds the transfer to be in the best interests of the ward. In granting the application, “the court shall give full faith and credit to the provisions of the foreign guardianship order concerning the determination of the ward’s incapacity and the rights, powers, and duties of the guardian.” Tex. Prob.Code Ann. § 892(f) (Vernon 2003). Parker does not cite, and we have not found, a reported case of enforcement of a foreign guardianship in the manner here attempted through the UEFJA. We do not believe full faith and credit requires the acceptance of an enforcement mechanism of Parker’s choosing over that expressly provided by Texas statutory provisions. For this reason, we conclude the trial court was not required to enforce the Oklahoma court’s choice of Parker as guardian over its own appointment of Jones.

Parker appends to the discussion of this issue an argument that the trial court im-permissibly has reached beyond the borders of Texas to vacate the judgment of a sister state. A state may not demand its laws have effect beyond the limits of its sovereignty. Gannon v. Payne, 706 S.W.2d 304, 306 (Tex.1986). But the trial court denied enforcement of the Oklahoma order only in Texas. Its language does not purport to enjoin the function of the courts of Oklahoma.

Conclusion

Finding the trial court did not err in denying the Oklahoma order full faith and credit and enforcement under the UEFJA, we affirm the order of the trial court.

        .See In re Parker, 275 S.W.3d 623 (Tex.App.Amarillo 2008, no pet.) (affirming Texas guardianship order). Issues pertaining to the guardianship of Mrs. Parker have been litigated by her family in other proceedings. See In re Alvin Edward Parker, Jr., No. 07-09-0143-CV, 2009 WL 1310719, 2009 Tex.App. Lexis 3954 (Tex.App.-Amarillo May 12, 2009, orig. proceeding) (mem. op.) (dismissing Parker's petition for writ of prohibition for want of jurisdiction); Jones v. Parker (In re Guardianship of Parker), 2008 OK CIV APP 62, 189 P.3d 730 (certiorari denied and opinion accorded precedential value, May 19, 2008) (affirming Oklahoma guardianship order); Parker v. Jones, No. CIV-09-0940-HE, 2009 WL 369812L, 2009 U.S. Dist. Lexis 102195 (W.D.Okla. Nov. 2, 2009) (dismissing Parker’s complaints against Jones in part for want of subject matter jurisdiction and in part for failure to state a claim on which relief could be granted).

      . We sometimes refer to the order of the trial court appointing Jones permanent guardian of the person and estate of Mrs. Parker as the "Texas order,” and the order of the Jefferson County, Oklahoma district court appointing Parker permanent guardian of the person and estate of Mrs. Parker as the “Oklahoma order.”

      . Tex. Civ. Prac. & Rem.Code Ann. §§ 35.001-.008 (Vernon 2008).

      . Because the trial court did not file findings of fact and conclusions of law in a separate document, we give effect to the findings in the judgment. See Hill v. Hill, 971 S.W.2d 153, 157 (Tex.App.-Amarillo 1998, no pet.) (under Rule of Civil Procedure 299a, findings contained in judgment lack authority only to extent of conflict with those in separate document). See also Carter v. Cookie Coleman Cattle Co., 271 S.W.3d 856, 859 (Tex.App.Amarillo 2008, no pet.).

      . See Okla. Stat. tit. 30, § 3-115(F) (Lexis 2010) (duration of special guardianship is from date of appointment until guardian is appointed or thirty days, whichever is less).

      . As we noted in 2008, evidence before the trial court showed Mrs. Parker had resided at the assisted living center Alterra Sterling House in Vernon since June 23, 2006 at the time she was served with citation there on December 1, 2006. 275 S.W.3d at 626, 627 n. 1. According to Parker's brief in this appeal, Mrs. Parker currently resides at Alterra Sterling House.

      . Parker further relies on a statement in In re B.A.G., "if a court has not acquired jurisdiction of both the parties and the subject matter of the litigation, the judgment is void and is subject to both direct and collateral attack.” 794 S.W.2d 510, 511-12 (Tex.App.-Corpus Christi 1990, no pet.). In his reliance on the statement from B.A.G., Parker confuses the jurisdictional requisite of a court’s capacity to hear a particular case with its power to bind a party. See CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996) ("subject matter jurisdiction refers to the court’s power to hear a particular type of suit, personal jurisdiction concerns the court's power to bind a particular person or party”). Here, the trial court heard the contested guardianship proceeding after its transfer from the Wilbarger County Court. As the transferee court, the trial court heard the contested matters as if originally filed in that court. Tex. Prob.Code Ann. § 606(b)(2) (Vernon Supp. 2010). The trial court had the statutorily-granted power to hear the contested guardianship proceeding.

      . Both those issues were disputed in the 2008 appeal. 275 S.W.3d at 630-632.

      . As noted, Parker made application for appointment as guardian in Texas, in opposition to Jones’s application, but later non-suited his application.

      . See also Charlene D. Daniel and Paula L. Hannaford, "Creating the 'Portable' Guardianship: Legal and Practical Implications of Probate Court Cooperation in Interstate Guardianship Cases,” 13 Quinnipiac Prob. Law Jour. 351, 355 n.14 (1999) where the authors saliently observe "[principles of full faith and credit had never worked particularly well in the context of guardianship cases for the simple reason that any court order that remained subject to modification in the jurisdiction from which the order was issued could also be modified by a sister state exercising proper jurisdiction.”

      . Cf. Tex. Prob.Code Ann. § 891 (Vernon 2003) (providing for transfer of a Texas guardianship to a court in a foreign jurisdiction).

      . See, e.g., Grant County Dept. of Social Servs. v. Unified Board of Grant and Iowa Counties (In re Guardianship of Jane E.P.), 2005 WI 106, 283 Wis.2d 258, 700 N.W.2d 863 (Wis.2005) (addressing interstate guard-ianships).

      . Citing Restatement (Second) of Conflicts of Laws § 114, and the fact this court’s mandate following our 2008 opinion was issued after the Oklahoma Supreme Court affirmed the Oklahoma order, Jones contends also that the Texas order was the "last in time,” and thus controls over the Oklahoma order. We do not address this contention.

      . Parker’s argument includes a contention the Oklahoma order is "res judicata,” or acts as a complete bar to any defense of Jones to recognition of the Oklahoma order in Texas. The contention is founded on Parker’s assertion the Texas order is void. To any extent the contention is presented as a separate appellate issue, and assuming without deciding that it is preserved for appellate review, we overrule the issue because the Texas order is not void. To the extent the contention is presented as an additional reason the Oklahoma order is entitled to full faith and credit in Texas, it is adequately addressed by our discussion of that issue.


author: KEM THOMPSON FROST, Justice.

text:
    Susan E. APPELL, Executrix of the Estate of Rodney Appell, M.D., Deceased, Appellant, v. Shari MUGUERZA and Cyrene Muguerza, Appellees.
    No. 14-09-00932-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 23, 2010.

      N. Terry Adams, Jr., Thomas P. Sart-welle, Houston, for appellant.
    Joseph Leo Lanza, Houston, for appel-lees.
    Panel consists of Justices ANDERSON, FROST, and SEYMORE.
   OPINION

KEM THOMPSON FROST, Justice.

A doctor’s patient and her mother sued the doctor asserting claims for assault based on the doctor’s alleged physical assault of the patient and her mother in an examination room at the doctor’s office. The plaintiffs allege that the doctor punched his patient in the nose and mouth, violently threw her to the ground, and violently shoved her mother. Based on their assertion that the claims are not health care liability claims, the plaintiffs did not file an expert report under section 74.351 of the Texas Civil Practice and Remedies Code. After the doctor died, the executrix of his estate was substituted as the defendant, and she moved for dismissal, asserting that these claims are subject to section 74.351. The trial court denied this motion, and the executrix appeals this ruling. We affirm in part and reverse and remand.

I. Factual and PROCEDURAL Background

Appellees/plaintiffs Shari Muguerza and Cyrene. Muguerza (collectively “the Mu-guerzas”) filed suit against Dr. Rodney Appell, alleging that he assaulted them in an examination room in his medical office. In response, Dr. Appell asserted various defenses, including self-defense. He also moved to dismiss the Muguerzas’ claims based on their failure to file an expert report under section 74.351, which Dr. Appell alleged applies to the Muguerzas’ claims. In addition, Dr. Appell asserted a counterclaim against Shari alleging the following:

• Dr. Appell is a licensed physician specializing in the practice of urology.

• On March 1, 2007, Shari presented herself to Dr. Appell’s medical office requesting that Dr. Appell examine her for urologically related complaints.

• Dr. Appell examined Shari in the presence of her mother and one of Dr. Appell’s medical assistants. Following the urological examination, Dr. Appell left the examination room while Shari got dressed.

• Dr. Appell returned to the examination room to discuss his medical findings and recommendations. Shortly after he started talking, Shari launched an unprovoked assault on Dr. Appell by trying to hit him with her fist, while cursing at him and telling him she was going to hurt him badly.

• Dr. Appell defended himself from Shari’s blows, and his nurses and assistants entered the room to assist and to control Shari.

• During the scuffle, Shari bit Dr. Ap-pell’s left hand, causing a nasty skin tear. As a result of Shari’s assault, Dr. Appell experienced a significant physical injury to his left hand that necessitated emergency medical attention as well as inoculations against tetanus and other diseases.

• Nothing Dr. Appell did or failed to do caused or contributed to cause Shari’s unprovoked assault on him.

• Shari intentionally, knowingly, or recklessly caused bodily injury to Dr. Ap-pell, for which Dr. Appell seeks to recover his medical expenses and damages for pain and suffering.

After Dr. Appell died, the Muguerzas amended their petition, making similar allegations and claims but naming appellant Susan E. Appell, Executrix of the Estate of Rodney Appell, M.D., Deceased (the “Executrix”) as the defendant instead of Dr. Appell. In their live petition against the Executrix, the Muguerzas allege the following:

• On or about March 1, 2007, Shari and Cyrene sought medical treatment at Dr. Appell’s medical office.

• Shari and Cyrene were escorted to an examination room.

• In the examination room, Dr. Appell assaulted Shari and Cyrene.

• Shari suffered physical and psychological injuries when Dr. Appell punched Shari in the nose and mouth, and when Dr. Appell and “his cohorts” threw her violently to the ground.

• Cyrene suffered trauma when Dr. Ap-pell violently shoved her into a cabinet, cutting and injuring her arm, and then was forced to watch her daughter being beaten and abused by Dr. Appell.

• Nothing the Muguerzas did or failed to do was a proximate cause of the assault or resultant injuries or damages.

• Dr. Appell acted intentionally, knowingly, or recklessly.

• Dr. Appell made contact with Shari’s person and Cyrene’s person.

• Dr. Appell’s contact caused bodily injury to Shari and Cyrene.

• Shari and Cyrene suffered mental anguish, and Cyrene was traumatized by having to observe the assault of Shari.

• Shari and Cyrene seek relief for past and future medical expenses, past and future pain and suffering, past and future mental anguish, pre-judgment interest, post-judgment interest, and court costs.

In response, the Executrix did not assert a counterclaim; however, in her answer, she alleged that the Muguerzas’ damages were the result of their voluntary actions. The Executrix also asserted as a defense the Muguerzas’ failure to file an expert report under section 74.351. Based on this failure, the Executrix filed a motion to dismiss the Muguerzas’ claims. In this motion, the Executrix asserted that the Muguerzas’ claims were health care liability claims. The Executrix also relied upon Shari’s discovery responses. In a response to a request for disclosure, when asked to identify the legal theories and general factual bases of her claims, Shari responded as follows:

Due to the negligence of this Defendant, Plaintiff suffered injuries and continues to suffer from the incident that makes [sic] the basis of this suit. It is expected that the testimony of Plaintiff as well as her treating physicians will clearly set forth the negligence of this Defendant.

In one of his interrogatories, Dr. Appell asked Shari the following: “To the extent not included in your Response to Rodney Appell, M.D.’s Request for Disclosure, with regard to the incident made the basis of this suit, identify the act(s) and/or action(s), if any, which you claim to have constituted assault.” In her answer to this interrogatory, Shari stated as follows:

Dr. Appell aggressively jammed a catheter in my vagina causing significant pain. When I winced at the pain, he responded “Shut up! I have kids that are better patients than you!” He continued to physically attack both myself and my mother before summoning his nurse, Susan Peterson. Susan then entered the room and continued the assault by grabbing my hair. Because of the screaming, Mike, the janitor, entered the room and detained me by pinning me on the floor while wrenching my arm behind my back.

Dr. Appell and the Executrix both relied upon these discovery responses in their motions to dismiss. The trial court denied the motion in October 2009. In a single appellate issue, the Executrix challenges the trial court’s ruling. She asserts that the trial court erred in denying her motion to dismiss under section 74.351(b).

II. Analysis

Generally, we review a trial court’s order granting or denying a motion to dismiss under section 74.351(b) under an abuse-of-discretion standard. See Wasserman v. Gugel, No. 14-09-00450-CV, 2010 WL 1992622, at *2 (Tex.App.-Houston [14th Dist] May 20, 2010, pet. filed) (mem. op.). However, when the issue presented requires statutory interpretation or a determination of whether Chapter 74 applies to a claim, that is a question of law to which we apply a de novo standard of review. Id.

To be subject to section 74.351, a claim must be a “health care liability claim.” Tex. Civ. PRác. & Rem.Code Ann. § 74.351(a) (West Supp. 2010). This term has the following statutory definition:

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

Id. § 74.001(a)(13) (West 2005). Whether a claim falls within this definition requires an examination of the essence or underlying nature of the plaintiffs claim, and we are not bound by the form of the pleading. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex.2005). One alleges a departure from accepted standards of medical care or health care if the act or omission made the subject of the claim is an inseparable part of the rendition of medical services. See Diversicare Gen. Partner, 185 S.W.3d at 848; Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 544 (Tex.2004). The necessity of expert testimony from a medical or health care professional to prove a claim may also be an important factor in determining whether a claim is an inseparable part of the rendition of medical or health care services. See Diversicare Gen. Partner, 185 S.W.3d at 848; Garland Cmty. Hosp., 156 S.W.3d at 544. When the essence of a suit is a health care liability claim, a claimant cannot avoid the requirements of the legislature’s statutory scheme through artful pleading. See Diversicare Gen. Partner, 185 S.W.3d at 851; Garland Cmty. Hosp., 156 S.W.3d at 543.

A. What claims did the Muguerzas plead?

Before determining whether their claims are health care liability claims, we first must determine what claims the Mu-guerzas have asserted. Because no special exceptions have been sustained against the Muguerzas’ petition, this court construes that pleading liberally in the Muguerzas’ favor to include all claims that reasonably may be inferred from the language used in the petition, even if the petition does not state all the elements of the claim in question. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000); London v. London, 192 S.W.3d 6, 13 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).

To prevail on a claim for civil assault, the plaintiff must establish the same elements required for criminal assault. See Kastner v. Gutter Mgmt., Inc., No. 14-09-00055-CV, 2010 WL 4457461, at *7 (Tex.App.-Houston [14th Dist.] Nov. 4, 2010, no pet. h.) (mem. op.). Therefore, a person commits civil assault if he “intentionally, knowingly, or recklessly causes bodily injury to another.” (hereinafter, “Bodily Injury Assault”). Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2009); Kastner, 2010 WL 3010941, at *7. A person also commits civil assault if he “intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.” (hereinafter, “Offensive Contact Assault”). Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2009); Kastner, 2010 WL 3010941, at *7.

In their petition, the Muguerzas’ make no reference to any vaginal-catheter-ization procedure. They do not specify what was transpiring in the examination room when Dr. Appell allegedly assaulted the Muguerzas. They do not allege in their petition that Dr. Appell “aggressively jammed a catheter in [Shari’s] vagina causing significant pain,” or that this act was an assault, as stated in Shari’s discovery responses. The Muguerzas’ petition contains a general allegation that Dr. Appell assaulted the Muguerzas in the examination room, and the Executrix has not lodged any special exceptions. Under the required liberal construction of the Mu-guerzas’ petition, we conclude that Shari has pleaded claims for both Bodily Injury Assault and Offensive Contact Assault based on the manner in which Dr. Appell conducted the vaginal-catheterization procedure as well as the manner in which he conducted his medical examination of Shari on the day in question (hereinafter, “Medical Procedure Claims”).

The focus of the factual allegations in the Muguerzas’ live petition is an alleged unprovoked physical assault on the Muguerzas by Dr. Appell while the Mu-guerzas were seeking medical treatment in an examination room in Dr. Appell’s office. The Muguerzas state that, during this alleged assault, Dr. Appell punched Shari in the nose and mouth, violently threw her to the ground, and violently shoved Cyrene into a cabinet. Applying the liberal construction rule, we conclude that the Mu-guerzas have pleaded claims for both Bodily Injury Assault and Offensive Contact Assault based on an alleged unprovoked physical attack on them by Dr. Appell at some point when they were in the examination room, whether during the vaginal-catheterization procedure or at some other time while the Muguerzas were in this room (hereinafter, “Attack Claims”).

B. Are the Medical Procedure Claims health care liability claims?

In the Medical Procedure Claims, the Muguerzas do not complain of Dr. Appell’s alleged punching of Shari and throwing her to the ground or the alleged throwing of Cyrene into a cabinet. Rather, in these claims, the Muguerzas complain of Dr. Appell’s alleged acts or omissions regarding the manner in which Dr. Appell conducted the vaginal-catheterization procedure as well as the manner in which he conducted his medical examination of Shari. We conclude that the acts or omissions the Muguerzas allege in the Medical Procedure Claims are an inseparable part of the rendition of medical services. See Wasserman, 2010 WL 1992622, at *3 (noting that complaint regarding doctor’s acts or omissions that could be part of medical care would be health care liability claims); Ramchandani v. Jimenez, 314 S.W.3d 148, 152-53 (Tex.App.-Houston [14th Dist.] 2010, no pet.) (holding that claims in which plaintiff complained of doctor’s acts or omissions in conducting medical procedure were health care liability claims). Therefore, the trial court erred in denying the Executrix’s motion to dismiss as to the Medical Procedure Claims.

C. Are the Attack Claims health care liability claims?

1. Are the alleged acts or omissions made the subject of the Attack Claims an inseparable part of the rendition of medical services?

In the Attack Claims, the Mu-guerzas allege that, while they were in the examination room seeking medical treatment, Dr. Appell, without provocation, physically attacked them by (1) punching Shari, (2) violently throwing Shari to the ground, and (3) violently throwing Cyrene into a cabinet. Punching and violently throwing patients to the ground or into a cabinet without provocation cannot reasonably be characterized as being part of the medical services provided by a doctor. We conclude that these alleged acts or omissions are not an inseparable part of the rendition of medical services, even though they allegedly took place in an examination room immediately after the rendition of medical care. See Wasserman, 2010 WL 1992622, at *3 (holding that alleged sexual assault by surgeon of one of his patients during a physical examination in the doctor’s office was not an inseparable part of the rendition of medical services); Loaisiga v. Cerda, No. 13-09-00666-CV, 2010 WL 3049086, at *4-5 (Tex.App.-Corpus Christi Aug. 5, 2010, pet. filed) (mem. op.) (holding that alleged sexual assault by doctor of two patients during medical examinations were not an inseparable part of the rendition of medical services); Holguin v. Laredo Reg’l Med. Ctr., 256 S.W.3d 349, 353-54 (Tex.App.-San Antonio 2008, no pet.) (holding that alleged sexual assault by nurse of hospital patient was not an inseparable part of the rendition of health care services); Jones v. Khorsandi, 148 S.W.3d 201, 205-6 (Tex.App.-Eastland 2004, pet. denied) (holding that alleged sexual assault by emergency-room doctor of patient was not an inseparable part of the rendition of medical services); see also Buck v. Blum, 130 S.W.3d 285, 290-91 & n. 6 (Tex.App.-Houston [14th Disk] 2004, no pet.) (concluding that alleged sexual assault by doctor of patient during medical examination did not arise out of the course and scope of the doctor’s employment and was not an inseparable part of the rendition of medical services by the doctor).

The Executrix cites a line of cases holding that negligence claims against health care facilities for not protecting patients in these facilities from assault are health care liability claims. See, e.g., Diversicare Gen. Partner, 185 S.W.3d at 851. These cases are not on point because the Muguerzas are not suing any facility or alleging negligent failure to protect them against assault. See id. (emphasizing that the plaintiffs claim was not that the nursing home, through its employees and agents, committed the sexual assault). The Muguerzas have sued only the doctor whom they allege assaulted them.

The Executrix relies upon Vanderwerff v. Beathard, a case in which the Fifth Court of Appeals held that the plaintiffs claim that the defendant doctor “rubbed her genitals” during the course of a chiropractic examination was “inseparable from the rendition of health care services” and was a health care liability claim. See 239 S.W.3d 406, 408-9 (Tex.App.-Dallas 2007, no pet.). Though the plaintiff in Vander-werff asserted an assault claim against the chiropractor who allegedly committed the assault, the Vanderwerff court concluded that the act or omission of which the plaintiff complained might have been within the scope of the chiropractic examination that the plaintiff asked the chiropractor to perform because the plaintiff sought treatment for pain that went up to her upper thigh. See id. at 408-9. This case in not on point as to the Attack Claims, in which the Muguerzas allege an unprovoked physical attack that could not have been within the scope of the medical services rendered by Dr. Appell. Under no reasonable view of the Muguerzas’ allegations could it be argued that an unprovoked physical assault on the Muguerzas would be required as part of Dr. Appell’s medical services as a urologist. The Vanderwerff case is not on point. See Wasserman, 2010 WL 1992622, at *3 (distinguishing Vander-werff).

The Executrix also cites Mata v. Calixto-Lopez. See No. 04-06-00540-CV, 2007 WL 3003139, at *2 (Tex.App.-San Antonio Oct. 17, 2007, no pet.) (mem. op.). In that case a man arrested for driving while intoxicated alleged that a medical provider at the county jail assaulted him by taking urine and blood samples without his consent. See id. at *1-2. The Mata court concluded that the case involved the issue of when a doctor can properly force an intoxicated patient to give urine and blood samples needed for medical clearance to enter a jail. See id. In the case under review, there is no issue of whether it could be proper for Dr. Appell to engage in an unprovoked physical assault of the Muguerzas. The Mata case is not on point.

The Executrix also points to Oak Park, Inc. v. Harrison, a case in which a patient at a drug treatment center was allegedly slammed against a wall when nurses physically restrained a psychological patient. See 206 S.W.3d 133, 135 (Tex.App.-Eastland 2006, no pet.). The injured patient sued the center alleging it had been negligent in handling the psychological patient and in not protecting the plaintiff from the patient. See id. at 135-36. The Oak Park case is not on point because the Muguer-zas are neither suing a facility nor alleging negligent failure to protect them against assault.

Finally, the Executrix asserts that Dr. Appell’s alleged conduct was “necessary, even required, under the circumstances of a patient being in significant pain’ during a medical procedure and a commotion erupting in the examination room.” But the conduct alleged by the Muguerzas is Dr. Appell’s unprovoked physical attack of the Muguerzas by (1) punching Shari, (2) violently throwing Shari to the ground, and (3) violently throwing Cyrene into a cabinet. This conduct is clearly not part of any medical examination, vaginal-catheter-ization procedure, or any response to a commotion in the examination room.

Because the alleged unprovoked physical assault of the Muguerzas is not an inseparable part of the rendition of medical services, the Attack Claims cannot be health care liability claims on this basis.

2. Are the Attack Claims health care liability claims based on the part of the statutory definition dealing with an alleged departure from accepted standards of safety?

The Executrix also asserts that the Mu-guerzas’ claims are health care liability claims because they involve an alleged departure from “accepted standards of ... safety.” Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13). Both Chapter 74 and former article 45901 of the Texas Revised Civil Statutes contain definitions of “health care liability claim” that refer to safety standards. See id.; Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.03(a)(4), 1977 Tex. Gen. Laws 2039, 2041, repealed and codified as amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09, 2003 Tex. Gen. Laws 847, 864, 884. However, these definitions are materially different with respect to the part of the definition dealing with safety standards. Compare Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13) (stating “ ‘Health care liability claim’ means a cause of action ... for ... other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care ”) (emphasis added) (hereinafter, “Current Definition”), with Act of May 30, 1977, 1977 Tex. Gen. Laws at 2041 (stating “ ‘Health care liability claim’ means a cause of action ... for ... other claimed departure from accepted standards of medical care or health care or safety ”) (emphasis added) (hereinafter, “Former Definition”). Therefore, cases regarding the construction of the Former Definition are not on point and do not govern the construction of the part of the Current Definition dealing with safety standards. See Christus Health v. Beal, 240 S.W.3d 282, 288-89 (Tex.App.-Houston [1st Dist.] 2007, no pet.); Valley Baptist Med. Ctr. v. Stradley, 210 S.W.3d 770, 774-75 (Tex.App.-Corpus Christi 2006, pet. denied).

Research reveals no cases from the Supreme Court of Texas or from this court addressing the proper legal standard for determining whether a claim is a health care liability claim under the Current Definition because the claimant alleges a “departure from accepted standards of ... safety or professional or administrative services directly related to health care.” Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13). Therefore, this is an issue of first impression in this court.

We review the trial court’s interpretation of applicable statutes de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-56 (Tex.1989). In construing a statute, our objective is to determine and give effect to the legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). If possible, we must ascertain that intent from the language the legislature used in the statute and not look to extraneous matters for an intent the statute does not state. Id. If the meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning of the provision’s words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997). We must not engage in forced or strained construction; instead, we must yield to the plain sense of the words the legislature chose. See id.

The main issue in construing the Current Definition regarding safety standards is whether the phrase “directly related to health care” modifies “standards of ... safety.” Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13). One possible construction is that, under the rules of grammar, the legislature’s failure to place a comma after “safety” means that “directly related to health care” modifies “safety or professional or administrative services.” See Christus Health, 240 S.W.3d at 287-89.-Under this construction, accepted standards of safety do not fall within the Current Definition unless they are directly related to health care. See id. Under another possible construction, the phrase “directly related to health care” modifies only “professional or administrative services,” and accepted standards of safety need not be directly related to health care to fall within the Current Definition. See Emeritus Corp. v. Highsmith, 211 S.W.3d 321, 327-28 (Tex.App.-San Antonio 2006, pet. denied) (holding that claims were health care liability claims because they involved alleged departure from accepted standards of safety without any requirement that the safety standards be related to health care). Examining the words chosen by the legislature in the context of the Current Definition and of Chapter 74 as a whole and in accordance with rules of grammar, we conclude that, under the unambiguous statutory language, the phrase “directly related to health care” modifies “safety or professional or administrative services.” This construction accords with six of the seven other courts of appeals that have addressed this issue. Compare St. David’s Healthcare P’ship v. Esparza, 315 S.W.3d 601, 605 (Tex.App.-Austin 2010, pet. filed); Dual D Healthcare Operations v. Kenyon, 291 S.W.3d 486, 489-90 (Tex.App.-Dallas 2009, no pet.); Yamada v. Friend, No. 2-07-177-CV, 2008 WL 553690, at *3-4 (Tex.App.-Fort Worth Feb. 28, 2008, pet. granted) (mem. op.); Omaha Healthcare Ctr. v. Johnson, 246 S.W.3d 278, 281-84 (Tex.App.-Texarkana 2008, pet. filed); Christus Health, 240 S.W.3d at 287-89; Stradley, 210 S.W.3d at 774-75, with Emeritus Corp., 211 S.W.3d at 327-28.

Applying this construction, we now must determine whether, in the Attack Claims, the Muguerzas allege a departure from accepted standards of safety directly related to health care. “Health care” is defined 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). Presuming that the alleged unprovoked physical assault by Dr. Appell asserted in the Attack Claims is a departure from accepted standards of safety, this alleged assault does not directly relate to any act or treatment performed or furnished, or that should have been performed or furnished, by a health care provider for, to, or on behalf of a patient during the patient’s medical care or treatment. Therefore, we conclude that the Attack Claims are not health care liability claims based on the part of the Current Definition that in-eludes alleged departures from accepted standards of safety directly related to health care. See Wasserman, 2010 WL 1992622, at *3 (concluding that alleged sexual assault by surgeon of one of his patients during a physical examination in the doctor’s office did not relate to the patient’s treatment or care); Loaisiga, 2010 WL 3049086, at *4-5 (holding that alleged sexual assault by doctor of two patients during medical examinations did not relate to the doctor’s treatment of these patients); Holguin, 256 S.W.3d at 353-54 (concluding that alleged sexual assault by nurse of hospital patient was not related to patient’s course of care or treatment); Jones, 148 S.W.3d at 205-6 (holding that alleged sexual assault by emergency-room doctor of patient was not related to patient’s medical care).

3. Do Shari’s discovery responses mandate a conclusion that the Attack Claims are health care liability claims?

The Executrix argues that two of Shari’s discovery responses show that the true nature of the Muguerzas’ claims is medical negligence and that the Muguer-zas are simply engaging in artful pleading in an attempt to recast their claims as claims for physical assault. The interrogatory response was quoted in its entirety in section I., above. When asked to describe, under oath, the conduct she claims constituted an assault, Shari stated generally that Dr. Appell physically attacked Shari and Cyrene, but Shari did not specify that Dr. Appell punched her in the nose and mouth, violently threw her to the ground, or violently shoved Cyrene. Nonetheless, Shari stated in her interrogatory answer that Dr. Appell physically attacked Shari and Cyrene in the examination room, which is consistent with the Muguerzas’ allegations. Though in her interrogatory answer Shari did not recite the specific assault allegations from the live pleading, she stated generally that Dr. Appell physically assaulted her and her mother, and her answer is consistent with the allegations of the live pleading.

In a response to a request for disclosure, when asked to identify the legal theories and general factual bases of her claims, Shari responded that, because of Dr. Appell’s negligence, she suffered injuries and continues to suffer from the incident made the basis of this suit. Shari also stated that she expected that her testimony and that of her treating physicians will “clearly set forth the negligence of [Dr. Appell].” Other than this single response, Shari does not otherwise refer to negligence in her discovery responses. In her disclosures, Shari designated various treating physicians as expert witnesses and describes the expected subject matter of their testimony. In these descriptions, Shari does not state that she expects these doctors to testify as to any standard of care allegedly owed by Dr. Appell or as to Dr. Appell’s alleged negligence. Instead, Shari states that she expects these doctors to testify regarding her medical history, past treatment for the injuries she sustained as a result of the incident made the basis of this suit, and her treatment, prognosis, and medical bills. Given that the Muguerzas have never pleaded any negligence claims in this suit, Shari’s response in her disclosures that Dr. Appell’s negligence caused her injuries is puzzling. Even more puzzling is the absence of any indication in the record that Shari amended this response after the Executrix relied on it in her motion to dismiss.

Discovery responses cannot amend a party’s pleadings. See Price v. Short, 931 S.W.2d 677, 685-87 (Tex.App.Dallas 1996, no writ) (noting that raising a defense in discovery responses does not amend the pleadings or put opposing parties on notice that the defense will be raised at trial). Nonetheless, inaccurate or misleading discovery responses do not further the legitimate goals and purposes of discovery and can frustrate a litigant’s efforts to narrow issues for trial. Though the two discovery responses on which the Executrix relied may raise other issues, these responses do not alter the claims the Muguerzas have pleaded in their petition. Research has revealed no case in which a court concludes that a party’s discovery responses supplant the facts alleged in the party’s pleading in determining whether the party has asserted a health care liability claim.

The Executrix also asserts that Shari’s discovery responses are clear, deliberate, and unequivocal statements of fact that are judicial admissions binding on Shari. As discussed above, the interrogatory response is consistent with the allegations of the live petition. Shari’s response in her disclosures that Dr. Appell’s negligence caused her injuries is not consistent with Shari’s pleaded claims. But this response is a conclusion of law not a statement of fact, and, given Shari’s pleadings and other discovery responses, this response is not so clear and unequivocal as to rise to the level of a judicial admission. See Regency Advantage Ltd. P’ship v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex.1996); In re S.A.M., 321 S.W.3d 785, 790, n. 1 (Tex.App.-Houston [14th Dist.] 2010, no pet.). Shari’s discovery responses do not mandate a conclusion that the Attack Claims are health care liability claims.

For the foregoing reasons, we conclude that the Attack Claims are not health care liability claims.

III. Conclusion

Based on the Current Definition, the Medical Procedure Claims are health care liability claims, and the Attack Claims are not. Accordingly, in denying the Executrix’s motion to dismiss relative to the Medical Procedure Claims, the trial court erred, and we sustain the Executrix’s appellate issue to this extent. We overrule the remainder of this issue. Accordingly, we affirm the trial court’s denial of the Executrix’s motion relative to the Attack Claims, reverse the trial court’s order relative to the Medical Procedure Claims, and remand for further proceedings regarding the Attack Claims. We instruct the trial court to (1) dismiss the Medical Procedure Claims under section 74.351(b) and (2) determine the amount of reasonable attorney’s fees and costs to be awarded under section 74.351(b) for the dismissal of the Medical Procedure Claims.

      . Unless otherwise specified, all statutory references in this opinion are to the Texas Civil Practice and Remedies Code.

      . Before his death, Dr. Appell filed a motion to dismiss under section 74.351(b). After the Executrix was substituted in as the defendant, the Executrix filed her own motion to dismiss under section 74.351(b). The trial court never ruled on Dr. Appell’s motion; however, in the order from which the Executrix appeals, the trial court denied the Executrix's motion. Though in the express language of her appellate issue the Executrix complains of a denial of Dr. Appell’s motion, it is clear from her notice of appeal and brief that the Executrix is challenging the denial of her motion.

      . "Medical care” means "any act defined as practicing medicine under Section 151.002, Occupations Code, performed or furnished, or which should have been performed, by one licensed to practice medicine in this state for, to, or on behalf of a patient during the patient’s care, treatment, or confinement.” Tex Civ. Prac. a Rem.Code Ann § 74.00 l(a)( 19) (West 2005). Under section 151.002 of the Occupations Code, "practicing medicine” is defined as "the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions, by a person who:
      (A) publicly professes to be a physician or surgeon; or (B) directly or indirectly charges money or other compensation for those services.” Tex. Occ.Code Ann § 151.002(a)(13) (West Supp. 2010).

      . "Health care” is defined 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).

      . It is undisputed that Dr. Appell was a physician and that the Muguerzas allege the claimed assault by Dr. Appell proximately resulted in injury to them.

      . The Executrix asserts that Dr. Appell's decision to allow Cyrene to be present in the examination room involved a medical decision by Dr. Appell that implicates his professional judgment. Presuming that this is correct, any such medical decision or professional judgment is not relevant to the Muguerzas' claims for assault and the Executrix’s defenses to these claims. If this case were tried, there might be testimony as to whether Dr. Appell physically assaulted the Muguerzas, whether any such physical assault was provoked or consented to by the Muguerzas, and whether Dr. Appell acted in self-defense. But any professional judgment by Dr. Appell in deciding to allow Cyrene to be present in the examination room is not related to any potential liability for the alleged assault of the Muguerzas in the examination room.

      . In addition, the plaintiff in Mata pleaded medical negligence until the day before the hearing on the doctor's motion to dismiss, when the plaintiff dropped the negligence claim and added claims for assault and battery, sexual assault, and violation of his civil rights. See Mata, 2007 WL 3003139, at *1.

      . Regarding the safety portion of the Former Definition, some justices on the Supreme Court of Texas have concluded that the alleged departure from accepted safety standards must be “an inseparable or integral part of the patient’s care or treatment,” for the claim to fall under this part of the Former Definition. See Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 662-64 (Tex.2010) (plurality op.) (Medina, J., joined by Hecht, J.). On this issue, other justices have concluded that the alleged departure from accepted safety standards need not be related to health care for the claim to fall under this part of the Former Definition. See id. at 672-74 (Johnson, J., concurring, joined by Willett, J.).

        . The Supreme Court of Texas may resolve this issue when it issues its opinion in Yama-da v. Friend, which has been submitted in cause number 08-0262 in that court.

      . This disagreement among courts of appeals has been mirrored by a disagreement among justices on the Supreme Court of Texas opining as to the construction of the Current Definition in separate opinions in a case involving the Former Definition. Compare Diversicare Gen. Partner, 185 S.W.3d at 867 (O’Neill, J., dissenting, joined by Brister, J. and Green, J.) (stating that ’’[wjhen it recently amended the definition of 'health care liability claim,' the Legislature clarified that claims falling under the statute must relate to the actual provision of health care”), with id. at 861 n. 4 (Jefferson, C.J., concurring in part, dissenting in part, and concurring in judgment) (stating that "[i]t is clear under the revised statute that claims for 'professional or administrative services’ must be 'directly related to health care’; however, there is no indication that claims involving 'safety' must also relate to health care”).

      . The Executrix has not argued that the Mu-guerzas have alleged a departure from accepted standards of professional or administrative services directly related to health care; however, if she had made this argument, the alleged departure likewise would not be directly related to health care.