author: TERRIE LIVINGSTON, Chief Justice.

text:
    David Clayton RATLIFF a/k/a Clayton David Singleton a/k/a David Clay Ratliff, Appellant, v. The STATE of Texas, State.
    No. 2-09-275-CR.
    Court of Appeals of Texas, Fort Worth.
    July 15, 2010.

      Richard Alley, Fort Worth, TX, for Appellant.
    Don Schnebly, Edward D. Lewallen, Assistant Criminal District Attorneys, Weatherford, TX, for The State of Texas.
    PANEL: LIVINGSTON, C.J.; DAUPHINOT and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Chief Justice.

Appellant David Clayton Ratliff a/k/a Clayton David Singleton a/k/a David Clay Ratliff appeals his conviction for possessing less than one gram of methamphetamine. In three points, he contends that the trial court erred by denying his motion to suppress evidence that he says the police obtained illegally and by denying his motion for mistrial based on the State’s allegedly improper jury argument. We affirm.

Background Facts

A Weatherford resident, Kelly Lindner, called the police because she saw a white car that she did not recognize near her neighbors’ residence while her neighbors were gone, and she believed that “something bad was happening.” She told the police that people from the car were removing items from her neighbors’ garage and putting them in the car. One of the car’s passengers was Lindner’s neighbors’ daughter, Rachel Adams, although Lind-ner did not know that fact at the time she called the police. Appellant and Bryan Harko were the car’s other occupants.

Weatherford Police Department Detective Troy Luecke received a dispatch call regarding the suspicious white car, found it, and saw its three occupants. According to Detective Luecke, appellant, the front seat passenger, was confrontational and agitated when Detective Luecke tried to ask him identification questions. Because Detective Luecke smelled marijuana coming from appellant, he asked appellant to get out of the car, and upon searching appellant, found two marijuana cigarettes in appellant’s pocket. Thus, Detective Luecke arrested appellant.

After the arrest, Detective Luecke searched the parts of the car “that [appellant] could reach.” During the search, Detective Luecke found a briefcase that contained the following: three syringes, a pack of rolling papers, a small clear ziplock bag with white residue in it, a spoon with a white crystal substance on it (which field tested positive at the crime scene for methamphetamine), and two papers bearing appellant’s name. Detective Luecke explained that because “they were no longer in sterile packages” at the time he found them, the syringes appeared to have been used.

A Parker County grand jury indicted appellant for possessing less than one gram of methamphetamine; the indictment contained enhancement paragraphs alleging that appellant had several previous felony convictions. Appellant waived arraignment and pled not guilty.

On the morning of his trial, appellant filed a motion to suppress the evidence that Detective Luecke had obtained. Appellant contended that the warrantless search was unreasonable under the federal constitution and the Texas constitution and statutes because, among other reasons, Detective Luecke did not have authority to search the car incident to appellant’s arrest under Arizona v. Gant Although the motion stated that a pretrial hearing outside of the jury’s presence was necessary, there was no such hearing. Instead, after voir dire and before the first witness testified, appellant informed the court that he had filed the motion and that he would bring it to the court’s attention at his “first time to object during the [trial].”

During Detective Luecke’s testimony, he identified and discussed each item that he had found in the car. The State then offered the items to the court for admission, at which point appellant objected under the Texas and federal constitutions, particularly relying on Gant. The court overruled the objection and admitted the evidence. After the evidence was admitted, appellant’s counsel asked Detective Luecke several questions about the contents of the briefcase, and the State then asked Detective Luecke further questions about the briefcase’s contents without any objection. Herman Carrell, who works as a forensic scientist at the crime lab, testified without objection that he tested the white substance found by the police and confirmed that it is .05 grams of methamphetamine. Later in the trial, after the State recalled Detective Luecke, appellant again asked him about the particular items that he had found in the briefcase. Then, after the State rested, appellant again moved to suppress the State’s evidence on the basis of Gant

After the parties finished presenting evidence and argument, the jury found appellant guilty of possessing methamphetamine, and after the trial court heard evidence regarding his punishment and found some of the enhancement allegations from his indictment to be true, it assessed a sentence of fifteen years’ confinement. Appellant filed notice of this appeal.

Preservation of Error

In his first two points, appellant contends that the trial court erred by denying his motion to suppress and by admitting the evidence that was obtained from the car. The titles of his two points (which include a page number range of the reporter’s record that his points relate to) and the argument within the points indicate that appellant complains about the admission of the physical evidence found by Detective Luecke after appellant’s arrest. The State contends that appellant has forfeited his complaints about the admission of the evidence. We agree with the State.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule. Tex. R.App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 338, 341 (Tex.Crim.App.2004). Preservation of error is a systemic requirement. Archie v. State, 221 S.W.3d 695, 698 (Tex.Crim.App.2007).

To preserve error about the illegal seizure of evidence, a defendant must either file a motion to suppress and obtain a ruling on the motion or timely object when the State offers the evidence at trial. See Tex.R.App. P. 33.1(a); Tex.R. Evid. 103(a)(1); Ross v. State, 678 S.W.2d 491, 493 (Tex.Crim.App.1984); Stults v. State, 23 S.W.3d 198, 205 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (op. on reh’g); Thomas v. State, 884 S.W.2d 215, 216 (Tex.App.-El Paso 1994, pet. refd). If the defendant waits until the State offers the evidence at trial, the objection to the evidence must be made before a witness gives substantial testimony about it. See Marini v. State, 593 S.W.2d 709, 714 (Tex.Crim.App. [Panel Op.] 1980) (explaining that an objection to evidence “must be urged at the earliest opportunity”); Stults, 23 S.W.3d at 205-06; Angelo v. State, 977 S.W.2d 169, 177 (TexApp.-Austin 1998, pet. dism’d w.o.j.) (op. on reh’g); see also Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App.) (explaining that “if a question clearly calls for an objectionable response, a defendant should make an objection before the witness responds”), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995).

In Tell v. State, an aggravated robbery case, the defendant attempted at trial to suppress the admission of a ski mask that police officers obtained from his residence without a search warrant or consent. 908 S.W.2d 535, 538, 543 (Tex.App.-Fort Worth 1995, no pet.). But the defendant allowed a police officer to answer four questions about seizing the ski mask before objecting to the evidence. Id. On appeal, we concluded that “[b]ecause Tell failed to object at the time the ski mask was mentioned and allowed further questions and answers before finally objecting,” he “waived any error in the admission of the ski mask.” Id. at 544.

Similarly, in Turner v. State, the defendant contested the trial court’s admission of evidence that a detective had seized from his vehicle after his arrest. 642 S.W.2d 216, 216-17 (Tex.App.-Houston [14th Dist.] 1982, no pet.). The court of appeals held that the defendant forfeited his objections at trial by allowing the detective to testify “extensively to the arrest and the items found in the search.” Id. at 217. The appellant did not object to the testimony “but only to the five exhibits.” Id.; see also Marini, 593 S.W.2d at 714 (holding that an objection to the admission of physical evidence — narcotics—was forfeited because the appellant had not objected at trial to the officer’s testimony about finding the narcotics); King v. State, No. 02-07-00172-CR, 2008 WL 3918051, at *3 (Tex.App.-Fort Worth Aug. 26, 2008, pet. ref'd) (mem. op., not designated for publication) (“When a party objects to the admission of physical drug evidence after a police officer has already testified about finding the drugs without objection, nothing is presented for review.”).

As noted above, appellant filed a motion to suppress evidence but did not obtain a pretrial hearing or ruling on the motion. As the following excerpt of Detective Luecke’s testimony demonstrates, appellant then allowed Detective Luecke to testify about the evidence extensively before objecting to the admission of the State’s physical evidence:

Q.... Detective Luecke, you brought with you a box to court today; is that correct?
A. Yes, ma’am.
Q. What is it?
A. The evidence we removed from the vehicle that day.
Q. Okay. I’m going to show you what I’m going to mark as State’s Exhibit No. 2, which is a single baggy that has currently been stapled to four other baggies. So I’m only talking about the baggy that has State’s Exhibit No. 2 on it. Can you identify the contents of that clear plastic baggy?
A. It’s two marihuana cigarettes.
Q. And are those the two marihuana cigarettes that you retrieved from the pants of Mr. Ratliff?
A. Yes. It has my initials on the envelope.
Q. Once Mr. Ratliff was arrested, then what did you do?
A. Basically, you know, I observed a backpack and a briefcase sitting behind the passenger seat.
Q. What, if anything, did you locate?
A. Located three syringes that appeared to have been used, a pack of rolling papers, a small clear ziplock bag containing white residue, a spoon containing white crystal substance on the spoon, and two different papers that contained the name of Ratliff.
Q. ... Specifically what are the contents of State’s Exhibit No. 3?
A. It’s a spoon. It still has — you can still see some white residue on the spoon.
Q. And what’s the significance of the white residue?
A. I believed it to be methamphet-amines.
Q. Why?
A. Due to the texture and that I’ve seen crystal meth and methamphet-amines during my time as a patrolman, detective, and SWAT, and K-9.
Q. Okay. Finally, I’m going to show you what’s been marked as State’s Exhibit 7. And if you will identify that for the jury please.
A. It’s going to be the paperwork contained in Ratliffs name that was removed from the briefcase.
Q. ... And if you’ll take a look at the contents of that and make sure that those are the items that you retrieved from the briefcase from the Rendezvous?
A. This is an envelope contained in the name of Clint Ratliff.

We conclude that, as in Tell and Turner, along with the other cases cited above, appellant’s failure to object at the time Detective Luecke specifically described the physical evidence and explained how he found that evidence forfeited any error associated with his objection to the State’s later introduction of the evidence. See Tex.R.App. P. 38.1; Tell, 908 S.W.2d at 543-44; Turner, 642 S.W.2d at 216-17. Thus, we overrule appellant’s first and second points.

Appellant’s Motion for Mistrial

In his third point, appellant contends that the trial court erred by denying his motion for mistrial that he made during the State’s jury argument, in which the following colloquy occurred:

[THE STATE]: ... Now, it’s important for you to know that you don’t all have to agree on which reason Officer Luecke had to search the briefcase. Nine of you can say, “You know what, I think he smelled the marihuana and I think there was probable cause.”
[DEFENSE COUNSEL]: Objection. They have to agree unanimously on each one of the issues. This isn’t a selective deal.
THE COURT: Sustained.
[THE STATE]: Three of you can say, “You know what, I don’t believe that part but I do believe that consent was given.” As long as the total of you that are agreeing is 12, as long as all of you agree that there was a reason for him to search—
[DEFENSE COUNSEL]: Objection. I just objected to that. It’s a misstatement of the law. They all have to go down the checklist, and it has to be unanimous. If any one of them has a reasonable doubt, they don’t finish.
THE COURT: I’ll sustain the objection.
[THE STATE]: Again, what I said is that all of you have to agree. Okay? If three of you agree to one reason and nine of you agree to another, it doesn’t matter how it’s split.
[DEFENSE COUNSEL]: I’m going to object once again. If they don’t have a unanimous agreement or if they have a reasonable doubt on one issue, they don’t go further. Thank you.
THE COURT: Sustained. And ladies and gentlemen, you have the Charge with you. And it explains the situation.
[DEFENSE COUNSEL]: Because the State had persisted three times in telling them what the law is not, I’d ask for a mistrial.
THE COURT: That’s denied.

When a trial court sustains an objection and instructs the jury to disregard (as the trial court did here) but denies a defendant’s motion for mistrial, we must decide whether the trial court abused its discretion by denying the mistrial. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex.Crim.App.2004). Only in extreme circumstances, when the prejudice caused by improper conduct is “so prejudicial that expenditure of further time and expense would be wasteful and futile,” will a mistrial be required. Id. at 77; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003), cert. denied, 542 U.S. 905, 124 S.Ct. 2837, 159 L.Ed.2d 270 (2004).

In determining whether a trial court abused its discretion by denying a mistrial, we balance three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of conviction absent the misconduct. Hawkins, 135 S.W.3d at 77; Mosley, 983 S.W.2d at 259. Here, appellant cannot show that the trial court abused its discretion by denying his motion for mistrial because he has not demonstrated that misconduct, severe or otherwise, occurred.

The court of criminal appeals has “long held that ‘error in jury argument does not lie in going beyond the court’s charge, but in stating law contrary to the same.’ That is, there is no error in correctly arguing the law, even if the law is not included in the court’s charge.” State v. Renteria, 977 S.W.2d 606, 608 (Tex.Crim.App.1998) (citing Mauldin v. State, 628 S.W.2d 793, 795 (Tex.Crim.App. [Panel Op.] 1982)); Corpus v. State, 30 S.W.3d 35, 41-42 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (holding that there was no error when the State argued that two people could jointly possess an object, which was a correct statement of the law, even when the law of joint possession was not included in the jury charge); Gillis v. State, 694 S.W.2d 245, 251 (Tex.App.-Fort Worth 1985, pet. ref'd) (holding similarly). Therefore, if the State’s jury argument correctly stated the law and was not inconsistent with the trial court’s charge, then it was not improper.

Article 38.23 of the code of criminal procedure states that if the jury has a reasonable doubt that evidence has been obtained in violation of the law, it shall disregard the evidence. Tex.Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). Appellant asserts, “[T]he jury was told by the Prosecutor that not all 12 [jurors] had to agree on probable cause, an issue submitted to them[.] That argument of the Prosecutor was contrary to the requirements set forth in the Court’s Charge on that issue.” However, the jury charge did not explicitly inform the jury that each juror had to agree on the particular factual basis for Detective Luecke’s search. Rather, the charge instructed the jury that the search could be supported by either Harko’s consent or a “detectable odor of marihuana that Officer Luecke was able to smell,” and then later the charge told the jury generally that its “verdict must be unanimous.” The State told the jury that they were required to all agree that Detective Luecke had some basis for the search although jurors could disagree as to which basis supported the search. We conclude that this argument, although supplementary to the charge, was not inconsistent with its explicit language.

As to whether the argument made by the State at trial is contrary to the law, appellant has not cited any authority to show that jurors must be unanimous on the particular facts (between those that could show consent or probable cause) that validate a search, and we have not found any authority that directly addresses the issue. Surely, a jury’s verdict in a criminal case must be unanimous. Tex.Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2009); Ngo v. State, 175 S.W.3d 738, 745 (Tex.Crim.App.2005); see Landrian v. State, 268 S.W.3d 532, 536 (Tex.Crim.App.2008) (explaining that “the jury must be unanimous in finding that the defendant committed a specific statutory crime”). However, different jurors may be persuaded by “different pieces of evidence, even when they agree upon the bottom line. Plainly, there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.” Davis v. State, 268 S.W.3d 683, 711 (Tex.App.-Fort Worth 2008, pet. ref'd); see Valdez v. State, 218 S.W.3d 82, 84-85 (Tex.Crim.App.2007) (holding that a jury was not required to unanimously decide which two of several alleged prior felony convictions supported the enhancement of the appellant’s punishment because the penal code’s enhancement provision states only that the State is required to prove “two felony offenses”).

For example, in a felony murder case, a jury is not required to unanimously concur regarding which specific felony the defendant committed or attempted to commit in conjunction with the murder. White v. State, 208 S.W.3d 467, 469 (Tex.Crim.App.2006). Similarly, a jury is not required to unanimously agree on the statutory method of intoxication (between having a blood alcohol concentration of .08 or more or not having normal use of faculties) in a driving while intoxicated case as long as the jury unanimously decides that the defendant was intoxicated. Price v. State, 59 S.W.3d 297, 301-03 (Tex.App.-Fort Worth 2001, pet. ref'd).

“[T]he question of what a jury must be unanimous about ... is determined by the legislative intent of the applicable statute.” Valdez, 218 S.W.3d at 84. “In divining legislative intent, we look first to the language of the statute. When the meaning is plain, we look no further.” Lomax v. State, 233 S.W.3d 302, 308 (Tex.Crim.App.2007) (quoting Rodriguez v. State, 953 S.W.2d 342, 353 (Tex.App.-Austin 1997, pet. ref'd)). While article 38.23 allows the jury to resolve factual disputes related to whether evidence was obtained legally or illegally, the article does not express that the jury must unanimously decide why the evidence was obtained legally or illegally. See Tex.Code Crim. Proc. Ann. art. 38.23(a); see also Newsom v. State, No. 10-07-00169-CR, 2009 WL 1163403, at *6-7 (Tex.App.-Waco Apr. 22, 2009, pet. ref'd) (mem. op., not designated for publication) (holding that a jury charge was not erroneous although it permitted a jury to find that a traffic stop was justified without requiring the jury to agree about which of three alleged traffic violations was the basis for the stop). Thus, we hold that the jury was not required to agree about the factual justification to support the legality of Detective Luecke’s search as long as all jurors agreed that the evidence was not obtained illegally.

For these reasons, we conclude that the trial court did not abuse its discretion by denying appellant’s motion for mistrial because the State’s jury argument was not improper. We overrule appellant’s third point.

Conclusion

Having overruled all three of appellant’s points, we affirm the trial court’s judgment.

      . See Tex. Health & Safety Code Ann. §§ 481.102(6), .115(b) (Vernon 2010).

      . The car’s driver, Harko, knew appellant because appellant had given him tattoos. Har-ko said that appellant had called him to pick appellant up from a motel and give appellant a ride to Weatherford in exchange for “[fjorty dollars and some dope.”

      . Another officer who was at the scene said that he did not smell marijuana coming from appellant, and Harko said the same.

      . Harko said that although he had his own drug paraphernalia in the car, he gave police consent to search it.

      . - U.S. -, -, 129 S.Ct. 1710, 1723-24, 173 L.Ed.2d 485 (2009).

      . State’s Exhibit No. 8, a document that Detective Luecke generated and that was titled "Weatherford Police Department Property Receipt,” listed appellant as the defendant and described that officers had found “David Ratliff’s” briefcase, a white crystal substance, rolling papers, syringes, a silver spoon with methamphetamine residue, and papers containing appellant's name. This exhibit was admitted without a constitutionally based objection by appellant.

      . Appellant objected on constitutional grounds to the admission of Carrell's report that showed the result of his test but not to Carrell's testimony regarding the test.


source: Caselaw Access Project

author: PATRICK A. PIRTLE, Justice.

license: Public Domain

text:
    DAYBREAK COMMUNITY SERVICES, INC., Appellant, v. Lisa CARTRITE, as Legal Representative of the Estate of Lacy Donn Vasquez, Appellee.
    No. 07-09-0370-CV.
    Court of Appeals of Texas, Amarillo, Panel C.
    Aug. 10, 2010.
    Kevin L. Wentz, Wade N. Hallisey, Wentz & Zavarelli, L.L.P., Irving, for Appellant.
    James H. Wood, Bencoe & Lacour, P.C., Albuquerque, NM, for Appellee.

      Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
   OPINION

PATRICK A. PIRTLE, Justice.

Presenting two issues, Daybreak Community Services, Inc. (“Daybreak”) challenges the trial court’s order denying its Motion to Dismiss the health care liability suit filed by Lisa Cartrite (“Cartrite”), as legal representative of the Estate of Lacy Donn Vasquez, deceased. Daybreak questions (1) whether an expert report delivered prior to the filing of a health care liability claim satisfies the service requirements of section 74.351(a) of the Texas Civil Practice and Remedies Code, and (2) whether a health care liability claimant’s misidentification of a health care provider entitles the claimant to a new 120-day expert report deadline under section 74.351(a) of the Code. We affirm.

Factual and Procedural Background

On September 23, 2006, Lacy Donn Vasquez, a twenty-three year old mentally retarded resident of Harvard House, a group home owned and operated by Daybreak Community Services, Inc., was found by staff in a bathtub with her face underwater. According to Cartrite’s pleadings, Vasquez was to be closely monitored and should not have been allowed to take an unsupervised bath. After being found by staff, Vasquez was hospitalized and placed on life support with a poor prognosis. Life support was removed later that 'night and she died in the early morning hours of September 24, 2006.

On October 10, 2006, Cartrite engaged counsel for the purpose of pursuing a health care liability claim on behalf of Lacy’s estate. That day, Cartrite’s counsel sent a letter, simply addressed to “Daybreak” at its Amarillo address, notifying them of his representation. Two months later, on December 10, 2007, Car-trite’s counsel sent notice of her claim to an attorney representing Daybreak. Enclosed with that notice was the curriculum vitae and report of Frances Foster, M.S.N., A.P.R.N., B.C. The notice specifically claimed to be in satisfaction of the statutory requirements of sections 74.051 and 74.351 of the Texas Civil Practices and Remedies Code. In that letter Cartrite’s counsel stated that she was “willing to mediate her claims and avoid a lawsuit, if possible.”

In response to the December 10 letter, on January 10, 2008, Daybreak’s counsel corresponded with Cartrite’s counsel, notifying him, among other things, the following:

[w]ith respect to Nurse Foster’s report and CV, it appears that same have been forwarded to comply with § 74.351 regarding “expert reports.” Though we will review and consider the opinions of Nurse Foster, the production of her report at this time is premature.

After settlement attempts were unsuccessful, on April 15, 2008, Cartrite filed a health care liability suit alleging, among other claims, medical malpractice and gross negligence against “Daybreak Group, Ltd. Co.” (“Daybreak Group”). The petition provided that service could be accomplished by serving “registered agent Jeanne C. Page, 2505 S. I-35W, Burleson, Texas 76028.” Daybreak Group filed an original answer together with a motion to transfer venue. On November 7, 2008, counsel for Daybreak Group served a letter on Cartrite’s counsel reminding him of earlier correspondence in which counsel noted that the December 2007 furnishing of the pre-suit expert report and curriculum vitae were premature. Counsel for Daybreak Group continued in the letter, “[pjlaintiff did not serve Daybreak or its counsel with a written expert report within 120 days from the date suit was filed.” Counsel concluded that Cartrite had failed to comply with section 74.351(a) and consequently, discovery should be stayed under section 74.351(s).

Three days later, Cartrite’s counsel responded by letter expressing discontent with Daybreak Group’s “gotcha” letter. Cartrite’s counsel’s letter included post-suit service, this time via facsimile, of Nurse Foster’s expert report and curriculum vitae.

On January 9, 2009, counsel for Cartrite and Daybreak Group entered into an agreed order on a change of venue to Randall County and the suit proceeded. On May 26, 2009, Daybreak Group filed a traditional and no-evidence motion for summary judgment alleging, in part, as grounds:

Daybreak Group, Ltd. Co. (Daybreak Group) does not own or operate Harvard House. Moreover, Daybreak Group does not provide health care or medical care to residents of Harvard House, and did not provide any such care to decedent Lacy Donn Vasquez. Simply stated, Daybreak Group provides financial, accounting, payroll and administrative support services to Daybreak Community Services.

Approximately six weeks later, the parties entered into a Rule 11 agreement, the terms of which would allow Cartrite to amend her pleadings to substitute the correct defendant, “Daybreak Community Services, Inc.,” and in return, Daybreak Group would withdraw its motion for summary judgment.

On July 6, 2009, Cartrite filed her First Amended Petition against “Daybreak Community Services, Inc.,” a health care provider, alleging, among other claims, gross negligence and medical malpractice. The amended petition provided that service could be accomplished by serving “registered agent Jeanne C. Page, 2505 S. I-35W, Burleson, Texas 76028.” Three days after amending her petition, Cartrite served Daybreak Community Services, Inc., by telephonic document transfer, with Nurse Foster’s expert report and curriculum vitae. That same day, Daybreak Community Services, Inc. filed its Motion to Dismiss For Failure to Comply with Texas Civil Practice and Remedies Code § 74.351. Daybreak alleged that the pre-suit expert report provided on November 10, 2008, did not constitute service of an expert report within 120 days after suit was filed. Daybreak continued that the 120 day deadline expired on August 13, 2008, and Cartrite did not “serve” Nurse Foster’s report or another report before that deadline. Thus, Daybreak concluded, the service requirements of section 74.351(a) had not been satisfied. Relying on subparagraph (b) of the statute, Daybreak requested dismissal of the suit with prejudice together with an award of attorney’s fees and costs.

By her response to the motion to dismiss, Cartrite urged the trial court to deny the motion to dismiss her claims for failure to “re-serve” the same exact documents Daybreak already possessed and asserted that Daybreak had not been prejudiced. She argued the Legislature’s intent in requiring early service of expert reports to facilitate early settlements, reduce costs, and discourage frivolous lawsuits was satisfied. She further argued that Daybreak Community Services, Inc. was served “no later than 120 days after Daybreak Community Services, Inc. became a Defendant in the lawsuit.”

Daybreak filed a reply to Cartrite’s response noting that the time in which to file an expert report begins with the filing of an original petition. Relying on the doctrine of misidentification, rather than misnomer, it also refuted Cartrite’s claim that she should be entitled to a new 120 day deadline after filing her first amended petition correctly naming Daybreak Community Services, Inc. On October 29, 2009, the trial court signed an Order Denying Defendant’s Motion to Dismiss and this accelerated appeal followed.

Applicable Law

Before the repeal of the Medical Liability and Insurance Improvement Act of Texas in 2003, former article 4590i, section 13.01 provided in part:

(d) [n]ot later than the later of the 180th day after the date on which a health care liability claim is filed ..., the claimant shall, for each physician or health care provider against whom a claim is asserted:
(1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report....

(Emphasis added). After the repeal of the Act, the Legislature codified the laws governing health care liability claims in chapter 74 of the Texas Civil Practice and Remedies Code. As pertinent here, after the 2003 enactment, section 74.351(a) provided:

[i]n a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, sene on each party or the party’s attorney one or more expert reports, with a curriculum vitae for each expert listed in the report....

(Emphasis added). Significant changes in 2003 included decreasing the number of days in which to provide an expert report from 180 to 120 and changing the manner in which the report is provided from “furnish” to “serve.” In 2005, the Legislature amended section 74.351(a) to provide:

[i]n a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition is filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted....

(Emphasis added). The only change made in 2005 was the substitution of “original petition” for “claim.”

Because Cartrite’s cause of action accrued in September 2006, we will apply chapter 74 of the Texas Civil Practice and Remedies Code as it currently exists, including the 2005 amendment.

Standard of Review

A trial court’s decision on a motion to dismiss under section 74.351 is reviewed for abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006). A trial court has no discretion in determining what the law is or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). Questions of law are subject to a de novo review. See generally Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989) (holding that “matters of statutory construction are questions of law for the court to decide rather than issues of fact”). However, once we determine the proper construction of section 74.351(a), we must then review whether the trial court abused its discretion in the manner in which it applied the statute to the facts of the case. Palladian Bldg. Co. v. Nortex Foundation Designs, Inc., 165 S.W.3d 430, 436 (Tex.App.-Fort Worth 2005, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003).

Statutory Construction of Chapter 74

Any legal term or word of art used in chapter 74, not otherwise defined in the chapter, shall have such meaning as is consistent with the common law. § 74.001(b). This provision essentially restates the rule of statutory construction that terms in a statute are to be given their ordinary meaning. See Tex. Gov’t Code Ann. § 312.002(a) (Vernon 2005). See also Kendrick v. Garcia, 171 S.W.3d 698, 704 (Tex.App.-Eastland 2005, pet. denied).

The primary goal of statutory construction is to determine and give effect to the Legislature’s intent. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex.2008). We look first to the statute’s language to determine that intent, as we consider it “a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent.” Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.1999). Furthermore, we presume the Legislature intended a just and reasonable result by enacting the statute. Tex. Gov’t Code Ann. § 311.021(3) (Vernon 2005). The general rule for statutory interpretation applies unless enforcing the plain language of the statute as written would produce absurd results. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009).

The purpose behind the adoption of section 74.351(a) was, among other things, to “remove unwarranted delay and expense, to accelerate the disposition of non-meritorious cases, and to give hard-and-fast deadlines for the serving of expert reports.” Intracare Hosp. N. v. Campbell, 222 S.W.3d 790, 797 (Tex.App.-Houston [1st Dist.] 2007, no pet.). The 2003 codification created a statute of limitations type deadline before which expert reports must be served. See Ogletree v. Matthews, 262 S.W.3d 316, 319 (Tex.2007). If no report was served before the 120 day deadline, the Legislature denied trial courts the discretion to deny motions to dismiss or grant extensions. Badiga v. Lopez, 274 S.W.3d 681, 683 (Tex.2009). This seemingly harsh result comports with the Legislature’s effort to “reduce excessive frequency ... of health care liability claims.... ” Ogletree, 262 S.W.3d at 320 (citing Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)[ (1) ], 2003 Tex. Gen. Laws 847, 884).

In 2005, section 74.351(a) was amended to require expert reports to be filed not later than 120 days after the original petition is filed. The purpose of the amendment was to “clarify” the timing of when an expert report is due. See Methodist Charlton Medical Center v. Steele, 274 S.W.3d 47, 50 (Tex.App.-Dallas 2008, pet. denied). The Legislature rationalized the change as follows:

[s]inee the passage of House Bill 4 in the 78th Session, there has been some confusion regarding the timing of when an expert report is due on a medical malpractice case. Some have argued that the report is due 120 days from the date of the statutory notice letter, instead of 120 days from the date of the filing of the original petition. It was the intent of HB 4 that the report be triggered by the filing of the lawsuit.

See Padre Behavioral Health Sys., LLC v. Chaney, 310 S.W.3d 78, 84-85 (Tex.App.-Corpus Christi 2010, no pet. h.) (citing Osonma v. Smith, No. 04-08-00841-CV, 2009 WL 1900404, at *2, 2009 Tex.App. LEXIS 4959, at *4 (Tex.App.-San Antonio July 1, 2009, pet. denied)). See also Stroud v. Grubb, — S.W.3d -, ——, 2010 TexApp. LEXIS 3675 at *7 (Tex. App.-Houston [1st Dist.] May 13, 2010, pet. filed June 28, 2010) (citing House Comm, on Civil Practices, Bill Analysis, Tex. H.B. 2645, 79th Leg. R.S. (2005)).

Analysis

I. Pre-suit Production of an Expert Report

By issue one, Daybreak maintains the trial court erred in denying its motion to dismiss because pre-suit production of an expert report does not comply with the requirements of section 74.351(a). Daybreak relies on Poland v. Ott, 278 S.W.3d 39 (Tex.App.-Houston [1st Dist.] 2008, pet. denied) (subsequent opinion at Poland v. Ott, No. 01-07-00199-CV, 2009 TexApp. LEXIS 3766 (Tex.App.-Houston [1st Dist.] Jan. 22, 2009, pet. denied)), St. Luke’s Episcopal Hosp. v. Poland, 288 S.W.3d 38 (Tex.App.-Houston [1st Dist.] 2009, pet. denied), and Offenbach v. Stockton, 285 S.W.3d 517 (Tex.App.-Dallas 2009, pet. granted Feb. 12, 2010), in support of its position that providing a pre-suit expert report does not satisfy the requirements of chapter 74 of the Code. See generally St. Luke’s Episcopal Hosp., 288 S.W.3d at 44 (applying the pre-2005 version of section 74.351(a) and holding that the 120 day period in which to file an expert report was triggered by the filing of a health care liability claim); Offenbach, 285 S.W.3d at 521-22 (applying the pre-2005 version of section 74.351(a) and holding that pre-suit service of an expert report on a potential defendant’s insurance carrier did not satisfy the statute). Cartrite submits that section 74.351 is unambiguous, setting a deadline and not a window, by allowing service any time not later than the 120th day after the date the claim was filed. Cartrite relies heavily on Justice Jennings’s dissents in Ott, 278 S.W.3d at 43, and St. Luke’s Episcopal Hosp., 288 S.W.3d at 54, in support of her arguments.

These cases, all involving pre-suit service of expert reports, are, however, distinguishable from the case at bar. Each of these cases involve application of section 74.351(a) as it existed after the 2003 codification of statutes involving health care liability claims, but before the 2005 amendment. The 2005 amendment, which provides that an expert report be served not later than 120 days after the original petition is filed, was intended to clarify that the deadline for filing expert reports is now triggered by the filing of an original petition. Steele, 274 S.W.3d at 50. Therefore, these cases are legally and factually distinguishable from the case at hand because Cartrite’s claims fall under the current version of section 74.351(a).

Considering that section 74.351(a) was amended in 2005, Cartrite’s cause of action accrued after that amendment, and our ultimate disposition of Daybreak’s second issue, we deem it unnecessary to address the parties’ arguments relating to pre-suit service. See Tex.R.App. P. 47.1. Accordingly, we express no opinion as to whether or not section 74.351(a) creates a window within which an expert report must be served, or whether it establishes a deadline before which that report must be served. Issue one is pretermitted.

11. The 120 Day Deadline

By issue two, Daybreak contends that Cartrite is incorrect in arguing that the amended petition naming Daybreak Community Services, Inc. as a defendant provided Cartrite with a new 120 day deadline. We disagree with Daybreak’s contention.

When considering the provisions of section 74.351(a) requiring that an expert report be served not later than 120 days after the filing date of the original petition, an interpretation of that provision as applying exclusively to the first pleading filed by a claimant, regardless of whom that pleading alleges a health care liability claim against, “runs into a number of in-terpretational and logical problems.” See Hayes v. Carroll, 314 S.W.3d 494, 500 (Tex.App.-Austin 2010, no pet. h.). Referencing the House and Senate Bill analy-ses, the Austin Court of Appeals first noted that the primary purpose of the amendment was to clarify that the 120 day deadline did not run from the date of the statutory notice letter. Id. at 500. The court then noted that the intent of the statute creating the 120 day deadline was to have that deadline “triggered by the filing of the lawsuit.” (Emphasis added). The filing of the lawsuit was the demarcation event triggering the 120 day deadline. Id. “If a defendant has not been added to a case, there has yet to be a lawsuit filed against that defendant.” Id. at 500. Regardless of how an amended pleading is styled, it is the original or first petition bringing a lawsuit as to that defendant that triggers the 120 day deadline for filing an expert report for purposes of a health care liability claim. Id. at 500. A construction of section 74.351(a) that interprets the term “original petition” as being the first document filed in a case that brings a claim against a particular defendant is consistent with the available legislative history on the issue. Id.

Interpreting the term “original petition” as referring only to the first petition filed in a cause number regardless of who is named as a defendant presents a quandary. If the 120 day deadline begins from the first petition filed, a plaintiff could never add another physician or health care provider as a defendant beyond 120 days because the plaintiff would never be able to timely serve an expert report as to that defendant. Id. at 501. Such an interpretation would produce an absurd result which runs afoul of statutory interpretation. See Entergy Gulf States, Inc., 282 S.W.3d at 437. It would also create the potential for unreasonable or unjust results. Hayes, 314 S.W.3d at 501. The court in Hayes added that it is not the title of the pleading that is dispositive; rather, it is the substance of the petition with respect to the health care providers who are named as defendants that is disposi-tive. Id. at 501.

The Corpus Christi Court of Appeals, Houston First Court of Appeals, and San Antonio Court of Appeals have all addressed this issue and have also concluded that the first-filed petition naming a particular defendant physician or health care provider as a party to the lawsuit triggers the 120 day deadline for filing an expert report as to that party. See Padre Behavioral Health Sys., LLC, 310 S.W.3d at 85; Stroud, — S.W.3d at -; Osonma, 2009 WL 1900404, at *2, 2009 Tex.App. LEXIS 4959, at *4. The Corpus Christi Court of Appeals in Padre Behavioral Health Sys., LLC, drew from the reasoning in Osonma. 310 S.W.3d at 84-85.

In Osonma, certain defendants in a health care liability case were not joined as parties until plaintiff filed her third amended petition, well after 120 days from the filing of the original petition. Defendants filed motions to dismiss based in part on untimely service of expert reports. The trial court denied the motions to dismiss. In affirming the trial court’s decision, the San Antonio Court of Appeals examined the legislative history and concluded that the Legislature intended the substitution of “original petition” for “claim” in 2005 to mean that the deadline for serving an expert report be triggered by the filing of the lawsuit against the defendant entitled to the statutory notice. The court also recognized that limiting “original petition” to the first-filed petition in the cause would lead to an absurd result. Osonma, 2009 WL 1900404, at *2, 2009 Tex.App. LEXIS 4959, at *4-5. In Stroud, the Houston First Court of Appeals held that the 120 day deadline was triggered when the claimant first asserts a health care liability claim against a particular defendant in a petition. — S.W.3d at -, 2010 Tex.App. LEXIS 3675, at *13.

The Dallas Court of Appeals, in Steele, 274 S.W.3d at 50, and the Houston Fourteenth Court of Appeals in Maxwell v. Seifert, 237 S.W.3d 423, 426 (Tex.App.-Houston [14th Dist.] 2008, pet. denied), have strictly interpreted the phrase “not later than the 120th day after the date the ‘original petition’ was filed” as relating to the first petition filed. However, Steele and Maxwell are distinguishable because they both involve the addition of new claims and service of expert reports regarding those claims in amended petitions against pre-existing defendants rather than the service of an expert report on a newly added party.

In the case before us, the original petition was filed against Daybreak Group, Ltd. Co. on April 15, 2008. Daybreak argues that service of Cartrite’s expert report was therefore due no later than August 13, 2008, 120 days after filing the original petition. However, as Daybreak and Daybreak Group have both argued, they are separate and distinguishable entities, with Daybreak Group merely providing Daybreak with “financial, accounting, payroll and administrative support services.” As such, Daybreak Group is not a health care provider. When Cartrite filed her first amended petition on July 6, 2009, alleging health care liability claims for the first time against Daybreak Community Services, Inc., a health care provider, she was entitled to have 120 days from the filing of that petition in which to serve Nurse Foster’s expert report and curriculum vitae. Three days later, on July 9, 2009, Cartrite properly served Daybreak Community Services, Inc. with a copy of Nurse Foster’s expert report and curriculum vitae. Because Daybreak Community Services, Inc. was served within 120 days of the first-filed petition naming it as a defendant, we conclude the trial court did not abuse its discretion in denying Daybreak’s motion to dismiss based on an untimely expert report. In reaching our conclusion, we follow the rationale and logic of the decisions from our sister courts in Austin, Corpus Christi, the First District of Houston, and San Antonio. Issue two is overruled.

We note that Daybreak further contends that Cartrite’s position that Daybreak Community Services, Inc. was not sued until her first amended petition was filed on July 6, 2009, time bars her claim. See § 74.251(a). At this juncture, that argument is premature and not before this Court. Daybreak has never sought summary judgment based upon a statute of limitations defense and the merits of that claim are still subject to full adjudication before the trial court.

Conclusion

Accordingly, the trial court’s order denying the Motion to Dismiss filed by Daybreak Community Services, Inc. is affirmed.

      . The facility operated by Daybreak Community Services, Inc. is a certified home and community-based services waiver program for persons with mental retardation and, as such, Daybreak Community Services, Inc. is a "health care provider” for purposes of chapter 74 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. and Rem.Code Ann. §§ 74.001(a)(ll)(I) and (a)(12)(A)(vii) (Vernon 2005).

      . Unless otherwise designated, all references herein to " § " or “section” are to the Texas Civil Practice and Remedies Code Annotated (Vernon 2005 and Supp.2009).

      . The motion for summary judgment was withdrawn a week later.

      . The registered agent and address for both Daybreak Group, Ltd. Co. and Daybreak Community Services, Inc. are the same.

      . See Act of June 2, 2004, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.

      . See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986.

      . See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01-.09, 2003 Tex. Gen. Laws 847, 864-84.

      . See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875.

      . See Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590.

      . Id. at § 2 (providing "[t]his Act applies only to a cause of action that accrues on or after the effective date of this Act.”)

      . The 1st Court of Appeals originally issued an opinion in Cause No. 01-07-00199-CV on January 31, 2008. That opinion was withdrawn and a second opinion was issued in its stead on December 19, 2008. That second opinion appears at 278 S.W.3d 39. A third opinion was issued on January 22, 2009, again purporting to withdraw the opinion of January 31, 2008 and issuing a new opinion in its stead. The January 22, 2009 opinion appears at Poland v. Ott, No. 01-07-00199-CV, 2009 Tex.App. LEXIS 3766 (Tex.App.Houston [1st Dist.] Jan. 22, 2009, pet. denied).

      . House Comm, on Civil Practices, Tex. H.B. 2645, 78th Leg., R.S. (2005) and Sen. Comm. on State Affairs, Tex. H.B. 2645, 78th Leg., R.S. (2005).

      . We express no opinion as to the sufficiency of the expert report.