author: KEASLER, J.,

text:
    Mario Rico MARTINEZ, Appellant, v. The STATE of Texas.
    Nos. PD-0622-09 through PD-0626-09.
    Court of Criminal Appeals of Texas.
    Oct. 6, 2010.

      Brennon Brady, Asst. Public Defender and James Rasmussen, Chief Public Defender, Wichita Falls, for Appellant.
    Barry L. Macha, Crim. Dist. Atty., John W. Brasher, Asst. Crim. Dist. Atty., James Suter, Asst. Crim. Dist. Atty., Wichita Falls, Jeffrey L. Van Horn, State’s Atty., Austin, for State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court

in which KELLER, P.J., PRICE, WOMACK, JOHNSON, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

We hold that the Fort Worth Court of Appeals did not err in holding that Section 125.065(a)(2), Texas Civil Practice and Remedies Code, which permits a judge to impose reasonable requirements when enjoining criminal street gang activity, a violation of which is punishable under Penal Code Section 71.021, does not violate the separation of powers doctrine. We also conclude that the court of appeals correctly determined that the provision of the injunction prohibiting Mario Rico Martinez from making gang hand signs and wearing gang clothing did not violate the First Amendment and was not unconstitutionally vague.

Background

We begin by focusing on two statutes that are aimed at controlling the ever-growing communal problem of criminal gang-related violence across this state. Section 125.065 of the Texas Civil Practice and Remedies Code allows a judge to enter an order restricting criminal gang-related activities that represent a public nuisance:

(a) If the court finds that a combination or criminal street gang constitutes a public nuisance, the court may enter an order:
(1) enjoining a defendant in the suit from engaging in the gang activities of the combination or gang; and
(2) imposing other reasonable requirements to prevent the combination or gang from engaging in future gang activities.
(b) If the court finds that a place is habitually used in a manner that constitutes a public nuisance, the court may include in its order reasonable requirements to prevent the use of the place for gang activity.

Section 125.061(3) of the Texas Civil Practice and Remedies Code defines gang activity as several criminal offenses. Under Texas Penal Code Section 71.021, it is a Class A misdemeanor offense to violate an order enjoining gang-related activities constituting a nuisance: “A person commits an offense if the person knowingly violates a temporary or permanent order issued under Section 125.065(a) or (b), Civil Practice and Remedies Code.”

In September 2006, the trial judge in the Eighty-Ninth District Court of Wichita County entered a temporary order enjoining specific members of the Varrio Car-nales (VC) street-gang, including Martinez, from engaging in certain activities. The temporary injunction established a “VC safety zone” by delineating particular boundaries within Wichita Falls. Among other things, the order enjoined Martinez from:

2. Associating, standing, sitting, walking, driving, bicycling, gathering or appearing anywhere in public view with any other Defendant herein, with other known members of any other street gang, or any other individual who the Defendant knows is a member of the VC, with other known members of any other street gang, or any other individual who has been charged with a criminal offense.
16. Using or making words, phrases, physical gestures, or symbols, commonly known as gang hand signs or engaging in other forms of communication which the Defendant knows, describes, refers, or identifies members of the combination, or wearing clothes that particularly identify membership within the combination.
29. At any location in Wichita County, at any time entering onto the property of another Defendant who is a party to this lawsuit or any other individual who the Defendant knows is a member of the VC.

The trial judge also scheduled a hearing to decide whether the temporary injunction should be made permanent.

In April 2007, the trial judge issued a permanent order enjoining Martinez and other VC gang members from engaging in various activities. Though the activities prohibited by the order were nearly identical to those in the temporary order, the conditions under which the order was entered differed. According to the order,

It was announced to the Court that the parties have reached a settlement of their dispute and desire to terminate the litigation in this cause pursuant to the terms set out in this Order. The Court is of the opinion that this Agreed Order is well taken and should in all things be granted and the same is hereby GRANTED.
The parties further agree this Order shall not be used as evidence in a criminal proceeding except those criminal proceedings relating to violations of this Order, and any other applicable criminal contempt or civil contempt proceeding brought pursuant to Chapter 125 of the TEXAS Civil Practice and Remedies Code.
IT IS FURTHER ORDERED that if Mario Martinez, as of April 6, 2010, has not been arrested for any criminal offense defined as “criminal gang activity” by chapter 125 of the TEXAS Civil PRACTICE & Remedies Code, he will be removed from this injunction.
IT IS FURTHER AGREED by the parties hereto that the above enjoined activities constitute reasonable restrictions as contemplated and permitted by the TEXAS Civil Practice & Remedies Code Section 125.065.

The order was signed by Martinez’s attorney, and it notified Martinez that he had the right to prosecute an appeal. Martinez did not appeal the order.

In cause number 40229-F, Martinez was charged with violating provisions two and twenty-nine of the temporary injunction by entering the property of another VC gang member. In cause numbers 39396-F and 40552-F, Martinez was also charged with violating the temporary injunction by making hand gang signs or engaging in other forms of communication that Martinez knows describes, refers, or identifies members of the combination or wearing clothes that identify membership with the combination within the VC safety zone. In cause number 39397-F, Martinez was charged with violating the temporary injunction by associating, driving, or appearing in public view in the VC zone with another named defendant to the injunction. Finally, in cause number 40116-F, Martinez was charged with violating a provision of the permanent injunction.

County Court at Law Proceedings

Before trial, Martinez moved to dismiss the charges. Among other things, Martinez claimed that “reasonable requirements” language in Section 125.065(a)(2), Texas Civil Practice and Remedies Code, violates the separation of powers doctrine of the Texas Constitution because it allows judges to make criminal laws that may be sanctioned under Penal Code Section 71.021. Martinez further alleged that provision sixteen of the temporary injunction is unconstitutionally vague and overbroad. Clarification of Martinez’s overbreadth claim, at this point, is required. While Martinez used the word overbroad to describe part of his challenge to provision sixteen, a review of the record at trial and on appeal shows that Martinez was not mounting a classic overbreadth claim as it is understood in its legal and technical nomenclature. Martinez appears to have confused First Amendment legal theories throughout the duration of this case. Properly labeled, Martinez’s First Amendment challenge presented a challenge to his right to free speech. This is the claim raised and preserved for appellate review, even though it has been repeatedly mislabeled at the trial and appellate court levels.

After hearing the parties’ arguments on these issues, the trial judge denied Martinez’s request to dismiss. Martinez pled guilty in each case, and the trial judge certified Martinez’s right to appeal the motions to dismiss.

Court of Appeals

Before the Fort Worth Court of Appeals, Martinez argued, among other things, that Section 125.065(a)(2) violates the separation of powers doctrine and that provision sixteen of the temporary injunction, which prohibited him from using gang hand signs and wearing gang clothing, was unconstitutionally vague and overbroad.

The court rejected Martinez’s separation-of-powers claim, relying on its previous published opinion addressing the issue in Goyzueta v. State. In Goyzueta, the court analogized the statutes here to specific statutes in the Civil Commitment of Sexually Violent Predators Act, which the Beaumont Court of Appeals in Beasley v. Molett determined did not violate the separation of powers doctrine. Under the Civil Commitment of Sexually Violent Predators Act, a judge shall, before subjecting a person to outpatient civil commitment, impose requirements necessary, according to the judge’s determination, to ensure the person’s compliance with treatment and supervision to protect the community. It is a third degree felony offense if a person adjudicated and civilly committed as a sexually violent predator violates a judge-imposed commitment requirement. Beasley claimed that the trial judge’s individual authority to impose requirements that the judge deems necessary affords the judge the authority to create a third-degree felony in violation of the separation of powers doctrine. The Beaumont Court disagreed, concluding that the Legislature determined that a violation of a judge’s necessary requirements are third-degree felonies.

Applying the Beasley court’s reasoning, the Forth Worth Court in Goyzueta held that “the separation of powers doctrine is not violated merely because the legislature authorized trial courts to impose reasonable requirements not specifically listed in the statute to prevent known gang members from engaging in criminal activity.” Therefore, the court held that there is no violation of the separation of powers doctrine.

Turning to the constitutionality of provision sixteen of the temporary injunction, which prohibited the use of hand gang signs in this case, the court of appeals held that it is neither overbroad nor vague. We pause to note again that Martinez’s overbreadth claim presented a challenge to provision sixteen as an improper restriction on his speech in violation of the First and Fourteenth Amendments. When analyzing this claim (despite the improper label), the court identified the provision as content-neutral because it prohibited only the use of all hand gang signs in the VC Safety Zone. Martinez’s particular message, in the court’s opinion, was not the focus of the provision because it applies to all gang signs. The court determined that the burden on Martinez does not exceed the means necessary to carry out the State’s interest in maintaining a safe area.

The court then held that the provision is not unconstitutionally vague because the conduct is defined sufficiently for a reasonable person to understand and for law enforcement to apply. The subject matter is limited to hand gestures that identify an individual as a gang member and such gestures are easy to identify, especially for law enforcement.

Finally, the court examined whether the gang-clothing restriction in provision sixteen is void for vagueness. The court determined that the conduct is sufficiently defined for an ordinary person to understand and is specific enough to prevent arbitrary and discriminatory enforcement because the gang colors are known to law enforcement and are therefore easily identifiable.

Petitions for Discretionary Review

We granted Martinez’s petitions for discretionary review to decide whether the court of appeals erred in holding that Texas Civil Practice and Remedies Code Section 125.065, when sanctioned through Penal Code Section 71.021, does not violate the separation of powers doctrine. We also granted review to decide whether the court of appeals erred in concluding that provision sixteen, which prohibited Martinez from making hand gang signs and wearing gang clothing, did not violate Martinez’s right to free speech and was not unconstitutionally vague.

In his brief on the merits, Martinez also complains that Section 71.021 is void for vagueness. Although the court of appeals addressed this claim, Martinez did not present this as a ground in his petitions for discretionary review. As a result, we did not grant review to address the court of appeals’s decision on this issue, and we decline to address it at this juncture.

Estoppel

Before we address the merits of Martinez’s grounds for review, we will determine whether Martinez should be es-topped from raising any claims under the permanent injunction. We conclude that he is estopped from doing so under the circumstances here. The permanent injunction was agreed to by Martinez, through counsel, as part of a settlement to “terminate” litigation. Martinez agreed that the activities precluded by the injunction were “reasonable restrictions” under Texas Civil Practice and Remedies Code Section 125.065. Further, the duration of the injunction was fixed; it expired on April 6, 2010, if Martinez was not arrested for an offense defined as “criminal gang activity” in Chapter 125 of the Texas Civil Practice and Remedies Code. As we recently recognized in Rhodes v. State, “a party who accepts the benefits under a contract is estopped from questioning the contract’s existence, validity, or effect.” The permanent injunction was the result of a quid pro quo agreement between Martinez and the State; therefore, we conclude that Martinez is estopped from mounting any challenge to the permanent injunction. Consequently, we refuse to address the merits of Martinez’s claims as they relate to cause number 40116-F.

Separation of Powers Doctrine

The sovereign power of our state government is divided into three distinct, but equal branches: the Legislative; the Executive; and the Judicial. Each branch has a designated function, and complications arise when one branch intrudes upon or usurps the power of another. In the past, we have identified two types of separation-of-powers violations. The first occurs “when one branch of government assumes, or is delegated, to ivhat-ever degree, a power that is more ‘properly attached’ to another branch.” The second occurs “when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers.”

Our Legislature, which “declares the public policy of the state,” holds the exclusive power to make law. Thus, the Legislature possesses the sole authority to establish criminal offenses and designate applicable penalties. Generally, the Legislature may not delegate its law-making power to another branch. However, “[w]hen the Legislature itself cannot practically or efficiently perform the functions required, it has the authority to designate some agency to carry out the purpose of such legislation.” So once the Legislature declares a policy and sets a “primary standard,” it may authorize an agent to prescribe the necessary details to carry out a law’s purpose. A legislative grant of discretionary authority to an agent designated to carry out a legislative policy is proper when the Legislature has set standards for guidance that are capable of reasonable application.

So long as the statute is sufficiently complete to accomplish the regulation of the particular matters falling within the Legislature’s jurisdiction, the matters of detail that are reasonably necessary for the ultimate application, operation and enforcement of the law may be expressly delegated to the authority charged with the administration of the statute.

We presume that a law delegating authority to an agent is constitutional, and the party asserting a separation-of-powers violation must show that the Legislature’s delegation is unlawful.

Applying the foregoing analytical framework, we begin by examining the legislative history and purpose behind Section 125.065 of the Texas Civil Practice and Remedies Code and Penal Code Section 71.021. In enacting Section 125.065 in 1993, the Legislature intended to permit local governments to abate the nuisance created by street gangs involved in illegal conduct “while having a zero net effect on the already crowded prison system.” As originally enacted, Section 125.065 stated: “If the court finds that a combination or criminal street gang constitutes a public nuisance, the court may enter an order enjoining a defendant in the suit from engaging in the organized criminal activities of the combination or gang.” A violation of a court order entered under Section 125.065 was punishable only through civil contempt proceedings After some minor amendments in 1995, in 2003, the Legislature amended Section 125.065 to permit a judge to impose “other reasonable requirements to prevent the combination or gang from engaging in future gang activities.” The bill analysis noted this modification and stated that the purpose of the bill is to allow “certain entities to issue civil injunctions to deter certain gang[-]related conduct and seek aid to communities which experience high volumes of gang activity to be able to participate in the disenfranchising of gang-related gatherings.”

In 1995, the Legislature enacted Penal Code Section 71.021. The purpose of the bill was to create a criminal offense for a violation of an order entered under Section 125.065 and provide for a criminal penalty.

The clear legislative goal behind Section 125.065 is to put an end to the nuisance activities of criminal street gangs that wreak havoc on our local communities. To enforce this policy, the Legislature has chosen to provide for the possibility of both civil and criminal sanctions.

With the legislative policy established, we now evaluate whether the Legislature has provided a fixed primary standard that is capable of being reasonably applied, provides guidance, and limits discretion. A comprehensive review of the statute demonstrates that the Legislature has set a primary standard that instructs and limits a judge’s discretion when formulating and imposing “reasonable requirements to prevent the combination or gang from engaging in future gang activity.” First, any action taken by a judge is preceded by a judicial determination that the criminal gang or combination constitutes a public nuisance. A public nuisance is a “combination or criminal street gang that continuously or regularly associates in gang activities ....” Conduct constituting gang activity is defined in Section 125.061 of the Texas Civil Practice and Remedies Code as follows:

(A) organized criminal activity as described by Section 71.02, Penal Code;
(B) terroristic threat as described by Section 22.07, Penal Code;
(C) coercing, soliciting, or inducing gang membership as described by Section 22.015, Penal Code;
(D) criminal trespass as described by Section 30.05, Penal Code;
(E) disorderly conduct as described by Section 42.01, Penal Code;
(F) criminal mischief as described by Section 28.08, Penal Code, that causes a pecuniary loss of $500 or more;
(G) a graffiti offense in violation of Section 28.08, Penal Code, that:
(i) causes a pecuniary loss of $500 or more; or
(ii) occurs at a school, an institution of higher education, a place of worship or human cemetery, a public monument, or a community center that provides medical, social, or educational programs;
(H) a weapons offense in violation of Chapter 46, Penal Code; or
(I)unlawful possession of a substance or other item in violation of Chapter 481, Health and Safety Code.

By virtue of this definition, any “reasonable requirements” formulated and imposed by a judge must be tied to the foregoing list of criminal offenses. Any judge-imposed requirements must directly correlate to the elimination of “gang activity” as defined by the Legislature.

Additionally, the modification of “requirements” by the term “reasonable” in Section 125.065 serves to further guide and limit a trial judge’s discretion. The plain meaning of the term “reasonable” applies under our rules of statutory construction, and “reasonable” is defined as “[flair, proper, just, moderate, suitable under the circumstances.” Thus, when imposing “reasonable requirements” to prevent criminal gangs from engaging in future activity, a judge’s discretion is restricted by the list of criminal offenses that make up the definition of gang activity as well as the “reasonable” element.

There is also a process for review. Any “reasonable requirements” imposed by a judge are subject to appellate review. This adds an extra layer of protection from the application and enforcement of arbitrary requirements that do not serve the statute’s purpose.

Finally, we recognize that some flexibility in a judge’s formulation and imposition of “reasonable requirements” must exist due to the nature of the activity sought to be curtailed. A judge must be afforded some discretionary authority to take into account the specific facts involved in a particular case and tailor the “reasonable requirements” to those facts in an effort to prevent future gang activity and effectuate the statute’s purpose. Such permissive discretion granted by the Legislature does not render the statute violative of the separation of powers doctrine.

Our determination is also supported by precedent. In Williams v. State, we decided whether the Pink Bollworm Act constituted an unlawful delegation of legislative authority to the Commissioner of Agriculture. The Legislature made it an offense to violate any “proclamation, rule, or regulation promulgated by, or authorized to be issued,” under the Pink Boll-worm Act. Williams was convicted of failing to comply with an order issued by the Commission governing the growing of cotton in a regulated zone. On appeal, we held that the Legislature did not unlawfully delegate its lawmaking authority: “it must be remembered that it was not the [Bollworm] Commission that made it unlawful to grow cotton in the areas covered by the recommendations. The Legislature itself did that and provided the punishment to be applied for a violation thereof.” This statutory construct in this case is similar to the one in Williams. Here, the Legislature made it a Class A misdemeanor offense to violate a judge’s order imposing reasonable restrictions to curtail future criminal gang activities.

Because the Legislature has established a policy and has set forth a primary fixed standard, we hold that there is no separation of powers violation.

First Amendment — Right to Free Speech

An individual’s right to free speech and expressive conduct is protected from “arbitrary governmental interference ....” Therefore, as a general rule, the government is prohibited from “prescribing] the form or content of individual expression.”

Our first task is to decide whether provision sixteen is a content-neutral or a content-based time, place, and manner restriction. Whether the provision is content-neutral or content-based dictates the level of scrutiny that we will apply in deciding whether provision sixteen violates Martinez’s First Amendment rights.

The court of appeals held that the gang hand sign restriction was not content-based because it prohibited all gang hand signs, not just those used by the VC street gang, and therefore was not focused on the particular message. We disagree with this determination. A content-based regulation focuses on the content of speech and its impact on others. Provision sixteen banned the particular message associated with, and attributable to, the display of gang hand signs and clothing. That all gang hand signs, not just those used by the VC street gang, were prohibited does not render that prohibition content-neutral. The court of appeals’s reasoning would apply had provision sixteen banned all hand signs. However, the content of the gang hand signs and clothing provided the basis for the restrictions in provision sixteen and the purpose was to ban the message conveyed by such signs and clothing.

Because we have found that provision sixteen is content-based, we will decide whether it was narrowly tailored to serve a compelling state interest. We conclude that the strict scrutiny standard has been met in this case. First, we conclude that there was a compelling state interest. The prohibition in provision sixteen was made after the district court judge found that the VC street gang constituted a public nuisance. In making this determination, the judge specifically found:

• The Court, after examining the pleadings and attached affidavit, and hearing evidence, finds there is evidence that proves a probable right to recovery and a probable injury, specifically:
• Pursuant to Section 125.064 and 125.065, Plaintiff is entitled to the relief demanded and that relief requires the restraint of certain actions by the VC ... GANG: ... Mario Martinez....
• Harm is imminent to Plaintiff, and if the Court does not issue the temporary injunction order, Plaintiff will be irreparably injured because the Defendants will continue for an indefinite period of time to be members of the VC or members of a criminal combination who regularly associate in organized criminal activities. Moreover, unless enjoined, the Defendants will continue indefinitely to use the “VC Safety Zone # 1” for the purpose of engaging in organized criminal activity as well as other gang related conduct. Such acts constitute irreparable harm because they jeopardize the safety and well being of the citizens living in the “VC SAFETY ZONE #1”.

The State has a recognizable compelling interest in ensuring the safety of citizens in the VC Safety Zone by preventing crime, and the judge’s order in this case was issued to protect that interest.

Second, provision sixteen was narrowly tailored to serve the State’s compelling interest. It prohibited a particular type of conduct and communication based on the relevant circumstances. The making of hand gang signs and the wearing of gang clothing are a primary feature of street gangs. A street gang is identified first and foremost through its hand signs and attire; it puts the public, and most of all, rival gangs, on notice of its existence and presence. Rivalries exist between street gangs, and the use of gang hand signs and clothing, the identifier, contributes to the onset of violence between rival gangs. Additionally, gang hand signs and clothing are used to promote a criminal street gang’s overall objective 'of engaging in gang activity. What is lawful on its own, in this instance, is inextricably intertwined with the gang’s unlawful exploits. Specifically, as noted above, the objectives of the VC gang, as determined by the district court judge, include some of the following penal code offenses: organized criminal activity, terroristic threats, criminal trespass, disorderly conduct, criminal mischief, unlawful possession of controlled substances, and coercing, soliciting, and inducing gang membership. Therefore, as the judge implicitly found, gang hand signs and clothing represent an integral part of VC’s illegal exploits, and prohibiting gang hand signs and the wearing of gang clothing was one essential tool in eliminating the gang’s public-nuisance activities.

Provision sixteen was also narrowed by geography. The restrictions applied only in the VC Safety Zone clearly delineated by the district court judge. From our calculations of the delineated boundaries, the VC Safety Zone, at its largest points, was approximately 1.2 miles (or seventeen city blocks) by approximately 1.4 miles (or twenty-two city blocks) in Wichita Falls. Martinez remained free to engage in making gang hand signs and to wear gang clothing in every place in Wichita Falls, and beyond, with the exception of the defined, public VC Safety Zone. We defer to the district court judge’s determination that this area was necessary to stop the VC’s public-nuisance activities given the gang’s past practices in that area. And, as an aside, we note that we are not confronted with a situation in which an individual was charged with violating the prohibitions outlined in provision sixteen in a private residence. Thus, we render no opinion on the issue of whether the prohibitions in provision sixteen would violate an individual’s First Amendment right to free speech if the facts showed that the individual was prosecuted for using hand gang signs and wearing gang clothing inside a private residence.

Based on our analysis above, we hold that provision sixteen did not violate Martinez’s right to free speech under the First Amendment.

Vagueness Challenge

A law is unconstitutionally vague when it “fails to define the criminal offense ‘with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not permit arbitrary and discriminatory enforcement.’ ” Under the first requirement — the fair warning requirement — a law must give an ordinary person notice of what is prohibited. And under the second requirement, which prohibits arbitrary and discriminatory enforcement, a law must provide explicit standards for the law’s application; “[a] vague law im-permissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis....”

Because Martinez was charged with violating provision sixteen for making VC hand gang signs and wearing VC gang clothing, we limit our fair-warning analysis to the actual application of provision sixteen in this case. We conclude that provision sixteen was sufficiently clear so that Martinez could understand that VC hand gang signs and clothing were prohibited conduct. Martinez, determined to be an active VC gang member by the district court judge (a fact he has never contested and ultimately admitted when pleading guilty), must have been aware of the gang’s identifying hand signs and clothing and therefore the precise conduct that he was charged with, and convicted of, violating. Indeed, we note that the arrest report in cause number 39396-F reflects that Martinez told the arresting officer that the color of clothing that he was wearing were “his gang colors.” Thus, we find that his vagueness challenge to the gang-clothing prohibition to be somewhat disingenuous.

We also reject the notion that provision sixteen permitted arbitrary and discrimi-. natory enforcement. We regularly permit police officers to rely on their training and experience in making warrantless arrests, and we have recognized the ability of law enforcement to know and determine gang affiliation by observing an individual’s clothing or tattoos. We therefore conclude that, under these circumstances, it is reasonable to defer to the district court judge’s determination that law enforcement patrolling the defined VC Safety Zone, based on their training and experience, would be able to recognize the hand gang signs and clothing associated with gangs in the area and to apply the provision in a non-arbitrary and non-discriminatory fashion.

We conclude that the court of appeals was correct in holding that provision sixteen was not unconstitutionally vague.

Conclusion

For the reasons given above, we affirm the court of appeals’s judgment.

MEYERS, J., did not participate.

      . See generally Gangs in Texas 2001: an Overview, Attorney General of Texas, available at http://www oag.state.tx.us/AG_Publications/ pdfs/2001gangrept.pdf (discussing Texas gang issues).

      . Tex. Civ. Prac & Rem.Code Ann. § 125.065; see also Tex. Civ. Prac. & Rem.Code Ann. § 125.061(3) (defining “gang activity”); Tex Penal Code Ann. §§ 71.01(a) (defining "Combination”), (d) (defining "Criminal Street Gang”), 71.02 (defining the offense of engaging in organized criminal activity).

      . Tex. Civ. Prac & Rem.Code Ann. § 125.061(3).

      . Tex Penal Code Ann. § 71.021(a), (c).

      . See Tex. Civ Prac & Rem.Code Ann. § 125.067(b) (‘‘Not later than the 90th day after the date of the injunctive order, an appropriate court of appeals shall hear and decide an appeal taken by a person enjoined under this subchapter.'').

      . 01-97791-M07-40229-F.

      . 01-97791-M07-39396-F.

      . 01-97791-M07-40552-F.

      . 01-97791-M07-39397-F.

      . 01-97791-M07-40116-F.

      . Martinez v. State, Nos. 2-08-070-CR through 2-08-074-CR, 2009 WL 383760 at *2, *6, 2009 Tex.App. LEXIS 1067, at *5, *17 (Tex.App.-Fort Worth Feb. 12, 2009) (not designated for publication).

      . Martinez, 2009 WL 383760, at *2, 2009 Tex.App. LEXIS 1067, at *5-6 (citing Goyzue

        ta v. State, 266 S.W.3d 126 (Tex.App.-Fort Worth 2008)).

      . 266 S.W.3d at 135 (citing Beasley v. Molett, 95 S.W.3d 590, 607-09 (Tex.App.-Beaumont 2002, pet. denied)).

      . Tex Health & Safety Code Ann. § 841.082(a)(9).

      . Tex. Health & Safety Code Ann. § 841.085(a)-(b).

      . Beasley, 95 S.W.3d at 607-09.

      . Id.

      . Goyzueta, 266 S.W.3d at 136.

      . Id.

      . Martinez, 2009 WL 383760, at *6-8, 2009 Tex.App. LEXIS 1067, at *17-22.

      . Id.

      . Id. at *7, 2009 Tex.App. LEXIS 1067 at *19-20.

      . Id.

      . Id.

      . Id. at *7-8, 2009 Tex.App. LEXIS 1067 at *21.

      . Id.

      . Id. at *8, 2009 Tex.App. LEXIS 1067 at *22-23.

      . Id.

      . See Tex. Const, art. II, § 1.

      . Martinez, 2009 WL 383760, at *2, 2009 Tex.App. LEXIS 1067, at *5-6.

      . See Rhodes v. State, 240 S.W.3d 882, 887 n. 9 (Tex.Crim.App.2007) ("because the State prevailed at trial, we may in our discretion address subsidiary arguments that support the trial court’s ruling that were not presented to the court of appeals.”).

      . 240 S.W.3d at 891 (citing 31 C.J.S. Estoppel & Waiver § 124, at 554).

      . Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex.Crim.App.1990) (quoting Article 2 § 1 Tex. Const.).

      . Id.

      . Id.

      . Id. (quoting Ex parte Giles, 502 S.W.2d 774, 780 (Tex.Crim.App.1973)) (emphasis in original).

      . Id. (citing Rose v. State, 752 S.W.2d 529, 535 (Tex.Crim.App.1987); Meshell v. State, 739 S.W.2d 246, 252 (Tex.Crim.App.1987)) (emphasis in original).

      . State v. Rhine, 297 S.W.3d 301, 305 (Tex.Crim.App.2009) (citing State v. Dallas, 319 S.W.2d 767, 774 (Tex.Civ.App.-Austin 1958)); see also Williams v. State, 146 Tex.Crim. 430, 176 S.W.2d 177, 182 (Tex.Crim.App.1943) ("the lawmaking bodies of each State pass laws to protect the peace, health, happiness, and general welfare of society, and of the people as a whole.”).

      . Rhine, 297 S.W.3d at 306 (citing Sasser v. State, 131 Tex.Crim. 347, 98 S.W.2d 211, 212 (Tex.Crim.App.1936); David v. State, 453 S.W.2d 172, 179 (Tex.Crim.App.1970), vacated on other grounds in David v. Texas, 408 U.S. 937, 92 S.Ct. 2862, 33 L.Ed.2d 755 (1972); Grant v. State, 505 S.W.2d 279, 282 (Tex.Crim.App.1974)); Ex parte Granviel, 561 S.W.2d 503, 515 (Tex.Crim.App.1978).

      . Ex parte Granviel, 561 S.W.2d at 514; Tex. Const art. III, § 1.

      . Ex parte Granviel, 561 S.W.2d at 514.

      . Id.

      . Id.

      . Id.

      . Id. at 515.

      . House Comm. on Urban Affairs, Bill Analysis, Tex. H.B. 697, 73rd Leg. R.S. (1993).

      . Acts 1993, 73rd Leg., ch. 968, § 3, eff. Aug. 30, 1993.

      . Tex. Civil Prac. & Rem.Code Ann. § 125.066.

      . Acts 1995, 74th Leg., ch. 76, § 14.13, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 318, § 34, eff. Sept. 1, 1995.

      . Acts 2003, 78th Leg., ch. 1202, § 11, eff. Sept. 1, 2003.

      . Senate Comm, on Jurisprudence, Bill Analysis, Tex. S.B. 1010, 78th R.S. (2003).

      . Acts 1995, 74th Leg., ch. 584, § 1, eff. Sept. 1, 1995.

      . Senate Comm', on Jurisprudence, Bill Analysis, Tex. SB 1090, 74th R.S. (1995).

      . Tex. Penal Code Ann. § 71.021.

      . Rhine, 297 S.W.3d at 306.

      . Tex. Civ. Prac. & Rem.Code Ann. § 125.062; see also Tex. Civ Prac. & Rem.Code Ann. § 125.061(2) (" 'Continuously or regularly’ means at least five times in a period of not more than six months.”).

      . Tex. Civ. Prac. & Rem Code Ann. § 125.061(3).

      . Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991) ("if the meaning of the statutory text, when read using the established canons of construction relating to such text, should have been plain to the legislators who voted on it, we ordinarily give effect to that plain meaning.”) (citing Smith v. State, 789 S.W.2d 590, 592 (Tex.Crim.App.1990)).

      . Black’s Law Dictionary 656 (abridged 5th ed.1983).

      . Tex. Civ. Prac. & Rem.Code Ann. § 125.067(b).

      . Rhine, 297 S.W.3d at 323 (Keller, P.J., concurring) ("judicial review ensures that the administrative agency’s rules and other actions actually conform to the legislative standards.”).

      . See Land v. State, 581 S.W.2d 672, 673 (Tex.Crim.App.1979) ("Very often the areas that require regulation involve highly technical fields or areas where massive accumulation of data is necessary. Faced with limitations on funds, time, manpower, legislators find it impossible to acquire the requisite knowledge and expertise to enable them to responsibly legislate in the area.”).

      . Williams, 176 S.W.2d at 179, 182-83.

      . Id. at 182 (quoting Tex. Penal Code art. 1034).

      . Id. at 179, 182.

      . Id. at 183.

      . Cohen v. California, 403 U.S. 15, 19, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); see also Tinker v. Des Moines Indept. Comm. School Dist., 393 U.S. 503, 513, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) ("The Constitution says that Congress (and the States) may not abridge the right to free speech.”).

      . Cohen, 403 U.S. at 24, 91 S.Ct. 1780; see also United States v. Playboy Ent. Group, Inc., 529 U.S. 803, 812, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) ("Laws designed or intended to suppress or restrict the expression of specific speakers contradict basic First Amendment principles.”).

      . See R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Boos v. Barry, 485 U.S. 312, 319-20, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988).

      . Madsen v. Women's Health Center, Inc., 512 U.S. 753, 763-64, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (deciding that a content-neutral injunctive provision cannot burden more "speech than necessary to serve a significant government interest”); compare with Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) ("For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and it is narrowly tailored to achieve that end.”).

      . Martinez, 2009 WL 383760, at *7, 2009 Tex.App. LEXIS 1067, at *19-20.

      . Boos, 485 U.S. at 321, 108 S.Ct. 1157.

      . See id. at 318-19, 108 S.Ct. 1157 (concluding that picketing regulation was content-based because it suppressed a classification of speech — signs critical of foreign governments — but not all picketing in front of foreign embassies); People ex rel. Gallo v. Acuna, 48 Cal.App.4th 641, 657-658, 40 Cal.Rptr.2d 589 (1995) (holding that gang injunctions provisions prohibiting specific hand gang signs and gang clothing is content-related; "it is only the speech, symbols, gestures, and hand signs relating to two specific gangs.”), vacated, 14 Cal.4th 1090, 60 Cal.Rptr.2d 277, 929 P.2d 596 (1997); see e.g., Collin v. Smith, 578 F.2d 1197, 1202 (7th Cir.1978) (holding ordinance banning Nazi demonstration where symbolic clothing would be worn is content-based). But see People v. Englebrecht, 88 Cal.App.4th 1236, 1266, 106 Cal.Rptr.2d 738 (2001) (holding that injunction prohibiting "Posole” gang signs and clothing is content-neutral; "[i]t is not the content of these expressions to which the injunction looks but the fact of them and their effect on others.”).

      . See Madsen, 512 U.S. at 763-64, 114 S.Ct. 2516 (observing that the content-neutral in-junctive provisions do not require the application of the heightened level of scrutiny set out in Perry Ed. Ass’n.).

      . See Tex Civ. Prac. & Rem.Code Ann. § 125.065(a).

      . See Madsen, 512 U.S. at 768, 114 S.Ct. 2516 (the state has a “strong interest in ensuring the public safety and order ... and in protecting the property rights of all its citizens.”).

      . See Gangs in Texas 2001: an Overview, Attorney General of Texas, at 7, available at http://www.oag.state.tx.us/AG_Publications/ pdfs/2001gangrept.pdf (including gang hand signs and clothing in list as signs of gang involvement).

      . See Tex. Civ. Prac. & Rem.Code Ann. § 125.061(3) (listing criminal offenses as definition of gang activity).

      . Id.

      . See Schenck v. Pro-Choice Network of Western N.Y., 519 U.S. 357, 381-82, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) (deferring to the district court’s assessment that a fixed buffer zone around an abortion provider was necessary to keep entrances clear in light of the defendants' past conduct in the buffer zone).

      . Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App.2007) (quoting State v. Holcombe, 187 S.W.3d 496, 499 (Tex.Crim.App.2006)).

      . Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

      . Id. at 108-09, 92 S.Ct. 2294.

      . See Holder v. Humanitarian Law Project, - U.S. -, 130 S.Ct. 2705, 2719, 177 L.Ed.2d 355 (2010) ("[E]ven to the extent a heightened vagueness standard applies, a plaintiff whose speech is clearly proscribed cannot raise a successful vagueness claim under the Due Process Clause of the Fifth Amendment for lack of notice.").

      . See id.

      . See McGee v. State, 105 S.W.3d 609, 614 (Tex.Crim.App.2003) (“This court has previously upheld arrests ... when police officers personally observed behavior that was not overtly criminal but when coupled with the officers' prior knowledge produced probable cause.”); Gonzales v. State, 648 S.W.2d 684, 687 (Tex.Crim.App.1983) (“We conclude that under the facts of this case the officers' observations of appellant and his attempt to conceal the balloons in his mouth, coupled with their knowledge of the use of balloons to carry heroin in the manner observed, were sufficient to authorize appellant’s immediate arrest and the contemporaneous seizure of the balloons.''); cf. Osbourn v. State, 92 S.W.3d 531, 537 (Tex.Crim.App.2002) (“Although it cannot be presumed that everyone is capable of identifying marihuana by smell, a witness who is familiar with the odor of marihuana smoke through past experiences can testify as a lay witness that he or she was able to recognize the odor.”).

      . See e.g., Conner v. State, 67 S.W.3d 192, 201-02 (Tex.Crim.App.2001) (police officer testified that "one of appellant's tattoos might have some connection with gang membership”); Beasley v. State, 902 S.W.2d 452, 456 (Tex.Crim.App.1995) ("Officer Griego revealed that he had personally witnessed appellant wearing the gang colors and clothing which indicated appellant's membership in the Crips gang.”).

      . See Tex Code Crim. Proc. Ann. art. 61.02 (providing for law enforcement agencies to collect data on those involved in gangs for inclusion in local or regional intelligence database); Tbx.Code Crim Proc. Ann art. 61.10 (establishing Texas Violent Gang Task Force); Tex.Code Crim. Proc. Ann. art. 61.11 (providing for the attorney general to establish gang resource system to distribute information about Texas gangs); cf. Wiede v. State, 214 S.W.3d 17, 27 (Tex.Crim.App.2007) (“Although probable cause is viewed objectively, Trooper McGuairt’s testimony about his training and his opinion concerning the contents of the plastic bag provided a basis from which the trial judge could have reasonably inferred that Trooper McGuairt possessed specific knowledge that drugs are commonly packaged, carried, or transported in plastic bags.”); Davis v. State, 202 S.W.3d 149, 156-57 (Tex.Crim.App.2006) (finding it reasonable for a magistrate to infer an officer's prior experience with methamphetamine when the officer stated that he smelled an odor associated with the manufacture of methamphetamine when the officer did not offer any information about his previous experience or encounters with such an odor).

        . See Schenck, 519 U.S. at 381-82, 117 S.Ct. 855 (deferring to the district court's assessment that a fixed buffer zone around an abortion provider was necessary to keep entrances clear in light of the defendants' past conduct in the buffer zone); see also Hill v. Colorado, 530 U.S. 703, 733, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (recognizing that enforcing a law always requires some degree of discretion by law enforcement and that a degree of judgment is acceptable at times).


source: Caselaw Access Project

author: TERRIE LIVINGSTON, Chief Justice.

license: Public Domain

text:
    Dorothy MENEFEE, Individually and as Next of Friend of Evolla Tutt, and Evolla Tutt, Appellants, v. Allan B. OHMAN, Jr., M.D., Appellee.
    No. 2-09-379-CV.
    Court of Appeals of Texas, Fort Worth.
    May 27, 2010.

      Stovall & Associates, P.C., Kimberly A. Stovall and Christopher J. Paris, Dallas, for appellants.
    Decker, Jones, McMaekin, McClane, Hall & Bates, P.C., Randy J. Hall and David L. Pratt II, Fort Worth, for appel-lee.
    PANEL: LIVINGSTON, C.J.; DAUPHINOT and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Chief Justice.

This case involves health care liability claims against numerous defendants arising out of the diagnosis and treatment of appellant Evolla Tutt. In a single issue, appellants Tutt and her mother, Dorothy Menefee, contend that the trial court abused its discretion by granting appellee Allan B. Ohman, Jr., M.D.’s motion to dismiss their claims against him for failure to file an adequate expert report. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b) (Vernon Supp. 2009). Because we hold that the trial court abused its discretion by determining that appellants’ expert is not qualified to opine as to the standard of care applicable to Dr. Ohman and by also concluding that the expert report is inadequate, we reverse and remand.

Background Facts

Appellants sued Dr. Ohman and numerous others on February 24, 2009. Appellants alleged that on February 25, 2007, when Tutt was sixteen, she was admitted to Millwood Hospital and diagnosed with “major depressive disorder with psychosis.” While at Millwood, she was given “several psychiatric medications, including Seroquel, Concerta, Zoloft and Haldol, as well as Benadryl and Ativan.” After becoming “acutely confused” and falling in her room, Tutt was transported to Arlington Memorial Hospital. While at Arlington Memorial, Menefee told the staff that her daughter had changed significantly while at Millwood — when she left Tutt there she was “alert, verbal and independent” — but at Arlington Memorial she was “not making eye contact ... drooling ... non-verbal ... breathing ... but ... not communicating. Her whole body [was] shaking (Not seizure-like violently shaking, but all over trembling to the point of vibrating the wheelchair.).” Because Mene-fee thought her daughter’s condition was deteriorating while waiting at Arlington Memorial, she drove her daughter to North Hills Hospital that same day.

Appellants allege that three doctors saw Tutt on March 1, 2007 at North Hills and that Dr. Ohman examined her on March 2, noting, “I am not aware of any pediatric syndrome that would explain this situation. I guess that she is reacting to her medications that were given to her and that she will probably continue to be in this state until the medications wear off.” While at North Hills, Tutt suffered seizures and was placed on a ventilator. Appellants allege that she suffered “substantial brain damage and permanent, debilitating physical and mental impairment that she continues to suffer in the present.”

As to Dr. Ohman, appellants alleged that he owed Tutt “in an acute care setting the duty of immediate and sufficient medical response to her condition in order to prevent brain damage.” They further alleged that he “breached his standard of care by failing to immediately prescribe prophylactic anticonvulsants in sufficient dosages to prevent further seizures, given the history of the patient upon admission.”

Appellants timely served an expert report from Dr. J. Boswell Tabler, Jr. on Dr. Ohman, who filed combined objections to the sufficiency of the report and a motion to dismiss. See id. Dr. Ohman objected to Dr. Tabler’s qualifications to provide an opinion claiming that Dr. Tabler, a psychiatrist, did not explain how he has knowledge of the applicable standards of care as to Dr. Ohman, a consulting pediatrician. Dr. Ohman also objected that Dr. Tabler failed to set forth the standard of care applicable to a pediatrician. Dr. Ohman further objected that Dr. Tabler’s causation statements are conclusory. The trial court sustained Dr. Ohman’s objections, granted the motion to dismiss, and dismissed the claims against Dr. Ohman with prejudice.

Standard of Review

A trial court’s decision on a motion to dismiss under section 74.351 is subject to an abuse of discretion standard. See, e.g., Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Craig v. Dearbonne, 259 S.W.3d 308, 310 (Tex.App.-Beaumont 2008, no pet.); San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806, 811 (Tex.App.Houston [14th Dist.] 2008, no pet.); Lal v. Harris Methodist Fort Worth, 230 S.W.3d 468, 471 (Tex.App.-Fort Worth 2007, no pet.). Additionally, a trial court’s decision on whether a physician is qualified to offer an expert opinion in a health care liability claim is reviewed under an abuse of discretion standard. See Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 757 (Tex.App.-Houston [14th Dist.] 2007, no pet.).

To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id. at 242. A trial court does not abuse its discretion if it commits a mere error in judgment. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995).

Expert Report Requirements

In a health care liability claim, a claimant must serve on each defendant an expert report that addresses standard of care, liability, and causation no later than the 120th day after the claim is filed. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a), (j); Barber v. Mercer, 303 S.W.3d 786, 790 (Tex.App.-Fort Worth 2009, no pet.). If an expert report has not been served on a defendant within the 120-day period, then on the motion of the affected defendant, the trial court must dismiss the claim with prejudice and award the defendant reasonable attorney’s fees and costs. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b); Barber, 303 S.W.3d at 790. A report “has not been served” under the statute when it has been physically served but it is found deficient by the trial court. Lewis v. Funderburk, 253 S.W.3d 204, 207-08 (Tex.2008); Barber, 303 S.W.3d at 790-91. When no report has been served because the report that was served was found to be deficient, the trial court has discretion to grant one thirty-day extension to allow the claimant the opportunity to cure the deficiency. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c); Barber, 303 S.W.3d at 791.

A report is deficient (therefore subjecting a claim to dismissal) when it “does not represent an objective good faith effort to comply with the definition of an expert report” in the statute. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(l); Barber, 303 S.W.3d at 791. While the expert report “need not marshal all the plaintiffs proof,” Palacios, 46 S.W.3d at 878, it must provide a fair summary of the expert’s opinions as to the “applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6); Barber, 303 S.W.3d at 791.

To qualify as a good faith effort, the report must “discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit.” Palacios, 46 S.W.3d at 875; Barber, 303 S.W.3d at 791. A report does not fulfill this requirement if it merely states the expert’s conclusions or if it omits any of the statutory requirements. Palacios, 46 S.W.3d at 879; Barber, 303 S.W.3d at 791. The information in the report “does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.” Palacios, 46 S.W.3d at 879; Barber, 303 S.W.3d at 791. When reviewing the adequacy of a report, the only information relevant to the inquiry is the information contained within the four corners of the document alone. Palacios, 46 S.W.3d at 878; Barber, 303 S.W.3d at 791; see Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). This requirement precludes a court from filling gaps in a report by drawing inferences or guessing as to what the expert likely meant or intended. Barber, 303 S.W.3d at 791; see Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.) (citing Bowie Mem’l Hosp., 79 S.W.3d at 53).

Qualifications of Expert Witness

Appellants contend that Dr. Tabler, a psychiatrist, is qualified to opine as an expert regarding the standard of care applicable to Dr. Ohman, a pediatrician consulting in the emergency room.

To be an “expert” on the departure from a physician’s standard of care, a person must be a physician who

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

Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(5)(A), § 74.401(a) (Vernon 2005). In determining whether a physician is qualified on the basis of training or experience, courts must consider whether the physician who completed the report (1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim, and (2) is actively practicing medicine in rendering medical care services relevant to the claim. Id. § 74.401(c). In other words,

there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question.... [T]he proponent of the testimony has the burden to show that the expert possesses special knowledge as to the very matter on which he proposes to give an opinion.

Ehrlich v. Miles, 144 S.W.3d 620, 625 (Tex.App.-Fort Worth 2004, pet. denied) (quoting Broders v. Heise, 924 S.W.2d 148, 152-53 (Tex.1996)); see Barber, 303 S.W.3d at 791-92. For this reason, the offered report (along with the physician’s curriculum vitae) must generally demonstrate that the expert has “knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.” Ehrlich, 144 S.W.3d at 625 (quoting Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex.2003)); see Tex.R. Evid. 702; Barber, 303 S.W.3d at 792.

However, “there are certain standards of medical care that apply to multiple schools of practice and any medical doctor.” Blan v. Ali, 7 S.W.3d 741, 746 (Tex.App.-Houston [14th Dist.] 1999, no pet.). If the subject matter is common to and equally recognized and developed in all fields of practice, any physician familiar with the subject may testify as to the standard of care. Broders, 924 S.W.2d at 152; Barber, 303 S.W.3d at 792 (holding that anesthesiologist who had participated in hundreds of cardiothoracic surgeries could testify to proper padding and positioning techniques for which a general surgeon should have knowledge). Therefore, a physician “who is not of the same school of medicine [as the defendant] ... is competent to testify if he has practical knowledge of what is usually and customarily done by a practitioner under circumstances similar to those confronting the defendant.” Ehrlich, 144 S.W.3d at 625; see also Marling v. Maillard, 826 S.W.2d 735, 740 (Tex.App.-Houston [14th Dist.] 1992, no writ).

The proper inquiry concerning whether a doctor is qualified to testify is not his or her area of practice but rather the doctor’s familiarity with the issues involved in the claim before the court. Foster v. Richardson, 303 S.W.3d 833, 843 (Tex.App.-Fort Worth 2009, no pet.) (holding that internist specializing in physical medicine and rehabilitation could provide expert report against orthopedist in case involving delayed diagnosis of ankle injury and resulting prolonged pain); Blan, 7 S.W.3d at 745 (holding that neurologist could provide expert report against cardiologist and emergency room doctors indicating that the standard of care for treating a stroke patient is the same for all doctors).

Dr. Tabler’s Report

Dr. Tabler is a board-certified psychiatrist who at the time of authoring his report had been practicing almost twenty-four years, twenty of those years in private practice. At the time he authored the report, he was the Medical Director of the Behavioral/Medicine Unit of Kindred Hospital, Medical Director of IOP Senior Perspectives, Medical Director of the Gero-Psychiatric Unit of Ten Broeck Hospital, and a consultant to the Pathways Brain Injury Unit, Christopher East Healthcare Center in Louisville, Kentucky. His primary practice area was in psychopharma-cology. He had previously served as the medical director of a different hospital’s behavioral health unit and as medical director of Ten Broeck Hospital’s acute unit; he had also worked as a consultant for several different health care programs, as an attending physician at the Kentucky Correctional Center, and as a clinical faculty member at the University of Louisville psychiatry department.

Dr. Tabler concluded that the negligence of all the physicians and staff who saw Tutt at Millwood, Arlington Memorial, and North Hills “was a proximate cause of [her] injuries and permanent brain damage.” He noted that Dr. Ohman saw Tutt for a “pediatric internal medicine consultation” while she was at North Hills. The pertinent parts of Dr. Tabler’s report follow.

Dr. Tabler stated that when Tutt was admitted to Millwood, doctors diagnosed her with “major depressive disorder with psychosis.” Her prescriptions for Concer-ta, Seroquel, and Zoloft were continued at the hospital, and doctors additionally prescribed her Haldol, Ativan, and Benadryl. On Tutt’s second day at Millwood, she had a temperature of 100.2, was lethargic during group therapy, and appeared to fall asleep at times during therapy. Two days later, she became “acutely confused” and fell, suffering soft tissue damage on her face and head, and precipitating her transport to Arlington Memorial.

After Tutt’s mother, Menefee, moved her from Arlington Memorial to North Hills, the staff at North Hills noted that Tutt was “feverish with an unstable blood pressure.” One of the doctors who initially saw her — when she was running a fever of 102 — assessed Tutt as having an “[a]l-tered [mjental [s]tatus ..., likely cause may be secondary to her psychiatric medications side effects like Neuroleptic Malignant Syndrome.” The doctor recommended monitoring Tutt in the emergency room.

Dr. Tabler notes the following about Dr. Ohman’s examination of Tutt:

On March 2, 2007 [Tutt’s second day at North Hills] at 11:59 a.m., the patient had a pediatric internal medicine consultation by [Dr. Ohman]. After receiving a history of a fall at Millwood following administration of medications, including Haldol and Benadryl, [sic] He states that “during the fall, she was also found to have been incontinent and had an episode of emesis [vomiting]. Since that point she has been unresponsive to painful stimuli.” Dr. Ohman further noted that the patient was “drooling” and “will not speak.” His impression was: “We have a 16 yr. old girl with mental status changes following medication adjustments over at Millwood. The patient has had a negative electroencephalogram which makes seizure and postic-tal state unlikely. She has had a lumbar puncture and multiple cultures are pending. She is also on a great deal of antibiotics as we await those cultures. I am not aware of any pediatric syndrome that would explain this situation. I guess that she is reacting to her medications that were given to her and that she will probably continue to be in this state until the medications wear off.” Dr. Ohman’s plan at this time was stated as follows: “I have gone ahead and ordered four point restraints for her since she is not responding to commands and she was getting out of bed. I agree with all the tests that have already been ordered. I am going to look to see if maybe a sed rate and ANA have been done just to make sure that we have not missed some sort of unusual autoimmune disease presentation. However, I think our best bet is to go ahead and support her and give a chance for the medications to wear out of her system.”

Dr. Tabler concluded his review of the facts as follows:

Evolla Tutt suffered a major catastrophic neurologic event(s) from which she has never recovered. She now requires complete around-the-clock care. Diming her stay at Millwood and directly related to her care at Millwood, the chain of event was initiated. This negligent chain of events continued at AMH and NHH and eventually left her with a permanently altered mental state, bowel and urinary incontinence, nystagmus, and spastic paralysis. The negligence by the physicians and staff at all three hospitals ... as detailed herein was a proximate cause of Evolla’s injuries and permanent brain damage. [Emphasis added.]

Under the heading, Familiarity With The Standard of Care, Dr. Tabler opined,

As a board-certified psychiatrist, I am consulted by others to evaluate patients and to make treatment recommendations for similar cases as Evolla Tutt. I have knowledge of the accepted standard of cai'e for the diagnosis, care and treatment of the illness, injury or conditions, and am qualified based on training and experience to offer the standard of care expert opinions expressed herein. I am familiar with the standard of care of a reasonable and prudent physician for evaluation and treatment of major depressive disorder with psychotic features, schitzo-affective disorder and/or schizophrenia.
I am practicing medicine at the time this expert report was drafted and was at the time the patient’s injury occurred in the fields of psychiatry and neuro-pharmacology. From September 2006 to the present, I have served as the medical director of the Behavioral/Medicine Unit of Kindred Hospital in Louisville, Kentucky, managing the treatment of a broad range of psychiatric emergencies and disorders, and working closely with other disciplines providing emergent, intensive and long-term care to our patients....
By way of my education, training, independent research and professional experience, I have knowledge of the accepted standards of care for the diagnosis, care and treatment of medical emergencies arising in patients during the treatment of inpatient/acute psychiatric disorders, as in this particular case....
During the course of my practice in the field of psychiatry and neurophar-macology, I work closely with physicians practicing in the fields of internal medicine, neurology, toxicology, emergency medical care, pharmacology and pulmonary medicine, as well as registered nurses, licensed professional counselors and physicians’ assistants working under my supervision. The effects of the various psychoactive substances routinely utilized to treat psychiatric disorders implicate all of these disciplines due to the great importance of balancing the associated risks of psychiatric medicines with the purported benefits. In the course of caring for patients, I have therefore developed expertise in these related disciplines in order to effectively recognize and appropriately treat adverse reactions to medications and other medical complications when and if they arise.
My training and publications in psychiatry, psychotropic medications, depression, seizure, brain injury, neuro-pharmacology and related fields allow appropriate background and experience to express an opinion on the causes relating to the multiple standards of care in this case. Standards of care in this case cross practice areas — there are many aspects of medical treatment that cross practice specialty areas and in such situations, the appropriate standard of care will be the same for most providers regardless of their specialties .... [Emphasis added.]

After explaining his familiarity with the standard of care, Dr. Tabler explained the relevant conditions at issue. According to Dr. Tabler, these are

• Neuroleptic malignant syndrome: This is a potentially-fatal brain and bodily disorder with sequelae requiring active medication treatment if suspected to prevent complications. The classic triad involves the autonomic nervous system (fever in 100%), the extrapyramidal system (rigidity) (tremor), and cognitive changes....
Epileptic Seizure: An epileptic seizure is a transient symptom of abnormal, excessive or synchronous neuronal activity in the brain. It can manifest as an alteration in mental state, tonic or clonic movements, convulsions, and various other psychic symptoms. The medical syndrome of recurrent, unprovoked seizures is termed epilepsy, but seizures can occur in people who do not have epilepsy.
Status epilepticus: This refers to a life-threatening condition in which the brain is in a state of persistent seizure that will not stop without intervention.

Dr. Tabler set forth a lengthy standard of care paragraph applicable to all physicians at North Hills, as well as a shorter paragraph specific to each physician. The general paragraph reads as follows:

Evolla Tutt presented upon admission at North Hills Hospital as a patient with suspected seizure activity who had recently been administered both atypical and first generation antipsychotics, both of which are known to reduce the patient’s seizure threshold. Due to the patient’s elevated temperature, reported history from her mother and possibly other sources, recent drug regimen and non-responsiveness, Neuroleptic Malignant Syndrome (NMS), central nervous system infection including possible pathogen-induced encephalitis, serotonin syndrome, catatonic schizophrenia, thy-reotoxic crisis and possibly acute neuro-leptic intoxication would properly have been considered possible explanations for her health condition in a differential diagnosis. Irrespective of the ultimate cause of the patient’s condition, the standard of care required North Hills Hospital and the medical care providers treating Ms. Tutt at that facility to immediately come to the conclusion that the risk for the patient of continued seizure activity far outweighed any risks associated with the administration of prophylactic anticonvulsants. North Hills Hospital’s failure to adequately buffer Ms. Tutt’s defenses against seizure in this instance and abate her rapidly deteriorating health status post-Millwood and Arlington Memorial’s substandard treatment caused the patient to suffer many more seizures, which to a reasonable degree of medical probability were a producing cause of the substantial brain damage that has permanently disabled her....

As to the specific alleged standard of care applicable to Dr. Ohman, Dr. Tabler opined,

Dr. Ohman began treating the patient on March 2 at North Hills Hospital at 9:51 A.M. in his capacity as a consulting pediatrician. Dr. Ohman failed the patient while she was under his care at the North Hills Hospital facility, contributing to Ms. Tutt’s injuries. Dr. Ohman owed the patient in an acute care setting the duty of immediate and sufficient medical response to her condition in order to prevent brain damage. The patient was admitted with suspicion of recent seizure activity and Neuroleptic Malignant Syndrome (NMS) following recent increases in her antipsychotic medications at Millwood Hospital, per the history provided by the patient’s mother. Dr. Ohman notes the following:
[Here, Dr. Tabler recites Dr. Ohman’s notes indicating his knowledge of her history of medications, subsequent confusion and fall, and her condition at Arlington Memorial, as well as the results of his examination.]
Dr. Ohman breached his standard of care by failing to immediately prescribe prophylactic anticonvulsants in sufficient dosages to prevent further seizures, given the history of the patient upon admission. To a reasonable degree of medical probability, this failure by Dr. Ohman to intervene at this early point in the patient’s treatment at North Hills Hospital contributed to her continued seizures and ultimate brain damage. [Emphasis added.]

Dr. Tabler Is Qualified To Render Expert Report

Dr. Ohman contends that Dr. Tablets report is deficient because Dr. Ta-bler does not indicate that he has ever participated in the provision of pediatric care to a patient such as Tutt. Specifically, Dr. Ohman contends that his “limited pediatric consulting role in this case require[s] that the allegations raised against him be substantiated by an expert who has the qualifications to opine on the treatment provided in that limited role.” He contends that Dr. Tabler does not indicate that he has ever worked with a pediatrician, has practical knowledge of what is customarily or usually done by a pediatrician under similar circumstances, or has any experience treating patients like Tutt.

A pediatrician is a specialist in “the study and treatment of children in health and disease during development from birth to adolescence.” Stedman’s Medical Dictionary 1446 (28th ed. 2006) (emphasis added). Reading Dr. Tabler’s report as a whole, he clearly indicates that he has experience evaluating and making treatment recommendations for patients “in similar cases as” Tutt’s and that his knowledge of the standard of care applies to the emergency treatment of psychiatric patients “as in this particular case.” See Barber, 303 S.W.3d at 794 (holding that court must not view any one part of expert report or curriculum vitae in isolation). He does not limit this experience and knowledge to a particular age group but to the underlying condition at issue.

Although Dr. Ohman characterizes treatment of Tutt’s condition as the provision of pediatric services to Tutt, it is more properly characterized as the evaluation and treatment of a pediatric patient, with an underlying diagnosis of major depressive disorder and psychosis, presenting in an emergency room setting with suspicion of recent seizure activity and neuroleptic malignancy syndrome. Dr. Tabler’s training and experience — including his work in both psychiatric and acute care settings— show that he is qualified to render an expert opinion as to the treatment of such a condition. See Foster, 303 S.W.3d at 843; Blan, 7 S.W.3d at 745-47; see also Barber, 303 S.W.3d at 794-96 (concluding that entirety of expert report showed that anesthesiologist was qualified to render expert opinion against general surgeon because report showed anesthesiologist’s experience with the type of surgery at issue even though report never stated that anesthesiologist had experience working specifically with general surgeons). And although Dr. Tabler does not specifically mention working with pediatricians in his report, he does state that he has worked specifically with internal medicine specialists and emergency room doctors and that the standard of care for treatment of conditions similar to Tutt’s crosses practice specialties; moreover, he notes in his report that Dr. Ohman performed a pediatric internal medicine evaluation of Tutt in the emergency room. Accordingly, we conclude and hold that, reading Dr. Ta-bler’s report in its entirety, he is qualified to render an expert opinion as to the standard of care applicable to Dr. Ohman’s treatment of Tutt’s condition in this case and, therefore, that the trial court abused its discretion by determining otherwise.

Articulation of Standard of Care And Breach Are Sufficiently Specific

In his objections to Dr. Tabler’s report, Dr. Ohman also claimed that Dr. Tabler failed to specifically set forth the standard of care applicable to Dr. Ohman as a pediatrician and how Dr. Ohman breached such a standard. See Bowie Mem’l Hosp., 79 S.W.3d at 52-53; Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 340 (Tex.App.-Texarkana 2004, pet. denied). But as set forth above, Dr. Tabler not only set forth a standard of care applicable to all of the physicians at North Hills, he also later specifically described that standard in reference to Dr. Ohman’s care of Tutt. He also specifically described how Dr. Oh-man allegedly breached that standard of care: by failing to immediately prescribe anticonvulsants for Tutt instead of waiting for the other medications to “wear out of her system.” Accordingly, we conclude and hold that the trial court abused its discretion by sustaining this objection to Dr. Tabler’s report. See Davisson v. Nicholson, 310 S.W.3d 543, 555-56 (Tex.App.Fort Worth 2010, no pet.) (op. on reh’g); Foster, 303 S.W.3d at 843.

Sufficiency of Causation Opinion

Dr. Ohman’s final objection to Dr. Tabler’s report is that its statements regarding causation are conclusory. See Borne Mem’l Hosp., 79 S.W.3d at 53. According to Dr. Ohman, this court must engage in impermissible gap-filling to determine how Dr. Ohman’s alleged breach of the described standard of care caused Tutt’s injuries. Dr. Tabler faults Dr. Oh-man for one thing: failing to immediately prescribe anticonvulsant medication to Tutt to stop her seizures. He states earlier in his report that because all of the doctors continually failed to prescribe such anticonvulsant therapy after recognizing the seizure activity, Tutt continued to have seizures as a result of the syndrome caused by the medications she had been given at Millwood, and that the continuation of those seizures caused her resulting brain damage. In other words, Dr. Tabler’s report indicates that each doctor failed to prescribe the anticonvulsants, that each failure contributed to more seizures, and that the multiple seizures caused the injury. Therefore, we conclude and hold that this statement of causation is sufficiently specific and not conclusory and that the trial court abused its discretion by granting this objection to Dr. Tabler’s report. See Granbury Minor Emergency Clinic v. Thiel, 296 S.W.3d 261, 273 (Tex.App.-Fort Worth 2009, no pet.); Apodaca v. Miller, 281 S.W.3d 123, 128-29 (Tex.App.-El Paso 2008, no pet.); Chandler v. Singh, 129 S.W.3d 184, 191-92 (Tex.App.-Texarkana 2004, no pet.).

Having determined that the trial court abused its discretion by granting Dr. Oh-man’s objections to Dr. Tabler’s report, we conclude and hold that the trial court likewise abused its discretion by dismissing appellants’ claims against Dr. Ohman. We sustain appellants’ sole issue.

Conclusion

Having sustained appellants’ sole issue, we reverse the trial court’s order and remand this case to the trial court for further proceedings on appellants’ claims against Dr. Ohman.

      . Although appellants had requested a thirty-day extension of time to file an amended report, the trial court denied this request.

      . The doctors at Millwood discontinued the Seroquel and started Tutt on Ability.


text:
    Mark Edward SETTLEMIRE, Appellant, v. The STATE of Texas, State.
    No. 2-09-214-CR.
    Court of Appeals of Texas, Fort Worth.
    July 8, 2010.
    Rehearing and En Banc Reconsideration Overruled April 12, 2010.
    Discretionary Review Refused Jan. 12, 2011.

      Abe Factor, A. Clay Graham, Gerrard Kardonsky, Factor & Campbell, L.L.P., Fort Worth, TX, for Appellant.
    Joe Shannon, Jr., Crim. Dist. Atty., Charles M. Mallín, Asst. Crim. Dist. Atty. and Chief of the Appellate Section, C. James Gibson and Dawn Ferguson, for State.
    PANEL: LIVINGSTON, C.J.; MEIER, J.; and CHARLES BLEIL (Senior Justice, Retired, Sitting by Assignment).
   OPINION

CHARLES BLEIL, Senior Justice, (Retired).

I.Introduction

Mark Edward Settlemire appeals following his conviction by a jury of the misdemeanor offense of driving while intoxicated. In one point of error, he claims that the admission of his breath test results violated his right to be confronted by witnesses against him as guaranteed by the Sixth Amendment of the United States Constitution. We conclude no violation of his rights occurred and affirm his conviction.

II.Factual and Procedural History

Grand Prairie Police Officer Todd Mathew Brannen was on duty the night of March 1, 2006, when he stopped at a red light behind Settlemire. When the light turned green, Settlemire did not proceed. Settlemire got out of his truck saying that it had broken down. Upon talking with Settlemire, the officer noticed that Settle-mire’s breath smelled of alcohol and that his eyes were glassy and red. He told the officer that he had gone to a bar after work, where he consumed two beers. The officer suspected that Settlemire was intoxicated.

After performing several field sobriety tests, all of which Settlemire failed, the officer arrested Settlemire. The results of the breath test administered to Settlemire confirmed that he was intoxicated.

At trial, and over Settlemire’s Confrontation Clause objections, the trial court admitted into evidence the breath test results and the maintenance logs for the intoxilyzer machine. Lori Fuller, the technical supervisor in charge of the machine at the time of the trial, testified and sponsored the test results and maintenance records. Fuller was not the supervisor in charge of the machine when Settlemire was arrested.

III.No Confrontation Clause Violation

We now address the claimed error that the admission of the intoxilyzer maintenance records and the breath test results violated Settlemire’s constitutional right to confront the witnesses against him as provided in the Sixth Amendment. See U.S. Const, amend. VI. Out-of-court statements of a testimonial nature are not admissible unless the declarant is unavailable to testify and the defendant has had a previous opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004).

Settlemire contends that the intoxilyzer maintenance records and breath test results are testimonial in nature and that the trial court erred in admitting those records over his objection. To support his argument, Settlemire relies on the United States Supreme Court’s holding in Melendez-Diaz v. Massachusetts, — U.S. -, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the defendant was on trial for selling cocaine. The State of Massachusetts offered “certificates of analysis” in the form of affidavits from lab technicians to prove that the substance in question was cocaine. Id. at 2531. The Court held that the certificates in question were a “core class of testimonial statements” covered by the Confrontation Clause. Id. at 2532 (relying on Crawford, 541 U.S. at 51, 124 S.Ct. at 1364). In so holding, the Court explained that the analysts who prepared the certificates were therefore “witnesses” who the defendant has a right to confront. Melendez-Diaz, 129 S.Ct. at 2532.

The Court in Melendez-Diaz was apparently aware that its holding might be construed to extend to technical analysts who calibrate and operate equipment, such as the person who supervised Settlemire’s in-toxilyzer test equipment here. The Court explained:

[W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.... Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.

Id. at 2532 n. 1.

Here, the individual, Fuller, who testified about the intoxilyzer’s status although she did not supervise it at the time of Settlemire’s intoxilyzer test, is precisely the type of analyst that the Court anticipated might be challenged based on its holding in Melendez-Diaz. The Court made clear, however, that it did not intend its holding to “sweep[ ] away an accepted rule governing the admission of scientific evidence.” Id. at 2533.

We shall not construe Melendez-Diaz as doing what the Court clearly stated it was not doing. We hold that Settlemire’s rights of confrontation were not violated. We overruled Settlemire’s sole point.

IV. Conclusion

Having overruled Settlemire’s sole point, we affirm the trial court’s judgment.


author: Justice BENAVIDES.

text:
    Roy PENA, Appellant, v. The STATE of Texas, Appellee.
    No. 13-09-00345-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    July 15, 2010.

      Cathy Clark, Clark & Associates, Corpus Christi, for Appellant.
    Anna Jimenez, Dist. Atty., James D. Ro-senkild, Asst. Dist. Atty., Corpus Christi, for Appellee.
    Before Justices RODRIGUEZ, BENAVIDES, and VELA.
   OPINION

Opinion by

Justice BENAVIDES.

Appellant, Roy Pena, appeals his conviction after pleading guilty to burglary of a habitation. See Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003). Pena, as a two-time repeat felony offender, was subject to punishment as a habitual felony offender and twenty-five to ninety-nine years’ imprisonment. See id. § 12.42(d) (Vernon Supp.2009). By way of a plea bargain, Pena confessed to the burglary of the home in exchange for a sentence cap on his punishment and for having his sentence enhanced by only one prior felony. Pena agreed to be charged with a first-degree felony for the burglary of a habitation and to a reduced sentence of no more than twenty-five years’ imprisonment. See id. § 12.42(b). The trial court approved the plea bargain and sentenced Pena to fifteen years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. By a single issue, Pena argues that he received ineffective assistance of counsel. We dismiss for lack of jurisdiction.

I. Background

On December 12, 2008, eighteen-year-old S.R. was alone at her family home in Corpus Christi, Texas. She heard the back doorknob rattling, as if someone were trying to open the door. S.R. then heard one of the rear windows open. From about ten to fifteen feet away, she saw a man’s hands protrude through the blinds to grab the window frame, as though he were trying to pull himself in through the window. She saw the man’s face and recognized him as her neighbor, Roy Pena. S.R. grabbed a pair of scissors for protection and yelled at Pena. Upon hearing S.R. yell, Pena jumped out of the window and fled towards his house, yelling and screaming. S.R. called the police. When the police arrived, they found smudges on the window, which were later identified as Pena’s fingerprints. Neighbors told the officers that they recognized the screams as Pena’s. Police subsequently went to Pena’s home and arrested him. On February 20, 2009, Pena was charged with burglary of a habitation as a habitual felony offender.

After Pena pleaded guilty pursuant to a plea bargain with the State, the trial court sentenced him to fifteen years’ imprisonment and certified Pena’s right to appeal. On May 18, 2009, Pena filed a notice of appeal with the trial court. Four days later, Pena filed motions for a new trial and in arrest of judgment, which were both denied. On appeal, Pena claims that he suffers from schizophrenic-paranoia and that his trial counsel provided him with ineffective assistance.

II. Jurisdiction

Before we can discuss the merits of Pena’s appeal, we must first address the State’s argument that we should dismiss his appeal. The State contends that Pena does not have the right to an appeal because this is a plea bargain case and Pena’s sentence did not exceed that recommended by the State. The State asserts that the trial court’s certification of the appeal is defective because it indicates that Pena did not make a plea bargain and has the right to appeal, when he in fact did enter into a plea bargain.

Because this issue concerns a plea bargain, “we review the record to determine (1) our jurisdiction, and (2) whether the trial court’s certification is correct.” Morgan v. State, 185 S.W.3d 535, 537 (Tex.App.-Corpus Christi 2006, pet. ref'd). The threshold issue is whether there was a plea bargain. Id. A plea bargain occurs when “a defendant’s plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant....” Tex. R.App. P. 25.2(a)(2). There are four general elements necessary to constitute a plea bargain: “(1) that an offer be made or promised, (2) by an agent of the S.tate in authority, (3) to promise a recommendation of sentence or some other concession such as a reduced charge in the case, (4) subject to the approval of the trial judge.” Wayne v. State, 756 S.W.2d 724, 728 (Tex.Crim.App.1988). At trial, the judge expressly notified Pena that he was accepting a plea bargain and was unlikely to be allowed to appeal it:

[Judge:] Now, look, Mr. Pena, here’s the deal: It sounds like a[n] open plea but it’s really a plea agreement, okay? It’s a deal that your lawyer has worked out with the State’s lawyer and the deal is this, they’re agreeing to drop one of the enhancements and they’re agreeing to a cap.... [I]f I give you a sentence within that range you’re not going to have a right to appeal essentially because I will have followed the deal. You understand that?
[Defendant:] Yes, sir.

Neither party contests that this is a plea bargain case. The record demonstrates that Pena entered into a plea bargain with the State and that he knew that an appeal would be impermissible. See id. The trial court did not exceed the recommended punishment of twenty-five years. We conclude that this is a plea bargain case.

We must next determine whether Pena is entitled to appeal his conviction. “In a plea bargain case ... a defendant may appeal only (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court’s permission to appeal.” Tex.R.App. P. 25.2(a)(2). Pena raised no written motions prior to trial, and the trial court did not affirmatively grant permission to appeal. See Morgan, 185 S.W.3d at 538 (noting that even though the trial court certified an appeal, “[t]he trial court did not affirmatively grant permission to appeal”). While the trial court certified Pena’s appeal, we must decide whether, as the State argues, that certification is defective. See Dears v. State, 154 S.W.3d 610 (Tex.Crim.App.2005). If the certification is defective, then Pena does not have the right to appeal his conviction, and we do not have jurisdiction. See Tex.R.App. P. 25.2(a)(2); see also Morgan, 185 S.W.3d at 538.

In determining whether a certification is defective, this Court has a “duty” to examine the record. Dears, 154 S.W.3d at 614. “[A] defective certification should include a certification which is correct in form but which, when compared with the record before the court, proves to be inaccurate.” Id. Pena’s certification of appeal is defective because it inaccurately characterizes his conviction as not arising out of a plea bargain, when the record demonstrates there was a plea bargain. See id. Because the requisites of rule 25.2 have not been satisfied, we do not have jurisdiction over this appeal. Tex.R.App. P. 25.2(a)(2); Morgan, 185 S.W.3d at 538.

Having determined that Pena’s appeal was the result of a plea bargain and that the trial court’s certification was defective, the lingering issue is whether we must order the trial court to amend the certification or whether we can dismiss the case without such a step. See Few v. State, 230 S.W.3d 184, 186-90 (Tex.Crim.App.2007) (remanding case where appellant filed notice of a appeal under an incorrect cause number); see also Menjivar v. State, 264 S.W.3d 137, 142 (Tex.App.Houston [1st Dist.] 2007, no pet.) (interpreting Few to require a remand to the trial court to correct a defective certification); but see Morgan, 185 S.W.3d at 538-39 (dismissing a case for lack of jurisdiction when a certification was defective). We hold that under the circumstances here, we must dismiss.

In Few, the Texas Court of Criminal Appeals addressed the dismissal of a case due to an incorrect cause number in Few’s notice of appeal. 230 S.W.3d at 186. Dismissal for an incorrect cause number, unlike a defective certification where there is no underlying right of appeal, bars an appeal based on a purely procedural error, rather than a substantive restriction. See id. at 189 (“[O]ur appellate rules ... disfavor() disposing of appeals based upon harmless procedural defects.”). In Few, the court noted that “[t]he Texas Rules of Appellate Procedure were amended in 2002 to prevent trivial, repairable mistakes or defects from divesting appellate courts of the jurisdiction to consider the merits of both State and defense appeals in criminal cases.” Id. at 187. Here, a substantive rule, not the defect, prevents us from hearing Pena’s appeal. See Tex.R.App. P. 25.2(a)(2); see also Greenwell v. Thirteenth Court of Appeals, 159 S.W.3d 645, 649 (Tex.Crim.App.2005).

An appellate court can use its discretion to determine when it is appropriate to require a new certification under rule of appellate procedure 37.1. See Dears, 154 S.W.3d at 614 (concluding “that an appellate court has the ability ... to use Rules 37.1 and 34.5(c) to obtain another certification, whenever appropriate”); see also Tex.R.App.P 34.5(c), 37.1. It is appropriate to order a trial judge to amend a certification of appeal when a procedural error “abridge[s]” a defendant’s right to appeal. See Dears, 154 S.W.3d at 614. (noting that appellate rule 37.1 is the vehicle for amending defective certifications where a correctable error impedes a defendant’s right to appeal). Here, the trial court’s defective certification enlarges Pena’s rights by stating that he has a right to appeal when he does not. Pena’s appeal is easily distinguishable from Few’s appeal: Few had the right to appeal, but made a trivial procedural mistake; Pena had no right to appeal in the first place.

Unlike Few, Pena has no right to appeal this case because he confessed in exchange for a plea bargain. Tex.R.App. P. 25.2(a)(2); Wayne, 756 S.W.2d at 728; see Few, 230 S.W.3d at 186. As such, rule 25(a)(2) does not authorize Pena’s appeal. See Morgan, 185 S.W.3d at 538. “We resolve the deficiency in the trial court’s certification against a finding of jurisdiction.” Id. at 538. “A court of appeals, while having jurisdiction to ascertain whether an appellant who plea bargained is permitted to appeal by rule 25(a)(2), must dismiss a prohibited appeal without further action, regardless of the basis for the appeal.” Chavez v. State, 183 S.W.3d 675, 680 (Tex.Crim.App.2006) (en banc). While the trial judge erred in certifying Pena’s case for appeal, the fact remains that Rule 25(a)(2) does not grant us jurisdiction to hear this appeal. Morgan, 185 S.W.3d at 538. See Greenwell, 159 S.W.3d at 649. Even if we were to order the trial court to amend its certification, Pena would still be unable to appeal his conviction. See Tex.R.App. P. 25.2(a)(2); see also Morgan, 185 S.W.3d at 538; Greenwell, 159 S.W.3d at 649. We conclude that we do not need to order the trial court to correct the certification because the record affirmatively demonstrates that Pena does not have the right to appeal.

III. Conclusion

For the foregoing reasons, we dismiss Pena’s appeal for lack of jurisdiction.

      . Pena previously pleaded guilty to indecency with a child when he exposed himself to nine-year-old S.R.