author: JEFFREY V. BROWN, Justice.

text:
    TEXAS CYPRESS CREEK HOSPITAL, L.P. d/b/a Cypress Creek Hospital, Appellant, v. Marshelia HICKMAN, Individually and as Personal Representative of the Estate of Jayme R. Cox, Appellee.
    No. 14-10-00149-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 2, 2010.

      Ryan Lee Clement, Houston, for appellant.
    Martin Jay Cirkiel, Round Rock, for ap-pellee.
    Panel consists of Justices ANDERSON, FROST, and BROWN.
   OPINION

JEFFREY V. BROWN, Justice.

In this accelerated interlocutory appeal, appellant Texas Cypress Creek Hospital, L.P. d/b/a Cypress Creek Hospital (“Cypress Creek”), complains of the trial court’s denial of its motion to dismiss the healthcare-liability claims of appellee Marshelia Hickman, individually and as personal representative of the Estate of Jayme R. Cox, on the grounds that Hickman’s expert reports do not satisfy the expert-report requirements of Texas Civil Practice and Remedies Code chapter 74. Hickman responds that she was not required to provide expert reports because her claims are not healthcare-liability claims, but instead are based on violations of the Patient’s Bill of Rights as provided in Texas Health and Safety Code chapter 321. We reverse and remand.

I

On April 26, 2007, Jayme Cox voluntarily admitted herself to Cypress Creek. She had been diagnosed with bipolar disorder, post-traumatic stress disorder, and attention deficit hyperactivity disorder, and she was determined to be a suicide risk. At the time of her admission, Cox’s medications included Effexor XR, Eskal-ith, Adderall, Campral, Zyprexa, Provera, Topamax, and Xanax. After admission, her medications were changed slightly and Ambien CR was added to her regimen. Cox was also treated with electroconvul-sive therapy (“ECT”).

During her admission, Cox injured her left knee and, on May 2, she was prescribed hydroeodone for the pain. On May 3, she was also prescribed Oxycontin for one night, in addition to her routine medications. That evening, Cypress Creek staff checked on Cox periodically— about every thirty minutes. Around 2:00 a.m. on May 4, Cox’s roommate found her lying “prone” in her bed, with her feet on the bed and her head and upper body on the floor. The roommate informed a nurse, who went to Cox’s room and discovered that Cox had no pulse. The nurse called a “Code Blue,” started CPR, and called 911. Other health care providers, including emergency medical services personnel, also participated in the efforts to resuscitate Cox. The efforts were unsuccessful and Cox was declared dead at 3:04 a.m. An autopsy was later performed, and the toxicology results showed that Cox died as a result of Zyprexa toxicity.

In July 2008, Hickman, Cox’s mother, sued Cypress Creek, alleging healthcare-liability claims, common-law negligence, violations of the Mental Health Code, violations of the Nursing Practice Act, wrongful death, and a survival action. Hickman had previously notified Cypress Creek that she was asserting a “negligence health care liability claim” as defined by Civil Practice and Remedies Code chapter 74, for “acts or omissions of negligence and/or malpractice in the health care treatment and safety or lack of care, treatment, or safety” administered to or for Cox, and that such negligence “proximately resulted in the injuries and/or damages claimed herein.”

In her original petition, Hickman alleged generally that Cypress Creek had a duty to provide “inpatient mental health care, physical health care, nursing care, medication administration and electroshock treatment services.” She also alleged that Cypress Creek was negligent in its capacity as a health care provider “by failing to assure that [Cox] was maintained in a safe environment, such that she experienced a Zyprexa overdose and related respiratory and cardiac arrest; and further that such failure was a violation of the relevant professional standards for a reasonable and prudent mental health and substance abuse treatment facility operating in Harris County, Texas.” Hickman also listed numerous specific acts and omissions by Cypress Creek which Hickman alleged proximately caused Cox’s injuries, death, and resulting damages.

In an effort to comply with chapter 74’s expert-report requirement, Hickman served Cypress Creek with the report of Janet A. Grossman, Ph.D., PMHCNS, BC, FAAN, and an autopsy report dated May 4, 2006. See Tex. Civ. Prac. & Rem. Code § 74.351(a). In response, Cypress Creek filed a “Motion to Dismiss and Objections and Challenges to the Sufficiency of the Reports and the Qualifications of the Authors.” In its motion, Cypress Creek argued that Grossman’s report was insufficient because, among other things, Grossman was not a physician and therefore she was not qualified to opine on causation. See id. §§ 74.351(r)(5)(C), 74.403. Cypress Creek also argued that the autopsy report was insufficient as an expert report because it failed to address the applicable standard of care, the manner in which the care Cypress Creek failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. See id. § 74.351(r)(6).

Hickman responded to Cypress Creek’s motion and filed a first amended petition in which she purported to delete any cause of action related to medical malpractice. She contended that, because the case no longer included medical-malpractice claims, Cypress Creek’s complaints that her expert reports were insufficient under chapter 74 were now moot. Cypress Creek replied that Hickman’s claims were in substance healthcare-liability claims that could not be recast as a different cause of action, and therefore the claims remained subject to the requirements of chapter 74. In a surreply, Hickman maintained that medical malpractice was no longer a part of the case and Cypress Creek’s objections were therefore moot; she also argued that her claims against Cypress Creek were governed by Texas Health and Safety Code chapter 321, not Civil Practice and Remedies Code chapter 74, and therefore there was no need to provide any expert reports.

After a brief hearing, the trial court denied Cypress Creek’s motion to dismiss. This appeal followed.

II

On appeal, Cypress Creek raises five issues: (1) Hickman’s claims are healthcare-liability claims as defined by Texas Civil Practice and Remedies Code section 74.001(a)(13); (2) these healthcare-liability claims cannot be recast as a different cause of action in an effort to avoid the substantive and procedural statutory provisions and requirements of chapter 74; (3) the provisions of chapter 74 supersede in the event of any conflict with the provisions of Health and Safety Code chapter 321 and therefore Hickman is required to serve expert reports pursuant to Civil Practice and Remedies Code section 74.351(a); (4) Grossman’s report and the autopsy report are deficient because they do not meet the definition of an “expert report” under section 74.351(r)(6) and controlling case law; and (5) because the documents Hickman provided do not represent a good-faith effort, and because Hickman has attempted to avoid meeting these requirements rather than make any effort to provide sufficient expert reports, no thirty-day extension to cure should be provided and Hickman’s claims should be dismissed.

In response, Hickman contends that her claims are civil-rights claims as contemplated by chaptér 321 of the Texas Health and Safety Code and therefore are not healthcare-liability claims governed by chapter 74 of the Civil Practice and Remedies Code. Further, she contends, her claims are not “recast” but are based on sound rules of statutory construction, as Health and Safety Code chapter 321 is a separate civil-rights cause of action, it is not in conflict with chapter 74, and it does not require that she file an expert report pursuant to chapter 74. Hickman concedes that Grossman’s report and the autopsy report do not meet the definition of an “expert report” as defined by section 74.351(r)(6), but argues that this concession is irrelevant as such a report is not required in civil rights claims filed under chapter 321, and therefore the trial court’s judgment should be affirmed.

Ill

A

A medical-malpractice plaintiff must timely serve on each defendant or each defendant’s attorney one or more expert reports that set out (1) the applicable standard of care, (2) the manner in which the defendant’s care failed to satisfy that standard, and (3) the causal relationship between the defendant’s failure and the injury or damages claimed. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a), (r)(6). The plaintiff may satisfy the statutory requirements by serving reports of separate experts regarding different physicians or health care providers or regarding different issues arising from the conduct of a physician or health care provider. Id. § 74.351(i). However, only a physician may give opinion testimony about the causal relationship between the claimed injury, harm, or damages and the alleged departure from the applicable standard of care. See id. § 74.351(r)(5)(C); Kelly v. Rendon, 255 S.W.3d 665, 675 (Tex.App.-Houston [14th Dist.] 2008, no pet.).

We review a trial court’s denial of a motion to dismiss under section 74.351 for abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Group v. Vicente, 164 S.W.3d 724, 727 (Tex.App.Houston [14th Dist.] 2005, pet. denied). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex.2006); Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 757 (Tex.App.-Houston [14th Dist.] 2007, no pet.). To the extent resolution of the issue before the trial court requires interpretation of the statute itself, we apply a de novo standard. Mokkala v. Mead, 178 S.W.3d 66, 70 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).

B

Chapter 74 defines a healthcare-liability claim as:

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

Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13). “Health care” is broadly defined as “any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Tex. Civ. Prac. & RermCode Ann. § 74.001(a)(10). A cause of action alleges a departure from accepted standards of medical care or health care if the act or omission complained of is an inseparable part of the rendition of medical or health care services. See Diversicare Gen. Partner, Inc., v. Rubio, 185 S.W.3d 842, 848 (Tex.2005); Garland Comty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex.2004).

In determining whether Hickman’s claims are healthcare-liability claims, we examine the underlying nature of the claim and are not bound by the form of the pleading. Diversicare, 185 S.W.3d at 847; Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994). We must focus on the essence of the claims and consider the alleged wrongful conduct and the duties allegedly breached, rather than the injuries allegedly suffered. Diversicare, 185 S.W.3d at 851. A healthcare-liability claim may not be recast as another cause of action to avoid the requirements of chapter 74. See id. Therefore, we are not bound by Hickman’s characterization of her claims. See id.; Smalling v. Gardner, 203 S.W.3d 354, 363 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). We also consider whether expert testimony is necessary to prove Hickman’s claims. See Diversicare, 185 S.W.3d at 851.

In her original petition, Hickman expressly recognized the essence and nature of her claims as healthcare-liability claims, and asserted that she had complied with the notice requirements of chapter 74. Further, the notice informed Cypress Creek of the following:

Pursuant to Civil Practice and Remedies Code 74.051, NOTICE is hereby given to you that our above named client the family of Jamye Cox, is asserting a negligence health care liability claim, as defined by said statute, against you. This claim arises from the medical, surgical, or other health care provided by you to Jamye Cox on, before, or about May 04, 2006.

And, although Hickman amended her petition ostensibly to remove any healthcare-liability claims, the factual allegations on which her claims are based remained substantively unchanged.

According to the overview of the complaint contained in the amended petition, while Cox was a patient, she sought Cypress Creek’s “professional expertise, judgment, skill, competence, advice and treatment regarding inpatient mental health services.” The complaint further contains allegations that Cypress Creek, through specific acts and omissions, failed to provide Cox the “operative standard of care.” According to Hickman, this alleged failure to provide the operative standard of care proximately caused Cox’s injuries, subsequent cardiac arrest, and death.

Among the acts and omissions specifically alleged, Hickman contends that Cypress Creek breached the standard of care by failing to:

• Provide Cox a mental health treatment plan commensurate with the patient’s unique and individualized needs;

• Provide Cox mental health treatment in the least restrictive environment consistent with the patient’s need for protection;

• Provide Cox sufficient inpatient mental health facility staff supervision;

• Assure Cox’s mental health records reflected the actual times that prescribed medications were received;

• Assure Cox treatment in a safe environment by failing to respond to Cox’s needs commensurate with her mental health condition; assure Cox was treated in a safe environment by failing to have a crash cart available and functional when needed in an emergency; and

• Provide Cox inpatient mental health nursing treatments commensurate with her needs and the required statutory and regulatory standards.

Additionally, Hickman alleges that Cypress Creek further breached the operative standard of care by failing to:

• Assure Cox received her prescribed medications in a timely manner;

• Assure Cox was not provided excessive medications;

• Assure Cox was not provided unnecessary medications;

• Assure that treatment and prescriptions were documented correctly, and

• Assure Cox was not a victim of poly-pharmacy.

Hickman also contends Cypress Creek failed to assure Cox received “appropriate care” after she exhibited post-ECT symptoms of swelling in her hand and a continuous twitch in her eye. And, Hickman alleges the nursing staff was “negligent per se” pursuant to the Texas Nursing Practice Act.

Looking to the underlying nature or essence of these claims, Hickman’s factual allegations and alleged acts and omissions necessarily implicate applicable standards of care because Hickman’s complaints are directed to Cox’s treatment or lack of treatment and claimed departures from accepted standards of health care, or safety or professional or administrative services directly related to health care allegedly proximately resulting in the damages of which she now complains. See Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13). These allegations concerning Cox’s mental-health treatment are an inseparable part of the rendition of the medical or health care services Cypress Creek provided to Cox. See Diversicare, 185 S.W.3d at 847-48; Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.1995) (per curiam); Smalling, 203 S.W.3d at 362-63. And, as Hickman appears to concede, expert testimony will be necessary to prove Cypress Creek’s alleged lapses in professional judgment and treatment. See Diversicare, 185 S.W.3d at 851.

Hickman contends, however, that her chapter 321 claims sound in constitutional law and not “in contract or tort” as contemplated in the chapter 74’s definition of a healthcare-liability claim. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 698-702 (Tex.2003) (noting that section 321.003 of the Health and Safety Code permits a person harmed by a mental-health facility’s violation of the patient’s bill of rights to sue for damages and other relief, but holding that statute did not waive sovereign immunity); see also O’Connor v. Donaldson, 422 U.S. 563, 576, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (holding state cannot constitutionally confine a nondangerous individual who is capable of surviving safely in freedom); Wyatt v. Aderholt, 503 F.2d 1305, 1314-15 (5th Cir.1974) (holding civilly committed mental patients have a constitutional right to treatment). Hickman also points to Article I, sections 15 and 15-a of the Texas Constitution, which include provisions for the mentally ill relating to the right to trial by jury. See Tex. Const, art. I, §§ 15, 15-a. Hickman argues there are no similar constitutional protections for persons receiving general health care, and these constitutional underpinnings control over the substantive or procedural requirements of chapter 74. Additionally, Hickman argues that a claim brought under chapter 321 for a patient’s-bill-of-rights violations differs from a medical malpractice claim in numerous respects, and argues that these differences evidence a legislative intent to provide a wholly separate statutory scheme that trumps chapter 74.

Although she posits a variety of arguments to support her position, Hickman may not use artful pleading to avoid chapter 74’s requirements when the essence of the suit is a healthcare-liability

claim. See Garland Comty. Hosp., 156 S.W.3d at 543; Smalling, 203 S.W.3d at 363. Further, Hickman may not avoid the requirements of chapter 74 by carrying forward factual allegations that in essence assert healthcare-liability claims, while deleting reference to Chapter 74 and changing the labels for the claims. See Med. Hosp. of Buna Tex., Inc. v. Wheatley, 287 S.W.3d 286, 291-92 (Tex.App.-Beaumont 2009, pet. denied); NCED Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 36-37 (Tex.App.-El Paso 2006, no pet.). Hickman’s appellate arguments that her claims do not sound in contract or tort conflict with her live pleading, in which she asserts that Cypress Creek’s alleged violations of the Mental Health Code, the Health and Safety Code, and the Nursing Practice Act constitute “negligence” or “negligence per se.” Further, in asserting a private cause of action under section 321.003 of the Health and Safety Code, Hickman’s allegations reflect that the essence of her complaints is that Cypress Creek breached duties it allegedly owed to Cox as a mental health care provider:

Defendant, Cypress Creek Hospital, owed Jamye R. Cox, the duty to provide proper inpatient mental health care commensurate with the licensing laws and rules promulgated thereunder, and relative to her mental health condition, and in the exercise of that duty the Defendant Cypress Creek was required to provide such reasonable care as Cox[’s] condition which was known, or should have been known, and required, as stated in such state licensing laws and rules promulgated thereunder ... including] the duty to guard against the foreseeable consequences of the patient’s injury, condition, or treatment that brought her to the facility in the first instance, (emphasis added).

Thus, even though Hickman’s claims relate to mental-health treatment rather than general medical health care, the above-italicized language, as well as the other allegations in the amended petition discussed above, fall within chapter 74’s definition of “health care” as “any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Id. § 74.001(10).

Our conclusion that chapter 74 encompasses mental-health claims is supported by case law and by chapter 74. In Diver-sicare, a nursing home was sued for allegedly failing to provide adequate supervision and nursing services that proximately caused a resident’s sexual assault by another resident. See Diversicare, 185 S.W.3d at 845. In concluding that the resident’s claims were healthcare-liability claims governed by chapter 74, the supreme court noted that “[t]he level and types of health care services provided vary with the needs and capabilities, both physical and mental, of the patients.” Id. at 850 (emphasis added). The supreme court further recognized that “[t]he nature and intensity of care and treatment, including professional supervision, monitoring, assessment, quantities and, types of medication, and other medical treatment are judgments made by professionals trained and experienced in treating and caring for patients and the patient populations in their health care facilities.” Id. (emphasis added); see also See Fudge v. Wall, 308 S.W.3d 458, 461-62 (Tex.App.-Dallas 2010, no pet.) (“Nothing in section 74.001 distinguishes between mental and physical health care.”); Mike Norgaard, LPC v. Pingel, 296 S.W.3d 284, 288 (Tex.App.-Fort Worth 2009, no pet.) (“Health care includes the care of mental conditions.”).

As discussed above, Hickman’s complaints are directed to Cox’s treatment or lack of treatment and claimed departures from accepted standards of medical care, health care, or safety or professional or administrative services directly related to the mental-health care Cox received while at Cypress Creek. See Tex. Civ. Prac. & Rem.Code Ann. § 74.001(13). Other courts have reached similar conclusions when confronted with claims against mental-health facilities or treatment. See Broxterman v. Carson, 309 S.W.3d 154, 156, 158 (Tex.App.-Dallas 2010, pet. denied) (holding claims against hospital and others relating to patient’s adverse reaction to prescription medication given against her will after she cut her wrist, including alleged violations of civil rights, Texas statutes, and other acts were healthcare-liability claims requiring expert report); Groomes v. USH of Timberlawn, Inc., 170 S.W.3d 802, 806-07 (Tex.App.-Dallas 2005, no pet.) (holding claims against mental hospital for false imprisonment, intentional infliction of emotional distress, and abuse of process when mental-health facility refused to discharge fourteen-year-old patient at mother’s request were healthcare-liability claims); Parker v. CCS/Meadow Pines, Inc., 166 S.W.3d 509, 512-13 (Tex.App.-Texarkana 2005, no pet.) (holding claims against private mental hospital for injuries related to restraints used on patient, including claims that hospital violated patient’s rights as set out in the Patient’s Bill of Rights, were healthcare-liability claims). Therefore, Hickman’s claims are healthcare-liability claims subject to the statutory requirements of chapter 74.

C

Generally, if the plaintiff fails to timely serve an expert report within the statutory deadline the trial court must dismiss the lawsuit with prejudice. See Tex. Civ. Prac. & Rem.Code § 74.351(b). But if the plaintiff has timely served a report on the defendant, the trial court cannot dismiss the lawsuit unless the report does not represent an objective good-faith effort to comply with the statutory requirements for such a report. See id. § 74.351C). If an expert report has not been timely served because “elements of the report are found deficient,” the court may grant one thirty-day extension to the plaintiff to cure the deficiency. Id. § 74.351(c).

Cypress Creek contends that the documents Hickman provided do not represent a good-faith effort to comply with chapter 74’s expert-report requirement. Specifically, Cypress Creek contends that Gross-man’s report is inadequate because, among other things, she is not a physician and is not qualified to opine on causation. See Kelly, 255 S.W.3d at 675. And, the autopsy report does not equate to the provision of the statutorily mandated expert report because it does not include a fair summary of an expert’s opinions regarding the applicable standard of care, the manner in which the care provided failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6); Maxwell v. Seifert, 237 S.W.3d 423, 427 (Tex.App.Houston [14th Dist.] 2007, pet. denied) (medical records do not constitute an expert report under section 74.351). Further, Cypress Creek argues that because Hickman has made no further effort to comply, but has instead attempted to avoid the expert-report requirement, her claims should be dismissed without the possibility of a thirty-day extension.

In response, Hickman does not ask that, if we determine she was required to comply with chapter 74’s expert-report requirements, her claims be remanded to allow the trial court to consider whether to grant an extension. Instead, she maintains, as she did below, that she is simply not required to provide any expert reports because chapter 74 does not apply to her claims. We have concluded to the contrary, however, and in this circumstance, agree with Cypress Creek that dismissal is warranted. See Hopkins County Hosp. Dist. v. Ray, No. 06-08-00129-CV, 2009 WL 454338 (Tex.App.-Texarkana Feb. 24, 2009, no pet.) (mem. op.) (dismissal was warranted when plaintiff served report written by nurse and then took position that no expert report was required on causation).

Accordingly, we reverse the trial court’s order denying Cypress Creek’s motion to dismiss and remand the cause to the trial court for entry of a judgment dismissing Hickman’s claims with prejudice for failing to furnish an expert report as required by section 74.351 of the Civil Practice and Remedies Code. In accordance with section 74.351(b)(1) of the Civil Practice and Remedies Code, the trial court shall award reasonable attorney’s fees and costs of court incurred by Cypress Creek.

      . Jayme's first name is sometimes spelled "Ja-mye” in the record, including in Hickman’s amended petition, Grossman’s report, and the autopsy report. Because the trial court's order being appealed and the parties’ appellate briefs refer to "Jayme,” however, we will do the same.

      . In Chapter 74, the list of healthcare providers includes "a health care institution,” which is further defined to include "a hospital.” Tex. Civ. Prac. & Rem.Code Ann. § 74.001(11), § 74.001 (12)(A)(vii). "Hospital” is defined as "a licensed public or private institution ... licensed under Chapter 577, Health and Safety Code.” Id. § 74.001(a)(16). Chapter 577 governs private mental hospitals and other mental-health facilities. Further, courts have recognized that Chapter 74’s list of healthcare providers is not exclusive. See Christiis Health v. Beal, 240 S.W.3d 282, 286-87 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (holding that a drug and alcohol treatment center was a healthcare provider even though not expressly listed in statutory definition). Thus, Cypress Creek falls within the statutory definition of a healthcare provider under Chapter 74. See id. § 74.001 (a)(12)(A).

      . In her appellate brief, Hickman states that she "recognizes that at some point she will likely require an expert to determine whether or not” Cypress Creek violated Cox's patient rights. But she insists that no expert report is required because her claims are not healthcare-liability claims.

      . Our holding is based on the specific allegations in Hickman’s pleadings, and therefore our opinion should not be interpreted as holding that all claims related to inpatient mental health facilities are necessarily healthcare-liability claims. Nor is it necessary in this case to consider, and we do not consider, whether a healthcare-liability claim and a claim under chapter 321 are mutually exclusive.


source: Caselaw Access Project

author: Justice RICHTER.

license: Public Domain

text:
    The BELVEDERE CONDOMINIUMS AT STATE THOMAS, INC., d/b/a The Belvedere Condominiums, Appellant, v. MEEKS DESIGN GROUP, INC., Appellee.
    No. 05-10-00107-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 6, 2010.
    Christopher A. Payne, Riddle & Williams P.C., Dallas, TX, for Appellant.
    Paul E. Ridley, Law Office of Canada Ridley, LLP, Grapevine, TX, Steven S. Snelson, Gerstle, Minissale, Snelson, Dallas, TX, for Appellee.
    Before Justices BRIDGES, RICHTER, and LANG-MIERS.
   OPINION

Opinion By

Justice RICHTER.

This interlocutory appeal follows the trial court’s dismissal of negligence claims brought by The Belvedere Condominiums At State Thomas, Inc., d/b/a The Belve-dere Condominiums (Belvedere) against Meeks Design Group, Inc. (Meeks). Meeks moved for dismissal of the negligence claims, asserting the certificate of merit filed by Belvedere in support of its claims did not comply with the statutory requirements set forth in Chapter 150 of the Texas Civil Practice & Remedies Code. In two issues, Belvedere asserts the trial court erred in granting Meeks’ motion to dismiss because: (1) the certifícate of merit was sufficient, and (2) a certificate of merit was not required to support Belve-dere’s claim against a landscape architect. We affirm.

BACKGROUND

On June 28, 2006, Belvedere, a condominium, filed its original petition against numerous developers, contractors, subcontractors and architects to recover damages for wrongful acts allegedly committed dui*-ing construction, marketing, and administration of the condominium. In its ninth amended petition, Belvedere added claims against Meeks, an architect/landscape architect firm, for negligence and breach of warranty in its design and construction of Belvedere’s courtyard area, including the drainage system from the roof and within the courtyard area. Belvedere supported its claims against Meeks with a certificate of merit from Steve Ray, a licensed professional engineer.

Meeks filed a motion to dismiss, claiming Ray’s certificate of merit failed to satisfy the statutory requirements for a certificate of merit because Ray did not hold the same license as Meeks and did not practice in the same area as Meeks. After a hearing on the motion, the trial court signed an order dismissing Belvedere’s negligence claims against Meeks. Belve-dere then filed this interlocutory appeal.

STANDARD OF REVIEW

An order granting a motion to dismiss under Chapter 150 is immediately appeal-able as an interlocutory order. Tex. Civ. Prao. & Rem.Code Ann. § 150.002(f) (West Supp.2010). We review an order granting a motion to dismiss under Chapter 150 under an abuse of discretion standard. Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 496 (Tex.App.-Corpus Christi 2009, no pet.); Consolidated Reinforcement, L.P. v. Carothers Executive Homes, Ltd,., 271 S.W.3d 887, 891 (Tex.App.-Austin 2008, no pet.). An abuse of discretion occurs when the trial court acts in an unreasonable and arbitrary manner or without reference to any guiding rules or principles. Criterium-Farrell Engineers v. Owens, 248 S.W.3d 395, 397 (Tex.App.-Beaumont 2008, no pet.); Palladian Bldg. Co., Inc. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex.App.-Fort Worth 2005, no pet.). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court does not demonstrate an abuse of discretion. Palladian, 165 S.W.3d at 433.

The trial court’s construction and application of a statute are questions of law we review de novo. See DLB Architects, P.C. v. Weaver, 305 S.W.3d 407, 409 (Tex.App.Dallas 2010, pet. denied); Landreth, 285 S.W.3d at 496. When construing a statute, we attempt to give effect to the legislature’s intent. DLB Architects, 305 S.W.3d at 409. We look to the plain and common meaning of the words the legislature used unless a contrary intention is apparent from the context, or unless such a construction leads to absurd results. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.2008).

ANALYSIS

We first determine whether Ray’s certificate of merit complies with section 150.002. Section 150.002 provides, in relevant part:

§ 150.002. Certificate of Merit
(a) In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect, registered professional land surveyor, or licensed professional engineer competent to testify, holding the same professional license as, and practicing in the same area of practice as the defendant, which affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim. The third-party professional engineer, registered professional land surveyor, or licensed architect shall be licensed in this state and actively engaged in the practice of architecture, surveying, or engineering.
(d) The plaintiffs failure to file the affidavit in accordance with Subsection (a) or (b) shall result in dismissal of the complaint against the defendant. This dismissal may be with prejudice.

Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a), (d).

In support of its first issue, Belvedere-asserts its certificate of merit satisfies the requirements of section 150.002(a) because Ray’s professional engineer license “subsumes the license and practice of landscape architecture.” For purposes of our analysis, we first consider the statutory requirement that Ray practice in the same area as Meeks. Pursuant to the plain language in section 150.002(a), we examine Ray’s certificate of merit, which includes his affidavit and resume, and compare his areas of practice with identifiable areas of landscape architecture practiced by Meeks. Ray’s certificate of merit provides a description of his education and professional licenses and states that he has an active engineering ■ practice in fourteen states, including Texas. Ray’s resume, attached as Exhibit “A” to Ray’s certificate of merit, describes many years of experience in a broad range of construction related activities for condominium projects. The certificate of merit does not identify experience or expertise in landscape architecture, or indicate that Ray’s practice area includes the design and construction of drainage systems. We find no information in the certificate of merit to assist the trial court in determining whether Ray practiced in the same area as Meeks. See Landreth, 285 S.W.3d at 499 (affidavit did not meet, the requirements of Chapter 150 because-affiant did not state or otherwise demonstrate he practiced in the same area). Accordingly, we conclude that Ray’s certificate of merit does not comply with the statutory requirement that affiant practice in the same area as the defendant. See Tex. Civ. Prao. & Rem.Code Ann. § 150.002(a).

Belvedere argues that because Ray, as a professional engineer, is authorized to practice landscape architecture without additional licenses or registrations, he is qualified to provide a certificate of merit with respect to a landscape architect. See Tex. OoC.Code § 1052.003(a)(ll)(B) (West 2004). Our conclusion that Ray’s certificate of merit is not in compliance with the statutory requirement that he “practice in the same area” as Meeks is dispositive with respect to Belvedere’s first issue. Therefore, we do not decide whether Ray’s professional engineer license subsumes Meeks’ registration as a landscape architect.

Considering our standard of review, we conclude the trial court did not abuse its discretion in finding that Ray’s certificate of merit did not comply with the statutory requirements of section 150.002(a), and granting Meeks’ motion to dismiss. See Tex. Civ. Prac. & Rem.Code Ann. § 150.002(a), (d). Belvedere’s first issue is overruled.

In its second issue on appeal, Bel-vedere argues the trial court erred in granting Meeks’ motion to dismiss because a certificate of merit is not required to support claims against a landscape architect. Belvedere contends that under the 2005 version of Chapter 150, a landscape architect is not a design professional. We conclude Belvedere did not preserve this error for appeal.

To preserve a complaint for appellate review, a party must make the complaint to the trial court by timely request, objection, or motion. Tex.R.App. P. 33.1(a)(1); see Knapp v. Wilson N. Jones Memorial Hosp., 281 S.W.3d 163, 170 (Tex.App.-Dallas 2009, no pet.); In re Estate of Miller, 243 S.W.3d 831, 837 (Tex.App.-Dallas 2008, no pet.). Preservation also requires an express or implicit ruling by the trial court, or a refusal to rule by the trial court coupled with an objection to that refusal by the complaining party. Tex.R.App. P. 33.1(a)(2); see Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex.1999); AIS Services, LLC v. Mendez, No. 05-07-01224-CV, 2009 WL 2622391, at *1 (Tex.App.-Dallas Aug. 27, 2009, no pet.). According to the record, Belvedere did not raise this issue with the trial court. Belve-dere did not file a written response to Meeks’ motion to dismiss. During the hearing on Meeks’ motion, Belvedere did not argue that a certificate of merit was not required. Instead, Belvedere argued that its certificate of merit complied with the statutory requirements of Chapter 150. We conclude Belvedere failed to preserve this issue for our review. See Tex.R.App. P. 33.1(a). We overrule Belvedere’s second issue.

CONCLUSION

We conclude the trial court did not err by granting Meeks’ motion to dismiss Bel-vedere’s negligence claims against Meeks. The trial court’s order of dismissal is affirmed.

      . Chapter 150 of the Texas Civil Practice and Remedies Code as modified by the 79th Texas Legislature is the version applicable to the subject certificate of merit. See Act of May 12, 2005, 79th Leg., R.S., ch. 189, §§ 1-3, 2005 Tex. Gen. Laws 348, 348 (effective May 27, 2005), and Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 369-70 (effective September 1, 2005).

      . In 2009, the legislature amended Chapter 150 to: (a) specifically include "registered landscape architect" in the definition of "licensed or registered professional,” (b) reduce the affiant’s qualification requirement from "practicing in the same area” as the defendant to "knowledgeable” in the same area as the defendant, and (c) expand the detail required to support each theory of recovery. Act of May 29, 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1991-92 (codified at Tex. Civ. Prac. & Rem.Code § 150.001 et seq. (West Supp.2010)).


author: Justice MYERS.

text:
    CITY OF DALLAS, Texas, Appellant, v. Lacey Celeste GATLIN, Amber D. Gatlin, and Debra Gail Gatlin, Appellees.
    No. 05-09-01425-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 6, 2010.

      Julie A. Essenburg, Barbara E. Rosenberg, City of Dallas Attorney’s Office, Dallas, TX, for Appellant.

      R. Jack Ayres, Jr., Christopher S. Ayres, The Law Offices of R. Jack Ayres, Jr., P.C., Addison, TX, for Appellees.
    Before Justices MORRIS, MOSELEY, and MYERS.
   OPINION

Opinion By

Justice MYERS.

The City of Dallas, Texas brings this interlocutory appeal of the trial court’s denial of its plea to the jurisdiction. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West 2008). The City brings four issues asserting the trial court erred by determining governmental immunity from suit did not bar the cause of action for exemplary damages brought by appellees Lacey Celeste Gatlin, Amber D. Gatlin, and Debra S. Gatlin. We conclude the City’s governmental immunity from suit was not waived, which deprived the trial court of subject matter jurisdiction over the cause, and we dismiss the cause for want of jurisdiction.

BACKGROUND

On February 13, 2008, Donny Gatlin was employed by the City of Dallas. On that day, Gatlin sustained serious injuries when he fell thirty to fifty feet while performing repair or maintenance work at the Dallas Convention Center. Five days later, Gat-lin died from his injuries. The City paid workers’ compensation benefits to Gatlin’s wife, Debra Gatlin, but not to Gatlin’s adult children, Lacey and Amber Gatlin. Appellees sued the City alleging gross negligence and seeking an award of punitive damages only. Appellees alleged the City had waived its governmental immunity under section 408.001(b) of the Texas Labor Code and article XVI, section 26 of the Texas Constitution.

The City filed its plea to the jurisdiction, alleging it had not waived its governmental immunity. After a hearing, the trial court denied the City’s plea to the jurisdiction.

GOVERNMENTAL IMMUNITY

In its first issue, the City contends the trial court erred by denying its plea to the jurisdiction. We review the trial court’s ruling on a plea to the jurisdiction under a de novo standard. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004). If the plea challenges the sufficiency of the claimant’s pleadings, the trial court must construe the pleadings liberally in the claimant’s favor and deny the plea if the claimant has alleged facts affirmatively demonstrating jurisdiction to hear the case. If the pleadings are insufficient, the court should afford an opportunity to replead if the defects are potentially curable but may dismiss if the pleadings affirmatively negate the existence of jurisdiction. Id. at 226-27.

Governmental immunity exists to protect the government from lawsuits and liability for money damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.2008); Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.2006). “Such lawsuits ‘hamper governmental functions by requiring tax resources to be used for defending lawsuits and paying judgments rather than using those resources for their intended purposes.’ ” Garcia, 253 S.W.3d at 655 (quoting Reata Constr. Corp., 197 S.W.3d at 375).

In Texas, governmental immunity deprives a trial court of subject matter jurisdiction for suits against governmental units unless the government consents to suit. Miranda, 133 S.W.3d at 224. A municipality has governmental immunity to the extent the municipality engages in the exercise of governmental functions, except when that immunity has been waived. Temple v. City of Houston, 189 S.W.3d 816, 818 (Tex.App.-Houston [1st Dist.] 2006, no pet.). A municipality’s governmental functions include “convention centers.” Tex. Civ. PRAC. & Rem.Code Ann. § 101.0215(a)(16) (West 2005).

EXEMPLARY DAMAGES UNDER THE LABOR CODE

In its second issue, the City contends the Texas Labor Code does not provide a waiver of governmental immunity for gross negligence and exemplary damages against the City. Appellees assert the Texas Labor Code permits such a suit under section 408.001(b).

In section 408.001, the labor code provides that “[rjecovery of workers’ compensation benefits is the exclusive remedy of an employee ... or a legal beneficiary against the employer for the death of ... the employee.” Tex. Lab.Code Ann. § 408.001(a) (West 2006). Paragraph (b) of that section provides that “[t]his section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused ... by the employer’s gross negligence.” Id. § 408.001(b). Section 408.002 provides, “A right of action survives in a case based on a compensable injury that results in the employee’s death.” These three provisions generally prohibit an employee receiving workers’ compensation benefits or his beneficiaries from bringing suit against the employer for actual damages. However, the provisions permit the spouse and heirs of a deceased employee to bring suit for the death of the employee and to recover exemplary damages from the employer for its gross negligence notwithstanding the fact that workers’ compensation benefits were paid for the employee’s death. See Wright v. Gifford-Hill & Co., 725 S.W.2d 712, 714 (Tex.1987).

Those provisions, however, do not waive governmental immunity to suit. See City of LaPorte v. Barfield, 898 S.W.2d 288, 295-96 (Tex.1995). To the extent immunity may be waived, that waiver is provided by the Political Subdivisions Law, chapter 504 of the labor code, which makes many of the provisions of the workers’ compensation system applicable to political subdivisions of the state, including municipalities. See Tex. Lab.Code Ann. § 504.001(3) (West 2006); Kuhl v. City of Garland, 910 S.W.2d 929, 930-31 (Tex.1995) (per curiam) (city’s governmental immunity waived for claim of retaliatory discharge under Workers’ Compensation Act); Barfield, 898 S.W.2d at 294-98. That law provides, however, that it does not authorize a cause of action or damages beyond those authorized by the Tort Claims Act. Tex. Lab.Code Ann. § 504.002(c). The Tort Claims Act “does not authorize exemplary damages.” Tex. Civ. Prac. & Rem.Code Ann. § 101.024. Furthermore, the legislature did not extend to employees of political subdivisions section 408.001(b)’s provisions permitting a deceased employee’s spouse and heirs the right to sue for exemplary damages for the employer’s gross negligence. See Tex. Lab.Code Ann. § 504.002(a)(6) (West 2006) (“The following provisions ... apply to and are included in this chapter ... :(6) Chapter 408, other than Sections 408.001(b)....”).

Because the Political Subdivisions Law expressly omits section 408.001(b), that section does not provide a basis for appel-lees to recover damages against the City, and it does not waive the City’s immunity from suit. Likewise, the Political Subdivisions Law’s limited waiver of immunity to actions and damages authorized by the Tort Claims Act does not waive immunity from a suit solely for exemplary damages because the Tort Claims Act does not authorize exemplary damages. See Barfield, 898 S.W.2d at 299. We sustain the City’s second issue.

EXEMPLARY DAMAGES UNDER THE TEXAS CONSTITUTION

In its third issue, the City contends that article XVI, section 26 of the Texas Constitution does not waive the City’s immunity from suit for gross negligence and exemplary damages. Article XVI, section 26 provides:

Every person, corporation, or company, that may commit a homicide, through wilful act, or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide.

Tex. Const, art. XVI, § 26. Appellees assert this provision constitutes a waiver of the City’s' immunity from suit for gross negligence and for exemplary damages. They argue that section 504.002(a)(6)’s failure to make applicable to municipalities section 408.001(b)’s allowance of a suit against a subscribing employer for gross negligence and exemplary damages conflicts with article XVI, section 26 and renders section 504.002(a)(6) unconstitutional. They also argue that article XVI, section 26 provides an independent cause of action for exemplary damages.

No Waiver of Immunity Under Article XVI, Section 26

Constitutional provisions are construed in light of the common law as it existed at the time of adoption, and their meaning is not different at any subsequent time. Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022, 1024 (1943). When article XVI, section 26 was adopted, the common law included “absolute” sovereign immunity for governmental entities performing governmental functions. Landeros v. City of El Paso, 804 S.W.2d 188, 189 (Tex.App.-El Paso 1991, writ denied); Lynch v. Port of Houston Auth., 671 S.W.2d 954, 960 (Tex.App.-Houston [14th Dist.] 1984, writ refd n.r.e.). As the Lynch court stated, “Since that constitutional provision does not expressly address the matter of sovereign immunity, we refuse to find that Article XVI, Section 26 is either a waiver of sovereign immunity or an independent source of a cause of action against a governmental entity for exemplary damages.” Lynch, 671 S.W.2d at 960; see also Landeros, 804 S.W.2d at 189 (governmental immunity not waived by article XVI, section 26). In this case, the suit concerns a statutorily designated governmental function, “convention centers.” Tex. Civ. Prac. & Rem.Code Ann. § 101.0215(a)(16). No published case has held that article XVI, section 26 waives a governmental entity’s governmental immunity. We conclude that article XVI, section 26 does not waive the City’s immunity from suit in this case.

Constitutionality of Section 504.002(a)(6)

Appellees also contend that section 504.002(a)(6)’s failure to make applicable to municipalities section 408.001(b)’s allowance of a suit for gross negligence and exemplary damages against an employer paying workers’ compensation benefits conflicts with article XVI, section 26’s provisions permitting such lawsuits. However, because we have concluded that article XVI, section 26 does not waive the City’s immunity from suit for gross negligence and exemplary damages, we conclude that section 504.002’s failure to make section 408.001(b) applicable to municipalities does not conflict with article XVI, section 26.

No Independent Cause of Action for Exemplary Damages

Appellees assert cases have held that article XVI, section 26 provides an independent cause of action for exemplary damages, citing the Texas cases Zacharie v. U.S. Natural Resources, Inc., 94 S.W.3d 748 (Tex.App.-San Antonio 2002, no pet.); Perez v. Todd Shipyards Corp., 999 S.W.2d 31 (Tex.App.-Houston [14th Dist.] 1999), pet. denied, 35 S.W.3d 598 (Tex.2000); and Smith v. Atlantic Richfield Co., 927 S.W.2d 85 (Tex.App.-Houston [1st Dist.] 1996, writ denied), and the federal cases Castillo v. Angelo Iafrate Construction, L.L.C., No. Civ. A. 303CV0061L, 2003 WL 22287637 (N.D.Tex. Sept. 30, 2003); Sbrusch v. Dow Chemical Co., 124 F.Supp.2d 1090, 1092 (S.D.Tex.2000); Wyble v. E.I. DuPont de Nemours & Co., 17 F.Supp.2d 641 (E.D.Tex.1998); and Cowen v. Mobil Oil Corp., 901 F.Supp. 1204 (E.D.Tex.1995). In these cases, however, the courts determined the plaintiffs had causes of action for exemplary damages under section 408.001(b) of the labor code or its predecessor, article 8306, section 5 of the Texas Revised Civil Statutes. The courts did not hold that any of the plaintiffs could bring an independent cause of action under article XVI, section 26. See Zacharie, 94 S.W.3d at 758 (Texas Workers’ Compensation Act “expressly gives” plaintiffs the nonderivative right to sue for gross negligence and exemplary damages); Perez, 999 S.W.2d at 33 (“cause of action provided to the surviving family under the Texas Constitution and the Labor Code”); Smith, 927 S.W.2d at 88 (court held “the cause of action for exemplary damages provided for in section 408.001(b) of the Labor Code is still viable”; court did not address the existence of an independent cause, of action under article XVI, section 26); Castillo, 2003 WL 22287637, at *4 (concluding plaintiffs’ case “arises under” the Texas workers’ compensation laws); Sbmsch, 124 F.Supp.2d at 1091 (concluding plaintiffs suit against employer for exemplary damages arose under workers’ compensation statute: “the cause of action is created by the workers’ compensation statute” (quoting Eurine v. Wyatt Cafeterias, Inc., No. 3-91-0408-H, 1991 WL 207468, at *1 (N.D.Tex. Aug. 21, 1991)); Wyble, 17 F.Supp.2d at 645-46 (“because of the operation of Tex.Rev.Civ. Stat. Ann. art. 8306, § 5, ... a separate cause of action may be maintained against [the fellow employee] for gross negligence”); Cowen, 901 F.Supp. at 1206-07 (“The court sees no reason why the statutory remedy outlined in the Texas Labor Code could not form the necessary compensatory damages springboard and thereby allow recovery of exemplary damages.”). Furthermore, in Sbmsch, the court noted that the Texas Supreme Court had held that article XVI, section 26 does not create a cause of action for exemplary damages based on wrongful death. Sbrusch, 124 F.Supp.2d at 1091 n. 1 (citing Travelers Indem. Co. v. Fuller, 892 S.W.2d 848, 849 (Tex.1995)).

It also appears that appellees rely upon Wright v. Gifford-Hill & Co., 725 S.W.2d 712 (Tex.1987). In that case, the plaintiff sued the deceased’s employer for exemplary damages under section 408.001(b). At trial, the plaintiff obtained jury findings on gross negligence and proximate causation in the plaintiffs favor, but she did not submit jury questions on actual damages. The court of appeals determined that because the plaintiff did not obtain jury findings on the existence and amount of actual damages, she could not recover exemplary damages. The plaintiff argued to the supreme court that the court of appeals’ decision violated article XVI, section 26. Wright, 725 S.W.2d at 713. The supreme court held under the predecessor statute to section 408.001(b) that a plaintiff did not have to obtain a finding on the amount of actual damages to recover exemplary damages under that statute. Id. at 714. The supreme court did not address the plaintiffs argument concerning article XVI, section 26.

. None of the cases appellees cite holds that article XVI, section 26 creates an independent cause of action for exemplary damages. Moreover, none of them involves governmental entities or the issue of immunity from suit.

The Texas Supreme Court has held that when the Workers’ Compensation Act bars a suit for compensatory damages and does not expressly permit a cause of action for exemplary damages, then article XVI, section 26 does not provide an independent cause of action for exemplary damages. In Travelers Indemnity Co. v. Fuller, Travelers was the workers’ compensation carrier for Fuller’s employer, a refinery. Travelers Indem. Co., 892 S.W.2d at 849. Travelers regularly performed safety checks and industrial hygiene surveys of the refinery. Fuller was killed when he was exposed to assorted polynuclear, aromatic hydrocarbons. Fuller’s daughter sued Travelers alleging it was grossly negligent in failing to alleviate the safety hazards at the refinery and in failing to warn Fuller of the safety hazards. Id. The Workers’ Compensation Act provided that a carrier could not be liable for an accident based on the allegation that the accident was caused or could have been prevented by a program inspection or other activity or service of the carrier for the prevention of accidents. Id. at 849-50. The plaintiff argued that even though her suit for actual damages against Travelers was barred by the Workers’ Compensation Act, she could still bring suit for exemplary damages under article XVI, section 26. Id. at 850. She asserted that the legislature was powerless to impair her punitive recovery. Id, The supreme court disagreed. The court observed that the constitutional provision was adopted to allow recovery of exemplary damages under the wrongful death act because early interpretations of that act concluded it did not authorize the award of exemplary damages. The court stated that article XVI, section 26 “did not abrogate the common law requirement of actual damages and extend the remedy to those with no cause of action under the [wrongful death] Act.” Id. at 851 (citing Ritz v. City of Austin, 1 Tex.Civ.App. 455, 20 S.W. 1029, 1031 (Austin 1892, writ ref d)). The court stated that if the intention of article XVI, section 26 was to overturn the historical common law “actual damages” rule, “we believe it would not have done so by inference; rather it would have done so expressly.” Id. at 852. The court concluded:

Because the Workers’ Compensation Act bars Fuller’s cause of action for compensatory damages, and because Article 16, Section 26 guarantees the remedy of punitive damages only when a wrongful death beneficiary otherwise possesses a cause of action for compensatory relief, we reverse the judgment of the court of appeals and render judgment that Fuller take nothing.

Id. at 853.

In this case, section 408.001(a), made applicable to the City through section 504.002(a)(6), bars appellees’ cause of action for compensatory damages. As Travelers Indemnity Co. holds, article XVI, section 26 does not permit the recovery of punitive damages when the plaintiff lacks a cause of action for compensatory relief.

We conclude the trial court erred by determining the City had waived its governmental immunity from suit in this case. We sustain the City’s third issue.

CONCLUSION

We conclude the trial court erred by denying the City’s plea to the jurisdiction, and we sustain the City’s first issue. We also conclude appellees’ pleading affirmatively negates the existence of jurisdiction. Accordingly, we reverse the trial court’s order denying the City’s plea to the jurisdiction, and we order the cause dismissed for want of jurisdiction.

      . Appellees cite Pate & Pate Enterprises, Inc. v. City of Eagle Pass, No. 04-96-00980-CV, 1997 WL 578741 (Tex.App.-San Antonio Sept. 17, 1997, pet. dism'd by agr.) (not designated for publication). That case involved a claim for contribution and indemnification against the City that was derivative of the rights of the deceased employees to sue the City for gross negligence. Id. at *2. The City asserted the claim was barred by the Workers' Compensation Act under section 408.001(a) of the labor code and by governmental immunity. Id. The court of appeals concluded the employees had a viable claim for gross negligence because such a claim is permitted by section 408.001(b) of the labor code, which incorporated article XVI, section 26, and because the City’s immunity was waived by the Texas Tort Claims Act, section 101.021(2) of the civil practice and remedies code. See id. at *2-3 (quoting Tex. Ctv. Prac. & Rem.Code Ann. § 101.021(2) (West 2005)). The court’s decision fails to recognize, however, that section 408.001(b) is not applicable to municipalities.
        See Tex. Lab.Code Ann. § 504.002(a)(6). Moreover, nothing in the opinion indicates that exemplary damages were sought against the city or that the city's immunity to suit for exemplary damages was waived. We conclude that the case does not support appel-lees’ assertion that article XVI, section 26 waives the City’s immunity from a suit for exemplary damages. Furthermore, because the case was decided before January 1, 2003 and was not designated for publication, it has no precedential value. See Tex.R.App. P. 47.7(b).

      . The Houston 14th District Court of Appeals subsequently overruled another portion of Perez. See Ross v. Union Carbide Corp., 296 S.W.3d 206 (Tex.App.-Houston [14th Dist.] 2009, pet. denied) (en banc).

      . In its fourth issue, the City asserts the Texas Tort Claims Act does not provide a waiver of governmental immunity for a suit for exemplary damages against the City. We do not reach this issue because appellees have not asserted a waiver of immunity under the Texas Tort Claims Act.


author: CHARLES W. SEYMORE, Justice. KEM THOMPSON FROST, Justice,

text:
    Christopher Dante LOUD, Appellant, v. The STATE of Texas, Appellee.
    No. 14-09-00332-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 7, 2010.
    Rehearing Overruled Jan. 6, 2011.

      Joseph L. Sheppard, Burleson, Richard Alley, Fort Worth, for appellant.
    Christopher Dante Loud, Bonham, pro se.
    Dan V. Dent, Hillsboro, for appellee.
    Panel consists of Justices ANDERSON, FROST, and SEYMORE.
   OPINION

CHARLES W. SEYMORE, Justice.

Appellant, Christopher Dante Loud, appeals from the trial court’s judgment nunc pro tunc convicting him of aggravated assault with a deadly weapon and affirmatively finding a deadly weapon was used during the offense. Because we conclude that the trial court corrected judicial errors and omissions by making the changes at issue, we vacate the judgment nunc pro tunc, and reinstate and affirm the original judgment and sentence.

I. Background

In 2006, appellant was indicted for the offense of aggravated assault with a deadly weapon. However, the caption on the indictment reflects that the charged offense was “aggravated assault — bodily injury.” Under the terms of a plea agreement, he pleaded no contest, and was placed on deferred-adjudication community supervision. At the plea hearing, held on July 3, 2006, the trial court orally admonished appellant that he was pleading guilty to the offense of aggravated assault — serious bodily injury. Appellant waived the reading of the indictment. The trial court affirmed that appellant stipulated to the allegations contained in the charging instrument. Additionally, appellant’s written stipulation of evidence provides: “At the trial of this cause the State could and would produce witnesses who would testify and establish, beyond a reasonable doubt, the truth of all of the material allegations in the indictment.... ” The written admonishments signed by appellant and the trial court list the offense as “Aggravated Assault w/Serious Bodily Injury.” Both the admonishments and the stipulation of evidence were signed at the plea hearing. The order of deferred adjudication indicates appellant was charged with aggravated assault — bodily injury, with the statute for the offense listed as Texas Penal Code Section 22.02(a)(1). The order imposing conditions of community supervision similarly lists the offense for which appellant was placed on community supervision as “aggravated assault — bodily injury.”

In December 2006, the State filed an application to proceed to adjudication, listing the offense to which appellant entered a plea as “aggravated assault — bodily injury.” Appellant entered into another plea agreement with the State and continued on community supervision for a longer term, with some additional restrictions and increased fees. In its order on the State’s application, the trial court stated:

HERETOFORE, on the 3rd day of July 2006, as reflected by a prior order of this Court, this case was tried and Christopher Dante Loud, hereinafter called defendant, entered a plea of Nolo Contendere to the offense of Aggravated Assault-Bodily Injury. The Court after hearing the evidence introduced thereunder accepted the plea of Nolo Contendere, deferred further proceeding without entering an adjudication of guilt and placed the defendant on probation for a term of six (6) years and cost of Court. Thereafter, the State filed a motion in which it alleged that the defendant has violated the terms of probation, moving the Court to proceed to an adjudication of guilt, the assessment of punishment and all other actions necessary in this cause, a copy of which motion was served upon the defendant, and on the 16th day of January 2007, came on to be heard the Motion heretofore filed by the State, and the defendant appeared in person with counsel and the State appeared through her Assistant District Attorney and after proper admonishment the defendant entered a plea of true to violation 3, 8 and 10 of the allegations contained in the Motion filed by the State alleging a violation of the terms of probation.

(emphasis added).

The State filed another application to proceed to adjudication in November 2008. In this application, the State alleged:

Christopher Dante Loud, the defendant in this cause, entered a plea of Nolo Contendere to the offense of Aggravated Assault-Bodily Injury, a felony, on the 3rd day of July 2006. The Court after hearing the evidence introduced thereunder and accepting the plea of Nolo Contendere, deferred further proceedings without entering an adjudication of guilt and placed the defendant on probation on reasonable terms and conditions for a period of six (6) years, and the said defendant was then and there probated to said Hill County Community Supervision and Corrections Department as aforesaid.

(emphasis added).

At the beginning of the hearing on the State’s application, held on February 11, 2009, the trial court confirmed that appellant was “the same person that entered a plea of no contest to a charge of aggravated bodily assault — or aggravated assault bodily injury back on July the 3rd, 2006.” The trial court found the State’s allegations that appellant violated the terms of his community supervision true and found appellant guilty of the “offense alleged in the indictment.” After a punishment hearing, the trial court sentenced appellant to 15 years’ confinement in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine. The judgment adjudicating appellant guilty listed the offense as Texas Penal Code Section 22.02(a)(1), and the trial court entered “N/ A” under the deadly-weapon finding.

Later that month on February 20, the State filed a motion to enter a judgment nunc pro tunc adjudicating appellant’s guilt. The State alleged:

1. In a February 9, 2009 hearing on the State’s Application to Proceed to Final Adjudication, the Court found the allegations in the Application to be true, found the Defendant guilty of the offense as charged in the Indictment, and after a punishment hearing, sentenced the Defendant to 15 years in prison, and a fine of $10,000.
2. The Judgment signed by the Court on February 13, 2009 contains clerical errors, including:
a. The “Statute for Offense” is erroneously entered as § 22.02(a)(1). Defendant was indicted for and found guilty of Aggravated Assault under Tex. Penal Code § 22.02(a)(2),[] so the entry should be corrected.
b. The code for the “Offense for which Defendant Convicted” is incorrectly entered as 13150004. It should be the code for Aggravated Assault — Deadly Weapon— 13150005.
c. The “Findings on Deadly Weapon” is erroneously shown as N/A. The Defendant was indicted for aggravated assault by using or exhibiting a deadly weapon during the commission of the offense. He was found guilty as charged in the Indictment. The deadly weapon is an element of the offense, so the record should be corrected to show the Court’s finding.

Appellant filed “Defendant’s Motion in Arrest of Judgment and Motion for New Trial” on February 27, 2009. Appellant requested a new trial, contending the judgment “is contrary to law and the evidence,” and “revocation of deferred adjudication community supervision is an abuse of discretion.” There is no indication in the record that the trial court considered or acted upon appellant’s motion. Moreover, the State did not pursue correction of judicial, rather than, clerical, errors.

The trial court conducted a hearing on the State’s motion for entry of judgment nunc pro tunc on March 9, 2009. The reporter’s record does not reflect any indication that the trial judge independently recalled that he made a deadly-weapon finding during the hearing on final adjudication of appellant’s guilt. At the conclusion of the hearing, the trial court requested additional briefing from the State and appellant regarding whether a judgment nunc pro tunc was available to correct these errors. After the parties submitted briefing, the trial court changed the order of deferred adjudication to reflect the offense as “Aggravated Assault w/Deadly Weapon,” the offense statute as “22.02(a)(2) Penal Code,” and the findings on deadly weapon as ‘Tes, Not a Firearm.” The trial court further changed the caption of the indictment, the order imposing conditions of community supervision, and the criminal docket sheet to reflect the offense of “Aggravated Assault w/Deadly Weapon.” Finally, the trial court entered a Nunc Pro Tunc Judgment Adjudicating Guilt reflecting these same changes and including a finding of “Yes, Not a Firearm” on the deadly weapon section of the judgment.

II. Analysis

In a single issue, appellant contends the trial court erred in adjudicating him guilty of aggravated assault — deadly weapon and entering an affirmative finding of a deadly weapon through a judgment nunc pro tunc.

In his brief, appellant contends: “on the one hand the original [gjuilty plea is involuntary or on the other hand the judgment should be modified to remove the deadly-weapon finding and adjudicate the Appellant Guilty of either Aggravated Assault-Bodily Injury under Texas Penal Code Section 22.02(a)(1) or Aggravated Assault Serious Bodily Injury.” However, we will not consider appellant’s argument that his guilty plea was involuntary because appellant did not voice this complaint in the trial court. See Worthy v. State, 295 S.W.3d 685, 691-92 (Tex.App.-Eastland 2009), affd 312 S.W.3d 34 (Tex.Crim.App.2010); Salinas v. State, 282 S.W.3d 923, 924 (Tex.App.-Fort Worth 2009, pet. refd). We confine our analysis and disposition to whether the trial court properly changed the judgment to reflect a deadly-weapon finding and a conviction under Texas Penal Code section 22.02(a)(2) (hereinafter “Aggravated Assault with a Deadly Weapon”).

A judgment nunc pro tunc is appropriate to correct clerical errors when the court’s records do not mirror the judgment actually rendered. Collins v. State, 240 S.W.3d 925, 928 (Tex.Crim.App.2007). However, such an order is not appropriate to correct judicial errors or omissions. Ex parte Poe, 751 S.W.2d 873, 876 (Tex.Crim.App.1988) (en banc). “The trial court cannot, through a judgment nunc pro tunc, change a court’s records to reflect what it believes should have been done.” Collins, 240 S.W.3d at 928 (citing Ex parte Dopps, 723 S.W.2d 669, 671 (Tex.Crim.App.1986) (en banc) (per curiam)). The dispositive issue in this case is thus whether the changes made by the trial court resulted from judicial reasoning or were simply corrections of clerical errors. Such a determination is a matter of law. See Poe, 751 S.W.2d at 876.

As discussed above, appellant pleaded no contest to the allegations in the indictment. The indictment, in turn, alleged aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(2). However, appellant waived the reading of the indictment, and the trial court, both orally and in writing, admonished appellant that the offense with which he was charged was aggravated assault-serious bodily injury. See id. § 22.02(a)(1). There is no mention in any of the documents contained in the clerk’s record — except the body of the indictment — or any discussion in any of the reporter’s records of a deadly weapon until the State filed its motion for judgment nunc pro tunc. Indeed, the record makes clear that everyone, including the State and the trial court, was operating under the assumption appellant had pleaded no contest to aggravated assault — serious bodily injury. At the beginning of three separate hearings over the course of three years, the trial court verified appellant had pleaded no contest to aggravated assault— bodily injury. In fact, the trial court requested briefing at the conclusion of the hearing on the State’s motion for a judgment nunc pro tunc; such a request certainly suggests the use of judicial reasoning in determining whether to correct the numerous errors apparent in this record. Cf Collins, 240 S.W.3d at 928 (noting a nunc pro tunc order may only be used to correct a clerical error that was not the result of judicial reasoning).

The cases cited by the State to support its proposition that a judgment nunc pro tunc is appropriate to correct clerical errors made in a deadly-weapon finding are factually distinguishable from this case. First, in Curry v. State, the jury found the defendant had used or exhibited a deadly weapon; thus the trial court was required to enter the finding on the judgment. 720 S.W.2d 261, 263 (Tex.App.-Austin 1986, pet. refd). Here, we have no such jury finding. Next, in Rabsatt v. State, No. 03-06-00668-CR, 2007 WL 3390877, at *2 (Tex.App.-Austin Nov. 15, 2007, pet. struck) (mem. op., not designated for publication), the trial court orally pronounced an affirmative deadly-weapon finding. Again, the trial court made no such oral pronouncement in this case. Finally, in Ex paite Huskins, the trial court properly admonished the defendant prior to accepting his guilty plea to the allegations in the indictment. 176 S.W.3d 818, 820 (Tex.Crim.App.2005). Thus, the Court of Criminal Appeals concluded that the trial court was not required to orally announce a deadly-weapon finding at sentencing to include such a finding in the judgment and sentence. Id. at 820-21. But here, the trial court did not properly admonish the defendant regarding a deadly weapon; as explained above, the trial court instead admonished the defendant that he was pleading no contest to and being placed on deferred adjudication for aggravated assault — serious bodily injury.

Further, when the trial court is the trier-of-fact, it has discretion to withhold entry of a deadly-weapon finding from its judgment, even when such a finding is supported by the evidence. See Guerrero v. State, 299 S.W.3d 487, 490 (Tex.App.Amarillo 2009, no pet.); Johnson v. State, 233 S.W.3d 420, 425 (Tex.App.-Fort Worth 2007, pet. denied); Dickson v. State, 988 S.W.2d 261, 263 (Tex.App.-Texarkana 1998, pet. refd); Campos v. State, 927 S.W.2d 232, 235 (Tex.App.-Waco 1996, no pet.). Notwithstanding the trial court’s decision to grant the State’s motion to enter a judgment nunc pro tunc, we must glean its original intent by reviewing the entire record. On multiple occasions, the State and the trial court (orally and in writing) denominated the charge as “aggravated assault-bodily injury.” During the hearing on final adjudication of guilt, the trial court asked appellant if he was the same person charged with “aggravated assault-bodily injury.” Moreover, any doubt regarding the trial court’s original intent is removed by its express finding of “N/A” on the original judgment. The deadly weapon finding was within the trial court’s discretion and required judicial reasoning; accordingly the “N/A” entry was not merely a clerical error. Johnson, 233 S.W.3d at 428. Based on this record, we cannot conclude that the trial court’s inscription of “N/A” in the judgment under the topic “Findings on a Deadly Weapon” was simply a clerical error, particularly when coupled with a record that indicates the judge was operating under the assumption that appellant had pleaded no contest to aggravated assault — serious bodily injury. Again, we find no basis in this record for the State’s contention that in contemplating the merits of the State’s motion for entry of judgment nunc pro tunc, the trial judge independently recalled his intent to enter a deadly-weapon finding when he adjudicated appellant’s guilt.

We acknowledge that on the day the trial court signed the judgment nunc pro tunc it retained plenary power over the case. We are also cognizant of authority supporting the contention that a trial court, in exercise of its plenary power, may vacate, modify or amend certain of its own rulings. See Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex.Crim.App.1998) (determining trial court had authority to rescind order granting new trial). There is ample authority supporting the contention that the trial court may modify or amend the defendant’s sentence while it has plenary power over a case. See State v. Aguilera, 165 S.W.3d 695, 697-98 (Tex.Crim.App.2005) (explaining trial courts have plenary power to modify a sentence); Junious v. State, 120 S.W.3d 413, 417 (Tex.App.-Houston [14th Dist.] 2003 pet. refd) (holding, notwithstanding erroneous grant of partial new trial pertaining to punishment, trial court properly exercised plenary power to alter sentence); Ware v. State, 62 S.W.3d 344, 353-55 (Tex.App.-Fort Worth 2001, pet. refd) (holding trial court had inherent power to correct judgment).

However, enhancement findings are made and entered during final adjudication of guilt, and we have not identified any authority supporting the contention that the trial court may alter or amend enhancement findings without granting a motion for new trial. Here, the State merely requested that the trial court correct a clerical error. Accordingly, under the unique circumstances presented in this case, we conclude the trial court acted to correct judicial errors and omissions; in fact, it appears as though the trial court changed its record to reflect what it believed should have been done, not to what actually occurred. See Collins, 240 S.W.3d at 928 (“The trial court cannot, through a judgment nunc pro tunc, change a court’s records to reflect what it believes should have been done.”). The trial court was not authorized to enter the judgment nunc pro tunc. See Dopps, 723 S.W.2d at 671. We sustain appellant’s sole issue.

Having sustained appellant’s issue, we order the judgment nunc pro tunc vacated and set aside. We further order the original judgment and sentence reinstated. We affirm the original judgment of the trial court.

FROST, J., dissenting.

KEM THOMPSON FROST, Justice,

dissenting.

This court should affirm the trial court’s March 13, 2009 judgment either because the trial court properly exercised its inherent power to correct or modify its prior judgment or because the trial court properly corrected clerical errors in the prior judgment.

Background

On February 13, 2009, the trial court signed a judgment adjudicating guilt and reflecting a conviction for aggravated assault under Texas Penal Code section 22.02(a)(1) (hereinafter, “Bodily Injury Aggravated Assault”). The notation “N/A” was entered in the space for any deadly weapon finding. Appellant timely filed a motion for new trial and a motion in airest of judgment. One week later, the State filed a motion for nunc pro tunc judgment. The trial court conducted a hearing on the State’s motion on March 9, 2009. During the hearing, counsel for the State indicated that the trial court had only thirty days after the date on which judgment was rendered to correct its judgment. At the conclusion of the hearing, the trial court requested additional briefing and took the matter under advisement.

The trial court granted the State’s motion on March 13, 2009, within thirty days of sentencing and rendition of the original judgment. On the same day, the trial court also edited its previous order of deferred adjudication to reflect the offense as “Aggravated Assault w/Deadly Weapon,” the offense statute as “22.02(a)(2) Penal Code,” and the findings on deadly weapon as “Yes, Not a Firearm.” The trial court further edited the caption of the indictment, the order imposing conditions of community supervision, and the criminal docket sheet to reflect the offense of “Aggravated Assault w/Deadly Weapon.” Finally, the trial court rendered a “Nunc Pro Tunc Judgment Adjudicating Guilt” reflecting a conviction for aggravated assault under Texas Penal Code section 22.02(a)(2) (hereinafter, “Deadly Weapon Aggravated Assault”) and including a finding of “Yes, Not a Firearm” in the space for any deadly weapon finding.

In a single issue, appellant contends the trial court erred and abused its discretion by adjudicating him guilty of Deadly Weapon Aggravated Assault and entering an affirmative deadly weapon finding in its March 13, 2009 judgment. The majority appropriately confines its analysis and disposition to the issue of whether the trial court properly changed the judgment to enter a deadly weapon finding and to reflect a conviction for Deadly Weapon Aggravated Assault.

Trial Court’s Plenary Power to Modify its Judgment

In the body of the indictment it is clearly alleged that appellant committed Deadly Weapon Aggravated Assault and that he used a deadly weapon during the commission of the offense. Appellant pleaded “no contest” to this indictment. Appellant stipulated that the State could prove these allegations beyond a reasonable doubt and that these allegations are true.

During the February 11, 2009 hearing, the trial court found that appellant violated his probation and twice pronounced that it found appellant “guilty of the offense alleged in the indictment,” which was Deadly Weapon Aggravated Assault, not Bodily Injury Aggravated Assault. The trial court did not state that it found appellant guilty of Bodily Injury Aggravated Assault. The trial court assessed punishment at fifteen years’ confinement and a $10,000 fine. There is no issue before this court regarding the voluntariness of appellant’s plea. Appellant is not challenging the manner in which he was admonished. The focus of this appeal is the propriety of the trial court’s action in changing its judgment to reflect a conviction for Deadly Weapon Aggravated Assault rather than Bodily Injury Aggravated Assault and entry of a deadly weapon finding rather than no such entry. The first change bears on the offense for which appellant was convicted, not the punishment assessed for this offense. The second change bears on whether the trial court entered a deadly weapon finding, which is an administrative matter that is not part of the guilt/innocence determination or part of the sentence. See Ex parte Huskins, 176 S.W.3d 818, 820-21 (Tex.Crim.App.2005) (holding that a deadly weapon finding is not part of the sentence or punishment and that, even though it may affect how the sentence is served, a trial court is not required to orally announce a deadly weapon finding at sentencing).

The Texas Court of Criminal Appeals has indicated that (1) “a court has inherent power to correct, modify, vacate, or amend its own rulings” and (2) “a trial court has plenary jurisdiction over a case for at least the first thirty days after sentencing.” State v. Aguilera, 165 S.W.3d 695, 698 n. 7 (Tex.Crim.App.2005) (quoting Awadelkariem v. State, 974 S.W.2d 721, 728-29 (Tex.Crim.App.1998) (Meyers, J., concurring) and McClinton v. State, 121 S.W.3d 768, 769, n. 1 (Tex.Crim.App.2003) (Cochran, J., concurring)). In Junious v. State, the trial court initially sentenced appellant to twenty-five years’ confinement and then later, within thirty days of sentencing, purported to grant appellant’s motion for new trial “as to punishment only” and to sentence appellant to ten years’ confinement. See 120 S.W.3d 413, 415-16 (Tex.App.Houston [14th Dist.] 2003, pet. refd). On appeal in Junious, this court held that the trial court’s purported granting of a new trial as to punishment only was void and therefore a nullity. See id. Unable to uphold the trial court’s action based on the Junious appellant’s motion for new trial, this court held that the trial court modified the Junious appellant’s punishment while it still had plenary jurisdiction and that the trial court was authorized to do so based on its inherent power to vacate, modify, or amend its own rulings within the time of its plenary jurisdiction. See id. at 416-17. The Texas Court of Criminal Appeals later cited Junious with approval and indicated that Junious was correctly decided. See Aguilera, 165 S.W.3d at 698 n. 7.

In Ware v. State, the defendant was convicted of two offenses, the second of which had a maximum sentence of twenty years’ confinement. See 62 S.W.3d 344, 353 (Tex.App.-Fort Worth 2001, pet. refd). In its oral pronouncement of sentence, the trial court stated that defendant was sentenced to seventy-five years’ confinement, without specifying the offense or offenses to which this punishment pertained. See id. After the defendant appealed and moved for a new trial, pointing out the maximum punishment for the second offense, the trial court held a hearing within thirty days of sentencing. See id. At this hearing, the trial court stated that it was granting a judgment nunc pro tunc, in which it was sentencing the defendant to seventy-five years’ confinement for the first offense and ten years’ confinement for the second offense, with the sentences to run concurrently. See id. The next day, the trial court signed a nunc pro tunc judgment consistent with its statements the day before. See id.

On appeal, the Second Court of Appeals held that the pendency of the Ware appellant’s appeal did not prevent the trial court from modifying its judgment because the appellate record had not yet been filed in the Second Court of Appeals when the trial court modified its judgment. See id. at 353-54. The Ware court then concluded that the trial court’s modification could not be characterized as granting a motion for new trial or a motion in arrest of judgment. See id. The Ware court also decided that the trial court’s modification could not be upheld as a judgment nunc pro tunc. See id,, at 354-55. Instead, the Ware court held that, because the trial court acted during its plenary jurisdiction over the case, the trial court had the inherent power to correct, vacate, modify, or amend its judgment and that it was proper for the trial court to correct its judgment in the way that it did. See id. Both the Texas Court of Criminal Appeals and this court have cited Ware with approval and indicated that Ware was correctly decided. See Aguilera, 165 S.W.3d at 698 n. 7; Junious, 120 S.W.3d at 417.

In the case under review, the trial court signed its March 13, 2009 judgment within thirty days of sentencing, while it still had plenary jurisdiction over the case. See Aguilera, 165 S.W.3d at 697-99; Junious, 120 S.W.3d at 417. When the trial court modified its judgment, appellant’s motion for new trial and motion in arrest of judgment were still pending before the trial court. See Ware, 62 S.W.3d at 355, n. 5. Though appellant already had filed his appeal when the trial court signed its modified judgment, the appellate record had not yet been filed. See id. at 353-54. On February 11, 2009, the trial court found appellant guilty of Deadly Weapon Aggravated Assault, as charged in the indictment, which constitutes an affirmative deadly weapon finding. The trial court modified the original judgment to accurately reflect that the trial court had found appellant guilty of Deadly Weapon Aggravated Assault and to enter a deadly weapon finding in the judgment. Presuming for the sake of argument that the trial court’s March 13, 2009 judgment was not proper as a nunc pro tunc judgment, this judgment was still a proper exercise of the trial court’s inherent power to correct or modify its judgment while the trial court had plenary jurisdiction over the case. See Aguilera, 165 S.W.3d at 697-99; Junious, 120 S.W.3d at 417; Ware, 62 S.W.3d at 353-55.

Propriety of Nunc Pro Tunc Judgment

A judgment nunc pro tunc is appropriate to correct clerical errors when the court’s records do not reflect the judgment actually rendered. See Ex parte Poe, 751 S.W.2d 873, 876 (Tex.Crim.App.1988). A nunc pro tunc order is not appropriate to correct judicial errors. See id. Therefore, to determine if the March 11, 2009 judgment is proper as a judgment nunc pro tunc, this court must determine whether the actual judgment rendered was a conviction for Deadly Weapon Aggravated Assault with entry of a deadly weapon finding.

The indictment put appellant on notice that he was charged with the offense of Deadly Weapon Aggravated Assault and that he was alleged to have used a deadly weapon during the commission of the offense. During the February 11, 2009 hearing, the trial court found appellant “guilty of the offense alleged in the indictment,” which was Deadly Weapon Aggravated Assault, not Bodily Injury Aggravated Assault. The trial court did not find appellant guilty of any offense other than Deadly Weapon Aggravated Assault. Therefore, the record reflects that, though the trial court found appellant guilty of Deadly Weapon Aggravated Assault, the original judgment contained a clerical error reflecting a conviction for Bodily Injury Aggravated Assault.

For the deadly weapon finding, there are two procedural steps: (1) the affirmative finding by the trier of fact that a deadly weapon was used or exhibited during the commission of a felony offense or during the immediate flight therefrom, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited, and (2) entry by the trial court of that finding in the trial court’s judgment. See Tex.Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (West Supp.2010). Regarding the first step, because the trial court granted deferred adjudication, there was no reason for the trial court to make a deadly weapon finding until February 11, 2009, when the trial court adjudicated appellant’s guilt and pronounced the sentence. Appellant contends the trial judge first made the deadly weapon finding when he rendered the judgment nunc pro tunc. This is not correct. The use of a deadly weapon was alleged in the indictment as an element of the offense and, as fact finder, the trial court found appellant guilty as charged in the indictment. Consequently, the trial court made an affirmative deadly weapon finding during the February 11, 2009 hearing. See Lafleur v. State, 106 S.W.3d 91, 95 & n. 23 (Tex.Crim.App.2003) (stating that the trier of fact’s finding that defendant is guilty as alleged in the indictment constitutes a deadly weapon finding if the indictment itself alleges that the defendant used a deadly weapon during the commission of the offense); Ex parte Empey, 757 S.W.2d 771, 774 (Tex.Crim.App.1988). Regarding the second step in which the trial court enters the deadly weapon finding, the Texas Legislature has stated that, upon an affirmative deadly weapon finding, “the trial court shall enter the finding in the judgment of the court.” Tex.Code Crim. Proc. Ann. art 42.12 § 3g(a)(2). The Texas Court of Criminal Appeals has stated that the Texas Legislature wrote this statute so that a deadly weapon finding would be entered in the judgment when the trier of fact found that a deadly weapon was used in the commission of an offense, and thus the Department of Corrections would know how to compute the defendant’s time for parole purposes. See Lafleur, 106 S.W.3d at 94. Consistent with the mandatory language used in this statute, when a jury finds a defendant guilty of a felony offense and use of a deadly weapon is alleged as an element of the offense, the trial court has a ministerial duty to enter a deadly weapon finding in the judgment. See Ex parte Poe, 751 S.W.2d at 876. A failure by the trial court to comply with this mandatory duty is a clerical error that can be corrected by a judgment nunc pro tunc. See id. at 875-77.

Even though the statute in question makes no distinction between bench trials and jury trials, the Texas Court of Criminal Appeals has held that, if the trial court is the fact finder, then the statute is construed differently. See Tex.Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2); Hooks v. State, 860 S.W.2d 110, 112-14 (Tex.Crim.App.1993). If it is alleged in the indictment that the defendant used or exhibited a deadly weapon during the commission of a felony offense and if the trial court finds the defendant guilty as charged in the indictment, even though the trial court has made a deadly weapon finding, according to the Hooks court, the trial court has discretion to not enter a deadly weapon finding in its judgment. See Hooks, 860 S.W.2d at 112-14. The Hooks case has not been overruled and is binding on this court. Therefore, the trial court’s judgment nunc pro tunc was proper as to the deadly weapon finding only if the trial court intended to enter a deadly weapon finding when it signed the February 13, 2009 judgment, which contained “N/A” in the space for “Findings on Deadly Weapon.”

Nothing in the record reflects that the trial court exercised its discretion to not enter the deadly weapon finding in its February 13, 2009 judgment. The trial judge knew whether he intended to enter a deadly weapon finding in this judgment. Because the trial court rendered a judgment nunc pro tunc, the trial judge impliedly found that he intended to enter a deadly weapon finding in this judgment but that, through a clerical error, no such entry was made. Furthermore, the trial court was not required to orally pronounce a deadly weapon finding at sentencing. See Ex parte Huskins, 176 S.W.3d 818, 821 (Tex.Crim.App.2005).

On this record, this court should conclude that no error has been shown in the trial court’s rendition of a judgment nunc pro tunc reflecting a conviction for Deadly Weapon Aggravated Assault and entry of a deadly weapon finding.

Conclusion

This court should affirm the trial court’s March 13, 2009 judgment because (1) this judgment was a proper exercise of the trial court’s inherent power to correct or modify its judgment while the trial court still had plenary jurisdiction over the case, or (2) this judgment was a proper judgment nunc pro tunc, correcting clerical errors that resulted in the February 13, 2009 judgment not reflecting the judgment that actually had been rendered. Because the court does not do so, I respectfully dissent.

      . Appellant has not challenged the original judgment and sentence.

      . This statute provides that a person commits aggravated assault if he commits assault and causes serious bodily injury to another. Tex. Penal Code Ann. § 22.02(a)(1) (Vernon Supp. 2009).

      . Appellant timely filed his notice of appeal on February 27, 2009.

      . This statute provides that a person commits aggravated assault if he commits assault and uses or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code Ann. § 22.02(a)(2).

      . Though appellant argues in passing in his brief that the original "guilty” plea was involuntary, the majority correctly declines to consider this argument because appellant did not voice this complaint in the trial court. See Worthy v. State, 295 S.W.3d 685, 691-92 (Tex.App.-Eastland 2009), aff'd, 312 S.W.3d 34 (Tex.Crim.App.2010); Salinas v. State, 282 S.W.3d 923, 924 (Tex.App.Fort Worth 2009, pet. ref'd).

      . The majority suggests that in its motion the State sought only correction of clerical errors and that therefore the trial court had no inherent power to modify its prior judgment. First, the State’s motion can be construed as a request that the trial court modify its judgment to reflect a conviction for Deadly Weapon Aggravated Assault and entry of a deadly weapon. See Ware, 62 S.W.3d at 353-55 (affirming trial court’s judgment nunc pro tunc based on trial court’s inherent power to modify judgment during trial court's plenary jurisdiction). Second, the cases do not support the proposition that the State was required to ask for correction of judicial errors in a motion for the trial court in the case under review to have inherent power to modify its judgment. See Aguilera, 165 S.W.3d at 697-99; Junious, 120 S.W.3d at 417.

      . Whatever issues there may be regarding a trial court’s exercise of its inherent power to re-sentence a defendant after he has started serving his sentence, those issues are not presented in this appeal because the trial court did not change appellant's sentence. See Ex parte Huskins, 176 S.W.3d at 820-21 (holding that a deadly weapon finding is not part of the sentence).

      . Appellant relies upon Fanniel v. State, and argues that the trial court in the case under review was precluded from entering a deadly weapon finding in a judgment nunc pro tunc because the trial court did not originally make a deadly weapon finding when the defendant’s guilt was adjudicated. See 73 S.W.3d 557 (Tex.App.-Houston [1st Dist.] 2002, no pet.). In Fanniel, the record reflected that the trial court found defendant guilty only of possession of a controlled substance, was unaware of the enhancement paragraph alleging the use of a deadly weapon, and did not intend to make a deadly weapon finding when it found the defendant guilty of possession of a controlled substance. See id. at 558-59. Therefore, the Fanniel case is not on point.