author: TERRIE LIVINGSTON, Chief Justice. LEE ANN DAUPHINOT,

text:
    Ronnie Durant DEAVER, Appellant, v. The STATE of Texas, State.
    No. 2-08-329-CR.
    Court of Appeals of Texas, Fort Worth.
    April 22, 2010.
    Rehearing Overruled May 27, 2010.

      Maggie McBride, Hurst, TX, for Appellant.
    Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallín, Chief of Appellate Section, Assistant Criminal District Attorney, Shelly Messerli, Sabrina Sabin, & Lori Varnell, Assistant Criminal District Attorneys, Fort Worth, TX, for State.
    PANEL: LIVINGSTON, C.J.; DAUPHINOT and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Chief Justice.

Appellant Ronnie Durant Deaver appeals his conviction for possession of child pornography. In one issue, he argues that his trial counsel provided him with ineffective assistance because they failed to challenge the admissibility of the video that contained the pornography. We affirm.

Background Facts

On the morning of February 27, 2007, Fort Worth Police Officer Joe Shipp learned that a fourteen-year-old girl named K.B. ran away from her mother’s home in Pasadena, Texas two days earlier and that her mother believed that she was at Deaver’s home in Fort Worth. Officer Shipp obtained Deaver’s phone number, his address, and a detailed description of his truck, and then Officer Shipp went to Deaver’s home. Deaver’s front porch lights were on, and a television was on inside his home, but no one answered when Officer Shipp knocked on Deaver’s door. Officer Shipp initially stayed at the home for approximately two hours, and on his way back to the home later that day, he saw Deaver driving his truck away from the home.

Deaver pulled into a convenience store, and when Officer Shipp walked up to Deaver’s truck, he saw two children inside and discovered that one of them was K.B. and the other one was E.D. Officer Shipp saw Deaver place a cell phone in the center console of the truck. Officer Shipp then detained Deaver in the back of his patrol car to investigate the offense of harboring a runaway. Deaver told Officer Shipp that he was trying to remove K.B. from an abusive relationship and that he did not know why he had not called the police. He also told Officer Shipp that he was asleep while Officer Shipp waited at his home for two hours, but when Officer Shipp said that he saw Deaver’s bed inside the home (which Deaver was apparently not lying on), Deaver said that he “didn’t know why he didn’t answer the door.” At that time, because Officer Shipp determined that Deaver was answering his questions falsely and because K.B. was -with Deaver, he placed Deaver under arrest for harboring a runaway.

Because Officer Shipp concluded that K.B. needed to return to her mother in Pasadena and that there was no one available to take care of E.D., he asked Deaver for a number that Officer Shipp could use to contact E.D.’s mother (Deaver’s ex-wife) so that she could come pick up E.D. Deaver said that he did not know the number, so Officer Shipp gave Deaver his cell phone from the truck to find it. Officer Shipp eventually retrieved Deaver’s phone and saw child pornography on it, and then Fort Worth Police Detective Sherry Kelly told Officer Shipp to transport Deaver and both girls to her office. Detective Kelly spoke with K.B. for about an hour, and then she spoke with Deaver. K.B. apparently told Detective Kelly about a sexual relationship with Deaver. Deaver denied having such a relationship but told Detective Kelly about other aspects of his relationship with K.B. and her mother, Audrey (or “Auddie”), and he told Detective Kelly, among other things, that he had visited K.B. and Audrey the previous weekend, that K.B. and Audrey had a strained relationship, and that K.B. had put some videos on his cell phone but that he did not know of any pornographic videos on his phone.

Eventually, Detective Kelly obtained a warrant to search Deaver’s cell phone. Fort Worth Police Detective Troy Lawrence, who testified as an expert for the State at trial, received the warrant and extracted videos from the phone, including the fifteen-second pornographic video at issue in this case — created one night in January 2007 — of K.B. “exposing her unclothed breasts and genitalia.” K.B., Audrey’s older daughter named Maygan, and E.D. were in the room in Audrey’s apartment when the video was created.

In December 2007, a Tarrant County grand jury indicted Deaver with possession of child pornography. See Tex. Penal Code Ann. § 43.26(a) (Vernon 2003). The parties filed various pretrial documents, and then Deaver’s trial began in September 2008. Two attorneys appeared as Deaver’s counsel. After the jury found Deaver guilty and heard evidence during the punishment phase of the trial about various aspects of his background, it assessed six-and-a-half years’ confinement. Deaver filed his notice of appeal.

Ineffective Assistance of Counsel

In one issue, Deaver argues that his trial counsel were ineffective under the Texas and federal constitutions because they did not object to the admission of the video extracted from Deaver’s cell phone on the basis of an allegedly unconstitutional search of the phone. Specifically, Deaver contends that his counsel were required to use all legal means to have the video suppressed and that the evidence clearly indicates that Officer Shipp searched his cell phone to find the video and did not have a warrant or any other legal justification to do so.

Standard of review and applicable law

The standard for ineffective assistance of counsel is the same under the Texas and federal constitutions. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App.1986); Lemmons v. State, 75 S.W.3d 513, 526 (Tex.App.-San Antonio 2002, pet. ref'd). To establish ineffective assistance of counsel, Deaver must show by a preponderance of the evidence that his counsel’s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel’s deficiency, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App.2005); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App.2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999).

In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065.

Review of counsel’s representation is highly deferential, and the reviewing court indulges a strong presumption that counsel’s conduct fell within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at 813-14. “In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63).

To overcome the presumption of reasonable professional assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.Crim.App.2007).

The second prong of Stnckland requires a showing that counsel’s errors were so serious that they deprived the defendant of a fair and reliable trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In other words, Deaver must show there is a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. See id. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding in which the result is being challenged. Id. at 697, 104 S.Ct. at 2070.

To succeed on his ineffective assistance claim based on counsel’s alleged failure to attempt to suppress evidence, Deaver must rebut the presumption of proper police conduct and prove that a motion to suppress would have been granted. See Jackson v. State, 973 S.W.2d 954, 956-57 (Tex.Crim.App.1998) (affirming the appellant’s conviction when the facts surrounding the search were not sufficiently developed) (citing Jackson v. State, 877 S.W.2d 768 (Tex.Crim.App.1994)); see also Ortiz v. State, 93 S.W.3d 79, 93 (Tex.Crim.App.2002), cert. denied, 538 U.S. 998, 123 S.Ct. 1901, 155 L.Ed.2d 824 (2003). In other words, “[t]o prevail on his claim of ineffective assistance of counsel!,] [Deaver has] the burden to develop facts and details of the search sufficient to conclude that the search was invalid,” and mere “questions about the validity of the search” are not enough. Jackson, 973 S.W.2d at 957; see Lesso v. State, 295 S.W.3d 16, 21 (Tex.App.-Houston [1st Dist.] 2009, pet. ref'd); Hollis v. State, 219 S.W.3d 446, 456 (Tex.App.-Austin 2007, no pet.) (reiterating that the appellant has the burden of developing facts about the search).

Analysis

Deaver’s contention that his trial counsel should have moved to suppress the cell phone video because it was discovered during an allegedly unauthorized search is, of course, dependent on his establishing that a search in fact occurred. See Jackson, 973 S.W.2d at 957. The State asserts, in part, that the record does not provide sufficient evidence that Officer Shipp searched Deaver’s phone. We agree with the State.

A “search” occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 2042, 150 L.Ed.2d 94 (2001); United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). If an item is in plain view, neither its observation nor its seizure involves any invasion of privacy. Hill v. State, 303 S.W.3d 863, 873 (Tex.App.-Fort Worth 2009, pet. ref'd); see Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000); see also McCall v. State, 540 S.W.2d 717, 720 (Tex.Crim.App.1976) (stating that it “is simply not a search to observe that which is open to view”); Duhig v. State, 171 S.W.3d 631, 636-37 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (explaining that a “search implies a prying into hidden places for that which is concealed” and holding that a plain-view observation of marijuana and drug paraphernalia was not a search).

The rationale of the plain view doctrine is that if contraband is in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no “search” within the meaning of the Fourth Amendment. Hill, 303 S.W.3d at 873; see Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983). An object is seized in plain view if three requirements are met. Hill, 303 S.W.3d at 873; see Keehn v. State, 279 S.W.3d 330, 334 (Tex.Crim.App.2009). First, law enforcement officials must lawfully be where the object can be “plainly viewed.” Keehn, 279 S.W.3d at 334 (citing Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 2311, 110 L.Ed.2d 112 (1990)). Second, the “incriminating character” of the object in plain view must be “immediately apparent” to the officials. Id. Third, the officials must have the right to access the object. Id.

Officer Shipp’s testimony during the State’s direct examination at trial concerning what happened when he gave Deaver’s cell phone to Deaver to find E.D.’s mother’s number is as follows:

Q. And at that point what did he do?
A. He said he was going to get me the phone number so I could contact the mother. He started punching the buttons on it like what I thought was scrolling through a phone list to get a phone number. This went on for about 45 seconds.
Q. Okay. Did you become concerned that something was being deleted or making contact? Were you concerned?
A. Yes, ma’am. I — I looked back there and it looked — when someone is going through a phone list, they are hitting a phone list over and over and over, and he was hitting multiple buttons ....
A. At that point I was afraid he may have been making a text message to someone in regards to, “I’m being arrested” or something like that, looking for outside help. So for officer safety reasons, I went to get the phone from him.[]
Q. When you got the phone back, did you discover there were images on the phone?
A. Yes, ma’am. [] [Emphasis added.]

As can be seen, this evidence does not explicitly reveal what actions Officer Shipp took, if any, between the time that he regained control of Deaver’s phone and the time that he discovered pornography on the phone.

Detective Lawrence and Deaver’s expert — Daniel Fitzgerald — testified that there is no pornography on the first frame of the video at issue, so the pornographic nature of the video would not be immediately discernable if someone was just scrolling through the various videos on Deaver’s phone. In other words, to find that the video contains pornography, it must actively be played. Deaver asserts that this is evidence that Officer Shipp could not have seen the pornographic video without searching the phone to play the video. But the evidence does not preclude the possibility that Deaver played the video — advertently or inadvertently (for instance, while trying to delete the video before giving the phone back to Officer Shipp, as the State theorizes) — and that Officer Shipp immediately saw the video playing upon retrieving the phone from Deaver. The experts could not testify that Officer Shipp searched Deaver’s phone because they were not present when Officer Shipp saw the child pornography. The crux of the experts’ testimony is only that the cell phone video had to be played to see pornography; the experts could not determine who played the video.

If Officer Shipp was initially justified in gaining control over Deaver’s phone for safety reasons (Deaver has not argued that he was not), and if Officer Shipp immediately saw the pornographic video upon controlling the phone (as may or may not have happened based on the limited, unclear record), then a motion to suppress would not have succeeded because the video was in plain view, no invasion of Deaver’s privacy could be shown, and no search could have therefore occurred. See Keehn, 279 S.W.3d at 334; Walter, 28 S.W.3d at 541; Hill, 303 S.W.3d at 873. Because Deaver therefore cannot demonstrate, on this ambiguous record, that his counsel’s motion to suppress would have been success'ful, we overrule his sole issue of ineffective assistance. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Jackson, 978 S.W.2d at 956-57; see also Mata, 226 S.W.3d at 432 (explaining that we cannot infer ineffective assistance from unclear portions of the record).

Conclusion

Having overruled Deaver’s only issue, we affirm the trial court’s judgment.

DAUPHINOT, J., filed a concurring opinion.

LEE ANN DAUPHINOT,

Justice, concurring.

The only evidence before this court is that the State and the defense experts viewed the pornographic images at the same time. There is no evidence that Officer Shipp ever viewed pornographic images, only images. Officer Lawrence viewed the contents of the cell phone pursuant to a search warrant, which was never challenged. I would therefore hold that the record is inadequate to show that trial counsel rendered ineffective assistance of counsel. Trial counsel had no opportunity to explain his trial strategy, but it is certainly reasonable that a lawyer would not want to call the jury’s attention to the existence of pornography when the State had not proved its existence. Nor did trial counsel have the opportunity to explain his strategy regarding the absence of a motion to suppress. But it is reasonable trial strategy to wait until trial to object to evidence because the State has no appeal of an evidentiary ruling made during trial.

Because the trial record is inadequate to support a claim of ineffective assistance of counsel, I would not assume what the record does not clearly reflect. I therefore concur in the result only.

      . To protect the privacy of the individuals involved in this appeal who are minors, we identify them by initials only.

      . Deaver and his six-year-old daughter, E.D., had visited K.B. and her mother the month before.

      . More details about the discovery of child pornography on Deaver's phone are set forth below.

      . Deaver met Audrey on a telephone chat line a few years before his arrest in this case. Audrey sometimes watched E.D. for Deaver before Audrey and K.B. moved to Pasadena. Once they moved to Pasadena, Deaver and E.D. visited them about once a month.

      . Deaver has not contested on appeal that the video at issue contained child pornography, that it came from and was recorded by his cell phone, or that he knew that the video was stored on his phone.

      . Possession of child pornography is a third-degree felony that carries a punishment range of two to ten years’ confinement. Tex. Penal Code Ann. §§ 12.34(a), 43.26(d) (Vernon 2003).

      . After a voir dire examination of the State’s witness, Deaver's counsel objected to the video’s admission on nonconstitutional grounds, including the video’s alleged noncompliance with the best evidence rule.

      . Deaver has not contested the legal justification of Officer Shipp's retrieval of Deaver’s cell phone for officer safety reasons or his counsel’s trial strategy or conduct with respect to that retrieval.

      . The State concedes that the "images” that Officer Shipp saw were pornographic. Although the record does not explicitly state that Officer Shipp saw pornography on Deaver's cell phone, the record does reveal that after seeing the "images” on Deaver's phone, Officer Shipp seized the phone and directed dispatch to call the Crimes Against Children Unit. Detective Kelly, who was assigned to that unit, told officers to transfer Deaver, E.D., and K.B. to the unit in separate vehicles because she had concerns of "additional abuse” involving K.B. that were unrelated to her being a runaway. Detective Kelly then asked Deaver about nude images of K.B. during Deaver's interrogation.

      . The evidence showed that Deaver's cell phone saved videos in numerical sequential order. The pornographic video at issue was "Video 002.” Video 001 (which had undeter-minable content) was not on the phone when Officer Shipp regained control of it.

      . Officer Shipp might in fact have found the video while combing through all parts of Deaver's phone upon gaining control of it to look for evidence regarding the harboring of a runaway offense, to relieve his safety concerns, or for other reasons. However, the record at trial is simply too undeveloped to prove that this occurred. See Jackson, 973 S.W.2d at 956-57.


source: Caselaw Access Project

author: Opinion by Chief Justice MORRISS. JACK CARTER, Justice,

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Christopher Charles BROWN, Appellee.
    No. 06-09-00212-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted May 3, 2010.
    Decided May 14, 2010.

      Gary Young, Dist. Atty., Wm. H. Harris, Asst. Dist. Atty., Paris, for appellant.
    Jerry Coyle, Paris, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by Chief Justice MORRISS.

In its indictment, the State alleged that, on or about July 26, 2009, Christopher Charles Brown fled from Officer Ronnica Blake in a motor vehicle — a violation of Section 38.04 of the Texas Penal Code— and that, in the process, Brown used or displayed a deadly weapon, that is, the motor vehicle. The deadly weapon allegation, if proven, would make the offense punishable as a third-degree felony. Tex. Penal Code Ann. § 12.35 (Vernon Supp. 2009).

Brown presented a two-fold attack on the indictment in the trial court, and the trial court quashed the indictment. On appeal, both issues are addressed by the State and by Brown. We therefore address both issues. We reverse the order quashing the indictment because (1) the indictment’s deadly weapon allegation is appropriate, and (2) the indictment provides sufficient notice of the offense.

(1) The Indictment’s Deadly-Weapon Allegation Is Appropriate

The State contends it was improper to quash the deadly-weapon allegation in the indictment because the offense of evading arrest with a vehicle is susceptible to an affirmative deadly-weapon finding.

We initially determine the appropriate standard of review to be employed when reviewing a trial court’s decision to quash an indictment. The amount of deference appellate courts afford a trial court’s rulings depends on which “judicial actor” is better positioned to decide the issue. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004). Here, the decision of the trial court was based solely on the indictment, the motion to quash, and the argument of counsel. “When the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness, then the trial court is not in a better position to make the determination, so appellate courts should conduct a de novo review of the issue.” Id. We therefore apply a de novo standard in our review of the trial court’s decision to quash the indictment.

Brown emphasizes the fact that the indictment fails to allege either of the contingencies permitting enhancement of the base offense under Section 88.04 to a third-degree felony. Instead, Brown asserts, the language of the indictment attempts to enhance a state-jail felony to a third-degree felony by the “verbal trick” of using the same essential allegation — use of a vehicle — to upgrade the base class B misdemeanor to a state-jail felony. Brown claims this amounts to an impermissible double enhancement.

In support of his position that a deadly weapon allegation cannot be appended to an offense charged under Section 38.04, Brown notes that Section 38.04 does not include an enhancement provision based on the use of a deadly weapon. See Tex. Penal Code Ann. § 38.04. Brown further relies on the language of Section 38.03, which specifically includes a provision for enhancement based on the use of a deadly weapon. Tex. Penal Code Ann. § 38.03 (Vernon 2003). Brown therefore contends that, in light of the inclusion of a deadly weapon enhancement in the preceding section of the statute, the Legislature did not intend such an enhancement to apply to Section 38.04. See Tex. Penal Code Ann. § 38.04.

When we interpret a statute, we look to the literal text for its meaning, and we ordinarily give effect to that plain meaning, unless the plain language is ambiguous or the application of the statute’s plain language would lead to absurd consequences that the Legislature could not possibly have intended. State v. Webb, 12 S.W.3d 808, 811 (Tex.Crim.App.2000); Bunton v. State, 136 S.W.3d 355, 363 (Tex.App.-Austin 2004, pet. ref'd). Section 38.04 of the Texas Penal Code does not contain language prohibiting a finding that a vehicle used by an individual while in flight is a deadly weapon. See Tex. Penal Code Ann. § 38.04. Moreover, Section 12.35(c)(1) refers generally to an individual adjudged guilty of a state-jail felony who uses or exhibits a deadly weapon during the commission of the offense or during immediate flight thereafter, making no exceptions for felonies where the use of a deadly weapon is an essential element of the offense. The language of Section 12.35 is not permissive; rather, it is mandatory. “An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown at trial” that a deadly weapon was used or exhibited during the commission of the offense or immediate flight therefrom. Tex. Penal Code Ann. § 12.35(c)(1) (emphasis added).

The plain language of Section 12.35(c)(1) is neither ambiguous, nor does its application to the state-jail felony of evading arrest or detention by fleeing in a vehicle lead to absurd consequences that the Legislature could not have envisioned. Further, Texas caselaw supports the proposition that an affirmative finding of a deadly weapon is permitted even where the use of the instrumentality characterized as a deadly weapon is an essential element of the committed offense.

Our sister court in Fort Worth addressed a similar issue. See Martinez v. State, 883 S.W.2d 771 (Tex.App.-Fort Worth 1994, pet. ref'd). Martinez was convicted of involuntary manslaughter for causing the victim’s death as a result of driving while intoxicated. The jury found that Martinez used a deadly weapon — a vehicle — during commission of the offense. On appeal, Martinez argued that the deadly weapon finding violated his double jeopardy rights because the action constituting the use of the deadly weapon (driving a vehicle while intoxicated) was also an essential element of the charged offense. In rejecting this argument, the Martinez court recognized that the relevant statute made no exception for enhancement of felonies when the use of a deadly weapon is an essential element of the offense. The court concluded, “We see nothing that would lead us to any other conclusion but that the Legislature intended for the deadly-weapon provisions to apply in every felony case as the context of the law suggests.” Id. at 774; cf. Tyra v. State, 897 S.W.2d 796, 798 (Tex.Crim.App.1995) (stating that prior caselaw does not support “the proposition that the phrase ‘used or exhibited a deadly weapon during the commission of a felony offense’ necessarily means ‘used or exhibited a deadly weapon during the commission of an offense which does not otherwise require the use or exhibition of a deadly weapon’ ”); Patterson v. State, 769 S.W.2d 938, 940 (Tex.Crim.App.1989) (agreeing with lower court’s conclusion that “all felonies are theoretically susceptible to an affirmative finding of use or exhibition of a deadly weapon”).

Likewise, in Thomas v. State, 2 S.W.3d 640 (Tex.App.-Dallas 1999, no pet.), Thomas claimed the trial court’s failure to delete a deadly weapon allegation from the indictment was error because the same allegation was used to raise the charged offense from misdemeanor assault to felony assault under Section 22.02(a)(2) of the Texas Penal Code. In overruling this point of error, the court relied on the reasoning used in Martinez, finding it to be persuasive. Id. at 643.

Section 12.35 of the Texas Penal Code makes no exception to the enhancement requirement where, as here, the instrumentality alleged to be a deadly weapon is also an essential element of the offense to be enhanced. Moreover, we find the reasoning of Martinez to be persuasive and further find no authority to support the proposition that the deadly weapon allegation could not appropriately be appended to the indictment against Brown. Accordingly, we overrule this point of error.

(2) The Indictment Provides Sufficient Notice of the Offense

The State also contends that, because the indictment precisely tracked the statutory language of Sections 38.04 and 12.35(c)(1) of the Texas Penal Code, it provided Brown with sufficient notice of the offense with which he was charged. As previously noted, Brown was indicted for evading arrest while using a motor vehicle, a state-jail felony under Section 38.04(b)(1) of the Texas Penal Code. Tex. Penal Code Ann. § 38.04(b)(1). In addition, the indictment alleged the use of a motor vehicle as a deadly weapon in the commission of the offense, making the offense punishable as a third-degree felony.

The indictment against Brown consists of a cover page and a second page containing a caption, three paragraphs of text, and the signature of the foreman of the grand jury. Brown contends the indictment fails to allege facts which permit enhancement of the base offense to a third-degree felony under Section 38.04 of the Texas Penal Code, and further contends that Section 38.04 does not permit enhancement of the offense of evading arrest to a felony of the third degree for the use or exhibition of a deadly weapon. Accordingly, Brown concludes that the enhancement was apparently based on the deadly weapon enhancement provision in Section 38.03 of the Texas Penal Code. The result, Brown says, is that the indictment is so unclear it fails to provide sufficient notice of the offense with which he has been charged, thus rendering the indictment defective. We disagree.

The Texas Constitution and Texas Code of Criminal Procedure require that an indictment provide an accused with adequate notice. Tex. Const. art. I, § 10; Tex.Code Crim. Proc. Ann. art. 1.05 (Vernon 2005); Curry v. State, 30 S.W.3d 394, 398 (Tex.Crim.App.2000), overruled in part on other grounds by Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App.2001). This constitutional mandate requires that the charging instrument convey adequate notice from which the accused may prepare his or her defense. Moff, 154 S.W.3d at 601. Article 21.11 of the Texas Code of Criminal Procedure provides, in pertinent part:

An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged....

Tex.Code Crim. Proc. Ann. art. 21.11 (Vernon 2009).

The sufficiency of an indictment is a question of law reviewed de novo. Moff, 154 S.W.3d at 601. In determining whether a defendant has sufficient notice to prepare his or her defense, we must determine whether the charging instrument fails to provide all the requisites of “notice.” Olurebi v. State, 870 S.W.2d 58, 61 (Tex.Crim.App.1994). Subject to rare exceptions, not applicable here, an indictment which tracks the statutory language will satisfy constitutional and statutory notice requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App.1998); Tullous v. State, 23 S.W.3d 195, 196 (Tex.App.-Waco 2000, pet. ref'd).

Here, the indictment tracks the language of Section 38.04. See Tex. Penal Code Ann. § 38.04. It is alleged that Brown intentionally fled — using a vehicle — from a peace officer who was lawfully attempting to arrest or detain him. If a vehicle is used to flee, and the alleged felon has not previously been convicted of evading arrest, the appropriate charge is that of a state-jail felony. See id. There are no other means to commit the offense other than what is outlined by statute and what is charged in the indictment.

Further, the indictment does not track the language of Section 38.03, which explicitly requires that the actor intentionally prevent or obstruct a peace officer from effecting an arrest by the use of force against the peace officer or another. See Tex. Penal Code Ann. § 38.03. No such allegations are set forth in the indictment. Hence, the language of the indictment does not provide any reasonable basis on which to conclude that it is, even in part, based on Section 38.03 of the Texas Penal Code.

Because the indictment alleged that Brown fled from Blake in his vehicle, the charge would be a state-jail felony, but for the allegation that Brown used his vehicle as a deadly weapon during the commission of the alleged felony. Consequently, the State used Section 12.35(c)(1) of the Texas Penal Code to seek to enhance punishment to that of a third-degree felony based on the deadly-weapon allegation. See Tex. Penal Code Ann. § 12.35(c)(1). The indictment alleges that a deadly weapon — a vehicle — was used or exhibited by Brown during the commission of the felony offense, or during the immediate flight following the commission of the felony. The statute provides that a state-jail felony is punishable as a third-degree felony if a deadly weapon was “used or exhibited during the commission of the offense or during immediate flight following the commission of the offense.... ” Tex. Penal Code Ann. § 12.35(c)(1). Because the indictment tracks the statutory language of Sections 38.04 and 12.35(c)(1), it satisfies the statutory and constitutional notice requirements. See Mays, 967 S.W.2d at 406.

We overrule this point of error.

We reverse the order quashing the indictment and remand this case to the trial court for further proceedings.

Concurring Opinion by Justice CARTER.

JACK CARTER, Justice,

concurring.

The argument of Christopher Charles Brown is that the State has been allowed to enhance the punishment by proving a motor vehicle was used as a deadly weapon when the underlying offense also requires proof that a vehicle was used. Proof of these two requirements is not the same.

The misdemeanor offense of evading arrest or detention is committed if the party flees; it becomes a state jail felony when the party uses a motor vehicle. Tex. Penal Code Ann. § 38.04(a), (b)(1). Theoretically a motor vehicle may be used in many ways — even if it is driven in a safe, uneventful manner, the offense would be a state jail felony. The allegation that the vehicle was used or exhibited as a deadly weapon requires much more proof. Since a motor vehicle is not manifestly designed to inflict injury, there must be proof that in the manner of its use or intended use, it was capable of causing death or serious bodily injury. Tex. Penal Code Ann. § 1.07(17) (Vernon Supp.2009). As we have recently held, proof that a vehicle is capable of causing serious bodily injury requires a showing of actual danger such as another person being present at the same time and place when the defendant drove in a reckless manner. Drichas v. State, 219 S.W.3d 471, 476 (Tex.App.-Texarkana 2007, pet. ref'd).

In this case, proof that Brown merely used a vehicle, in some manner, when he fled from the peace officer would classify the offense as a state jail felony, but would not be sufficient proof that the vehicle was being used as a deadly weapon. I concur with the majority opinion.

      . The Texas Legislature amended Section 38.04 of the Texas Penal Code in the 2009 legislative session, changing the base offense under Section 38.04 from a class B to a class A misdemeanor and adding an additional ground for enhancement to a state-jail felony. House Bill 211 became effective September 1, 2009. Because the indictment here was returned and filed August 13, 2009, pre-amendment version of Section 38.04 applies, which provides, in pertinent part, as follows:
      Evading Arrest or Detention
      (a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.
      (b) An offense under this section is a Class B misdemeanor, except that the offense is:
      (1) a state jail felony if the actor uses a motor vehicle while the actor is in flight and the actor has not been previously convicted under this section;
      (2) a felony of the third degree if:
      (A) the actor uses a vehicle while the actor is in flight and the actor has been previously convicted under this section; or
      (B) another suffers serious bodily injury as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight;....

        See Act of May 27, 2009, 81st Leg., R.S., ch. 1400, § 4, 2009 Tex. Gen. Laws 4385, 4385-86 (prior version at Tex Penal Code Ann. § 38.04 (Vernon 2003)).

      . The record before us indicates the indictment was quashed in its entirety.

      . Those contingencies include the use of a vehicle to flee when there has been a previous conviction under this section or when another is seriously injured as a direct result of the illegal flight. See Tex. Penal Code Ann § 38.04(b)(2)(A), (B).

      . Section 38.03(d) provides that "an offense under this section is a felony of the third degree if the actor uses a deadly weapon to resist the arrest or search." Tex. Penal Code Ann. § 38.03(d).

      . The enhancement provisions in Sections 38.03 and 38.04 increase the level of offense with which the accused is charged. Tex. Penal Code Ann. §§ 38.03, 38.04. The enhancement provisions of Section 12.35 increase the level of punishment, rather than the level of offense charged. See Tex Penal Code Ann. § 12.35. To the extent that these statutes deal with substantively different notions, i.e., range of punishment versus level of offense, such comparisons are largely inapposite.

      . Tex Penal Code Ann § 22.02(a)(2) (Vernon Supp.2009).

      . Section 12.35 of the Texas Penal Code provides, in pertinent part:
      (c) An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that:
      (1) a deadly weapon as defined by Section 1.07 was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense, and that the individual used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited;....
      Tex. Penal Code Ann. § 12.35.

      . The cover page lists the charge as "EVADING ARREST/DETENTION W/MOTOR VEHICLE, DEADLY WEAPON FINDING, TEXAS PENAL CODE, SECTION 38.04 3RD DEGREE, A TRUE BILL.”

      . The text of the indictment reads:
      In The Name and by the Authority of the State of Texas:
      The Grand Jurors of the County of Lamar, State aforesaid, duly organized as such at the July Term, A.D., 2009, of the District Court of the Sixth Judicial District for said County, upon their oaths in said Court present that CHRISTOPHER CHARLES BROWN on or about July 26, 2009 in Lamar County, Texas, anterior to the presentment of this indictment, did then and there intentionally flee, using a vehicle, from Ronnica Blake, knowing Ronnica Blake was a peace officer who was attempting to lawfully arrest or detain the Defendant,
      And it is further presented to said Court that a deadly weapon, to-wit: a motor vehicle, was used or exhibited during the commission of the felony offense and that the Defendant used or exhibited the deadly weapon.
      Against the peace and dignity of the State.

      . Section 38.04 permits enhancement to a third-degree felony when the actor uses a vehicle to flee and he or she has been previously convicted under this section or when another is seriously injured as a direct result of the actor’s illegal flight. See Tex. Penal Code Ann. § 38.04(b)(2)(A), (B).

      . This section of the Code explicitly permits enhancement to a third-degree felony:
      § 38.03. Resisting Arrest, Search, or Transportation
      (a)A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.
      (b) It is no defense to prosecution under this section that the arrest or search was unlawful.
      (c) Except as provided in Subsection (d), an offense under this section is a Class A misdemeanor.
      (d) An offense under this section is a felony of the third degree if the actor uses a deadly weapon to resist the arrest or search.
      Tex. Penal Code Ann. § 38.03.

      . See Act of May 27, 2009, 81st Leg., R.S., ch. 1400, § 4, 2009 Tex. Gen. Laws 4385, 4385-86 (prior version at Tex. Penal Code Ann. § 38.04 (Vernon 2003)).


author: G. ALAN WALDROP, Justice.

text:
    David HAYES, M.D.; Robert Morrison, M.D.; Philip Ralidis, M.D.; Jordan Weingarten, M.D.; Maro Ohanian, D.O.; Lindsay Coull, R.N.; Leah Delafield, R.N.; Kristi Donau, R.N.; Nathan Lofgren, R.N.; Karla McKinney, R.N.; Melissa Migl, R.N.; Sooncha Sherman, R.N.; Shonna Tobias, R.N.; and Katie Watson, R.N., Appellants, v. Janet CARROLL, Appellee.
    No. 03-08-00217-CV.
    Court of Appeals of Texas, Austin.
    May 14, 2010.

      Dan Ballard, Stacey J. Simmons, Ballard & Simmons, L.L.P., W. Lance Cawthon, David A. Wright, Davis & Wilkerson, P.C., Terri S. Harris, Ewbank & Byrom, P.C., David E. Little, Germer, Gertz, Beaman and Brown, L.L.P., Fred E. Davis, Austin, Laura A. Cavaretta, Richard N. Francis, Jr., Plunkett & Gibson, Inc., San Antonio, for Appellants.
    Christopher Malish, Malish & Cowan, L.L.P., Austin, for Appellee.
    Before Justices PATTERSON, WALDROP and HENSON.
   OPINION

G. ALAN WALDROP, Justice.

This appeal presents issues arising from the expert report requirements of civil practice and remedies code section 74.351. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (West Supp. 2009). Appellants— all of them physicians or nurses — appealed the trial court’s order denying their motions to dismiss appellee Janet Carroll’s health care liability claims for failure to timely serve an expert report. See id. § 74.351(b). We affirm the trial court’s order.

Factual and Procedural Background

In September 2006, Carroll was found unconscious at her home and was transported by ambulance to Brackenridge Hospital for treatment. During her initial treatment, emergency medical responders placed a bandage just below Carroll’s right knee to secure a needle inserted to supply intravenous fluids. Once at the hospital, Carroll underwent treatment at the cardiac catheterization lab and was transferred to the intensive care unit. Carroll was treated by a number of physicians and nurses at Brackenridge. Approximately 28 hours after arriving at the emergency room, one of her attending nurses noticed swelling around the bandage below her right knee. The bandage was removed and the area was monitored. Ultimately, however, due to necrosis of the skin, muscle, and tendons of Carroll’s right leg below the knee, surgeons determined that amputation of that leg was required. The surgeon’s notes reported that the necrosis was “secondary to a tourniquet-like effect” of the bandage applied by emergency responders attempting to resuscitate Carroll. In her health care liability claim, Carroll alleges that while she was unconscious and in shock, she received over ten liters of intravenous fluids that caused her to gain approximately 20 pounds in less than 24 hours. She asserts that during this time, no physician or health care provider checked, loosened, or removed the bandage on her right leg. Carroll alleges that, over time, the unattended bandage began to act as a tourniquet, cutting off circulation to her leg and causing irreversible injury that ultimately required amputation. Carroll alleges that her injury resulted from the failure of each appellant to notice, document, check, loosen, or remove the bandage in time to prevent the loss of her leg.

Carroll initially filed suit on May 8, 2007, asserting a health care liability claim against Seton Healthcare Network as operator of Brackenridge Hospital. Carroll attached to this pleading the expert reports of Don Patman, M.D. and Theresa Posani, R.N. After the district court sustained Seton’s objections to the sufficiency of those reports, Carroll served Seton with supplemental reports from both Patman and Posani in July 2007. On October 30, 2007, Carroll filed an amended petition in which she first named as defendants and asserted health care liability claims against physicians David Hayes, Robert Morrison, Maro Ohanian, Philip Ralidis, and Jordan Weingarten and nurses Lindsay Coull, Leah Delafield, Kristi Donau, Nathan Lof-gren, Karla McKinney, Melissa Migl, Sooncha Sherman, Shonna Tobias, and Katie Watson. Carroll attached new reports prepared by Patman and Posani to the amended petition. In January 2008, Carroll served defendants with a fourth report prepared by Patman.

Appellants timely filed objections to the sufficiency of the expert reports. See id. § 74.351(a) (physician or health care provider whose conduct is implicated in report must file and serve any objection to sufficiency of report not later than 21st day after date it was served). Certain of the appellants asserted that Carroll did not serve them with expert reports within the time period specified by section 74.351(a). See id. (requiring service of expert reports “not later than the 120th day after the date the original petition was filed”). They argued that the time period for serving expert reports expired on September 5, 2007, 120 days after Carroll filed her “original petition” asserting a health care liability claim against Seton, even though they were not named as defendants and had no health care liability claims asserted against them until October 30, 2007. Several of the appellants also contended that Patman and Posani failed to demonstrate that they were “experts” qualified to render opinions concerning the applicable standards of care. See id. §§ 74.351(r)(5), .401 (West 2005) (qualifications for expert witness in suit against physician), 74.402 (West 2005) (qualifications for expert witness in suit against health care provider). All of the appellants objected to Patman’s fourth report and Posani’s third report on the ground that they failed to satisfy the statutory definition of an “expert report” by failing to provide a fair summary of the expert’s opinions regarding applicable standards of care, the manner in which the care rendered by each defendant failed to meet the applicable standards, and the causal relationship between such failure and Carroll’s injury. See id. § 74.351(a), (l), (r)(6). The district court overruled all of appellants’ objections to the expert reports.

Appellants then moved to dismiss Carroll’s health care liability claims under section 74.351(b) of the civil practice and remedies code. See id. § 74.351(b) (court shall dismiss health care liability claims against defendant physicians or health care providers who have not been timely served with an expert report); Bogar v. Esparza, 257 S.W.3d 354, 359-60 (Tex.App.-Austin 2008, no pet.) (plaintiff may fail to serve expert report within specified time period not only by failing to serve any expert report (an “absent” report) within statutory deadline but also by providing within the deadline a report that does not satisfy statutory requirements (a “deficient” report)). The trial court denied the motions to dismiss, and this appeal followed.

Timeliness of Service

We first consider whether Carroll served Patman’s fourth report and Posa-ni’s third report within the time period required by the statute. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). The controlling statute is the current version of 74.351(a), which provides in pertinent part:

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

Id. Coull, Ohanian, and Ralidis contend that the term “original petition” means the first pleading filed by the plaintiff in a lawsuit, in this case the pleading Carroll filed on May 8, 2007, asserting a health care liability claim against Seton. That filing, they argue, triggered the 120-day period for serving expert reports on every defendant, whether named in the first pleading filed or added by amendment later. Coull, Ohanian, and Ralidis assert that Carroll was required to serve them with expert reports on or before September 5, 2007, despite the fact that she had not yet asserted a health care liability claim against them. Carroll counters that the 120-day time period for serving these defendants with an expert report commenced on October 30, 2007, the date she first asserted health care liability claims against them in her first amended petition. We agree with Carroll.

In construing a statute, our objective is to determine and give effect to the legislature’s intent as expressed by the language of the statute. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). We use definitions prescribed by the legislature and any technical or particular meaning the words have acquired, but otherwise, we construe the statute’s words according to their plain and common meaning unless a contrary intention is apparent from the context, or unless such a construction leads to nonsensical or absurd results. FKM P’ship, Ltd. v. Board of Regents of Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex.2008); see also Tex. Gov’t Code Ann. § 311.011 (West 2005). We presume the legislature intended a just and reasonable result by enacting the statute. Tex. Gov’t Code Ann. § 311.021(3) (West 2005). We may consider the object the legislature sought to obtain, the legislative history, and the consequences of a particular construction. See id. § 311.023(1), (3), (5) (West 2005). Our analysis of the statutory text is also informed by the presumption that “the entire statute is intended to be effective.” Id. § 311.021(2).

Reading section 74.351(a)’s requirement that reports be served within 120 days of the filing of the “original petition” as applying exclusively to the first pleading filed by a claimant in a health care liability suit regardless of whom that pleading makes a health care liability claim against (i.e., names as a defendant) runs into a number of interpretational and logical problems. As a starting point we note that section 74.351(a)’s use of the term “original petition” does not indicate whether it was intended to mean the original petition “filed in a particular cause number” (the first document filed as a “petition” in a case) or the original petition “filed against a particular defendant” (the first document initiating a suit against a defendant). Either construction must be derived from something other than the literal language of the statute. Fortunately, there is guidance from the legislative history of section 74.351(a) that sheds some light on the legislature’s intent in amending this section to use the term “original petition.” The bill analyses prepared by both the House and Senate committees that handled the amendment to section 74.351(a) in 2005 that added the term “original petition” stated the purpose of the amendment as follows:

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

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

Two things are notable from the bill analyses. First, the primary purpose of the amendment was to clarify that the 120-day report deadline did not run from the date of the statutory notice letter. Second, the analyses specifically note that the intent of the statute creating the 120-day deadline was to have the deadline “triggered by the filing of the lawsuit.” This is an indication that the amendment was intended to make the filing of a lawsuit the demarcation event for starting the 120-day report deadline. If a defendant has not been added to a case, there has yet to be a lawsuit filed against that defendant. Even if the lawsuit against a particular defendant comes in the 10th amended petition filed in a cause number, that petition is the first document in which a lawsuit has been filed against that defendant. Regardless how that document is styled, it is the original or first petition bringing a lawsuit as to that defendant. Thus, a construction of section 74.351(a) that interprets the term “original petition” as being the first document filed in a case that brings a claim against a defendant or eon-stitutes the filing of a lawsuit against a defendant is consistent with the available legislative history on the issue.

In addition, interpreting the term “original petition” to refer to the first petition in a cause number regardless of who is named as a defendant in that petition generates an untenable practical problem. If the 120-day deadline runs from the filing of the first petition in a case regardless of who is named as a defendant, a plaintiff could never add another physician or health care provider as a defendant beyond 120 days of the filing because the plaintiff would never be able to serve an expert report as to that defendant in a timely fashion. This would effectively function as a de facto statute of limitations or statute of repose on any further claims against unjoined parties even if the claims against those parties are unknown or un-discoverable at the time of the filing of the initial petition against known defendants. This would be a major change in the law relating to limitations on claims. It would also create the potential for unreasonable or unjust results in cases where a plaintiff has no reason to know of viable claims against a party until more than 120 days has run from the filing of claims against other parties. We do not think the legislature would have intended to make such a major change to the law with respect to limitations on health care liability claims in such an obscure manner. Nor do we think the legislature would have intended a construction of the expert report provisions of the statute to produce the harsh result of extinguishing unknown claims that are still within applicable limitations periods without a more clear statement of intent to do so.

We construe section 74.351(a) to require that a health care liability claimant must serve an expert report on a physician or health care provider not later than the 120th day after the date the claimant files the pleading that first asserts a health care liability claim against that physician or health care provider. The title of the pleading is not dispositive in the sense that an “original” petition in a case is operative for the purposes of the deadline and an “amended” petition is not. Rather, the substance of the petition with respect to the health care providers who are named as defendants is dispositive. If the pleading is the first pleading naming a defendant, it is the “original” petition as to that defendant regardless of its title, and the 120-day expert report deadline is triggered by that filing as to that defendant.

Our interpretation of the amended section 74.351(a) is consistent with the approach taken by the other two Texas appellate courts to confront the issue. The San Antonio court of appeals held in Oson-ma v. Smith that the operative pleading for purposes of triggering the 120-day report deadline for a defendant was the pleading first naming that defendant as a party. No. 04-08-00841-CV, 2009 WL 1900404, at *2, 2009 Tex.App. LEXIS 4959, at *4 (Tex.App.-San Antonio July 1, 2009, pet. denied) (mem. op.). Less than a year later, the Corpus Christi court of appeals followed the San Antonio court’s approach in Padre Behavioral Health System, LLC v. Chaney, 310 S.W.3d 78, 84-86 (Tex.App.-Corpus Christi 2010, no pet. h.). We agree with the conclusion regarding the proper construction of section 74.351(a) in these cases.

Our interpretation is also consistent with case law addressing the issue under the version of the statute in effect before 2005. See Poland v. Grigore, 249 S.W.3d 607, 613-14 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (under former version of section 74.351, time period to serve expert report on physician was triggered by filing of first amended petition, which was first petition to contain health care liability claim against that physician); Poland v. Ott, 278 S.W.3d 39, 46 (Tex.App.-Houston [1st Dist.] 2009, pet. denied) (mem. op.) (providing expert report before health care liability claim is filed in court against physician or health care provider does not meet former 74.351(a)’s service requirement). Coull, Ohanian, and Ralidis contend these cases are not relevant because they involve construction of the previous version of section 74.351(a), and that the 2005 amendment “effectively changed the law.” The Texas Supreme Court has, however, rejected the argument that the amendment to the statute changed its meaning. See Leland v. Brandal, 257 S.W.3d 204, 206 (Tex.2008) (“[W]e see nothing in the slight change in the statute’s language to indicate that a different meaning was intended.”). Furthermore, the legislative history indicates that the amendment was intended to clarify that the statutory notice letter did not trigger the 120-day reporting period and the period was triggered by the filing of a petition in court. No mention is made in the legislative history that the legislature was intending to create a significant substantive change to the law on when health care liability claims are extinguished. See House Comm. on Civil Practices, Tex. H.B. 2645, 78th Leg., R.S. (2005); Sen. Comm. on State Affairs, Tex. H.B. 2645, 78th Leg., R.S. (2005).

In the present case, the event that triggered the deadline for serving appellants with the expert reports at issue in this case was the first pleading filed by Carroll stating claims against appellants on October 30, 2007. Consequently, Patman’s fourth and Posani’s third reports were timely served.

Sufficiency of Expert Reports

Under section 74.351(r)(6), the expert report must provide a fair summary of the expert’s opinions regarding the applicable standards of care, the manner in which the care rendered by the defendant physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem.Code Ann. § 74.35I(r)(6). A court shall grant a motion challenging the adequacy of a report only if the report “does not represent an objective good faith effort to comply” with the definition of an “expert report” in the statute. Id. § 74.351(i). To constitute a good faith effort, the report must provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into question; and (2) it must provide a basis for the district court to conclude that the claims have merit. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (citing American Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex.2001)).

The report need not marshal all of the plaintiffs proof, but it must include the expert’s opinion on each of the elements defined in section 74.351. Palacios, 46 S.W.3d at 878; Constancio v. Bray, 266 S.W.3d 149, 155 (Tex.App.-Austin 2008, no pet.). A report cannot merely state the expert’s conclusions about the statutory element. Palacios, 46 S.W.3d at 879; Constancio, 266 S.W.3d at 155. “Rather, the expert must explain the basis of his statements to link his conclusions to the facts.” Bowie Mem’l Hosp., 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)). In addition, because the statute focuses on what is required in the report, the only information relevant to determining whether a report complies with the statute is “within the four corners of the document.” Palacios, 46 S.W.3d at 878. The court may not fill gaps in a report by drawing inferences or guessing as to what the expert likely meant or intended. Constancio, 266 S.W.3d at 155; Austin Heart P.A. v. Webb, 228 S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.).

We review a trial court’s ruling on a motion to dismiss under section 74.351 for an abuse of discretion. Palacios, 46 S.W.3d at 877-78; Constancio, 266 S.W.3d at 155. A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). A trial court does not abuse its discretion simply because it may decide a matter within its discretion differently than an appellate court. Id. at 242. However, a trial court has no discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id.

Appellants contend that the reports are insufficient in several respects to meet the requirements for an expert report under section 74.351(a). They challenge Pat-man’s and Posani’s qualifications as “experts.” They also contend that the reports are inadequate because (1) they fail to state a standard of care for each physician or nurse, (2) they fail to show how each physician or nurse breached the standard of care applicable to him or her, and (3) they fail to show how each alleged breach was the proximate cause of Carroll’s injury.

Expert Qualifications

Ralidis, an emergency medicine specialist, Weingarten, a pulmonologist, Morrison, a critical care physician, and Coull, an intensive care unit nurse, each contend that Patman has no training, certification, or experience in their particular medical specialty and is, therefore, not qualified to give an opinion on the particular standard of care applicable to them. However, a physician need not be a practitioner in the same specialty as the defendant to be a qualified expert in a particular case. See Broders v. Heise, 924 S.W.2d 148, 153-54 (Tex.1996); Blan v. Ali, 7 S.W.3d 741, 745 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (if subject matter is common to and equally developed in all fields of practice, any physician familiar with subject may testify as to standard of care).

Under the Texas Rules of Evidence, the test is whether the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court. Tex.R. Evid. 702; see also Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex.2003) (inquiry is whether proposed expert is qualified to give opinion on particular subject before court). Whether a physician qualifies as an expert is determined by comparing the area in which the witness has such knowledge, skill, experience, or training with the subject matter of the proposed testimony. The focus is on the “fit” between the subject matter at issue and the expert’s familiarity of the subject matter, and not on a comparison of the expert’s specialty or experience with that of the defendant. See Tex. Civ. Prac. & Rem.Code Ann. § 74.401(a)(2) (West 2005) (requiring expert to have knowledge of accepted standards of care related to illness, injury, or condition involved in claim); Blan, 7 S.W.3d at 745 (general surgeon qualified to testify regarding standard of care for post-operative procedures performed by gynecologist because postoperative procedures are common to both fields) (citing Simpson v. Glenn, 537 S.W.2d 114, 116 (Tex.Civ.App.-Amarillo 1976, writ ref'd n.r.e.)). If the subject matter is common to and equally recognized and developed in all fields of practice, any physician familiar with the subject may testify as to the standard of care. Id.

In the present case, Carroll contends that the physicians and nurses who participated in her care were negligent in the basic care of a patient who was not conscious and that, as a result, the bandage placed on her leg during emergency treatment was not detected, loosened, or removed in time to prevent the damage to her leg that required amputation. Carroll does not complain about the manner in which any of the physicians or nurses carried out particular specialized medical procedures, and Patman’s report does not address the standard of care required when providing specialized medical services such as cardiac catheterization. The test, then, is whether Patman is qualified to provide expert testimony regarding the standard of care applicable to “the condition involved in the claim,” which in this case is a bandage placed by an emergency responder on the leg of a patient in an unconscious, semicomatose, or altered mental state and left unadjusted such that it allegedly caused an unnecessary amputation of the leg.

Patman has been a licensed medical doctor since 1958. He is a practicing physician and general and vascular surgeon and is board certified in general surgery and general vascular surgery. Patman’s report states that, through his medical training and his years of practice, he is familiar with the appropriate standard of care applicable to physicians and nurses, regardless of their specialization, when providing medical services to a patient in circumstances such as those alleged in this ease. He further states that this standard of care is “a basic medical skill” learned by all physicians and nurses as part of their basic medical training, and is required of all physicians and nurses regardless of whether they receive additional or advanced training.

Appellants do not challenge Patman’s qualifications as a vascular surgeon, nor do they contend that he does not know how to care for a patient in Carroll’s alleged condition. Rather, they argue that he may not opine regarding the standard of care as applied to their various specialties. This argument ignores the plain language of the statute, which focuses not on the defendant doctor’s area of specialty, but on the medical condition involved in the claim. See Tex. Civ. Prac. & Rem.Code Ann. § 74.401(a)(2). The argument that Pat-man is unqualified to give an opinion because he does not know the standard of care applicable to emergency room physicians or pulmonologists would be persuasive if he were purporting to offer expert medical opinions in matters peculiar to the fields of emergency medicine or pulmonol-ogy. However, he is not. His report states that the standard of care he describes applies to any physician or nurse treating an unconscious or semicomatose patient regardless of the physician’s or nurse’s area of expertise. We hold that the trial court did not abuse its discretion in finding that Patman’s medical training and experience gained through years of practice as a vascular surgeon qualified him to provide expert testimony regarding the standard of care required of a physician or nurse whose patient is unconscious or in an impaired or altered mental state with an allegedly blood-flow-constricting bandage applied to a leg.

We also reject Coull’s contention that Posani is not qualified to give an opinion regarding the standard of care that applies to an intensive care unit nurse. Posani’s report states that she is a certified as a critical care registered nurse and clinical nurse specialist in adult health (medical-surgical) nursing. Her curriculum vitae indicates that she has been a registered nurse since 1975 and has significant experience as an intensive care unit nurse. She states that through her training and experience she has knowledge of the accepted standard of care applicable to a nurse working in the intensive care unit with an unconscious patient with health issues such as diabetes, intraosseous catheters, and potential circulation problems. Posani’s opinions are directed to the treatment that should be provided to such a patient by any nurse regardless of whether they are working in the emergency room, the intensive care unit, or the cardiac eath-eterization lab. Her opinions do not relate to techniques, decisions, or skills unique to a particular nursing specialization. The trial court did not abuse its discretion in concluding that Posani was qualified to give an opinion regarding the standard of care applicable to the nurses involved in Carroll’s care.

Standard of Care

All appellants argue that Pat-man’s expert report is deficient because it does not set out a separate standard of care for each particular physician or nurse and fails to explain how each individual physician or nurse breached that standard of care. See Kettle v. Baylor Med. Ctr., 232 S.W.3d 832, 839 (Tex.App.-Dallas 2007, pet. denied) (generalized statement without explanation that a uniform standard applies can reasonably be deemed conclu-sory and deficient). In this case, however, Patman’s report does explain that a uniform standard of care applies to all physicians and nurses participating in Carroll’s care. Patman opines:

The applicable standard of care for nurses (including E.R. and ICU nurses) and physicians (including E.R., internal/attending physicians, and consulting physicians) charged with the care, surveillance and treatment of patients who are unconscious, semicomatose or with other significant altered mental states is very basic and thus the same for all nurses and physicians involved with such patients.

Patman’s report then describes what that standard of care is: “the standard of care requires both the nurses and physicians involved in this case to assess, monitor, and document the patient’s condition, particularly including the patient’s skin condition, and most particularly for this case, those portions of the body with dressings of any kind.” The report expands on the standard of care by stating that “circumferential extremity pressure bandages are to be examined for drainage, comfort, proper fit, as well as preventing such a bandage from becoming too constrictive and causing circulatory impairment to the distal portion of the extremity of either a venous or arterial nature, or both.”

Because the report affirmatively states that a uniform standard of care applies to each physician and nurse, and identifies what the standard of care is, Patman’s report is sufficient to provide a fair summary to each physician and nurse of his opinion regarding the standard of care applicable to each. See Tex. Civ. Prac. & Rem.Code Ann. § 74.851(r)(6) (expert report means written report that, among other things, provides summary of expert’s opinion regarding applicable standards of care); Romero v. Lieberman, 232 S.W.3d 385, 391-92 (Tex.App.-Dallas 2007, no pet.) (applying same standard of care for all physicians participating in treatment of patient as to recognition and treatment of symptoms of septic shock); In re Stacy K. Boone, 223 S.W.3d 398, 405-06 (Tex.App.Amarillo 2006, orig. proceeding) (discussing standard of care applicable to all defendants involved in administration of treatment).

With regard to the manner in which the care rendered by the physicians and nurses failed to meet the standard, Patman names each individual physician and nurse and states that each “completely failed to: document the presence of the constrictive bandage; examine, assess, monitor and document the condition of the covered area; recognize and document the potential hazard of such a bandage and include the care and vigilance of the area in the comprehensive treatment of Ms. Carroll.” In Patman’s opinion, these failures by each physician and nurse named represented a “marked departure in the applicable standard of basic care for each and every one.” The report plainly states that each of these physicians and nurses participating in Carroll’s care did not take note of the presence of the bandage on Carroll’s leg and, consequently, did not observe or monitor the effect of the bandage throughout her treatment. The report provides a fair summary of Patman’s opinion regarding how each physician and nurse failed, in the same manner, to meet the uniform standard of care. We hold that the trial court did not abuse its discretion when it denied appellants’ motions to dismiss based on their complaints that Carroll’s expert reports were deficient as to the statement of the standard of care and alleged breach of the standard by the defendants.

Coull challenges Posani’s report on similar grounds, contending that Posani failed to articulate the applicable standard of care for each nurse. However, because we have determined that Patman’s report meets the statutory requirements on the issues of the standard of care and failure to meet that standard as to each appellant, we need not address complaints regarding the sufficiency of Posani’s report on these issues. See Tex.R.App. P. 47.1.

Causation

Appellants also argue that Pat-man’s report is deficient because it does not provide a fair summary of his opinions regarding causation as to each appellant. See Tex. Civ. Prac. & RermCode Ann. § 74.351(r)(6). Appellants contend that Patman’s report collectively addresses causation and that Patman fails to link his causation opinions to specific conduct of each Appellant. They argue that his collective opinion as to causation is inadequate and that he is required to render an opinion as to causation by each appellant in a more specific manner.

Patman’s report states that each doctor and nurse failed to detect and document the presence of the bandage on Carroll’s leg, and that each doctor and nurse failed to assess and monitor the condition of her bandaged leg or examine the “circumferential extremity pressure dressing” for “drainage, comfort, proper fit, as well as preventing such a bandage from becoming too constrictive and causing circulatory impairment to the distal portion of the extremity.” Patman’s report explains:

The purpose of such checks and documentation is to (1) ensure that the bandage is not too tight and constricting circulation to the leg, so that compartment syndrome does not develop in the leg, and (2) to alert personnel checking the patient in the future of a potential problem area that needs monitoring. Both are critical.

This explanation of the applicable standard of care and why adhering to it is required provides sufficient information to explain how breaching that standard caused Carroll’s injury. Patman links breach of the standard of care with the injury in his opinion regarding causation:

It is therefore my opinion, based upon reasonable medical probability, that each of the physicians and the nurses listed above, who were charged with the care of Ms. Carroll (who remained in a comatose state), breached the applicable standard of care by failing to document the existence of the dressing, inspect the dressing, monitor the dressing and evaluate the condition of the distal extremity from 09/01/06 to ... 09/02/06. As a consequence, circulation to the extremity was compromised, the extremity’s condition went unmonitored, and the impediment to circulation was not removed until after the damage was done. Such actions caused irreversible ischemia of the right lower extremity with resultant amputation.

Patman opines that each physician’s and nurse’s individual failure to notice the presence of the bandage and monitor the effect it had on Carroll’s leg caused the bandage and its effects to go undetected, which caused the damage requiring amputation of her leg. Moreover, Patman’s report includes his opinion regarding what the proper course of action for each physician and nurse would have been — to notice the bandage, make sure it was not too tight, and loosen or remove it if it was. He also states that each physician and nurse should have documented the presence of the bandage to ensure that subsequent caregivers would do the same. Pat-man’s report notifies each appellant that, in his opinion, each of them is responsible for the harm caused by the constrictive bandage because none of them noticed, loosened, or removed it.

The expert report is not required to prove the defendant’s liability, but rather to provide notice of what conduct forms the basis for the plaintiff’s complaints. Apodaca v. Russo, 228 S.W.3d 252, 255 (Tex.App.-Austin 2007, no pet.). It may be that the trier of fact ultimately rejects Patman’s opinion regarding causation and determines that the damage caused by the bandage became irreversible at a point prior to the involvement of one or more of the appellants in Carroll’s care, such that his or her failure to intervene did not proximately cause the harm. At this stage of the case, however, Carroll is not required to marshal all of her evidence or prove her case against a particular defendant. Rather, what the statute requires is that the report constitute a good faith effort to provide a fair summary of the expert’s opinions regarding causation. See Tex. Civ. Prac. & Rem.Code Ann. § 74.851(c)(6). The “good faith effort” requirement is met if the report provides enough information to (1) inform the defendant of the specific conduct the plaintiff calls into question and (2) provide a basis for the trial court to conclude that the claims have merit. American Transitional Care Ctrs., 46 S.W.3d at 879. Patman’s report sufficiently informs each defendant in this case of the specific conduct he believes was deficient and what conduct on the part of each defendant caused injury to Carroll. Keeping in mind that expert reports such as Patman’s are simply a method to show, at an early stage in the litigation, that a plaintiff has a viable cause of action that is not frivolous or without expert support, we hold the trial court did not abuse its discretion when it denied appellants’ motion to dismiss on the ground that Patman’s report was deficient as to causation.

Conclusion

Patman’s fourth and Posani’s third reports were served on appellants within 120 days of the date Carroll first asserted a health care liability claim against them in court and were timely. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). The trial court did not abuse its discretion by concluding that Patman’s fourth report represents an objective, good faith effort to comply with the definition of an expert report provided in section 74.351(r)(6). See id. § 74.351(r)(6). The trial court’s order denying appellants’ motions to dismiss is affirmed.

      . While this interlocutory appeal was pending, the trial court granted a motion for summary judgment filed by nurses Delafield, Donau, Lofgren, McKinney, Migl, Sherman, Tobias, and Watson. Carroll’s claims against these defendants were severed out and assigned a new cause number, resulting in a final order dismissing Carroll’s claims against these defendants. The district court also granted Carroll's motion to nonsuit her claims against physician Hayes. Consequently, Hayes, Delafield, Donau, Lofgren, McKinney, Migl, Sherman, Tobias, and Watson are no longer parties to this appeal.

      . Morrison and Weingarten do not join in this argument.

      . The current version of the statute is the result of a legislative amendment in 2005 whereby the legislature substituted the phrase "the date the original petition was filed” for the phrase "the date the claim was filed.” Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590.

      . A corollary to this problem is that it could produce an incentive to engage in unnecessary and costly procedural machinations not addressed in the statute to avoid losing a claim. For example, one wonders if a claimant who discovers new claims against new defendants beyond the 120-day expert report period might file a separate lawsuit in a different cause number against the new defendants — thus creating a new "original petition’’ and a separate 120-day report period. The plaintiff might then seek to consolidate the cases for discovery and trial. Such potential procedural maneuvers highlight the unlikelihood that the legislature intended its amendment of section 74.351(a) to limit the term "original petition” to mean only the first filed document in a cause number relating to a health care liability claim. If the legislature had intended such a construction, it would not have done so without any consideration of or provision for procedural devices that might effectively nullify the measure.

      . This holding is applicable to situations— such as this case — where the claims in question remain pending during the entirety of the relevant 120-day period. The question of how the 120-day deadline applies in a situation involving a nonsuit of claims prior to the expiration of the 120-day period, and whether tolling may or may not apply in such a situation, is not presented in this case. We express no opinion as to that issue.

      . Coull also challenges Posani's qualifications to provide opinions regarding medical causation. Carroll concedes that Posani is not so qualified and states that her report was not offered for the purpose of addressing causation. Consequently, we do not address complaints regarding the sufficiency of Posani’s report in this regard.