Opinions Released October 5, 2017

Ervin v. State, No. 13-16-00537-CR (Memorandum Opinion by Justice Rodriguez; Panel Member: Justices Contreras; Concurring Memorandum Opinion by Justice Benavides)

In this appeal from a conviction based on a drug raid conducted by a later-suspended drug enforcement investigator, the Thirteenth Court of Appeals enforced the preservation requirements established by the Court of Criminal Appeals in Reyna v. State.

Rodnico Rondae Ervin was tried for possession of a controlled substance with the intent to deliver in a drug-free zone, after the Waco Drug Enforcement Unit (“WDEU”) found methamphetamine, marijuana, cough syrup, a digital scale, and a handgun magazine in the kitchen of his home. Numerous investigators testified at trial, including Chester Long—the lead investigator—and Anita Johnson—the investigator responsible for documenting the evidence, sending it to the lab, and storing it in the department’s property room. However, the member of the WDEU who found the drugs in the kitchen—David Starr—did not testify. When Ervin attempted to question Johnson about Starr’s suspension, the State objected. After a brief discussion of the issue in chambers, the trial court sustained the State’s objection and instructed the jury to disregard the reference to Starr’s suspension.

Ervin later made an offer of proof, recalling several investigators who testified that Starr and another member of the WDEU were removed from active duty after an incident in which they failed to disclose information about a drug investigation to the District Attorney’s Office.

The jury found Ervin guilty and sentenced him to fifty years’ confinement. Ervin appealed, claiming that the trial court’s failure to allow him to present evidence of Starr’s suspension and attack Starr’s credibility violated his rights under the Confrontation Clause.

Held: Ervin did not adequately preserve his evidentiary and Confrontation Clause objections in the manner required by Reyna. Although Reyna may need to be reexamined, it bound the Thirteenth Court to overrule Ervin’s issues on appeal.

The Thirteenth Court began by addressing the State’s argument that Ervin did not preserve his challenges for appeal. The court noted that, to preserve error, a defendant must not only tell the trial court that the evidence is admissible, but why the evidence is admissible. Under Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005), the complaint raised before the trial court must be the same complaint raised on appeal. When an offer of proof is insufficiently specific, any error in the corresponding ruling is waived.

The court noted that at trial, the State challenged testimony regarding Starr by arguing that the evidence was not relevant. Ervin did not raise the Confrontation Clause issue, but simply responded to the relevance objection. On appeal however, Ervin challenged the exclusion as a violation of the rules of evidence and of Ervin’s rights under the Confrontation Clause. These errors were not preserved. Thus, although the court acknowledged that the “outcome is severe,” it overruled Ervin’s challenges and affirmed the judgment.

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Concurring Memorandum Opinion

In a concurring memorandum opinion, Justice Benavides agreed that the majority’s result was required by binding precedent from the Court of Criminal Appeals, but wrote separately to respectfully question whether the precedent—Reyna v. State—should be re-examined. In Reyna, the Court of Criminal Appeals held that Reyna’s failure to explicitly object on the basis of the Confrontation Clause deprived the trial court of the opportunity to rule on the issue and waived the issue for appeal. However, Justice Benavides noted that Ervin’s counsel argued that the status of the officer who located and collected the evidence was relevant to the jury. This implicitly invoked the Confrontation Clause and raised challenges based on the bias, motive, and interest of the WDEU investigators. Justice Benavides thus urged reconsideration of Reyna, commenting that its heightened standard elevated procedural line-drawing over the defendant’s constitutional rights.

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Columbia Valley Healthcare System, LP v. Pisharodi, No. 13-16-00613-CV (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Rodriguez and Hinojosa)

In this appeal from an order denying Columbia Valley Healthcare System’s motion to dismiss, the Thirteenth Court of Appeals analyzed the Texas Citizens Participation Act.

Dr. Madhaven Pisharodi was a neurosurgeon at Columbia Valley Healthcare System, LP, d/b/a Valley Regional Medical Center. The chief of staff at Valley Regional asked Dr. Pisharodi to file a complaint regarding a fellow doctor—Dr. Gaitan. Dr. Pisharodi did so, but Valley Regional failed to investigate the complaint, and instead “started a campaign” to discredit Dr. Pisharodi not only in Cameron County but also before the Texas Medical Board and National Databank. Specifically, Valley Regional initiated a series of peer reviews of Dr. Pisharodi, terminated his access to patients’ medical records, then altered the patients records to justify suspending Dr. Pisharodi. Valley Regional then reported Dr. Pisharodi to the Texas Medical Board based on the altered records.

Dr. Pisharodi sued Valley Regional for breach of the bylaws and sued Dr. Gaitan and Valley Regional for negligence, business disparagement, defamation, and conspiracy. Valley Regional and Dr. Gaitan moved to dismiss under the Texas Citizens Participation Act (“TCPA”). The trial court dismissed the business disparagement, defamation, and conspiracy claims, but denied the motion as to the breach of contract and negligence claims. Valley Regional and Dr. Gaitan appealed.

Held: Valley Medical established that the TCPA was applicable by a preponderance of the evidence, but Dr. Pisharodi did not carry his burden to provide clear and specific evidence of his claims. The trial court’s order was reversed and the cause remanded with instructions to enter an order of dismissal.

The TCPA requires a court to dismiss claims that are based on, related to, or in response to the defendant’s exercise of the right to free speech, right to petition, or right of association. A claim implicates the right to free speech under the TCPA if it is a communication made in connection with a matter of public concern. The TCPA defines “public concern” to include issues relating to health or safety and to service in the marketplace.

A movant seeking dismissal under TCPA bears the initial burden to show by a preponderance of the evidence that the plaintiff’s action is based on, related to, or in response to one of the relevant protected rights. The burden then shifts to the plaintiff to offer clear and specific evidence to show a prima facie case for each essential element of the claim. The court of appeals conducts a de novo review of the trial court’s ruling on a motion to dismiss based on the pleadings and attached affidavits.

First, the Thirteenth Court examined whether Dr. Pisharodi’s claims for breach of contract and negligence were based on, related to, or in response to Valley Medical’s exercise of its protected rights. Dr. Pisharodi argued that his action simply related to Valley Medical’s failure to comply with the bylaws in conducting a sham peer review of his actions and falsely reporting him to the Texas Medical Board and National Database. Valley Medical responded that the statements it made during the peer review process and to the Texas Medical Board and National Database were protected free speech because Dr. Pisharodi’s practice is a matter of public concern. The Thirteenth Court agreed with Valley Medical, finding that Dr. Pisharodi’s ability to practice medicine related to health and safety, and was a matter of public concern. Similarly, Dr. Pisharodi’s negligence claim was based on Valley Medical’s alleged false statements regarding his ability to practice medicine. Valley Medical thus met its burden to show by a preponderance of the evidence that the actions were based on, related to, or in response to the exercise of the right to free speech.

The burden then shifted to Dr. Pisharodi to offer clear and specific evidence of his claims. Yet, Dr. Pisharodi did not address this step of the analysis, instead insisting that the TCPA did not apply. Although Dr. Pisharodi claimed that he had a contractual relationship with Valley Medical governed by the bylaws, bylaws are not always binding on a hospital, and Dr. Pisharodi failed to provide a copy of the bylaws. Similarly, Dr. Pisharodi offered no evidence of negligence.

Consequently, Dr. Pisharodi’s breach of contract and negligence claims must be dismissed under the TCPA. The trial court’s order was reversed as to these two claims, and the case was remanded for further proceedings with instructions to enter an order of dismissal. 

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