DISSENT; Opinion Filed March 17, 2020




                                     S   In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                No. 05-20-00073-CV

    IN RE ALPHA-BARNES REAL ESTATE SERVICES, L.L.C., Relator

            Original Proceeding from the County Court at Law No. 3
                             Dallas County, Texas
                     Trial Court Cause No. CC-14-01652-C

                            DISSENTING OPINION
                             Opinion by Justice Schenck
      My colleagues wisely recognize that the trial court’s ruling in this case

presents risks of reversible error after trial, but conclude that the subsequent

appellate remedy will be adequate to address that harm. As the majority notes, the

real party in interest here has waived any Prudential concerns governing our

mandamus review, including concerns with respect to relator’s delay in filing its

petition.   See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex.

2004) (orig. proceeding). I agree such waivers or stipulations are not binding on this

Court’s evaluation of the petition, though they do inform my review and animate

both parties’ concerns over the utility of further proceedings in the trial court without

a decision from this Court. Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367
(Tex. 1993) (orig. proceeding) (mandamus is a matter of discretion, not right). I

believe my only disagreements with the majority are with the nature of the trial

court’s error, which I see as profound and systemically disconcerting, and with the

mandamus standard, which I see as flexible insofar as the adequacy of the appellate

remedy is concerned. In re Prudential, 148 S.W.3d at 136. Regardless of the waiver

and stipulation, I would conclude there is in fact a clear abuse of discretion on this

record and a lack of adequate remedy by appeal. 1 Accordingly, I dissent from the

majority’s denial of relator’s petition.

                                              BACKGROUND

        The real party in interest here and plaintiff below, Anthony Cooper, is an

individual with intellectual disabilities. We are informed that he functions with the

mental capacity of a four- to ten-year-old child. On or about May 4, 2012, while in

the care of institutional caregiver Southern Concepts, Cooper suffered burn injuries.

At that time, Cooper’s assigned care provider, Sandra Guillory, an employee of

Southern Concepts, enlisted her own uncle, Inell Fontenot, to care for Cooper in the

evening at Fontenot’s apartment. Through Charna Lewis, Cooper’s mother and

guardian of his person, Cooper reported and otherwise made statements, including a


    1
      As noted hereafter, I would conclude the trial court’s decision is both unreasonable and completely
uninformed by guiding legal principles. See In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998)
(“A trial court abuses its discretion when it acts in an unreasonable or arbitrary manner or, stated differently,
when it acts without reference to guiding rules and principles.”). Indeed, the trial court judge explicitly
declined to be informed by the law governing her decision.




                                                     –2–
video-recorded forensic interview,2 that he had been burned by either chicken grease

or hot water in a pot on Fontenot’s stove.3 After the police and adult protective

services investigated the incident, the State brought charges against Guillory and

Fontenot. Lewis then applied for guardianship of Cooper’s estate, indicating her

intent to pursue civil actions against Southern Concepts, Guillory, and Fontenot for

their respective responsibility for Cooper’s burns, which she alleged were “the result

of hot chicken grease being thrown on him by Sandra Guillory’s Uncle.” The

petition in this case represents there was a suit against and settlement with Southern

Concepts.

        This subsequent lawsuit is brought by Lewis on behalf of Cooper and centers

on relator Alpha-Barnes Real Estate Services, LLC (“Alpha-Barnes”), the property

management company for the apartment complex in which Fontenot lives. The

theory in this case is somewhat different from the earlier case against the caregivers.

This suit is grounded on the theory that Cooper was burned by dangerously hot water

from the faucet of a bathtub—not chicken grease or hot water in a pot on the stove.




    2
      The petition describes Cooper’s statements and refers to a video recording of a forensic interview of
Cooper conducted by investigating authorities. However, the sworn record at this stage contains only a
picture of the disk containing the video record.
    3
      Fontenot offered differing explanations during the police investigation, first alleging Cooper was in
the bathtub while Fontenot was frying chicken in the kitchen. He later stated that Cooper likely burned
himself in hot water from the bathtub faucet. Lewis reported to the police that Guillory had told her Cooper
was scalded by hot water in the shower.
                                                   –3–
        Alpha-Barnes has retained four experts who are prepared to offer opinions in

this case on the central question of causation. They will opine that Cooper’s burns

are more likely caused by hot grease consistent with Cooper’s outcry to authorities.

Cooper moved to strike the expert’s opinions, arguing that a reasonable expert would

not base his or her opinion in whole or part on the statements of an individual with

intellectual disabilities, relying in part on a probate court’s determination of Cooper

to be incompetent.4 The trial court declined to strike the experts but barred them

from identifying or relying upon Cooper’s own statements concerning how he was

injured as the basis of their opinions on causation.5 It is not clear from the record

whether the trial judge will allow these statements or other evidence of chicken

grease as a potential cause of Cooper’s injury to be admitted at trial. Given the

context of the trial court’s decision, logic and the rules of evidence would seem to




    4
       Cooper’s motion included as an exhibit the deposition testimony of Cooper’s treating psychiatrist
Daniel Rouch, who stated that because Cooper was easily manipulated, “anything that he says without
direct evidence confirming the truth of it would not be credible.” Dr. Rouch also opined as to the credibility
of specific statements Cooper had made regarding how he sustained his injuries. For example:
        Q: In that context when you are looking at this and you are telling the judge as a
          psychiatrist, Judge, credible or not credible, the June 11th, 2012, note?
        ....
        A: Knowing everything else around it, I see it as being uncredible.
    5
      After granting “in part” Cooper’s motions “by relying upon Anthony Cooper’s statements,” the order
includes the following handwritten orders as follows:
        Experts . . . are hereby prohibited from mentioning Anthony Cooper’s statements
        concerning how his injury occurred. They are furthered [sic] ordered not to mention or
        rely upon Anthony Cooper’s statements of any method of his injury.”


                                                    –4–
answer that question. 6 But regardless of speculation on that front, it seems plain that

the trial court’s decision amounts to a clear abuse of discretion that supports, if not

necessitates, immediate correction by mandamus.

                                               DISCUSSION
        Alpha-Barnes initially argues the trial court acted sua sponte in prohibiting

the experts from mentioning Cooper’s prior statements concerning how his injury

occurred or from mentioning or “rely[ing] upon Anthony Cooper’s statements of any

method of his injury.” Cooper’s motion, however, requested the experts’ opinions

and testimony be excluded, and at the hearing, Cooper’s counsel argued the experts

should be instructed not to testify as to or otherwise discuss Cooper’s prior

statements.

        As noted, the trial court’s order leaves unclear whether Alpha-Barnes will be

allowed by any other means to present evidence as to the basis for the experts’

opinions, or whether the trial court determined any of Cooper’s own statements are

not admissible. I will begin by noting that this is a distinction without difference for

purposes of mandamus review. Qualified experts are entitled to give opinions on

matters that will assist the jury in reaching a decision, and factfinders are entitled to

determine the credibility of those opinions. See Creech v. Columbia Med. Ctr. of


    6
      As discussed below, the only conceivable basis for prohibiting the experts from addressing what is
otherwise an admissible statement of a party opponent, given its substantive relevance, would be the
conclusion that the declarant could not possibly make a statement that is truthful. While that determination
is contrary to the rules and the relative functions of the judge and jury, it would, if made, by force of logic
compel the conclusion that the statement could not be probative and admissible in any other way.
                                                     –5–
Las Colinas Subsidiary, L.P., 411 S.W.3d 1, 15 (Tex. App.—Dallas 2013, no pet.)

(“It is particularly within the jury’s province to weigh opinion evidence and the

judgment of experts.”); HULEN WENDORF                     ET AL.,    TEXAS RULES         OF   EVIDENCE

MANUAL VI-3 (3d ed. 1991) (“What at common law was treated as incompetence

has now generally become only grounds for impeachment.”).

         A Statement of a Party Opponent Is Admissible So Long As It Is Relevant

         Under Rule 703 of the Texas Rules of Evidence, an expert may base an

opinion on facts or data in the case that the expert has been made aware of, reviewed

or personally observed. See TEX. R. EVID. 703.7 Further, the facts and data experts

rely on need not be admissible. See id. Thus, experts are entitled to rely on any

evidence relevant to their determinations and certainly on evidence admissible at

trial, including the admission of a party opponent. See id. & 801(e)(2). The only

constraint on an expert’s ability to identify the basis for his or her opinion—and

jurors’ right to hear and evaluate it—is relevance. See id. 705(d); see also, e.g.,

Wells Fargo Bank Nw., N.A. v. RPK Capital XVI, L.L.C., 360 S.W.3d 691, 711 (Tex.

App.—Dallas 2012, no pet.) (noting expert admitted no relevant information for two

of prongs of stated methodology). Relevant evidence, of course, is any “evidence


   7
       Rule 703 provides as follows:
         An expert may base an opinion on facts or data in the case that the expert has been made
         aware of, reviewed, or personally observed. If experts in the particular field would
         reasonably rely on those kinds of facts or data in forming an opinion on the subject, they
         need not be admissible for the opinion to be admitted.
TEX. R. EVID. 703.
                                                   –6–
having any tendency to make the existence of a fact that is of consequence . . . more

or less probable than it would be without the evidence.” TEX. R. EVID. 401

(emphasis added). Thus, a statement on a topic of relevance need only be possibly

true in order to be admitted. See id. Whether it is, in fact true, or the basis for a

reliable expert opinion is a point for potential argument and decision by a fact-finder

with the final responsibility for making credibility determinations, regardless of who

the declarant might be.

      Here, no one disputes that Cooper’s prior statements were made or that the

statements are directly probative of the controlling issue. Cooper cites us no law,

and I would be disinclined to create it, that suggests that those who struggle with

intellectual disabilities are inherently so afflicted that their statements cannot be

treated as possibly germane to the topic in a court of law. Such a rule would be

offensive, unfair, and counter-productive in any civil or criminal proceeding

involving an outcry concerning mistreatment and neglect. For that reason, it was

rejected even before the enactment of the modern rules of evidence. See, e.g.,

Sanchez v. State, 479 S.W.2d 933, 939 (Tex. Crim. App. 1972) (female victim of

sexual abuse competent to testify despite being incapable of consenting to the

underlying act). Indeed, creating such a rule at this late date would be difficult to

square with controlling federal law. See 42 U.S.C. § 12101 et seq. (Americans with

Disabilities Act of 1990).


                                         –7–
        Cooper’s Competency to Take the Stand Is Not at Issue and Not Subject
        to a Presumption That His Testimony Lacks Veracity in Any Event

        Cooper’s arguments before us focus on a much different and broader question

than relevance and admissibility of an out-of-court statement. Cooper points to rules

governing a witness’s competency to take the stand as a witness, suggesting that

Alpha-Barnes had the burden to rebut a presumption that Cooper is incapable of

providing truthful testimony on account of his intellectual disability.8 Stated more

directly, Cooper urges that the trial court acted on an implied legal “presumption”

that Cooper’s testimony—because of his intellectual disability—is false absent a

separate expert to vouch for his credibility. 9 Resp. at 10–11. As noted above, this

rationale is not directed at his out-of-court statement or its admissibility. And, as

detailed below, while the conclusion necessary to exclude such an out-of-court

statement—i.e., that it is invariably false—would at least logically embrace this

broader question (and presumably signal the trial court’s decision that no statements

of Cooper’s should be heard by the jury), even this rationale would not support the

trial court’s decision.




    8
       In fact, at the hearing on the motion to exclude, Cooper’s counsel argued, “The facts are that insane
persons are not competent to testify, mentally retarded persons under Rule 601(a)(1) are incompetent to
testify.” The trial judge responded, “I would agree with you generally speaking.”
    9
      The trial judge stated, “But when the person has already been considered incompetent, [the experts]
should not be allowed to rely on [that person’s statements] unless you have someone that can show that
Anthony is competent to talk.” She further determined that based on their respective specialties, none of
the experts was qualified determine whether Cooper was “competent to talk.”
                                                   –8–
       To begin, Cooper’s reliance on authority governing witness competence is

legally indefensible and contrary to established law.             Those suffering from

intellectual disabilities are not presumptively incompetent to testify at trial. See

Hogan v. State, 440 S.W.3d 211, 213–14 (Tex. App.—Houston [14th Dist.] 2013,

pet. ref’d) (“ . . . if an intellectually disabled person ‘possesses sufficient intelligence

to receive correct impressions of events [she] sees, retains clear recollection of them

and is able to communicate them through some means there is no reason for rejecting

her testimony.’”) (citing Watson v. State, 596 S.W.2d 867, 870–71 (Tex. Crim. App.

1980)).

       Cooper’s argument to the contrary relies on Rule 601 of the Texas Rules of

Evidence. That rule begins with the declaration that “every person is competent to

be a witness unless these rules provide otherwise.” TEX. R. EVID. 601(a). Rule

601(a)(1) goes on to provide, “A person who is now insane or was insane at the time

of the events about which the person is called to testify” is incompetent to testify,

and subsection (2) provides, “A child—or any other person—whom the court

examines and finds lacks sufficient intellect to testify concerning the matters in issue”

is incompetent to testify. Id. (emphasis added). This record does not establish

Cooper is insane or that the trial court has examined him for these purposes.

       Instead, Cooper relies on Hunter v. NCNB Texas National Bank, a nearly

thirty-year-old decision from a sister court of appeals, which, in addition to not being

binding on this Court, did not address the question presented here. 857 S.W.2d 722,
                                           –9–
727 (Tex. App.—Houston [14th Dist.] 1993, writ denied). In Hunter, the court held

that where a non-party witness had been found by another court in a guardianship

proceeding to be an incapacitated person, a rebuttable presumption of incompetency

to testify arose regarding appellant’s homestead claim. See id. at 724–27.10 Here,

as noted, we are not dealing with Cooper’s ability to appear or testify at trial; rather,

we are faced with experts’ ability to state the bases for their opinions. The question

of Cooper’s competence to appear as a witness at trial is not the question at this

stage. Thus, Cooper’s reliance on Hunter is unavailing.

         Experts Are Entitled to Rely on Admissible Relevant Evidence

         It should go without saying that experts are entitled to base their testimony on

facts or data that are of a type reasonably relied upon by experts in their field of

expertise. See Elizondo v. Krist, 415 S.W.3d 259, 263 (Tex. 2013) (citing TEX. R.

EVID. 703). As noted above, Cooper’s own statements as to the cause of his injury

are admissible as a non-hearsay admission by party opponent and, perhaps, as

statements against interest. See TEX. R. EVID. 801(e)(1)(A), 803(24). The answer

to that question of their admissibility is not dependent on the existence or character



    10
       The one case Hunter cites in support of its “presumption” of incompetence, Mobil Oil v. Floyd, 810
S.W.2d 321, 323 (Tex. App.—Beaumont 1991, orig. proceeding), notably makes the point that competence
to appear as a witness is separate from the ability to provide relevant evidence in discovery and grants
mandamus relief on that basis. Id.; see also WENDORF, supra VI-6 “(A prior adjudication of insanity or
mental illness is not sufficient, by itself, to support a finding of incompetence.”) (gathering cases);
Rodriguez v. State, 772 S.W.2d 167, 170 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d) (discussing
then new rule 601 and noting it “creates a presumption that a person is competent to testify” and tracks
prior statute to the same effect).
                                                 –10–
of Cooper’s intellectual disabilities. See McNair v. State, 75 S.W.3d 69, 73 (Tex.

App.—San Antonio 2002, no pet.) (“McNair has failed to cite, nor have we been

able to find, any case law holding that a mentally ill defendant cannot make

admissions under Rule 801(e)(2)(A). To the contrary, McNair’s sanity was a fact

issue to be determined by the jury.”). Moreover, as noted above, the question here

arises in the context of admissible expert opinions, which need not rely on admissible

evidence. See TEX. R. EVID. 703. It is true that “[c]ourts must rigorously examine

the validity of the facts and assumptions on which expert testimony is based,” but

this does not mean that an expert’s factual assumptions must be uncontested or

established as a matter of law. See Houston Unlimited, Inc. Metal Processing v. Mel

Acres Ranch, 443 S.W.3d 820, 832–33 (Tex. 2014). Instead, if the evidence

conflicts, it is the province of the jury to determine which evidence to credit. See id.

at 833.

       As Cooper’s own arguments reveal, the only rational interpretation of the trial

court’s order is that the trial judge believes persons with intellectual disabilities are

invariably not credible and that their statements are inadmissible for their truth at

trial. During the hearing on the motion to exclude, Cooper’s counsel attempted to

provide relevant, contrary case law to the trial judge. The trial judge declined to

hear it, stating, “I generally don’t need the law. I just need to know the facts.” This

statement is troublesome and inconsistent with the trial judge’s obligation to both

parties.
                                         –11–
         Mandamus Relief Is Proper

         Regardless of its rationale, the trial court’s order deprives the parties of the

opportunity to present or examine the basis of the experts’ opinions the jury will

receive. It may also signal a decision—unavoidable if logic controls here—to

exclude Cooper’s own testimony. In either case, the decision at this stage amounts

to a clear abuse of discretion and is unfair to both parties, both of whom

understandably anticipate the probability of reversal of the ultimate trial outcome on

this ground. 11

         Regardless of how many erroneous rationales are ultimately at work here, the

parties are entitled to review of the trial court’s order under the standard set forth in

Walker v. Packer and the more modern standard of In re Prudential, which revised

our understanding of the adequacy of a remedy by subsequent appellate review. See

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding)

(meaning of adequate review in this context has “no comprehensive definition” and

encompasses private interests in delay and costs as well as public interests in the

development of the rule of law); Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992)

(requiring relator establish “the effective denial of a reasonable opportunity to



    11
         The mandamus record includes a Rule 11 Agreement between the parties in which they agree the
ruling contained in the challenged order “will have a significant impact on the presentation of evidence at
trial, and could have a significant effect on the outcome of the trial.” The parties further agree “that it would
be in the best interest of the Parties and the Court to present the November 26, 2018 Order to the Court of
Appeals before entering into trial.” The November 26, 2018 order is the trial court’s order precluding
Alpha-Barnes’s experts from mentioning Cooper’s statement concerning chicken grease.
                                                     –12–
develop the merits of his or her case, so that the trial would be a waste of judicial

resources”).

      Mandamus review of significant rulings in exceptional cases may be
      essential to preserve important substantive and procedural rights from
      impairment or loss, allow the appellate courts to give needed and
      helpful direction to the law that would otherwise prove elusive in
      appeals from final judgments, and spare private parties and the public
      the time and money utterly wasted enduring eventual reversal of
      improperly conducted proceedings.
In re Prudential, 148 S.W.3d at 136.

      With respect to Alpha-Barnes’s delay in appealing the order signed in

November 2018, the parties agreed to waive any prejudice due to the delay. I agree

with my colleagues that Cooper’s waiver cannot be controlling on our discretionary

judgment of whether mandamus relief is proper. Nevertheless, its existence is highly

significant. See id. at 138 (“Although mandamus is not an equitable remedy, its

issuance is largely controlled by equitable principles.”). Both parties appreciate the

probability of a trial infected with reversible error from its inception, resulting in a

complete waste of judicial and party resources. See In re McAllen Med. Ctr., Inc.,

275 S.W.3d 458, 466 (Tex. 2008) (orig. proceeding) (“By contrast, insisting on a

wasted trial simply so that it can be reversed and tried all over again creates the

appearance not that the courts are doing justice, but that they don’t know what they

are doing.”); In re Prudential, 148 S.W.3d at 136 (noting “adequate” in “adequate

remedy” simply proxy for careful balance of jurisprudential considerations); see also

In re Garza, 544 S.W.3d 836, 841 (Tex. 2018) (orig. proceeding) (“Appeal is not an
                                         –13–
adequate remedy where the practically certain effect of the [error] will be reversal

with the attendant waste of resources and time.”).

      I would conclude the parties’ waiver and stipulation, together with the clear

errors discussed above, dictate a grant of Alpha-Barnes’s petition for writ of

mandamus. Accordingly, I dissent from the denial of Alpha-Barnes’s petition for

writ of mandamus.




                                           /David J. Schenck/
                                           DAVID J. SCHENCK
                                           JUSTICE



200073d.p05




                                       –14–
