
NO. 07-00-0373-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JANUARY 28, 2003

______________________________


JEANNETTE MITCHELL EMMERT, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE COUNTY COURT OF WHEELER COUNTY (1);

NO. 7141; HONORABLE JERRY DAN HEFLEY, JUDGE

_______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J.*
MEMORANDUM OPINION (2)
	Following a plea of not guilty, appellant was convicted by a jury of burglary of a
vehicle and punishment was assessed at zero days confinement, suspended for one year. 
After appellant filed her notice of appeal, this Court requested that her attorney show
cause why the appeal should not be dismissed for what appeared to be an untimely notice
of appeal.  Counsel responded by filing a motion for extension of time in which to prepare
a record of the sentencing hearing which was conducted nine months after appellant was
convicted and would establish that the notice was timely.  We grant the motion and after
reviewing the record of the sentencing hearing conclude that appellant's notice of appeal
was timely filed.   By a sole issue, appellant contends her in-court identification was
insufficient to support her conviction.  Based upon the rationale expressed herein, we
affirm.
	Soon after her husband's death, complainant, had possession of her husband's blue
truck.  Appellant is the twin sister of complainant's deceased husband. (3)  On the morning
of November 6, 1997, as complainant was leaving for work, she glanced into the truck and
checked that the doors were locked.  She noticed her husband's business papers in the
visor and on the console as well as a pair of expensive Kelly spurs hanging from the gear
shift.  According to complainant, her keys to the truck were on a key rack inside her locked
home and her son had a second set.  Complainant's son claimed that he used the truck
the previous day to work on the ranch, but returned it and locked the doors. 
	Complainant's daughter-in-law testified that on the morning of November 6 she was
driving by complainant's home and noticed a white van on the property and a man and
woman "going through" the blue truck.  She recognized the woman as appellant and drove
to complainant's workplace to inform her about what she had observed.  Upon returning
home complainant did not find anyone there, but noticed that the Kelly spurs were missing
and the papers in the truck looked in disarray.  She called her son to notify him of the
incident and the police chief was called to investigate.  Complainant also noticed that her
set of keys was missing from the key rack in her home.  Approximately two months after
the incident, appellant voluntarily gave a statement to the police chief, and one year after
the incident she was charged with burglary of a vehicle. 
	By her sole issue, appellant argues that the trial court erred in not granting her
motion for instructed verdict because the in-court identification evidence is insufficient to
support her conviction.  We disagree and consider a complaint about the failure to grant
an instructed verdict as a legal sufficiency challenge.  See Williams v. State, 937 S.W.2d
479, 482 (Tex.Cr.App. 1996); Mabra v. State, 997 S.W.2d 770, 774 (Tex.App.-Amarillo
1999, pet. ref'd).  In conducting a legal sufficiency review, we must determine whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt. 
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979);
Geesa v. State, 820 S.W.2d 154, 157 (Tex.Cr.App. 1991), overruled on other grounds,
Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000).  As an appellate court, we may
not sit as a thirteenth juror, but must uphold the jury's verdict unless it is irrational or
unsupported by more than a mere modicum of evidence.  Moreno v. State, 755 S.W.2d
866, 867 (Tex.Cr.App. 1988).
 A person commits burglary of a vehicle if he breaks into or enters a vehicle or any
part of a vehicle with intent to commit any felony or theft.  Tex. Pen. Code Ann. § 30.04(a)
(Vernon  1994). (4)  However, because appellant limits her complaint to the identity element,
which must be proven in every case, Lauderback v. State, 789 S.W.2d 343, 348
(Tex.App.-Fort Worth 1990, pet. ref'd), we focus our analysis on that element.
	While complainant's daughter-in-law was testifying, the prosecutor asked if she had
met appellant before and she replied:

	Yes, I had just recently - I had met her a number of times.  The most
recent time that I saw her was at [complainant's husband's] funeral.


	Would you point out Jeanette in the courtroom?


	That's her right there (indicating).

		[Prosecutor]: Let the record show that she pointed at the
Defendant.

	A neighbor of complainant's testified that he had known appellant all her life and
that he observed her helping a man climb through complainant's garage door window.  The
prosecutor asked:

	So, you do recognize Jeanette Mitchell Emmert?


	Yes.


	And she is present in the courtroom?


	Yes.	

	Another of complainant's neighbors testified that she noticed an unfamiliar vehicle
and noticed two people standing in complainant's driveway.  However, she could not recall
whether she identified the woman she observed as appellant at the time of the incident or
at a later date.  During her testimony the prosecutor asked:

	Is she the woman that you saw standing beside the pickup that day
about - regarding the events you've just described to us?

			[Witness]: Can you look that way?
			(Defendant complies).

	Looks like the same woman. Her hair is not quite as long and it's not
quite as dark now.

 
	The test for sufficiency of identification to support a conviction is whether we can
conclude from a totality of the circumstances that the jury was adequately apprised that
the witnesses were referring to appellant.  Rohfling v. State, 612 S.W.2d 598, 601
(Tex.Cr.App. 1981).  Although the Code of Criminal Procedure does not require a specific
ritual for in-court identification, the better practice is to identify a defendant beyond a mere
reference by name.  See Purkey v. State, 656 S.W.2d 519, 520 (Tex.App.-Beaumont
1983, pet. ref'd) (concluding that a lack of formal in-court identification did not render the
evidence insufficient to establish the defendant's identity as the perpetrator).
	Complainant's daughter-in-law was asked by the prosecutor to point out appellant
and the record indicates that she did.  We conclude this identification is sufficient to
establish appellant's identity.  Moreover, although complainant's two neighbors did not
point out appellant, the totality of the circumstances indicates that the jury knew to whom
they were referring.  Thus, we hold that the in-court identification evidence is sufficient to
support appellant's conviction and that the trial court did not err in denying appellant's
motion for instructed verdict.  Appellant's sole issue is overruled.
	Accordingly, appellant's motion for an extension is granted and the judgment of the
trial court is affirmed.
							Per Curiam
 
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
2. Tex. R. App. P. 47.4.
3. Testimony from several witnesses upon cross-examination established that
complainant's family and appellant's family had been involved in a will contest involving
the estate of complainant's husband.
4. Section 30.04 was amended in 1999; however, we apply the law in effect when the
offense was committed.  See Act of May 26, 1999, 76th Leg., R.S., ch. 916, § 2(b), 1999
Tex. Gen. Laws 3638-39.

of staff and Executive
Committees of MCH and Methodist, and that they acted
in good faith.


The report concluded that the panel recommended the suspensions remain in effect and
that any reappointment of Ching exclude the suspended privileges.
	Before we commence our review of the issues presented, subject to adaptations
required to comply with the Health Care Quality Improvement Act (HCQIA), 42 U.S.C. §
11111, and section § 160.01 of the Texas Occupation Code Annotated (Vernon Pamph.
2003) discussed below, we set out the appropriate standard of review for our review. 
Summary Judgment Standard of Review

Rule 166a(a) & (b)


	In reviewing a summary judgment, this Court must apply the standards established
in Nixon v. Mr. Property Management Co.,  690 S.W.2d 546, 548-49 (Tex. 1985), which
are:
	1.  The movant for summary judgment has the burden of showing that there
is no genuine issue of material fact and that it is entitled to judgment as a
matter of law.

	2.  In deciding whether there is a disputed material fact issue precluding
summary judgment, evidence favorable to the non-movant will be taken as
true.

	3.  Every reasonable inference must be indulged in favor of the non-movant
and any doubts resolved in its favor.
 
	For a party to prevail on a motion for summary judgment, he must conclusively
establish the absence of any genuine question of material fact and that he is entitled to
judgment as a matter of law.  Tex. R. Civ. P. 166a(c).  A movant must either prove all
essential elements of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986), or
negate at least one essential element of the non-movant's cause of action.  Randall's Food
Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).  Once the movant has
established a right to summary judgment, the non-movant has the burden to respond to
the motion for summary judgment and present to the trial court any issues that would
preclude summary judgment.  City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 
671, 678 (Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st
Dist.] 1996, writ denied).  Issues which the non-movant contends preclude the granting of
a summary judgment must be expressly presented to the trial court by written answer or
other written response to the motion and not by mere reference to summary judgment
evidence.   McConnell v. Southside School Dist., 858 S.W.2d 337, 341 (Tex. 1993).  Issues
not expressly presented to the trial court in writing shall not be considered on appeal as
grounds for reversal.  Tex. R. Civ. P. 166a(c).  Further, all theories in support of or in
opposition to a motion for summary judgment must be presented in writing to the trial court. 
Casso v. Brand, 776 S.W.2d 551, 553 (Tex. 1989).  When a summary judgment does not
specify or state the grounds relied on, the summary judgment will be affirmed on appeal
if any of the grounds presented in the motion are meritorious.  Carr v. Brasher, 776 S.W.2d
567, 569 (Tex. 1989); Insurance Co. Of  N. Am. v. Security Ins.,  790 S.W.2d 407, 410
(Tex.App.--Houston [1st Dist.] 1990, no writ).
No-Evidence Summary Judgment Standard of Review

Rule 166a(i)


 Rule 166a(i) entitled "No-Evidence Motion," provides that a party may move for
summary judgment on the ground that there is no evidence of one or more essential
elements of a claim or defense on which an adverse party would have the burden of proof
at trial.  When a summary judgment does not specify or state the grounds relied on, it will
be affirmed on appeal if any of the grounds presented in the motion are meritorious.  Carr,
776 S.W.2d at 569; Insurance Co. Of N. Am., 790 S.W.2d at 410. Where a motion is
presented under Rule 166a(i) asserting there is no evidence of one or more essential
elements of the non-movant's claims upon which the non-movant would have the burden
of proof at trial, the movant does not bear the burden of establishing each element of its
own claim or defense as under subparagraph (a) or (b).  Rather, although the non-moving
party is not required to marshal its proof, it must present evidence that raises a genuine
fact issue on the challenged elements.  See Tex. R. Civ. P. 166a, Notes and Comments.
	Because a no-evidence summary judgment is essentially a pretrial directed verdict,
we apply the same legal sufficiency standard in reviewing a no-evidence summary
judgment as we apply in reviewing a directed verdict.  Roth v. FFP Operating Partners, 994
S.W.2d 190, 195 (Tex.App.--Amarillo 1999, pet. denied); Jackson v. Fiesta Mart, Inc., 979
S.W.2d 68, 70 (Tex.App.--Austin 1998, no pet.).  Thus, our task as an appellate court is
to ascertain whether the non-movant produced any evidence of probative force to raise a
fact issue on the material questions presented.  Id.  We consider all the evidence in the
light most favorable to the party against whom the no-evidence summary judgment was
rendered, disregarding all contrary evidence and inferences.  Merrill Dow Pharmaceuticals
v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799,
140 L.Ed.2d 939 (1998).  A no-evidence summary judgment is improperly granted if the
non-movant presents more than a scintilla of probative evidence to raise a genuine issue
of material fact.  Fiesta Mart, Inc., 979 S.W.2d at 70-71.  More than a scintilla of evidence
exists when the evidence "rises to a level that would enable reasonable and fair-minded
people to differ in their conclusions." Havner, 953 S.W.2d at 711.
 Where, as here, both sides move for summary judgment and the trial court grants
one motion and denies the other, on appeal, we review the summary judgment evidence
of both sides and determine all questions presented, and render judgment the trial court
should have rendered.  Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999). 
Greg Lair, Inc. v. Spring, 23 S.W.3d 443, 446 (Tex.App.--Amarillo 2000, pet. denied). 
Moreover, because neither party presents any objections to the summary judgment
evidence,  we may consider all of the summary judgment evidence in the record.  Grand
Prairie Independent School District v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990); Calp v.
Tau Kappa Epsilon Fraternity, 75 S.W.3d 641, 645-46 (Tex.App.--Amarillo 2002, pet.
denied).
Analysis

 By his first issue, Ching contends the trial court erred in awarding the Hospitals'
summary judgment based on statutory immunity, contending that (a) the record does not
conclusively establish that the procedures used in suspending his privileges were fair, as
required by 42 U.S.C. § 11111(a) and (b), the immunity provided by section160.010 of the
Occupation Code, formerly Tex. Rev. Civ. Stat. Ann. art. 4495b § 5.06(1) (4), "vanished"
because there was summary judgment evidence that the Hospitals acted with malice. 
Then, by his second issue, he contends the trial court erred in denying his motion for partial
summary judgment because the undisputed evidence established as a matter of law the
procedures employed by the Hospitals did not satisfy 42 U.S.C. §11111(a).  We disagree.
	As grounds for their joint motion for summary judgment, the Hospitals contended that
they were entitled to summary judgment because they were immune from liability (1) under
42 U.S.C. § 11111 on all of Ching's claims except his civil rights claim, and (2) on all of
Ching's claims under section160.010 of the Occupation Code.  By his response, Ching
contended the Hospitals were not entitled to immunity because (1) their actions did not
conform to HCQIA's fair procedures requirements and to the Texas statute, and (2) the
Hospitals acted with malice in suspending him.
	Grounds alleged by Ching in his motion for partial summary judgment included (1)
the bylaws are a contract, and (2) the Hospitals did not follow "fair procedures" as required
by HCQIA.  In response, the Hospitals alleged that breach of contract claims do not apply
because (1) the medical staff bylaws do not create contractual obligations, and (2) Ching
failed to present sufficient summary judgment evidence to rebut the statutory presumption
under 42 U.S.C. § 11112(a) necessary for immunity.
Medical Peer Review 
HCQIA, 42 U.S.C. § 11111 and Tex. Occ. Code Ann. § 160.010

	In addition to the duty to exercise reasonable care in the selection of its medical
staff and in granting specialized privileges, a hospital has a common law duty to
periodically monitor and review the competency of the members of its medical staff.  Park
North General Hosp. v. Hickman, 703 S.W.2d 262, 264 (Tex.App.-- San Antonio 1985, writ
ref'd n.r.e.).  Also, public policy encourages hospitals to conduct medical peer reviews of
physicians.  See 42 U.S.C. § 11101(3) and (5).  Accordingly, in conducting periodic peer
reviews of its medical staff, a hospital is entitled to statutory immunities from civil liability
under HCQIA, 42 U.S.C. § 11111(a) and section160.010 of the Occupation Code.      
	A hospital as a professional review body "shall not be liable in damages under any
law of the United States or of any State (or political subdivision thereof) with respect to the
action," 42 U.S.C. § 11111(a)(1), except civil rights actions.  Under this provision, the peer
review action must be taken:
		(1) in the reasonable belief that the action was in furtherance
of quality health care,

		(2) after a reasonable effort to obtain the facts of the matter,
 
		(3)  after adequate notice and hearing procedures are afforded
to the physician involved or after such other procedures as are
fair to the physician under the circumstances, and

		(4) in the reasonable belief that the action was warranted by
the facts known after such reasonable effort to obtain facts and
after meeting the requirement of paragraph (3).  

42 U.S.C. § 11112(a); Sugarbaker v. SSM Health Care, 190 F.3d 906, 912 (8th Cir. 1999).
	Although the presumption is rebuttable, Bryan v. James E. Holmes Regional
Medical Center, 33 F.3d 1318, 1323 (11th Cir. 1994), it includes a presumption that a
professional review action meets each of the four prongs of section 11112(a), unless the
presumption is rebutted by a preponderance of evidence.  Brader v. Allegheny Gen. Hosp.,
167 F.3d 832, 839 (3rd Cir. 1999).
	Texas has granted additional immunities to hospitals and others participating in
professional medical peer review.  See St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d
503, 507 (Tex. 1997).  Subsections (b) and (c) of section 160.010 provide in relevant part:
	(b) A cause of action does not accrue against a . . . health care entity from
any act, statement, determination, or recommendation made, or act reported,
without malice, in the course of medical peer review.
	(c) A . . . health care entity that, without malice, participates in medical peer
review or furnishes records, information, or assistance to a medical peer
review committee or the board is immune from any civil liability arising from
that act.

(Emphasis added). (5)  Because the judgment does not specify the grounds relied on or as
here whether it was based on the immunity provided by the HCQIA	or the Texas statute,
we will conduct our analysis based on section 160.010, as was done in Roe v. Walls
Regional Hosp., 21 S.W.3d 647, 655 (Tex.App.--Waco 2000, no pet.). 
	In Agbor, 952 S.W.2d at 509, in discussing the former provision before
recodification, the Court held:
	Accordingly, we hold that the Texas Act's immunity provisions prescribe a
threshold standard of malice to state a cause of action against a hospital for
its credentialing activities.    

Ching argues that this immunity "vanished" because the Hospitals acted maliciously. 
Because the existence of malice is essential to state a cause of action and the law
presumes good faith and want of malice where a qualified privilege is involved, see Maewal
v. Adventist Health Systems, 868 S.W.2d 886, 893 (Tex.App.--Forth Worth 1993, writ
denied), Ching had the burden to present more than a scintilla of probative evidence of
malice sufficient to raise a genuine issue of fact.  Fiesta Mart, Inc., 979 S.W.2d at 70;
Havner, 953 S.W.2d at 711.  
	Focusing on the question of malice, because the Hospitals have a duty to conduct
medical peer reviews and public policy favors reviews, we hold that the commencement 
of a review, standing alone, cannot constitute evidence of malice.  Also, although the
Hospitals can  "act only through agents of some character," Mobil Oil Corp. v. Ellender, 968
S.W.2d 917, 921 (Tex. 1998), Ching's summary judgment evidence does not identify the 
officers or agents of the two corporations whom he contends introduced the element of
malice into the medical peer review process.  Further, Ching does not contend that the
physicians who served on the investigative panel were officers or agents of the Hospitals,
that they were biased or had any ill will or malice toward  him, or that their decision was the
product of malice.  Moreover, as a general rule, physicians are considered to be
independent contractors with regard to the hospitals at which they enjoy staff privileges.
Baptist Memorial Hosp. System v. Sampson, 969 S.W.2d 945, 948 (Tex. 1998).
	 We do not agree with Ching's contention that the use of two physicians from
Arkansas in the peer review process constitutes evidence of malice for several reasons. 
First,  the selection of physicians from another state removed any local bias, i.e. personality
or political conflicts (professional or otherwise) among staff members, or local economic
factors from the process and helped ensure that the medical decisions of the physicians
who served on the Quality Management Committee were not affected by any ill will or
malice, but were in furtherance of quality health care.  See 42 U.S.C. § 11112(a)(1).  Next,
contrary to his contention in his response to the Hospitals' motion for summary judgment
that their exclusive reliance on the reports of the two Arkansas physicians was evidence
of malice, the contention is logically inconsistent.  The exclusive reliance on reviews from
"outside" physicians who were removed from any potential bias cannot logically infer or
imply malice.
	 Finally, Ching agreed to the use of "external" physicians.  The summary judgment
evidence includes the entire text of a Memorandum of Informal Counseling dated
December 16, 1994, by which the Chief of Staff of Children's Hospital and two other
members recommended that "an external review, by a qualified pediatric cardiovascular
surgeon, be conducted to evaluate the potential causes for the high mortality rates."  By
his signature on the memorandum, Ching agreed to cease performing the referenced
procedures "until such investigation can be completed and any necessary corrective action
implemented to the satisfaction of the Quality Management Committee." (Emphasis
added). 
	Upon the request of Ching's attorneys, the hearing originally scheduled for April 28
was rescheduled for May 10.  The findings of the panel as shown by its May 16, 1995,
report, (6) as relevant to the malice question concluded that Ching had not shown that the
actions were arbitrary, unreasonable, or capricious and that the Executive Committees of
the Hospitals acted in good faith.  However, Ching does not challenge these findings by
argument or direct our attention to any summary judgment evidence to the contrary.
	The term "malice" is not defined for purposes of the Act.  Ching suggests that the
definition set out in Agbor, 952 S.W.2d at 506, is controlling while the Hospitals contend
that the definition at Maewal, 868 S.W.2d at 893, is controlling.  However, because the
summary judgment evidence provided by Ching is insufficient to overcome the presumption
of the absence of malice to medical peer review proceedings, id., under either definition,
we need not decide which of the suggested definitions is controlling here. (7)  Accordingly,
issues one and two are overruled.  Ching's remaining issues concern claims arising out of
the medical peer review process; thus, our disposition of the first two issues is also
controlling on his remaining issues and we need not address them or the summary
judgment evidence that he presented.  Roe, 21 S.W.3d at 655.
	Accordingly, the judgment of the trial court is affirmed.
							Don H. Reavis
							     Justice
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
2. Tex. R. App. P. 47.2(a).
3. Ching did not contend that his approval of the memorandum was brought about by
any fraud, accident, or mistake on the part of the Hospitals or seek to rescind or avoid his
agreement to the memorandum.
4. Recodified with minor non-substantive changes.
5. Because section 160.010 is not conditioned upon compliance with the standards
of professional review set out in 42 U.S.C. § 11112(a), we limit our review of the evidence
to the question of malice.  
6. The May 16, 1995 report was included in the summary judgment evidence.
7. Because public policy encourages medical peer reviews, see 42 U.S.C. § 11101(3)
and (5), a definition of malice fashioned to encompass the requirement of a "reasonable
belief that the action was in the furtherance of quality health care" requirement of 42 U.S.C.
§ 11112(a)(1) may be more appropriate than a definition adapted from typical tort cases.

