Antonio Herriquez v. Jabari Burton

Opinion issued July 22, 2025.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-23-00605-CV
———————————
ANTONIO HENRIQUEZ, Appellant
V.
JABARI BURTON, Appellee

On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Case No. 2019-00627

MEMORANDUM OPINION

This appeal arises from a lawsuit filed by appellant Antonio Henriquez

against appellee Jabari Burton, in which Henriquez claimed that a December 18,

2017 automobile accident in which both were involved was the result of Burton’s

negligence. After a one-day trial, a jury apportioned fault evenly between
Henriquez and Burton and awarded Henriquez $2,750 for his past physical pain.

The trial court’s judgment reduced that award to $1,375 based on the jury’s

proportionate responsibility finding.

On appeal, Henriquez claims that the trial court erred in prohibiting a

chiropractor who treated Henriquez from giving expert opinions during his

testimony. Because the trial court’s ruling was not an abuse of its discretion, we

affirm.

Background

Henriquez filed suit against Burton on January 3, 2019. Burton filed his

original answer on February 8, 2019. The trial court’s expert designations deadline

was June 15, 2020. The case was tried to a jury on March 30, 2023.

A. June 15, 2020 filing

On June 15, 2020, Henriquez filed in the trial court a document titled

“Plaintiff’s Designation of Expert Witnesses.” In the document, Henriquez lists

certain “physicians, health care providers, custodians of records for physicians, and

custodians of records for health care providers” who were involved in his care and

treatment. Henriquez lists seven medical professionals by name and also categories

of employees of six different healthcare entities (e.g., “custodians of medical and

billing records” and “any and all medical providers, paramedics, EMT’s [sic],

nurses, medical assistants, etc.”). In most of his representations about the persons

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listed, Henriquez does not differentiate among the persons other than on a

categorical basis. For example, Henriquez states in the document that:

• “The following physicians, health care providers, custodians of records for
physicians, and custodians of records for health care providers, have been
involved in the care and treatment of Plaintiff.”

• “The above-listed healthcare providers and staff . . . are also expected to
testify that the medical treatment[s] received by Plaintiff for those injuries
were reasonable and necessary and that the charges for such treatment[s]
were reasonable and customary for such services provided in the area.”

• “All medical personnel are expected to testify regarding their education,
experience, and credentials as physicians or healthcare providers and are
expected to testify about any healthcare or medical issues within his/her area
of expertise.”

The June 15, 2020 document includes the following undated Certificate of

Service:

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B. March 29, 2023 hearing

At a pretrial conference on March 29, the trial court heard Burton’s

objections to Henriquez’s proposed trial witness list, which included a physician,

Reid Singleton, and a chiropractor, Luan Nguyen. Drs. Singleton and Nguyen are

two of the seven medical professionals listed by name on Henriquez’s June 15,

2020 filing.

The parties disputed whether Henriquez’s counsel had timely disclosed Drs.

Singleton and Nguyen as expert witnesses. Henriquez’s counsel identified the June

15, 2020 filing as Henriquez’s expert witness designations, and referenced

documents that he claimed evidenced service on Burton’s counsel. Burton’s

counsel denied receiving a copy of the filing and argued that there was no evidence

of service.

In making their arguments, the attorneys referenced three exhibits

(Reporter’s Record 1-3) and a “screenshot”:

• Reporter’s Record 1 appears to be an e-filing receipt for the June 15, 2020
filing showing service on four individuals, including Luke Carrabba.1

• Reporter’s Record 2 is referenced during the hearing but it is unclear if it is
part of the record.

1
As shown above, the certificate of service for the June 15, 2020 filing states that
the filing was served on W. Shane Osborn and Christopher A. Grimm at Martin,
Disiere, Jefferson & Wisdom, LLP. Those names do not appear on Reporter’s
Record 1.
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• Reporter’s Record 3 is an August 9, 2022 notice of appearance and
designation of lead counsel for the attorney who served as Henriquez’s lead
counsel at trial.

• The screenshot appears to be an undated screenshot from the txcourts.gov
website showing a list of service contacts for the case, including the
contacts’ email addresses.

1. Henriquez’s evidence of service

Henriquez’s counsel argued that Henriquez had timely filed his expert

designations on June 15, 2020. He pointed to Reporter’s Record 1 as proof that the

June 15, 2020 filing was served that same day on Luke Carrabba, and to the

screenshot as evidence that Luke Carrabba’s email address was

eservice@mdjwlaw.com—i.e., an email address belonging to the law firm (Martin,

Disiere, Jefferson & Wisdom, LLP (MDJ&W)) representing Burton. Henriquez’s

counsel did not dispute Burton’s counsel’s assertion that Luke Carrabba has never

been an attorney at MDJ&W, but argued: “So the name was improperly put on

there, but it still routes to [MDJ&W’s] e-service.”

2. Burton’s evidence of non-service

Burton’s counsel argued that the expert witnesses on Henriquez’s trial

witness list were never disclosed. He claimed to have received the June 15, 2020

filing for the first time on March 28, 2023, and noted that the certificate of service

for the filing is undated. He stated that Luke Carrabba had never been an attorney

at MDJ&W, and that the other names on Reporter’s Record 1 were also not Burton

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representatives. With regard to the screenshot showing Luke Carrabba as having

the email address eservice@mdjwlaw.com, he noted first that the service contacts

list in the screenshot includes the names of some MDJ&W employees, none of

whom appeared on Reporter’s Record 1. Second, he noted that the screenshot

includes Henriquez’s lead counsel’s name even though, according to Reporter’s

Record 3, that attorney first appeared in the case more than two years after the June

15, 2020 filing. Burton’s counsel argued that the screenshot was thus

untrustworthy as evidence of Henriquez’s claimed June 15, 2020 service on

MDJ&W.

3. Henriquez’s counsel’s representation regarding Drs. Singleton
and Nguyen

After stating that it would “get to the bottom” of the service dispute, the trial

court asked Henriquez’s counsel whether Henriquez had made any disclosures

beyond those he claimed to have made in the June 15, 2020 filing. Henriquez’s

counsel responded that he had not. The trial court replied: “Okay. So the Court will

review and see if they were, in fact, disclosed, but even if they were, then you have

an issue with providing what the rule requires for experts if you’re stating you’ve

never done that.”

The trial court then asked Henriquez’s counsel: “[H]ow many experts are

there?” Henriquez’s counsel responded: “That are testifying would only be

two. . . . But they were provided with the medical records and kind of the request

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for disclosure just a general sense that, you know, that they are the treating

providers.” The trial court then asked: “Okay. So these are only fact witnesses, the

treating physicians? They are not experts in any other contexts?” Henriquez’s

counsel confirmed that was correct and identified the two witnesses as

Drs. Singleton and Nguyen. Burton’s counsel noted that Henriquez had timely

disclosed the two as fact witnesses, but alleged that Henriquez had not timely

designated them as expert witnesses.

The court then asked Henriquez’s counsel: “Do you plan to treat them as

experts or fact witnesses and we can cut down a lot of this?” Henriquez’s counsel

responded: “As fact witnesses.” Burton’s counsel interjected: “Then I have no

issue, your Honor. If they are simply fact witnesses on what treatment they

provided, I have no issue.” The trial court added: “Okay. All right. As long as to

the extent that they are fact witnesses, treating doctors, but not experts, then we

don’t have an issue.”

C. Trial

At trial the next day, Henriquez called Dr. Nguyen as his first witness.

Consistent with Henriquez’s counsel’s representation that Dr. Nguyen would

testify only as a fact witness, the trial court instructed Dr. Nguyen that he was there

to testify solely as a fact witness regarding his treatment of Henriquez and not to

provide any opinion testimony.

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Despite Henriquez’s counsel’s prior representation to the trial court that Dr.

Nguyen would testify only as a fact witness, the attorney conducting the direct

examination of Dr. Nguyen at trial repeatedly asked Dr. Nguyen his opinion

regarding the cause of Henriquez’s injuries and the necessity of treatments

provided to him. The trial court sustained Burton’s objections to those questions

and, outside of the jury’s hearing, noted that “yesterday your co-counsel agreed for

[Dr. Nguyen] to testify as a fact witness only and not as an expert.” The trial court

told Henriquez’s counsel that, if Henriquez now sought to offer Dr. Nguyen as an

expert witness, Henriquez needed to offer him as such and obtain a ruling from the

court. Henriquez’s counsel then offered Dr. Nguyen as an expert and the trial court

denied the request.

Outside the jury’s presence, Henriquez’s counsel then sought to make an

offer of proof regarding Dr. Nguyen’s qualifications to testify on causation and the

reasonableness and necessity of medical treatments received by Henriquez.

Henriquez’s counsel argued that Dr. Nguyen gave opinions on causation in his

medical records and that those opinions were given to Burton on March 18, 2019.

Burton’s counsel argued in response that Dr. Nguyen was not timely designated as

a testifying expert. When the trial court asked again whether Henriquez had made

the disclosures regarding Dr. Nguyen required by the Texas Rules of Civil

Procedure, Henriquez’s counsel responded in part that, “while perhaps they were

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deficient previously, the evidence is now on the record that he is qualified.” The

trial court responded: “[I]f you’re just now putting on the record his mental

impressions and what he relied on to form these expert opinions, explain how you

believe this is not undue surprise.” Henriquez counsel responded: “That a treating

doctor would testify in their expert capacity to why we’re here and why the injuries

were caused today, I don’t understand why defense counsel would think we

wouldn’t bring these doctors as experts when we provided reports in 18.001

affidavit form.”

On the question of undue surprise, Henriquez’s counsel argued further that:

• Burton had controverted the affidavits that Henriquez had submitted under
section 18.001 of the Texas Civil Practice and Remedies Code.

• “As to his records and basis, those were all in the records previously
produced in 2019.”

• Burton “had these records for years that the treating doctor was going to
come and testify as to causation.”

• The fact that Dr. Nguyen was going to testify as an expert was “disclosed in
the expert designations from what I’m understanding, those just weren’t
sufficient as to the opinions. But those opinions had been previously
produced.”

• Henriquez’s treating physicians “were intended to be disclosed as experts”
but, “as you ruled yesterday, they were deficient.”

• The treating physicians were disclosed as treating physicians, not as experts.

• Henriquez’s counsel believed his expert disclosures identified the treating
physicians as non-retained experts.

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• Whether Luke Carrabba was employed by the firm representing Burton was
irrelevant if the email address associated with that name was an email
address owned by the firm.

In that same exchange, Burton’s counsel argued:

• Dr. Nguyen was timely identified as a fact witness, but never disclosed as a
testifying expert.

• None of the attorneys representing Burton ever received Henriquez’s expert
designations.

• The screenshot showing Luke Carrabba’s email address does not appear to
have been contemporaneous with the alleged service of the expert
designations.

• The certificate of service for the June 15, 2020 filing is undated and “doesn’t
say how it was served.”

The trial court noted that it had not resolved the service dispute during the

pretrial conference based on Henriquez’s counsel’s representation that Drs.

Singleton and Nguyen would be testifying only as fact witnesses. The trial court

concluded: “So I will allow you to do your . . . offer of proof at this point as to this

expert since the Court has denied . . . this doctor to testify as an expert on causation

because the Court has not found that opposing counsel was duly served with the

193 requisites that would include causation and a variety of other stuff we would

have anticipated him to testify about . . . .” Henriquez’s counsel then made an offer

of proof.

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At the close of Henriquez’s evidence, Burton moved for a directed verdict

on past medical expenses. In response, the trial court asked Henriquez’s counsel to

confirm that Henriquez was not asking for past medical expenses. Henriquez’s

counsel confirmed that Henriquez was seeking only pain and suffering.

In its verdict, the jury apportioned fault evenly between Henriquez and

Burton and awarded Henriquez $2,750 for his past physical pain. Both sides’

counsel moved the trial court to accept the verdict, and the trial court did so. The

trial court’s judgment thus awarded Henriquez $1,375 in damages (one-half of

$2,750), post-judgment interest, and court costs. Both parties’ counsel approved

the judgment. Henriquez’s subsequent motion for new trial, to which Burton

responded, was overruled by operation of law.

This appeal followed. Henriquez argues on appeal that he timely designated

multiple experts whom the trial court improperly barred from testifying, likely

causing the rendition of an improper verdict.

Applicable Law

A. Expert Disclosures

The trial court’s docket control order required any party seeking affirmative

relief to serve his expert witness designations by June 15, 2020, including the

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information listed in what was then rule 194.2(f) of the Texas Rules of Civil

Procedure.2 The required information was:

(1) the expert’s name, address, and telephone number;

(2) the subject matter on which the expert will testify;

(3) the general substance of the expert’s mental
impressions and opinions and a brief summary of
the basis for them, or if the expert is not retained by,
employed by, or otherwise subject to the control of
the responding party, documents reflecting such
information;

(4) if the expert is retained by, employed by, or
otherwise subject to the control of the responding
party: (A) all documents, tangible things, reports,
models, or data compilations that have been
provided to, reviewed by, or prepared by or for the
expert in anticipation of the expert’s testimony; and
(B) the expert’s current resume and bibliography.3

The docket control order provided further that any failure to timely respond

to the expert designation requirements would be governed by rule 193.6, which at

the time provided in pertinent part that:

(a) Exclusion of evidence and exceptions. A party
who fails to make, amend, or supplement a
2
Specifically, the docket control order stated: “Expert witness designations are
required and must be served by the following dates. The designation must include
the information listed in Rule 194.2(f). Failure to timely respond will be governed
by Rule 193.6. (a) 6/15/2020 Experts for parties seeking affirmative relief. (b) All
other experts.”
3
See Order, Misc. Docket No. 20-9153 (Tex. Dec. 23, 2020) (detailing amendments
to Texas Rules of Civil Procedure applicable to cases filed on or after January 1,
2021). Because Henriquez filed suit in 2019, the pre-amendment version of rule
194.2 shown in the Texas Supreme Court’s order applies to this case.
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discovery response in a timely manner may not
introduce in evidence the material or information
that was not timely disclosed, or offer the testimony
of a witness (other than a named party) who was not
timely identified, unless the court finds that:
(1) there was good cause for the failure to timely
make, amend, or supplement the discovery response;
or (2) the failure to timely make, amend, or
supplement the discovery response will not unfairly
surprise or unfairly prejudice the other parties.

(b) Burden of establishing exception. The burden of
establishing good cause or the lack of unfair surprise
or unfair prejudice is on the party seeking to
introduce the evidence or call the witness. A finding
of good cause or of the lack of unfair surprise or
unfair prejudice must be supported by the record.4

The exclusion of evidence under rule 193.6 is a matter of admissibility rather

than a sanction for discovery abuse. Hale v. Hale, No. 02-23-00234-CV, 2024 WL

4510195, at *2 (Tex. App.—Fort Worth Oct. 17, 2024, pet. denied) (mem. op.);

Amudo v. Amudo, No. 01-17-00318-CV, 2018 WL 3059729, at *5 (Tex. App.—

Houston [1st Dist.] June 21, 2018, no pet.) (mem. op.); In re T.K.D-H., 439 S.W.3d

473, 479 (Tex. App.—San Antonio 2014, no pet.).

B. Standard of Review

A court of appeals reviews a trial court’s decision to admit or exclude

evidence under rule 193.6(a) for an abuse of discretion. Jackson v. Takara, 675

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See Order, Misc. Docket No. 20-9153 (Tex. Dec. 23, 2020) (detailing amendments
to Texas Rules of Civil Procedure applicable to cases filed on or after January 1,
2021). Because Henriquez filed suit in 2019, the pre-amendment version of rule
193.6 shown in the Texas Supreme Court’s order applies to this case.
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S.W.3d 1, 6 (Tex. 2023) (citing In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005)

(“We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion.”)). A trial court abuses its discretion if it acts without reference to any

guiding rules or principles. In re C.J.S., 702 S.W.3d 573, 610 (Tex. App.—

Houston [1st Dist.] 2024, no pet.) (citing Worford v. Stamper, 801 S.W.2d 108,

109 (Tex. 1990)). A trial court does not abuse its discretion if it bases its decision

on conflicting evidence and some evidence supports its decision. Id. (citing In re

Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding)).

Analysis

A. Only Dr. Nguyen was barred from giving expert testimony at trial.

Henriquez asserts that, “[d]uring the pre-trial conference that took place the

day before trial, the trial court ruled that Henriquez’s non-retained chiropractic

experts could only testify as ‘fact witnesses,’ prohibiting them from giving expert

testimony because of a purported failure to timely disclose their mental

impressions.” The record does not support Henriquez’s assertion. Indeed, based on

Henriquez’s counsel’s representation at the pretrial conference that Drs. Singleton

and Nguyen would be testifying solely as fact witnesses, Burton’s counsel

withdrew Burton’s objection to Henriquez’s witness list. At trial, Henriquez

offered only Dr. Nguyen as an expert witness, and the trial court’s ruling that Dr.

Nguyen could not testify as an expert was specific to Dr. Nguyen.

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B. The trial court did not err in prohibiting Dr. Nguyen from giving expert
testimony.

In ruling at trial that Dr. Nguyen could not testify as an expert “because the

Court has not found that opposing counsel was duly served with the 193

requisites,” the trial court did not act without reference to any guiding rules or

principles. See In re C.J.S., 702 S.W.3d at 610 (trial court abuses its discretion in

excluding evidence if it acts without reference to any guiding rules or principles).

The trial court’s docket control order required Henriquez to provide to Burton by

June 15, 2020 the information listed in what was then rule 194.2(f) of the Texas

Rules of Civil Procedure, and stated that any failure to timely respond to the expert

designation requirements would be governed by what was then rule 193.6. At the

time, rule 193.6 stated that a party could not offer the testimony of a witness who

was not timely disclosed absent a showing that “(1) there was good cause for the

failure to timely make, amend, or supplement the discovery response; or (2) the

failure to timely make, amend, or supplement the discovery response will not

unfairly surprise or unfairly prejudice the other parties.” See supra note 4.

Henriquez made no showing that he had good cause for not timely

designating Dr. Nguyen as an expert witness, arguing only that he had timely

designated Dr. Nguyen and that permitting Dr. Nguyen to testify as an expert

would not be an unfair surprise to Benton. Henriquez argues that the certificate of

service attached to his June 15, 2020 filing created a presumption of service, and

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that Burton provided the trial court with “no evidence whatsoever in support of his

counsel’s spurious contention that the disclosures were not received.” However,

under rule 21a(e), a certificate of service “showing service of a notice shall be

prima facie evidence of the fact of service.” TEX. R. CIV. P. 21a(e) (emphasis

added). Further, even assuming that an undated certificate of service is prima facie

evidence of service on the date of a filing, that presumption is rebuttable by

evidence that the document was not received. See id. (“[n]othing herein shall

preclude any party from offering proof that the document was not received”).

Here, Burton’s counsel represented to the trial court that the attorneys

representing Burton did not receive a copy of Henriquez’s June 15, 2020 filing

prior to the pretrial conference. Henriquez’s complaint that Burton’s counsel’s oral

representations were “no evidence whatsoever” of non-service is incorrect. See

Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (oral representations by

parties’ counsel regarding whether party had received notice of trial were evidence

even though not made under oath because “oath requirement was waived when

neither raised any objection in circumstances that clearly indicated each was

tendering evidence on the record based on personal knowledge on the sole

contested issue”). The trial court thus heard conflicting evidence as to whether

Henriquez served his June 15, 2020 filing on Burton and we cannot say that the

trial court abused its discretion by basing its decision on Burton’s evidence rather

16
than Henriquez’s. See In re C.J.S., 702 S.W.3d at 610 (trial court does not abuse its

discretion if it bases its decision on conflicting evidence and some evidence

supports its decision).

Finally, Henriquez’s assertion that the trial court’s ruling that Dr. Nguyen

could not testify as an expert was based on the trial court’s improperly applying

rules applicable only to retained experts is not persuasive. First, Henriquez’s June

15, 2020 filing does not identify witnesses as retained or non-retained experts.

Second, the trial court referenced at trial its understanding that Henriquez’s

counsel had stated in the pretrial conference that Henriquez had not disclosed for

those experts listed in his June 15, 2020 filing the experts’ mental impressions and

the materials on which the experts had relied in forming their opinions. However,

the trial court mentioned the fact only as a possible alternative basis for its ruling,

asking Henriquez’s counsel: “In addition to that, even if they were disclosed, I

don’t think you have the 193 as required or do you because you stated yesterday

you didn’t have the 193 requisites.” After Henriquez’s counsel responded that the

required information was in the June 15, 2020 filing, the trial court ruled that “the

Court has not found that opposing counsel was duly served with the 193 requisites

that would include causation and a variety of other stuff we would have anticipated

him to testify about.” (Emphasis added.)

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We thus conclude that the trial court did not abuse its discretion in

prohibiting Dr. Nguyen from giving expert opinion testimony at trial. See Siana

Oil & Gas Co. LLC v. White Oak Operating Co., LLC, No. 01-21-00721-CV, 2022

WL 17981572, at *7-9 (Tex. App.—Houston [1st Dist.] Dec. 29, 2022, no pet.)

(affirming trial court ruling striking expert declarations in support of summary

judgment response under rule 193.6 because experts were not designated prior to

deadline in docket control order); McRay v. Dow Golub Remels & Gilbreath

PLLC, No. 01-21-00032-CV, 2022 WL 17981671, at *6 (Tex. App.—Houston [1st

Dist.] Dec. 29, 2022, pet. denied) (affirming trial court’s exclusion of expert under

rule 193.6 because expert was not timely designated).

Conclusion

Because the trial court’s ruling prohibiting Dr. Nguyen from giving expert

opinion testimony as part of his trial testimony was not an abuse of discretion, we

affirm the trial court’s judgment.

Amparo “Amy” Guerra
Justice

Panel consists of Justices Guerra, Gunn, and Dokupil.

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