Take nothing judgment was proper where appellee Fund paid more than the amount of the only legally viable damage findings made by the jury, and there was no basis for awarding the appellants any actual damages based on any of the bad-faith claims
Triyar Companies, LLC v. Fireman's Fund Insurance Company
Appellate: Civil, Damages, Insurance, Torts
Texas 14th Court of Appeals
February 09, 2017
14-14-00160-CV
Kem Frost
Published
     The instant appeal arose out of a dispute between an insurer and claimants under a commercial insurance policy for hurricane damages to two malls. On the insurer’s motion the trial court disregarded jury findings favorable to the plaintiffs based on the jury’s failure to find that the insurer breached the policy, and the trial court rendered judgment that the plaintiffs take nothing. The appellate court found that presuming that the trial court erred in rendering a take-nothing judgment on the ground asserted in the appellee’s Fund’s motion to disregard the jury findings favorable to the appellants, the court concluded that a judgment that the appellants take nothing was appropriate based on some of the appellee Fund’s arguments under its first cross-point. Further, based on the jury’s findings as to Actual Cash Value, the appellee Fund overpaid the Actual Cash Value of the property damage as to both malls by a total of more than $1.5 million. The trial evidence was legally insufficient to support the jury’s finding that the appellee Fund’s actions made it impossible for the appellants to actually repair or replace the lost or damaged property at either of the malls with other new property of comparable material and quality. Because the evidence supported the jury’s finding in response to Question 10, the appellants may not recover the Replacement Cost Value for damages to the two malls found by the jury. The trial evidence was legally insufficient to support the award of any damages to any of the appellants based on lost Business Income. Subpart (4) of Question 3 regarding temporary repairs was immaterial, and the jury’s answers to that part of the charge could not support a judgment for the appellants. Because the appellee Fund paid more than the amount of the only legally viable damage findings made by the jury, there was no basis for awarding the appellants any actual damages based on any of the bad-faith claims, and the appellants were not entitled to judgment based on the findings in response to Question 2(B) or Question 4. Likewise, because the appellants were not entitled to judgment based on any liability of the appellee Fund under the Policy, they may not recover based on their claims under Insurance Code section 542.060, and the appellants were not entitled to judgment based on the findings in response to Question 6. Accordingly, the judgment was affirmed.


Appellant was competent and voluntarily absented himself from trial, and even if counsel had refused to participate after appellant attempted suicide, appellant could not show prejudice from counsel’s inaction, which occurred after extremely incriminating photos had been admitted into evidence
Mayfield v. State
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
February 09, 2017
07-14-00055-CR
James T. Campbell
Unpublished
     A Parker County jury convicted the appellant, of three felony offenses of aggravated sexual assault of a child, one offense of indecency with a child by contact and one offense of sexual performance by a child less than 14 years of age, and assessed sentences of confinement for life for each of the aggravated sexual assault convictions, twenty years’ confinement for each of the other two convictions and a $10,000 fine in each of the five convictions. The appellate court’s abatement and remand for a retrospective competency determination, coupled with the trial court’s unchallenged rulings that appellant was competent and voluntarily absented himself from trial, disposed of appellant’s first issue on appeal. Further, if counsel’s choices regarding his conduct of the defense after the appellant’s suicide attempt precluded the jury from hearing that evidence, his choices might be addressed in a two-component Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2D 674 (1984) analysis. But, for the reasons discussed, the court could not agree that the record supported a conclusion counsel thereby entirely failed to subject the prosecution’s case to meaningful adversarial testing. Accordingly, the court affirmed the judgment of the trial court.


Section 231.211(a) did not apply to the assessment of appellate costs and thus did not prevent the court from ordering the appellee to pay appellate court costs
In re C.Y.K.S.
Appellate: Civil, Courts, Family, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
February 09, 2017
14-15-00554-CV
Kem Frost
Published
     The appellant filed the instant appeal from the trial court’s order setting aside and dismissing for lack of jurisdiction the trial court’s February 13, 2015 order, in which the trial court had modified the appellant's monthly child-support obligation from $1060.20 to $565.48, retroactive to April 2010 (“Modification Order”). In the Modification Order, the trial court adjudicated the appellant's petition to modify child support and the appellee's counter-petition. On original submission, the court reversed the trial court’s 2015 dismissal order, remanded for further proceedings, and ordered that appellee pay all costs incurred by reason of the appeal. The appellee moved for rehearing on the sole ground that Texas Family Code Section 231.211(a) bars the court from ordering her to pay court costs. The appellate court found that Section 231.211(a) did not apply to the assessment of appellate costs and thus did not prevent the court from ordering the appellee to pay appellate court costs. Further, though Section 231.204 applies to appellate courts, the exemption provided under that statute did not apply to a party to whom the agency had provided services under that chapter. The appellee was not the Title IV-D agency or a private attorney or political subdivision that had entered into a contract to provide Title IV-D services. Therefore, Section 231.204 did not preclude the court from ordering the appellee to pay appellate court costs. Lastly, concluding that the court had the power and authority to order the appellee to pay appellate court costs and that the court did not err in doing so, the court denied the appellee's motion for rehearing.


Federal Arbitration Act applied to the parties’ Mutual Agreement to Arbitrate, which was not vague or illusory, and defendant had failed to show procedural unconscionability; thus, trial court erred by denying the appellant's motion to compel arbitration
Readyone Industries, Inc. v. Lopez
ADR, Appellate: Civil, Contracts, Employment, Litigation: Personal Injury, Torts
Texas 8th Court of Appeals
February 08, 2017
08-15-00157-CV
Ann Crawford McClure
Published
     The instant was an interlocutory appeal from the denial of a motion to compel arbitration of the Texas Civil Practice and Remedies Code. The appellate court found that the appellant company submitted evidence that it was regularly engaged in interstate commerce in that it purchased and received goods and services from outside the state of Texas and it manufactured goods that were shipped and used outside of the state. The court concluded that the Federal Arbitration Act (FAA) applied to the Mutual Agreement to Arbitrate (MAA). The appellee's illusory defense provided no basis for denying the appellant's motion to compel arbitration. Thus, to the extent the trial court relied on that defense in denying the motion, it erred. Further, the record did not support the conclusion that the appellee established procedural unconscionability. Consequently, to the extent the trial court denied the appellant's motion to compel arbitration on that basis, it erred. Lastly, because the trial court erred by denying the appellant's motion to compel arbitration, the court sustained Issue One. Accordingly, the court reversed and remanded the cause to the trial court with instructions to enter an order granting the appellant's motion to compel arbitration.


After case was abated to trial court to orally pronounce sentence in appellant’s presence, the appellate court found appellant had acknowledged that his guilty plea encompassed both counts of sexual assault of a child, but modified the assessment of court costs from the record
Willis v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
February 09, 2017
06-16-00040-CR
Ralph K. Burgess
Published
     The appellant pled guilty to two counts of sexual assault of a child and elected jury-assessed punishment. The jury assessed a thirteen-year sentence in each case, which the trial court ran consecutively, together with a $5,000.00 fine in each case. The appellate court found that the instant matter had been returned to the court’s jurisdiction after abatement to the trial court, during which time the trial court held a hearing in open court and orally pronounced sentence in the appellant’s presence in open court. Further, in the instant case, the record reflected that the appellant responded affirmatively to the trial court’s inquiry of whether he was pleading guilty to both counts. There was no confusion, as was the case in White v. State, 932 S.W.2d 593 (Tex. App.—Tyler 1995, pet. ref’d), in which the State initially indicated that it would abandon the marihuana charge, but later announced its intention to proceed on both offenses. The court found that, following the standard in Costilla v. State, 146 S.W.3d 213, 217 (Tex. Crim. App. 2004), the record reflected the appellant’s desire to plead guilty to both offenses. Furthermore, the record only supported the imposition of court costs in the amount of $509.00, the court modify the judgment by deleting the assessment of $624.00 in court costs and by substituting in its place an assessment of $509.00 in court costs. Accordingly, the judgment was affirmed as modified.


Trial court abused its discretion by allowing the officer to testify about what the complainant had told him and by admitting the 911 call reporting the offense as hearsay
Gutierrez v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
February 09, 2017
01-16-00148-CR
Laura Carter Higley
Published
     The State charged the appellant, with the felony offense of assault by impeding breathing of a person with whom he had a dating relationship. The jury found the appellant guilty of the lesser-included offense of misdemeanor assault. The trial court assessed punishment at one year’s confinement, suspended the sentence, and placed the appellant on community supervision for one year. The appellate court found that the appellant argued that the trial court abused its discretion by allowing the officer to testify about what the complainant had told him and by admitting the 911 call reporting the offense. Further, the appellant argued that the testimony about the complainant’s statements and the 911 call violated his Sixth Amendment right to confront his witnesses and were hearsay. Accordingly, the court reversed the judgment of the trial court and remanded for a new trial.


Appellant’s incomplete affidavit of previous filings did not describe the operative facts for which he sought relief, he failed to comply with procedural requirements, and having previously been given an opportunity to cure the defect, the appeal was dismissed
Foster v. West
Appellate: Civil, Civil Rights, Gov't/Administrative, Procedure
Texas 2nd Court of Appeals
February 09, 2017
02-16-00250-CV
Bill Meier
Published
     The appellant, an indigent inmate proceeding pro se, sought to appealed the trial court’s order dismissing his civil lawsuit against the appellees. The appellate court found that the appellant’s incomplete affidavit of previous filings did not describe the operative facts for which he sought relief. The appellant failed to comply with the requirements of Tex. Civ. Prac. & Rem. Code Ann. section 14.004, having previously been given an opportunity to cure the defect. Accordingly, the court dismissed the appeal.


Appellant did not have standing to vacate agreed protective order, and he failed to preserve the issue on appeal, and his separate arguments to vacate conflicted in that he complained that the order lasted longer than two years but also that it expired by operation of law in two years
Molinar v. S.M.
Appellate: Civil, Civil Rights, Family, Procedure
Texas 8th Court of Appeals
February 08, 2017
08-15-00083-CV
Ann Crawford McClure
Published
     The appellant appealed from an order denying his motion to vacate an agreed protective order. The appellate court applying the decision in R.M. v. Swearingen S.W.3d ---, 2016 WL 4153596 (Tex.App.--El Paso 2016, no pet.) to the instant case, held that the appellant did not have standing to file a motion to vacate or rescind the agreed protective order. Even if the appellant had standing to file the motion to vacate the agreed protective order, he failed to preserve the issues raised on appeal. To raise an issue on appeal, the record must reflect that the party made the complaint in the trial court by a timely objection, motion, or request that stated the grounds for the ruling with sufficient specificity to make the trial court aware of the complaint. The appellant’s motion to vacate did not include the arguments made in Issues One, Two, or Four. While the appellant’s motion to vacate complained that the protective order exceeded two years, the argument he made in Issue Three was that the protective order expired by operation of law after two years. Those were two different arguments. Thus, the appellant did not preserve any of the issues raised on appeal. Accordingly, the court affirmed the judgment of the trial court denying the appellant’s motion to vacate the agreed protective order.


Jury was not permitted to consider whether seat belt contributed to appellant’s injuries, and any error was harmless because admission of seat belt evidence could not have resulted in an improper judgment, where it was clear jury did not believe appellant’s testimony on severity of her injuries
Sanchez v. Balderrama
Appellate: Civil, Damages, Evidence, Torts
Texas 8th Court of Appeals
February 08, 2017
08-15-00088-CV
Ann Crawford McClure
Published
     The appellant sued the appellees for negligence in connection with an automobile accident that occurred on January 25, 2010. After a three-day jury trial, the jury found both the first appellee and the second appellee negligent and apportioned 40% responsibility to the first appellee and 60% to the second appellee. The jury also awarded the appellant $1,000 for past physical pain and mental anguish. The appellant filed a motion for new trial which the trial court denied. The appellate court found that the jury was not permitted to consider whether the use or non-use of her seat belt caused or contributed to her injuries. Assuming without deciding that error occurred, any error was harmless because the admission of the seat belt evidence could not have resulted in an improper judgment. Further, given the evidence before the jury, it was clear that the jury did not believe the appellant’s testimony as to the severity of her injuries. Accordingly, the court affirmed the trial court’s judgment.


Because there was some evidence that the appellants did not consent to the appellee producing oil and gas from the subject tract, the appellee was not entitled to judgment against the appellants bad faith trespass and other claims on a no-evidence basis
Radcliffe v. Tidal Petroleum, Inc.
Appellate: Civil, Contracts, Evidence, Oil, Gas, & Mineral, Procedure, Real Property
Texas 4th Court of Appeals
February 08, 2017
04-15-00644-CV
Patricia O. Alvarez
Published
    The appellate court withdrew its opinion filed on May 11, 2016, and substituted a clarified opinion and judgment in response to appellee's motion for rehearing. Further, the appellate court withdrew its opinion filed on August 24, 2016, and substituted it with the instant opinion and judgment and granted the second motion for rehearing. The appellants sued the appellee company. The appellant alleged the appellee was removing minerals from their mineral estate without the appellants’ permission. The appellee moved for traditional and no-evidence summary judgment on the grounds that, inter alia, the appellant submitted no evidence of any ownership interest in the subject tract and the trial court granted the motion. The appellate court found that the appellants provided more than a scintilla of evidence of ownership and the trial court could not have properly granted the appellee's no-evidence motion. Further, the appellee conclusively proved each essential element of its cotenancy affirmative defense against each of the appellants’ tort claims. Thus, the court affirmed the trial court’s order with respect to each of the appellants’ tort claims, but the court reversed the trial court’s order with respect to the appellants trespass-to-try-title claim and the court remanded the cause to the trial court for further proceedings.


Trial court’s order terminating the appellants' parental rights to their children was void because the second trial court had continuing, exclusive jurisdiction at the time the order was entered
In the Interest of D.W.
Appellate: Civil, Courts, Family, Juvenile, Procedure
Texas 6th Court of Appeals
February 08, 2017
06-16-00076-CV
Ralph K. Burgess
Published
     The appellants (mother and father) appealed the trial court’s decision to terminate their parental rights to their children. The appellate court found that the the trial court’s order terminating the appellants' parental rights to their children was void because the second trial court had continuing, exclusive jurisdiction at the time the order was entered. Accordingly, the court vacated the trial court’s judgment and dismissed the case.


Evidence raised a fact issue that defendant property owner retained some control over the materials and equipment plaintiff contractor used and that defendant knew they were dangerous, but plaintiff could not show defendant knew of the danger in the claim for negligent entrustment
Hernandez v. Amistad Ready Mix, Inc.
Appellate: Civil, Damages, Litigation: Personal Injury, Real Property, Torts
Texas 4th Court of Appeals
February 08, 2017
04-16-00267-CV
Luz Elena D Chapa
Published
     The appellant appealed the trial court’s take-nothing summary judgment in his negligence suit against the appellee company. The appellate court found that the appellant produced some evidence raising a fact issue that Tex. Civ. Prac. & Rem. Code Ann. Section 95.003’s actual knowledge element was satisfied. The court therefore reversed the trial court’s summary judgment as to all of the appellant's allegations of negligence except negligent entrustment, which the court turned to now. Further, under chapter 95, a property owner must have actual knowledge of the danger or condition resulting in the personal injury. The court held that the trial court did not err by granting summary judgment as to the appellant's negligent-entrustment theory of liability. Accordingly, the court affirmed the trial court’s summary judgment as to the appellant's negligent-entrustment theory of liability and the court reversed the remainder of the trial court’s summary judgment and remanded the case for further proceedings.


Because the appellant sought to enforce the decedent’s alleged oral promise to devise his estate to her, and the decedent’s will devised his estate to another, the appellant’s claim was barred
In re Estate of Gilbert
Appellate: Civil, Contracts, Real Property, Wills/Trusts/Probate
Texas 4th Court of Appeals
February 08, 2017
04-16-00641-CV
Patricia O. Alvarez
Published
     The appellant appealed the trial court’s order denying her application for a temporary injunction in the underlying probate proceeding. The appellate court found that the appellant did not cite any authority to show that promissory estoppel was a viable cause of action in her circumstances, and the court have found none. Further, to the contrary, where the sister courts have addressed similar circumstances, none had held that an oral promise to bequeath property on the promisor’s death was enforceable in light of section 254.004 Texas Estates Code. Furthermore, the court held that section 254.004 barred a claim for promissory estoppel on an oral promise to devise property that was disposed of in a will. Because the appellant sought to enforce the decedent’s alleged oral promise to devise his estate to her, and the decedent’s will devised his estate to another, the appellant’s claim was barred. Accordingly, the judgment was affirmed.

Although first appellant proved a valid mobile home lot lease, no evidence demonstrated she tendered performance, that appellee prevented her from using her lot or required her to move, or that appellee failed or refused to do something about the disputed utility easement
Garcia v. Sasson
Appellate: Civil, Contracts, Landlord and Tenant, Procedure, Real Property, Torts
Texas 1st Court of Appeals
February 07, 2017
01-15-01010-CV
Evelyn V. Keyes
Published
     Appellants, brought suit against the appellee, for fraud, breach of contract, and other causes of action related to their lease of a lot in the appellee’s mobile home community. A jury found in favor of the appellee, and the trial court rendered judgment that the appellants take nothing. The appellants filed a motion for new trial on the basis that the jury’s findings were against the great weight of the evidence, which the trial court denied. The appellate court found that the fact that Texas Rule of Appellate Procedure 34.6(c)(2) allowed other parties to designate additions to the partial reporter’s record did not relieve a party of her own burden, as the party asserting that the trial court erred, to either comply with the requirements of Rule 34.6(c) or to otherwise provide a record adequate to demonstrate error on the part of the trial court. Further, although the first appellant proved the existence of a valid contract, nothing in the record demonstrated that she tendered performance to the appellee, that some action by the appellee prevented her from using her lot or required her to move, or that, once Harris County Flood Control District (HCFCD) required the appellee to remove the encroachments, the appellee failed or refused to do something he was obligated to do under the lease. Furthermore, because the court could not review the testimony offered or the entirety of the exhibits admitted into evidence at trial, the court could not say that the evidence was insufficient to support the jury’s findings or that the trial court erred in rendering judgment on that verdict. Rather, the court presumed that the omitted portions of the record would support the jury’s determinations. Accordingly, the court affirmed the judgment of the trial court.


Appellants’ failure to receive notice of the summary judgment motion resulted solely from the appellee’s failure to properly serve the motion electronically, and appellants established they were presumptively entitled to bill of review relief
Cruz v. Sanchez
Appellate: Civil, Courts, Procedure, Torts
Texas 8th Court of Appeals
February 02, 2017
08-15-00167-CV
Yvonne T. Rodriguez
Published
     For nearly three years, as part of a modernization effort mandated by the Texas Supreme Court, the courts of the State of Texas have undergone a slow but steady transition from paper filings to electronic filings in civil cases. As part of the transition, service rules have changed, and in most civil cases, all filings must go through the Office of Court Administration’s electronic clearing house, known as the Electronic Filing Manager (EFM). The instant case, which arose during the beginning of the transition period, dealt with the appellee’s attempts to serve pro se the appellants electronically with a motion for summary judgment. In the instant case the appellants appealed the trial court’s denial of their bill of review challenging a summary judgment granted in favor of the appellee. The appellate court found that the appellants’ failure to receive notice of the summary judgment motion resulted solely from the appellee’s failure to properly serve the motion electronically. The appellee could not establish actual electronic service, nor could he show that the appellants had constructive notice and were merely attempting to dodge or selectively accept service. The appellants established they were presumptively entitled to bill of review relief. Further, the appellee could not prove he was able to serve the appellants electronically. Accordingly, the court would reverse and render judgment on a bill of review in favor of the appellants.


Evidence supported the conviction for sexual assault of a child, the extraneous offenses involving same child were to show defendant’s state of mind, the conviction was not an ex post facto punishment, and defendant’s counsel was not deficient in failing to call a child memory expert
Ryder v. State
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
February 02, 2017
07-15-00003-CR
James T. Campbell
Published
     The appellant appealed from his convictions by jury of the offenses of aggravated sexual assault of a child, indecency with a child by contact and indecency with a child by exposure and the resulting concurrent sentences of 99, 20 and 10 years of imprisonment. The jury found the appellant guilty as charged and assessed punishment as noted, the trial court denied the appellant’s post-judgment motions. The appellate court found that the appellant had made no showing of how the assertedly-deficient performance of trial counsel raised a reasonable probability the result of the trial would have been different. Further, the appellant’s sixth issue presented the same contention as his fifth, here arguing the trial court abused its discretion, harming appellant, by denying the appellant’s motion for a new trial. It too was founded on his claim his counsel was ineffective because he failed to secure the testimony of the expert about memory and memory development in children. Furthermore, the trial court had before it the testimony of appellant’s trial counsel and the potential trial testimony of the expert and the court could have found the appellant failed to satisfy his burden to show the reasonable probability that the outcome of his trial would have been different had the expert witness testified. Finally, for that reason, the trial court did not abuse its discretion in failing to find the appellant entitled to a new trial. Accordingly, the trial court's judgment was affirmed.


Because the Water Code immunized appellant directors of groundwater districts from claims that were based on their votes as directors, trial court abused its discretion when it denied the appellant directors’ pleas to the jurisdiction and immunity
Lone Star Groundwater Conservation District v. City of Conroe
Appellate: Civil, Environmental, Gov't/Administrative, Procedure
Texas 9th Court of Appeals
February 02, 2017
09-16-00201-CV
Hollis Horton III
Published
     The Large Water Producers (the appellees) consisted of several private and public entities that produced groundwater from wells in Montgomery County. In 2015, dissatisfied with the production limits the appellant district created through the rule making authority delegated to it by the Legislature, the appellees filed suit claiming that the rules the appellant district created imposing per-producer yearly production limits on their production of groundwater were invalid because they purported to regulate the production of groundwater in ways the Legislature never authorized. In response to the suit, the appellants filed pleas to the jurisdiction. The trial court denied both pleas, concluding that it possessed subject-matter jurisdiction over all of the claims before the court. The appellate court agreed that the appellees’ claims were based entirely on the votes the appellant directors cast on the rules the appellees have challenged in their suit. Because the Water Code immunized appellant directors of groundwater districts from claims that were based on their votes as directors, the court held that the trial court abused its discretion when it denied the appellant directors’ pleas. Further, the court concluded that the Texas Water Code expressly authorized courts to consider challenges that concern the validity of a groundwater district’s rules, further concluded that the Legislature, in the Water Code, expressly authorized the courts to remedy a successful challenge to the validity of a groundwater district’s rules by declaring the groundwater district’s rules invalid. Consequently, the court held the trial court did not abuse its discretion by denying the appellees’ plea as to the claims the appellees filed to challenge the validity of certain of the appellant district rules. Furthermore, concluded that no provisions of the Texas Water Code authorized a court to award attorney’s fees to a party who successfully challenged the validity of a groundwater district’s rules. Therefore, the court held the trial court erred when it failed to grant the appellant district’s plea with respect to the appellees’ claims for the attorney’s fees. Accordingly, the judgment was affirmed in part, reversed and rendered in part.


State's Petition for Discretionary Review Vacated / Remanded
Obella v. State
Texas Court of Criminal Appeals
February 8, 2017
PD-1032-16
Opinion Per Curiam

Appellant entered a plea of guilty to the offense of aggravated sexual assault and was sentenced by the trial court to 30 years’ imprisonment. Appellant filed a motion for new trial alleging that his plea was involuntary based on ineffective assistance of counsel, and requesting that the motion be set for a hearing. Appellant attached affidavits in support of his allegations. The State filed a response to the motion and attached an affidavit of appellant’s trial counsel. The trial court did not hold a hearing and the motion was overruled by operation of law.


State's Petition for Discretionary Review Reversed / Remanded
Lake v. State
Texas Court of Criminal Appeals
February 8, 2017
PD-0196-16
Opinion by Judge Keller
Concurring Opinion by Judge Yeary
Dissenting Opinion by Judge Alcala

We must decide whether the denial of closing argument at a community-supervision revocation proceeding is the sort of error that is exempt from a harm analysis. We conclude that it is not, because the Supreme Court has not labeled it as structural. Consequently, we reverse the judgment of the court of appeals and remand the case for a harm analysis.


State's Motion for Rehearing Granted
Moore v. State
Texas Court of Criminal Appeals
February 8, 2017
PD-1634-14
Opinion Per Curiam

Appellant, Aaron Jacob Moore, was charged with Aggravated Sexual Assault of a Child. Although he was 16 years old at the time of the offense, charges were not filed until after his 18th birthday. Because Appellant was over 18 years of age when charges were filed, the State filed a petition for discretionary transfer from juvenile court to criminal district court under Family Code Section 54.02. The juvenile court waived its jurisdiction and transferred the case. The criminal district court deferred adjudication and placed Appellant on 5 years’ community supervision. Appellant appealed, claiming that the juvenile court improperly transferred the case because the State failed to show that, for reasons beyond the control of the State, it was not practicable to proceed in juvenile court before his 18th birthday as required under Family Code Section 54.02(j)(4)(A). The court of appeals vacated the trial court’s judgment, holding that the juvenile court lacked jurisdiction to transfer the case. Moore v. State, 446 S.W.3d 47 (Tex. App.—Houston [1st Dist.] 2014). The State filed a petition for discretionary review, which we granted to determine whether the court of appeals’s construction of “the state” in Family Code Section 54.02(j)(4)(A) requires dismissal of a case with prejudice without consideration of the factors for oppressive delay in violation of the separation of powers doctrine. We will affirm the court of appeals.


Because Grandparents were granted visitation and notice rights, relator's contention they lacked standing lacked merit, but trial court erred holding relator in contempt because judgment was not specific as to when Grandparent visitation was to occur other than by the parties’ agreement
In re Martin
Appellate: Civil, Contracts, Family, Procedure
Texas 5th Court of Appeals
February 03, 2017
05-16-00987-CV
Carolyn I. Wright
Published
     The instant petition for writ of mandamus concerned a Suit Affecting the Parent Child Relationship (SAPCR) in which relator, the Father of the minor children, complained of the trial court’s enforcement order and denial of the relator's motion to dismiss. The appellate court found that the agreed order awarded Grandparents the right to 35 hours visitation and the right to be notified regarding extracurricular activities. Thus, it clearly affected the Grandparents. Because Grandparents were parties to a judgment that affected them, the relator's contention that Grandparents lacked standing under Section 156.002 of the family code lacked merit. Further, the trial court had not yet modified the 2012 judgment and the record had not yet been developed regarding the factors to be considered for modification. Therefore, the relator's complaints regarding the legal presumption that it was in the children’s best interest to be raised by a natural parent were not yet ripe. Accordingly, the court conditionally granted the writ in part and denied in part.


Factual record supported trial court’s finding that the vehicle appellee drove failed to cross over the “fog line” onto the improved shoulder, and thus trooper’s stop of appellee’s minivan was illegal, and thus motion to suppress evidence was properly granted
State v. Cortez
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
February 03, 2017
07-15-00196-CR
Brian Quinn
Published
     At the suppression hearing, the trooper was asked: “So you’re telling the Court that because you see a van, it’s clean and it’s got two people in it, that was indicators of potential criminal activity for you?” Nonetheless, the circumstances led the trooper to first follow the appellee’s minivan down Interstate 40 and then stop him after it may have twice crossed onto but not over the “fog line” appearing on the right side of the lane. The appellee believed that the stop was illegal. The trial court agreed and granted his motion to suppress evidence. The appellate court found reason in the words of the trial court in State v. Tarvin, 972 S.W.2d 910 (Tex. App.—Waco 1998, pet. ref’d). Driving was an exercise in controlled weaving. It was difficult enough to keep a straight path on the many dips, rises, and other undulations built into the roadways. To adopt the State’s interpretation of TEX. TRANS. CODE Section 545.058(a) and permit a trooper to stop someone for the slightest touch of a “fog line” while maneuvering over those undulations would push further into the “strange days” mentioned earlier. The court chose not to do that. The factual record supported the trial court’s finding that the vehicle the appellee drove failed to cross over the “fog line” onto the improved shoulder. Furthermore, the trial court’s interpretation of Section 545.058(a) comported with the court’s. Driving onto an improved shoulder required something more than driving upon the four inches of a “fog line,” like the appellee “possibly” may have done. Consequently, the trial court did not abuse its discretion in granting the motion to suppress. Accordingly, the court affirmed the order.


Because the amended order corrected a judicial error, the trial court had no power to sign the amended order after its plenary power expired, and thus, the amended order was void and was an abuse of discretion
In re M & O Homebuilders, Inc.
Appellate: Civil, Courts, Damages, Gov't/Administrative, Procedure, Torts
Texas 1st Court of Appeals
February 02, 2017
01-16-00602-CV
Harvey Brown
Published
     The respondent sued the relators for damages in connection with the construction of a home. Seeking to remove a lien placed on the property by the respondent, the relators filed a summary motion and obtained an order removing the lien, but that order also disposed of all parties and claims and stated it was final and appealable. The trial court issued a corrected order more than thirty days later, correcting the original order to remove the finality language. The relators sought a writ of mandamus to require the trial court to set aside that amended order on the ground that it was improperly signed outside the trial court’s plenary power and was therefore void. The appellate court found that the judgment the trial court signed was prepared by the relators and contained a mistake, once the trial court signed it, the mistake became part of the trial court’s judgment as actually rendered and it was therefore a judicial error rather than a clerical error. Further, the record did not indicate that the trial court actually rendered, orally or otherwise, a judgment different from the one it signed and entered. Therefore, the court must reject the respondent's argument that the error there was clerical. Furthermore, because the amended order corrected a judicial error, the trial court had no power to sign the amended order after its plenary power expired, and thus, the amended order was void and was an abuse of discretion. The relators was therefore entitled to mandamus relief. Accordingly, the court conditionally granted the relators petition for writ of mandamus and directed the trial court to vacate its amended order.


Texas Uniform Declaratory Judgments Act does not waive appellee Commission’s sovereign immunity on appellant’s UDJA claims, who could pursue relief through the Texas Public Information Act; thus, trial court did not err in granting appellee Administrative Officer’s plea to the jurisdiction
McLane Company, Inc. v. Texas Alcoholic Beverage Commission;
Appellate: Civil, Civil Rights, Discovery, Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
February 01, 2017
03-16-00415-CV
Scott K. Field
Published
     The instant dispute arose from a public-information request submitted by the appellant corporation, to the appellee Commission. On appeal, the appellate court must decide whether the trial court erred in granting the pleas to the jurisdiction of appellee Commission and the appellee Chief Administrative Officer and Officer for Public Information. The appellate court determined that the Texas Uniform Declaratory Judgments Act (UDJA) did not waive appellee Commission’s sovereign immunity for the appellant’s UDJA claims, either as they were currently pleaded or as the “bare statutory construction” claims that the appellant wished to replead, thus, the court held that the trial court did not err in granting appellee Commission’s plea to the jurisdiction. Further, the court found that the appellant could pursue the relief it sought through the Texas Public Information Act (PIA), thus any remedies it could obtain through an ultra vires suit against the appellee Administrative Officer would be redundant. The court therefore concluded that the trial court did not err in granting the appellee Administrative Officer’s plea to the jurisdiction. Accordingly, the court affirmed the trial court’s orders granting the pleas to the jurisdiction.


Appellant breached duty of loyalty to appellee as a partner by foreclosing on appellee’s partnership interest in violation of the Uniform Commercial Code; appellee, electing to recover for breach of fiduciary duty, was not entitled to also recover statutory attorney’s fees for breach of contract
Bruce v. Cauthen
Appellate: Civil, Business, Contracts, Corporations, Damages, Litigation: Commercial, Torts
Texas 14th Court of Appeals
February 02, 2017
14-15-00693-CV
Ken Wise
Published
    The appellate court withdrew it’s opinion filed on October 25, 2016, denied the appellants’ motion for rehearing en banc and grant in part appellees’ motion for rehearing and substituted the instant opinion. In 2002, the appellant individual (the appellant) founded the appellant corporation, a medical staffing company. That same year, the appellant hired the appellee individual (the appellee) as a recruiter. In 2007, the appellant and the appellee also formed the appellant company. Although the appellee had resigned from the appellant corporation, she was still a limited partner in appellant company. Shortly after the appellee resigned from the appellant corporation, she and the appellee company sued the appellant and the appellant corporation for declaratory judgment. The appellee sought declarations that she owed no contractual or other duties to the appellant and the appellant corporation, she and the appellee company were free to compete in the staffing industry, and no trade secrets had been appropriated from the appellant corporation. The appellee moved for partial summary judgment on her claim for wrongful foreclosure under the Uniform Commercial Code (UCC). After summary proceedings and a jury trial, the trial court signed a judgment awarding the appellee in excess of $2 million in actual damages, exemplary damages, and attorney’s fees. The appellate court reversed and remanded. In the instant case the appellate court found that on appeal, the appellant did not challenge the appellee’s partial summary judgment motion other than to argue that the private sale was governed by section 9.610 as modified by the limited partnership agreement and was commercially reasonable, arguments we have rejected. The appellant made no offer of proof showing how additional evidence would have differed. Thus even if the trial court’s ruling was error, it was not harmful error. Further, the evidence supported the jury’s finding on the amount of damages, the trial court did not err by refusing to grant the appellant’s JNOV or directed verdict. And, the appellee conclusively established her right to a directed verdict on her breach of contract claim. For the reasons previously discussed in our analysis of the appellant’s third issue, the court likewise overruled the appellant’s fifth issue. The court overruled the appellant’s complaint of charge error without reaching his arguments regarding the nature and extent of the duty of loyalty in the partnership context. More than sufficient evidence supports the jury’s finding that the appellant breached the duty of loyalty to the appellee as that duty was explained in the charge. The court held that the appellant had waived any challenge to the legal and factual sufficiency of the evidence to support the jury’s finding of malice. The court concluded that the issue of amount of damages also was inadequately briefed and declined to address it. The court held that the appellee, having elected to recover for breach of fiduciary duty, was not entitled to also recover statutory attorney’s fees for breach of contract. Lastly, the court declined to reconsider the original holding that the appellee was not entitled to attorney’s fees for her breach of fiduciary duty claim, but granted the appellee’s alternative request that the court modify the trial court’s judgment to delete the award of attorney’s fees to the appellee. Accordingly, the judgment was affirmed as modified.


Petitioner condemnor established a reasonable probability that, at some point after construction, the Green Line would serve the public by transporting carbon dioxide for one or more customers who would either retain ownership of their gas or sell it to parties other than the carrier
Denbury Green Pipeline-Texas, LLC v. Texas Rice Land Partners Ltd.
Appellate: Civil, Constitution, Contracts, Gov't/Administrative, Oil, Gas, & Mineral, Real Property, Transportation
The Supreme Court of Texas
January 06, 2017
15-0225
Paul W. Green
Published
     The petitioner filed suit against the respondent company for an injunction allowing access to the County tracts so that it could complete the pipeline survey. While the suit was pending, the petitioner took possession of the respondent's property pursuant to Section 21.021(a) of the Texas Property Code, which allowed a condemnor to take possession even while the property owner challenged the condemnor’s eminent domain authority. On cross-motions for summary judgment, the trial court found that the petitioner was a common carrier with eminent domain authority pursuant to the Natural Resources Code. The appellate court affirmed the trial court’s judgment in prior opinion. The Texas Supreme Court reversed and remanded the case to the trial court for proceedings. On remand, the petitioner adduced evidence not before the court in Texas Rice I to support its assertion of common-carrier status. After exhausting the administrative remedies, upon reviewing the evidence adduced on remand, the appellate court concluded that “reasonable minds could differ regarding whether, at the time The petitioner intended to build the Green Line, a reasonable probability existed that the Green Line would serve the public” and reversed the trial court’s order granting the petitioner summary judgment. The Texas Supreme Court found that after remand, the evidence in the summary judgment record before the trial court was no longer limited to naked assertions or the petitioner's subjective beliefs, as it was when the court considered Texas Rice I. Further, the court held that the evidence adduced by the petitioner on remand established as a matter of law that there was a reasonable probability that, at some point after construction, the Green Line would serve the public by transporting carbon dioxide (CO2) for one or more customers who would either retain ownership of their gas or sell it to parties other than the carrier. Accordingly, the court reversed the appellate court's judgment and reinstated the trial court’s judgment.


Appellee’s summary judgment evidence raised a fact issue that precluded the granting of appellant's traditional motion for summary judgment on appellee's breach of contract action for the parties’ interest rate swap and commercial loan agreements
Compass Bank v. Durant
Appellate: Civil, Banking and Finance, Contracts, Creditor/Debtor, Damages, Securities
Texas 2nd Court of Appeals
January 05, 2017
02-15-00390-CV
Bonnie Sudderth
Published
     The appellant Bank appealed the trial court’s summary judgment for the appellee in a dispute over (1) the interpretation of early termination fee provisions contained in certain documents, including an interest rate swap agreement, that were executed by the parties in conjunction with a commercial loan agreement and (2) the award of attorney’s fees to the appellee. The appellate court found that the trial court erred by granting summary judgment in favor of the appellee and awarding attorney’s fees to the appellee as the prevailing party under his breach of contract action, but that the trial court did not err by denying the appellant's cross-motion for summary judgment. Accordingly, the court reversed the trial court’s judgment and remanded the case to the trial court for further proceedings.


It was not error for charge of aggravated robbery to be submitted in the disjunctive because causing bodily injury or threatening the victim were different methods of committing same offense, where appellant punched the victim, pushed her down, and threatened her with a firearm
Burton v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
January 05, 2017
02-16-00067-CR
Bonnie Sudderth
Published
     The jury found the appellant guilty of aggravated robbery with a deadly weapon, and the trial court sentenced him to 30 years’ confinement. The appellate court found that reading Rangel v. State, 199 S.W.3d 523, 540 (Tex. App.—Fort Worth 2006, pet. dism’d) and Cooper v. State, 430 S.W.3d 426 (Tex. Crim. App. 2014), together lead it to conclude that it was not error for the charge of aggravated robbery to be submitted in the disjunctive because causing bodily injury or threatening the victim were different methods of committing the same offense. Further, the jury was presented with evidence that the appellant punched the victim in the face, pushed her to the ground, and threatened her with a firearm before running away with her purse, and the account was corroborated by other nearby witnesses. The evidence was sufficient to prove aggravated robbery. Accordingly, the court affirmed the judgment of the trial court.


Evidence established that franchise charges negotiated by the transmission and distribution utility with various municipalities were reasonable and necessary operating expenses under PURA Section 33.008.9
Oncor Electric Delivery Company Llc v. Public Utility Commission Of Texas
Appellate: Civil, Business, Gov't/Administrative, Procedure
The Supreme Court of Texas
January 06, 2017
15-0005
Nathan L. Hecht
Published
     On January 1, 2002, the Public Utilities Regulatory Act (PURA) implemented a competitive retail market for electricity in the Electric Reliability Council of Texas (ERCOT). Each incumbent, vertically integrated electric utility within the market was required to “unbundle” its business activities into three separate units: a power generation company, a transmission and distribution utility (TDU), and a retail electric provider (REP). Of the three, only TDUs continued to be regulated by the respondent Commission. In the instant case, several parties to a TDU rate making proceeding sought judicial review of the respondent Commission’s order. The Texas Supreme Court held that PURA Section 36.351, 7 which required electric utilities to discount charges for service provided to state college and university facilities, did not apply to TDUs because they provide service to REPs, not to the REPs’ customers. Further, former PURA Section 36.060(a), which required an electric utility’s income taxes to be computed as though it had filed a consolidated return with a group of its affiliates eligible to do so under federal tax law, did not require a utility to adopt a corporate structure so as to be part of the group; and the evidence here established that franchise charges negotiated by the TDU with various municipalities were reasonable and necessary operating expenses under PURA Section 33.008.9 Accordingly, the Court affirmed the judgment of the court of appeals in part and reversed it in part, and remanded the case to the PUC for proceedings consistent with the instant opinion.


Trial court did not abuse its discretion in admitting the local attorney’s testimony about his removal and secretion of the bullet, because those acts did not fall within the attorney-client relationship, and knowledge of them was not gained by reason of that relationship
Porter v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
January 10, 2017
01-15-00960-CR
Jane Bland
Published
     The State charged the appellant with murder. The appellant pleaded not guilty, and a jury returned a verdict of guilty and assessed his punishment at 33 years’ confinement. The appellate court held that the trial court did not abuse its discretion in admitting the local attorney’s testimony about his removal and secretion of the bullet, because those acts did not fall within the attorney-client relationship, and knowledge of them was not gained by reason of that relationship. Accordingly, the court affirmed the judgment of the trial court.


There was no error in the jury verdict that the appellant father’s rights should be terminated, the foster parents should be the child’s managing conservator and parental aunt should not be a possessory conservator of the child
In re A.L.H.
Appellate: Civil, Family, Juvenile
Texas 14th Court of Appeals
January 10, 2017
14-16-00556-CV
Ken Wise
Published
     The first appellate proceeding arose from the termination of child’s parents’ parental rights. Both his appellant mother and his appellant father appealed the termination to the instant court. While the appeals were pending, two competing petitions were filed by people seeking to be named child’s managing conservator, one by his paternal aunt, and the other by his foster parents. The court issued its opinion in the parents’ appeals in prior opinion, and the court affirmed the termination as to the appellant mother and her parental rights were no longer at issue. The court reversed the termination as to the appellant father due to legally insufficient evidence. After the appellant father’s parental rights were reinstated, the foster parents filed a petition to terminate his rights and adopt the child. The jury returned a verdict that the appellant father’s rights should be terminated, the foster parents should be the child’s managing conservator and parental aunt should not be a possessory conservator of the child. The trial court signed a judgment on the verdict. The appellate court found that any disputed evidence regarding these facts was not so significant that the jury could not reasonably have found the way it did. Thus, the evidence was legally and factually sufficient to support the jury’s answer to questions that the appellant father’s parental rights should be terminated. Because the foster parents’ claims were not barred by res judicata or collateral estoppel, the appellant father could not show fundamental error in the trial court’s refusal to submit to the jury the parental rights proposed instruction. Lastly, the trial court held a hearing regarding entry of judgment. The paternal aunt lodged objections to the form of judgment, but the appellant father did not. Although the appellant father later filed a motion for new trial, he did not raise the issue in his motion. Accordingly, the trial court’s judgment was affirmed.


Appellee Hospital timely objected to appellants’ expert report, which was attached to original health-care liability claim petition but not in their amended petition, and through inadequate briefing, appellants waived challenge to the sufficiency of appellee Hospital’s expert report
Adedunye-Ikhimokpa v. Houston Methodist West Houston Hospital
Appellate: Civil, Health Care, Procedure, Torts
Texas 14th Court of Appeals
January 10, 2017
14-16-00160-CV
Kem Frost
Published
     The appellants filed an petition asserting a health-care liability claim against the appellees, the Hospital and the M.D. The appellants attached an expert report to the pleading. Several weeks later, the appellants filed their First Amended Petition. The amended pleading did not contain an expert report nor did it mention the expert report attached to the original pleading. The appellee Hospital filed objections to the sufficiency of the expert report. The appellee Hospital filed a motion to dismiss the lawsuit and recover attorney’s fees, which was granted by the trial court. The appellate found that the appellee Hospital timely objected to the appellants expert report. Further, through inadequate briefing, the appellants have waived any challenge to the trial court’s determination that the appellee Hospital’s expert report was insufficient. Accordingly, having overruled the appellant's appellate issues, the court affirmed the trial court’s order.


Appellant’s claim regarding constitutionality of terroristic threat statute did not assert an as applied constitutional challenge, and instead, appellant raised a challenge to the sufficiency of the evidence, which may not be raised in a pretrial habeas corpus writ
Ex parte Carter
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
January 06, 2017
03-14-00669-CR
Melissa Goodwin
Published
     The appellant was charged by indictment with terroristic threat. The appellant filed a pretrial application for writ of habeas corpus. After conducting an evidentiary hearing, the trial court denied relief. The appellant filed a petition for discretionary review. The Texas Court of Criminal Appeals granted review, vacated the judgment, and remanded. On remand, the appellate court again affirmed the trial court’s order denying habeas relief. The appellate court found that the appellant’s claim regarding the constitutionality of the terroristic threat statute as applied to him does not in fact assert an as applied constitutional challenge to the statutory provisions under which he was charged. Instead, by contesting the application of the statute to his conduct, the appellant raised a challenge to the sufficiency of the evidence. An evidentiary sufficiency challenge may not be raised in a pretrial habeas corpus writ. Moreover, given the limits of pretrial habeas review, as detailed recently by the Texas Court of Criminal Appeals, the court found that the appellant’s claim if it was construed as raising an as applied constitutional challenge was not cognizable in a pretrial habeas corpus writ because resolving the claim would require resolving disputed factual controversies and would require determining whether the statute applied to the appellant’s particular circumstances notwithstanding the existence of an adequate remedy by appeal after trial. Accordingly, the court affirmed the trial court’s order denying habeas relief.


Plaintiff’s fixture filing for the financing of a water treatment system installed in the house did not create a lien on real property; the fixture filing only entitled plaintiff to repossess the water treatment system
Carmel Financial Corporation, Inc. v. Castro
Appellate: Civil, Banking and Finance, Creditor/Debtor, Gov't/Administrative, Real Property
Texas 14th Court of Appeals
December 29, 2016
14-15-00478-CV
William J. Boyce
Published
     The appellant corporation appealed from the trial court’s orders on cross-motions for summary judgment. The orders arose from claims against the first individual appellee in his official capacity as Secretary of the appellee Housing and Urban Development (“HUD”) and the second individual appellee in connection with the appellant’s judicial foreclosure and declaratory judgment action. The appellate court found that the Tex. Bus. & Com. Code Ann section 9.334(d) references a security interest in “fixtures,” which, in turn, contemplated a financing statement that sets forth the requirements for goods that were to become fixtures. Further, the appellant’s issue insofar as it challenged the propriety of the trial court’s grant of second appellee’s summary judgment motion. Because the trial court correctly determined that the appellant’s fixture filing did not create a lien on the real property in which the fixture was installed, the court need not reach HUD’s alternate summary judgment ground. Finally, the court overruled the appellant’s issue insofar as it challenges the trial court’s grant of HUD’s summary judgment motion. Accordingly, the court affirmed the trial court’s summary judgment orders.


The debt was not created or incurred post forfeiture, and plaintiff could not impose individual liability against the first individual defendant under the Texas Tax Code, and trial court did not err in refusing to award plaintiff contract damages against defendant
Gerpa v. Fazeli
Appellate: Civil, Contracts, Corporations, Damages, Tax, Torts
Texas 14th Court of Appeals
December 29, 2016
14-15-00608-CV
Marc W. Brown
Published
     After a trial involving allegations of corporate veil-piercing, breach of contract, fraudulent transfer of assets, and conspiracy, the jury returned a verdict in favor of plaintiff and against the defendants. The defendants filed a motion and supplemental motion to disregard jury findings and enter judgment notwithstanding the verdict (JNOV), and a motion for new trial, motion to reconsider, and motion to modify. The appellate court found that having concluded that the debt was not created or incurred post forfeiture, the court overruled the plaintiff's issue seeking to impose individual liability against the first individual defendant under section 171.255 of the Texas Tax Code. Moreover, because the trial court did not err in disregarding the jury’s answer to question 4 and in refusing to award the plaintiff contract damages against the defendant, the trial court also properly could disregard the jury’s answer to question 11. Accordingly, the court affirmed the trial court’s final judgment.


Trial court was not shown to be biased by its post-sentencing comments; trial court merely reminded defendant how lucky he was not to have faced the higher punishment range of 25-99 years or life, if he had a conviction for intoxication manslaughter instead of criminally negligent homicide
Mumphrey v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
December 28, 2016
06-16-00016-CR
Ralph K. Burgess
Published
     The appellant was convicted by a Gregg County jury of driving while intoxicated (DWI), third or more. The jury assessed the appellant’s punishment at twenty years’ imprisonment and a fine of $10,000.00, and the trial court sentenced the appellant accordingly. The appellate court found that the jury decided the issues of guilt/innocence and punishment, not the trial court, whereas the Pennsylvania Supreme Court justice in Williams v. Pennsylvania made the final decision on whether to seek the death penalty. Further, the appellant pled true to the enhancement allegation on punishment, the jury assessed the appellant’s sentence, and the trial judge merely sentenced him in accordance with the jury’s decision. The comments came after the jury’s determination of punishment and after the jury was dismissed. Though the comments could be loosely interpreted as lamenting the fact that a greater sentence could not be imposed, the court would not assume the worst and presume error when there were two possible interpretations that could be given to the utterances of a trial judge. Accordingly, the trial court’s judgment was affirmed.


Appellant was responsible for the health, safety, and welfare of dogs on his property, regardless of whether he was the actual owner of each animal, and he consciously disregarded a substantial and unjustifiable risk that he failed to provide proper nutrition, water, or shelter
Mouton v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
December 28, 2016
04-16-00070-CR
Patricia O. Alvarez
Published
     The appellant was found guilty of thirty-six counts of cruelty to nonlivestock animals, the following day, the jury assessed punishment at 365 days’ confinement in the Bexar County Jail and a $4,000 fine on each count. The trial court ordered the sentences to run concurrently. The appellate court found that a reasonable jury could have found that the appellant was responsible for the health, safety, and welfare of the dogs on his property and that the dogs were subject to his care and control, regardless of whether he was the actual owner of each animal. Based on the evidence presented at trial, a reasonable juror could have concluded that the dogs in question were under the appellant’s care and control. Further, the court found that, based on the circumstantial evidence, a reasonable jury could have found that the appellant was aware of, but consciously disregarded, a substantial and unjustifiable risk that he failed to provide proper nutrition, water, or shelter for the dogs. Accordingly, the court affirmed the trial court’s judgment.


Appellee established a prima facie case for each element of his defamation claim based upon statements appellant made about appellee in the Equal Opportunity Services complaint, even if those claims related to appellant’s exercise of his civil rights
Hoskins v. Fuchs
Appellate: Civil, Civil Rights, Constitution, Damages, Education, Employment, Gov't/Administrative, Litigation: Personal Injury, Torts
Texas 2nd Court of Appeals
December 22, 2016
02-15-00369-CV
Anne L. Gardner
Published
     The appellee sued the appellant for defamation based upon the statements the appellant made about the appellee in the Equal Opportunity Services complaint. The appellant timely filed a motion to dismiss under chapter 27 of the civil practice and remedies code. In addition to asking that the appellee’s lawsuit be dismissed, the appellant requested sanctions, reasonable attorney’s fees, and costs. After a hearing at which both sides presented argument, the trial court signed an order denying the appellant’s motion to dismiss. The appellate Court found that the appellee met his burden to establish by clear and specific evidence a prima facie case for each essential element of his defamation claim. Further, because the appellee satisfied his burden, the court did not address the first part of the appellant’s first issue because even assuming that he established by a preponderance of the evidence that the appellee’s claims were based on, relate to, or were filed in response to the appellant’s exercise of the right of free speech, the right to petition, and the right of association, denial of the appellant’s motion to dismiss was nonetheless required. Further the trial court did not err by denying the appellant’s motion to dismiss, and the court overruled the dispositive portion of the appellant’s first issue. Lastly, because the appellant’s second issue was contingent upon his first issue being sustained, the court did not reach his second issue. Accordingly, the court affirmed the trial court’s order denying his motion to dismiss.


Hearsay objection to prior-inconsistent-statement impeachment testimony did not comport with complaints that State’s actual purpose in impeaching appellant wife was to gain admission of her prior statements, but appellant’s complaints regarding impeachment testimony were forfeited
Jimenez v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
December 22, 2016
02-15-00303-CR
Sue S. Walker
Published
     The jury found the appellant guilty of the offense of indecency with a child by contact, and the trial court sentenced him to eight years’ imprisonment. The Texas Court of Criminal Appeals found that a hearsay objection to prior-inconsistent-statement impeachment testimony did not comport with a complaint like the appellant’s here that the State’s actual purpose in impeaching the appellant wife was to gain admission of her prior statements. Because the appellant’s complaints regarding the impeachment testimony were not raised in the trial court, the trial court did not have the opportunity to rule on them, and they were forfeited on appeal. Accordingly, the court affirmed the trial court’s judgment.


Jury was within its prerogatives to believe appellant killed her husband to recover the life insurance, and trial court did not abuse its discretion by denying appellant’s motion and allowing the doctor to give his opinion regarding the cause and manner of the victim's death
Williams v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
December 22, 2016
02-14-00413-CR
Anne L. Gardner
Published
     A jury found the appellant guilty of murder and assessed her punishment at sixty years’ incarceration in the penitentiary. In a companion case, the jury found the appellant guilty of tampering with physical evidence and assessed her punishment at ten years’ incarceration in the penitentiary. The trial court sentenced the appellant accordingly and ordered the sentences to run concurrently. The appellate court found that the evidence showed that the appellant, not withstanding that she had signed a written statement acknowledging the appellant husband committed suicide, thereafter submitted a “Claimant’s Statement” on the policy and identified his cause of death as murder. The jury was within its prerogatives to believe the appellant killed the appellant husband to recover the $150,000 life insurance. Viewing the evidence in the light most favorable to the verdict, the court held that a rational trier of fact could have found the essential elements of the offense of murder beyond a reasonable doubt. Thus, the trial court did not abuse its discretion by denying the appellant’s motion and allowing the doctor to give his opinion regarding the cause and manner of the victim's death. Accordingly, the trial court’s judgment was affirmed.


Appellant’s communications with the police officers constituted sufficient reports of criminal violations within the meaning of the Whistleblower Act, and her wrongful termination claim was not defeated by appellee’s plea to the jurisdiction under governmental immunity
Connally v. Dallas Independent School District
Appellate: Civil, Education, Employment, Gov't/Administrative, Torts
Texas 8th Court of Appeals
December 21, 2016
08-15-00310-CV
Steven L. Hughes
Published
     The appellant sued the appellee School District for wrongful termination in violation of the Texas Whistleblower Act. The trial court granted the appellee’s plea to the jurisdiction and dismissed the appellant’s entire lawsuit based on governmental immunity. The appellee filed a plea to the jurisdiction, claiming it had governmental immunity from suit and that the appellant’s claims did not come within the limited waiver of immunity set forth in the Whistleblower Act. The appellate court found that the information appellant provided to the appellee police officers supported an inference that District Executive Committee (DEC) Meeting and the other appellee personnel were acting with the requisite knowledge and intent when they presented allegedly falsified documents to the DEC Committee for its review and approval. Although her report to police officers did not name the other individuals the appellant believed might be involved in the wrongdoing, her report was sufficient to apprise police officers of her suspicion of what were widespread criminal law violations occurring within the appellee in which athletic personnel were tampering with governmental records in violation of the Penal Code. Viewed in its totality, the court therefore concluded the appellant’s communications with the police officers constituted sufficient reports of criminal violations within the meaning of the Whistleblower Act. Furthermore, the court sustain in part the appellant’s issues on appeal and the court reversed the trial court’s order granting the appellee's plea to the jurisdiction to the extent it dismissed that portion of the appellant’s Whistleblower claim as it related to her reports Tampering with Governmental Record to the police officers. Finally, the court remanded that portion of the appellant’s Whistleblower claim to the trial court for further proceedings in accordance with the instant opinion. Accordingly, the trial court’s judgment was affirmed.


Deceased husband, a sheriff’s deputy at the time of the fatal accident, was not working within the scope of his employment for purposes of a workers’ compensation claim by driving down the Interstate in a marked patrol vehicle, otherwise indistinguishable from any other commuter
County of El Paso v. Orozco
Appellate: Civil, Employment, Gov't/Administrative, Workers' Compensation
Texas 8th Court of Appeals
December 21, 2016
08-15-00079-CV
Ann Crawford McClure
Published
     The appellee as wife and beneficiary, filed a claim for death benefits from the appellant a self-insured carrier, pursuant to the Texas Workers’ Compensation Act. The County denied the claim and the appellee presented the matter to the Texas Department of Insurance-Division of Workers’ Compensation for a contested case hearing. The appellee sought judicial review of the appeals panel’s decision relating solely to whether the appellee husband sustained a compensable injury that resulted in his death. The parties filed competing motions for summary judgment and the trial court granted the appellee's motion. The appellate court found that the court disagreed that at the time of the accident, the appellee husband was performing a task of crime deterrence and enforcement of traffic laws simply because he was driving down the Interstate in a marked patrol vehicle. Further, the court saw nothing which would distinguish the appellee husband at the moment of the accident, from any number of other commuters. At the time of the accident, the appellee husband was not actively responding or engaging in any type of law enforcement. Had he been in pursuit of the disabled vehicle, or any other vehicle for that matter, the court may have perceived the result differently. Because the court determined that the appellee husband’s activity was not in the course and scope of his employment, the court did not need to consider the remaining two steps whether one of the two exclusions of Section 401.011(12) applied or whether an exception to the exclusion applied under Section 401.011(12)(A) or (B). Accordingly, the court sustained the County’s sole issue and reversed and rendered the judgment in favor of the appellant.


Trial court erred in granting judgment notwithstanding the verdict, where appellee’s email name or address in the "from" field satisfied the definition of a signature and email satisfied the Statute of Frauds, and the evidence established existence of a contract between the parties
Khoury v. Tomlinson
Appellate: Civil, Contracts, Damages, Securities, Torts
Texas 1st Court of Appeals
December 22, 2016
01-16-00006-CV
Laura Carter Higley
Published
     The appellant sued the appellee alleging securities violations under the Texas Blue Sky Laws, common-law fraud, and breach of contract. The jury found in favor of the appellant on all three claims. In response to the appellee’s motion for judgment notwithstanding the verdict, the trial court disregarded the jury’s findings of liability on the appellant’s securities violations and breach of contract claims. The Appellate Court found that the evidence showed that the appellee agreed to pay the appellant at 7.5% interest over a period of four or five years. Further, the appellee did not establish that the appellant’s breach-of-contract claim failed as a matter of law or was legally insufficient. Furthermore, “If any attorney’s fees related solely to a claim for which such fees were unrecoverable, a claimant must segregate recoverable from unrecoverable fees.” To preserve the instant issue, however, the complaining party must object to the charge’s failure to segregate. Also, the charge question on attorneys’ fees did not ask the jury to segregate attorneys’ fees. Lastly, there was no objection to the failure to segregate. Thus, that issue had not been preserved. Accordingly, the court reversed the trial court’s grant of the appellee’s judgment notwithstanding the verdict for the appellant’s breach of contract claim and rendered judgment conforming to the jury’s verdict.


Instructing the jury over the appellant’s objection that it could consider the extraneous offense only for a limited purpose was not reversible error, where, although trial court was not required to give limiting instructions, it was not harmful but beneficial to the appellant
Esparza v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 22, 2016
14-15-00897-CR
Marc W. Brown
Published
     A jury convicted the appellant of indecency with a child, a second-degree felony. The Appellate Court found that the record provided a basis for the trial court’s conclusion that appellant failed to establish relevancy or the logical nexus required to demonstrate bias. The trial court did not abuse its discretion in refusing to allow defense counsel to pursue that line of questioning. Further, in Fair v. State, 465 S.W.2d 753, (1971), the defendant argued that the trial court erred by overruling his objection to a limiting instruction on extraneous offenses that the court included in the jury charge. The court held that although the trial court was not required to give the limiting instruction, it “was not harmful but beneficial to the appellant.” The court concluded that instructing the jury over the defendant’s objection—that it could consider the extraneous offense only for a limited purpose was not reversible error. Furthermore, like Fair, the limiting instruction there would be considered beneficial to the defendant. As such, the trial court’s inclusion of that instruction was not reversible error. The jury charge contained no error. Accordingly, the court affirmed the judgment of the trial court.


Trial court did not abuse its discretion in excluding before the retrial the phone calls between defendant inmate and his friends and family while the inmate’s post-conviction writ of habeas corpus attacking his capital murder conviction was pending in the district court
State v. Villegas
Constitution, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
December 21, 2016
08-15-00002-CR
STEVEN L. HUGHES
Published
     In the instant interlocutory appeal the State sought to overturn the trial court’s pretrial order suppressing thirty-seven statements made during recorded telephone conversations between a prison inmate and his friends and family members while the inmate’s post-conviction writ of habeas corpus attacking his capital murder conviction was pending in the district court. The State contended the calls should be admitted at the inmate’s retrial for capital murder because they show he was conscious of his own guilt and that he conspired to tamper with witnesses and a judge during the habeas proceedings in order to wrongfully gain his freedom. The Appellate court found that while the trial court excluded the instant evidence for the particular offered purposes, it did not rule on other possible bases for admission. Further development of the record at trial may furnish missing predicates, fill in inferential gaps, or render otherwise inadmissible evidence relevant or admissible for another purpose. Furthermore, the trial court’s evidentiary rulings would stand for now, because the court were powerless to intervene absent an abuse of discretion. Also, how the State moved forward in light of the court's decision and how the trial court would come to view those evidentiary rulings in the dynamic context of trial were matters beyond the court's purview. Lastly, the State had not demonstrated the trial court abused its discretion. Accordingly, the court affirmed the trial court’s “Order Regarding State’s Designated Phone Calls.”


Trial court did not abuse its discretion in granting appellee’s request for pretrial habeas-corpus relief on the constitutional prohibition against double jeopardy
State v. Yetman
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 22, 2016
14-15-01072-CR
Kem Thompson Frost
Published
     The appellee was charged with indecency with a child. The appellee pleaded not guilty. The prosecutor made statements that twice prompted the appellee’s counsel to object and move for a mistrial. The first time the trial court sustained the objection, instructed the jury to disregard the prosecutor’s statements, and admonished the prosecutor. But, the trial court declined to grant a mistrial. Immediately, the prosecutor made another statement that drew an objection from the appellee. Again, the appellee moved for a mistrial. That time the trial court granted it. The appellee then filed an application for pretrial writ of habeas-corpus relief on the ground that the constitutional prohibition against double jeopardy barred retrial. The trial court granted the habeas-corpus relief. The appellate court found that after reviewing the record and considering the non-exclusive factors the Texas Court of Criminal Appeals had suggested may help a trial court determine a prosecutor’s intent, the court found that the trial court did not abuse its discretion in granting the appellee’s request for pretrial habeas-corpus relief. Accordingly, the court affirmed the trial court’s order.


Trial court did not err in admitting three authenticated letters appellant purportedly wrote to complainant from jail, but evidence of prior convictions was legally insufficient to show appellant was an habitual offender
Hunter v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 22, 2016
14-15-00937-CR
Marc W. Brown
Published
     The appellant was charged by indictment with the offense of assault of a family member as a second offender, enhanced by two prior felony convictions. The jury found appellant guilty of the charged offense. The trial court found the allegations in the indictment’s two enhancement paragraphs true and assessed punishment at 25 years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. The appellate court found that the trial court did not err in admitting the three letters into evidence. Because the evidence was legally insufficient to support a finding of “true” to the enhancement paragraphs, the court reversed the punishment portion of the trial court’s judgment and remanded for a new punishment hearing. Therefore, the trial court did not err in admitting the three letters into evidence. Because the evidence was legally insufficient to support a finding of “true” to the enhancement paragraphs, the court reversed the punishment portion of the trial court’s judgment and remanded for a new punishment hearing.


Statute for design and construction of roadways did not grant appellant unlimited discretion, as that would render plat-approval deadlines under Local Government Code meaningless, and appellee demonstrated trial court’s subject-matter jurisdiction over the ultra vires claim against appellant
Meyers v. JDC/Firethorne Ltd.
Appellate: Civil, Contracts, Gov't/Administrative, Procedure, Real Property, Transportation
Texas 14th Court of Appeals
December 22, 2016
14-15-00860-CV
Tracy Christopher
Published
     The appellee company filed the instant lawsuit seeking mandamus relief requiring the county engineer to present to the commissioners court for approval the plat applications related to Sections 16 and 19. The trial court held an oral hearing on the appellant’s plea. Noting that the appellant was a critical part of the instant entire matter because he inserted himself in it for purposes of jurisdiction, the trial court denied the plea to the jurisdiction with leave to reassert it after further discovery. The appellate court found the court declined to read Section 5 governing the design and construction of roadways as granting the appellant unlimited discretion in every regard, because such a reading would render the plat-approval deadlines in Section 232.0025 of the Local Government Code and Section 2.6 of the Regulations of Subdivisions meaningless. Further, the court concluded that the appellee demonstrated the trial court’s subject-matter jurisdiction over the ultra vires claim against the appellant. Whether the appellee could ultimately prove the ultra vires claim, such that the elements for mandamus or injunctive relief exist, was an issue for the trial court to consider after the case developed on remand. Accordingly, the court affirmed the trial court’s order and remanded the case for further proceedings.


Nurse testified appellant was very open about giving blood sample, her consent was evident, and appellant “just wanted to get it over with,” and appellant’s inability to remember whether she consented was not inconsistent with testimony from the nurse and police officer that appellant consented
Hovis v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 22, 2016
14-15-00769-CR
Kem Thompson Frost
Published
     Appellant challenged her conviction for intoxication manslaughter. Her sole complaint was that the trial court erred in failing to give the jury an instruction under article 38.23 of the Texas Code of Criminal Procedure. The appellate court found that the nurse testified that appellant was very open about giving the blood sample, her consent was evident, and the appellant “just wanted to get it over with.” The nurse collected the blood specimen from the appellant. Appellant’s inability to remember whether she consented was not inconsistent with the testimony from the nurse and the police officer that the appellant consented. The Court concluded the evidence did not raise a fact issue regarding consent. Because the evidence did not raise a fact issue as to the appellant’s consent, the trial court did not err in failing to submit a jury instruction under article 38.23. Accordingly, the court affirmed the trial court’s judgment.


The purported correction instruments, which added the oil-and-gas leases to the description of the mortgaged property, were invalid and ineffective because they purported to make material changes, yet they were not correctly executed as specified by the Texas Property Code
Tanya L. McCabe Trust v. Ranger Energy LLC
Appellate: Civil, Contracts, Oil, Gas, & Mineral, Real Property, Wills/Trusts/Probate
Texas 1st Court of Appeals
December 22, 2016
01-15-00044-CV
Michael C. Massengale
Published
     The appellants acquired overriding royalty interests in eight oil-and-gas leases in Hardin County, Texas. The dispute was limited to two of those leases. The appellee company later acquired some County leases at a foreclosure auction. The parties filed competing motions for summary judgment that focused on the validity of purportedly corrected instruments that changed the original mortgage documentation which was recorded at the time the appellants acquired their overriding royalty interests. The trial court granted summary judgment in favor of the appellee, and the appellants appealed. On appeal, the appellants contended that the purported correction instruments, which added the leases to the description of the mortgaged property, were invalid as a matter of law. The appellate court agreed with the appellants. The correction instruments were ineffective because they purported to make material changes, yet they were not correctly executed as specified by the Texas Property Code. Accordingly, the court reversed the judgment of the trial court, and remanded.


Because the relator was not provided with constitutionally-sufficient notice of the show cause hearing, the respondent judge could not proceed with the contempt hearing
In re Gabrielova
Appellate: Civil, Constitution, Courts, Gov't/Administrative
Texas 8th Court of Appeals
December 20, 2016
08-16-00276-CV
Yvonne T. Rodriguez
Published
     The relator asked the appellate court to issue the writ of mandamus against the Honorable, Judge of the 243rd District Court of El Paso County, Texas, to compel him to withdraw a bench warrant for the relator and cease contempt proceedings until the respondent had afforded the relator due process. The appellate court found that the show cause order recited that the relator failed to appear at a status hearing set for September 22, 2016. There was no pending order which relator had continued to refuse to obey. Therefore, the instant case involved criminal contempt. Further, the evidence showed that the show cause order was faxed to the MCM office, but Relator was not personally served with it. Because the relator was not provided with constitutionally-sufficient notice of the show cause hearing, the respondent could not proceed with the contempt hearing. Furthermore, the remedy provided by Section 21.002(d) of the Texas Government Code was inadequate because the respondent had not entered a contempt order, yet he had ordered an officer of the court confined until the contempt hearing, and the relator could temporarily secure her release only if she posted a bond in the amount of $2,500. Under those circumstances, the remedy afforded to the relator by Section 21.002(d) in the event she was adjudged guilty of contempt amounted to no remedy at all. Accordingly, the court conditionally granted the writ.


Appellee department’s subsequent action of curing the alleged substantial burden on appellant’s free exercise of religion after appellant had already filed suit did not deprive trial court of jurisdiction over appellant’s Texas Religious Freedom Restoration Act claim
Walters v. Livingston
Appellate: Civil, Civil Rights, Constitution, Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
December 21, 2016
03-16-00018-CV
Melissa Goodwin
Published
     The appellant sued the appellee, in his official capacity as the Executive Director of the appellee department, under the Texas Religious Freedom Restoration Act (TRFRA), alleging that the appellee Department policy was substantially burdening his free exercise of religion. On appeal, the parties join issue on the meaning of the TRFRA section 110.006(e). Based on the plain language of the statute, the court concluded that the appellee department’s actions after the appellant’s suit was already filed did not deprive the trial court of jurisdiction. The appellate court found that the interpreting section 110.006(e) as a barrier to the trial court’s jurisdiction over a TRFRA claim only if the government agency has cured before the claimant initiated suit did not prevent a government agency from taking action to remove a substantial burden during the pendency of a case. Further, it was undisputed that the appellant initiated his suit against the Executive Director after the statutory notice period had expired but before the appellee department acted to cure the alleged substantial burden on the appellant’s free exercise of religion and applying the plain and common meaning of section 110.006(e) then, the court concluded that the appellant properly brought an action initiated his suit to confer jurisdiction on the trial court and that, pursuant to section 110.008, sovereign immunity was waived. Furthermore, based on the plain language of section 110.006(e), the court also concluded that the appellee department’s subsequent action of curing the alleged substantial burden on the appellant’s free exercise of religion after the appellant had already filed suit did not deprive the trial court of jurisdiction. Finally, the court concluded that the trial court had jurisdiction over the appellant’s TRFRA claim, reversed the trial court’s order on the Executive Director’s plea to the jurisdiction, and remanded the case to the trial court for further proceedings.


Since there were no collateral matters which must be resolved while the respondent had plenary power in the underlying case, respondent judge had a ministerial duty to issue an order dismissing the case, and the relator had shown that it was entitled to mandamus relief
In re Midland Funding, LLC
Appellate: Civil, Courts, Gov't/Administrative
Texas 8th Court of Appeals
December 20, 2016
08-16-00275-CV
Yvonne T. Rodriguez
Published
     The relator company filed a petition for writ of mandamus against the judge of the trial court Texas to compel him to dismiss a case styled Midland Funding LLC v. Maria Romero, cause number 2015DCV1187. The appellate court found that the mandamus record reflected that Romero did not make any claim for affirmative relief. Thus, the non-suit effectively terminated the case on February 5, 2016 and rendered the merits of the case moot. There was nothing to indicate that a pending motion for sanctions or that any issues regarding attorney’s fees or costs remained pending in the trial court. A trial court’s inherent authority to hold an attorney in contempt of court for disobedience of an order would not cease to exist upon expiration of the court’s plenary power in the case. Consequently, there were no collateral matters which must be resolved while the respondent had plenary power. Furthermore, the court concluded that the respondent had a ministerial duty to issue an order dismissing the case. Because the relator had shown that it was entitled to mandamus relief, the court conditionally granted mandamus relief and ordered the respondent to dismiss Midland Funding LLC v. Maria Romero, cause number 2015DCV1187. Therefore, the writ will issue only if the respondent failed to comply.


Appellant general contractor did not incur the narrow duty to appellee, an injured employee of an independent contractor, based upon appellant’s right to control the promulgation and enforcement of safety regulations, to ensure an independent contractor safely performs its work
Joeris General Contractors, Ltd. v. Cumpian
Appellate: Civil, Contracts, Employment, Torts
Texas 4th Court of Appeals
December 21, 2016
04-15-00481-CV
Jason Pulliam
Published
     The instant appeal arose from an action brought against the appellant by the appellee, an employee of an independent contractor who was injured on a job site. The appellee sued the appellant for negligence and gross negligence alleging the appellant failed to reasonably enforce its safety regulations and failed to protect the appellee by allowing his co-worker, someone known to have violated safety regulations in the past, on the jobsite. A jury found in favor of the appellee and awarded actual and exemplary damages. The appellate court found that the appellant did not incur the narrow duty to the appellee recognized by the Texas Supreme Court in Hoechst-Celanese Corp. v. Mendez,967 S.W.2d 354, 356 (Tex. 1998), based upon the appellant’s right to control the promulgation and enforcement of safety regulations. The appellant’s knowledge of an independent contractor’s safety violations in the past did not trigger the exception to the well-established rule that a general contractor had no duty to ensure an independent contractor safely performs its work. Further, the appellant’s limited discussion regarding the priority of work to be completed did not trigger this exception. Because the appellant held no duty as a matter of law, the jury finding that the appellant was negligent was in error. Accordingly, the court reversed the trial court’s judgment and rendered a take-nothing judgment in favor of the appellant.


Appellant’s suit under Uniform Declaratory Judgments Act to establish a right to compensation under Texas’s wrongful-imprisonment statute was beyond the court’s subject matter jurisdiction
Ex parte Springsteen
Appellate: Civil, Civil Rights, Courts, Damages, Gov't/Administrative, Procedure, Torts
Texas 3rd Court of Appeals
December 21, 2016
03-14-00739-CV
Bob Pemberton
Published
     The issues presented in the instant appeal concern whether the appellant could bring suit under the Uniform Declaratory Judgments Act (UDJA) to establish a right to compensation under Texas’s wrongful-imprisonment statute. The trial court concluded that such a suit was beyond its subject matter jurisdiction to adjudicate. The appellate court found that it must credit the appellant’s counsel with diligence and creativity in their attempts to overcome governing law that was, bottom line, highly unfavorable to a claimant in their client’s situation. But the court was bound to follow that governing law, and it dictated the same basic conclusion as in State v. Young, 265 S.W.3d 697, 703 (Tex. App.—Austin 2008, pet. Denied), that the trial court lacked subject-matter jurisdiction to adjudicate the appellant’s claims. It was similarly beyond judicial jurisdiction to decide whether that governing law should provide different or more generous remedies to the formerly imprisoned than it did such decisions, as the court also recognized in Young, which was the province of the Legislature. Accordingly, the court affirmed the trial court’s judgment.


Although the appellants contended they were entitled to judgment as a matter of law, the appellees produced some evidence raising a fact issue regarding their affirmative defense of adverse possession to the interest in the mineral estate
Rife v. Kerr
Appellate: Civil, Contracts, Oil, Gas, & Mineral, Real Property
Texas 4th Court of Appeals
December 21, 2016
04-16-00018-CV
Luz Elena D Chapa
Published
     The parties disputed who had superior title to an undivided ½ interest in a mineral estate under 476.7 acres in Dimmit County. It was undisputed the appellees owned the other undivided ½ interest in the mineral estate. The trial court granted the appellees’ no-evidence motion for summary judgment and denied the appellants’ competing motion for summary judgment. The appellate court found that the appellants produced some evidence raising a fact issue about whether their chain of title was connected to the appellees ’ chain of title through a common source—the, trustee, under the 1909 plat deed and the 1909 deed. Although the trustee purported to convey all of the disputed lots to his wife in 1932, the appellants produced some evidence raising a fact issue as to whether the trustee conveyed only an undivided ½ interest in the disputed lots and, as a result, the other undivided ½ interest remained with an individual. Accordingly, the Court reversed the trial court’s judgment. Although the appellants contended they were entitled to judgment as a matter of law, the appellees produced some evidence raising a fact issue regarding their affirmative defense of adverse possession. The Court must therefore remand the case to the trial court for further proceedings.


Appellant had failed to raise a question of fact as to either the existence of a landlord-tenant relationship or the appellee’s compliance with the Property Code’s notice requirements in its forcible detainer action to remove them from the property
Trimble v. Federal National Mortgage Association
Appellate: Civil, Landlord and Tenant, Procedure, Real Property
Texas 1st Court of Appeals
December 20, 2016
01-15-00921-CV
Harvey Brown
Published
     The appellee purchased real property at a foreclosure sale after the original owners of the property, (the appellant owners), defaulted on their mortgage. After the appellants refused to vacate the property, the appellee filed a forcible detainer action to remove them from the property. One month after the foreclosure sale, the appellee gave notice to the appellants to surrender possession of the property. The first appellant appealed the County Court’s order granting the appellee’s summary-judgment motion. The appellate court found that the appellant had failed to raise a question of fact precluding summary judgment as to either the existence of a landlord-tenant relationship or the appellee’s compliance with the Property Code’s notice requirements and the court therefore overruled the appellant’s first issue. Further, the commonly understood meaning of the term “premises” included the real property and the buildings on it. The trial court, therefore, did not grant summary judgment on grounds not included in the appellee’s summary-judgment motion. Accordingly, the court affirmed the trial court’s judgment.


Previously filed “Notice of Non-Suit Without Prejudice” constituted nothing more than “a misstatement” by the individuals’ former counsel that was “made without his client’s authority,” and thus, trial court erred in denying the individuals’ “Motion to Reinstate”
Trimble v. Financial Freedom Senior Funding Corp.
Appellate: Civil, Banking and Finance, Courts, Creditor/Debtor, Procedure, Real Property
Texas 1st Court of Appeals
December 20, 2016
01-15-00851-CV
Terry Jennings
Published
     Appellant, as assignee of two individuals (collectively, the individuals), challenged the trial court’s order denying the individuals’ motion to reinstate their suit to “bar foreclosure” and declaratory-judgment action against the appellee corporation, a subsidiary of a bank (the bank). The appellate court found that in the instant case, as in Gonzalez v. Gonzalez, No. 05-14-01361-CV, 2015 WL 9481239 (Tex. App.—Dallas Dec. 29, 2015, pet. denied) (mem. op.), the trial court, following a “Notice of Non-Suit Without Prejudice,” had before it a “Motion to Reinstate” to which no one objected. And the previously filed “Notice of Non-Suit Without Prejudice” constituted nothing more than “a misstatement” by the individuals’ former counsel that was “made without his client’s authority.” Therefore, the Court held that the trial court erred in denying the individuals’ “Motion to Reinstate.” Accordingly, the judgment was reversed and remanded.


There was evidence that some students entered into the contract for a concealed handgun license class for a reason unrelated to a facility or instructor solicitation, and not as a result of conduct that appellee alleged constituted barratry; thus, class certification was improper
Texas Law Shield LLP v. Crowley
Appellate: Civil, Contracts, Damages, Employment, Procedure, Professional Responsibility
Texas 14th Court of Appeals
December 20, 2016
14-15-00705-CV
J Brett Busby
Published
     The appellee filed suit against the appellant company alleging that they had violated and were continuing to violate, the Texas civil barratry statute through their concealed handgun license (CHL) classes. The appellants moved for summary judgment on the  appellee’ claims. The trial court initially denied appellants’ motion. The trial court then held a class certification hearing. The appellate court concluded that the phrase procured as a result of requiring a member of the plaintiff class suing under subsection (a) of the civil barratry statute to establish that the appellants obtained a signed contract from him or her as a result of conduct that violated Rule 7.03(b). There was evidence before the trial court that some students entered into the contract for a reason unrelated to a facility or instructor solicitation, such as independent research or the recommendation of a friend. Such evidence tends to show that these particular contracts were not procured as a result of the conduct that the appellee alleged constituted barratry. Because most of the court’s and the litigants’ time in the litigation will be spent trying to resolve individual issues under sections 82.0651(a) and (c) Rule 7.02(b), the court concluded the certified class did not meet the Rule 42(b)(3) predominance requirement. Therefore, the trial court abused its discretion when it certified the class. The court reversed the trial court’s class certification order and remanded the instant case to the trial court for further proceedings.


Expert witness demonstrated specialized knowledge that would assist the trier of fact in understanding evidence or in determining a fact in issue, and trial judge erred in excluding his testimony; appellants presented sufficient evidence as to appellee’s breach of the standard of care
Cura-Cruz v. Centerpoint Energy Houston Electric, LLC
Appellate: Civil, Consumer, Damages, Evidence, Torts
Texas 14th Court of Appeals
December 20, 2016
14-15-00632-CV
Martha Hill Jamison
Published
     The appellant property owners brought the instant negligence action against the appellee company arising from a fire that damaged their property. The trial court granted the appellee motion to exclude an expert witness and no-evidence motion for summary judgment. The appellate court concluded that the witness demonstrated specialized knowledge, derived from specialized education, practical experience, a study of technical works, or a varying combination of these things, that would assist the trier of fact in understanding the evidence or in determining a fact in issue and as such satisfied Rule 702.10, and the trial judge abused its discretion in excluding his testimony. Thus, the court concluded the appellants presented more than a scintilla of probative evidence as to the appellee’s standard of care and any breach there of. However, the court concluded that the trial court erred in granting summary judgment in the appellee’s favor as to the appellants’ negligence claim. Therefore, the court reversed the trial court’s orders excluding the expert testimony of the witness and granting summary judgment and remanded the instant action.


Appellant’s claims that appellees unlawfully placed a lis pendens on real property were barred by the defense of absolute privilege
County Investment LP v. Royal West Investment, LLC
Appellate: Civil, Contracts, Creditor/Debtor, Damages, Procedure, Real Property, Torts
Texas 14th Court of Appeals
December 15, 2016
14-15-00207-CV
John Donovan
Published
     The appellant company sued the appellees, the company and the individual for damages, alleging they unlawfully placed a lis pendens on real property owned by the appellant. The trial court granted the appellees’ motion for summary judgment on the ground that the appellant’s claims were barred by the defense of absolute privilege. The appellate court found that there were remedies for nullifying an unauthorized lispendens, including a statutory method for cancellation, or other request for an appropriate order from the trial court, with mandamus relief available if the trial court refuses to order cancellation. Lastly, because the court were bound by the precedent of Prappas v. Meyerland Cmty Improvement Ass’n, 795 S.W.2d 794, (1990), dictating that the appellant’s claims for damages were barred by the defense of absolute privilege, the court concluded the trial court did not err by granting summary judgment on all of the claims. Accordingly, the trial court’s judgment was affirmed.


Although the appellant submitted evidence that tended to contradict the appellee’s evidence, there was more than a mere scintilla of evidence on which a reasonable jury could find that the appellant’s failure to comply with the Contract resulted in damages to the appellee
The Port of Houston Authority of Harris County v. Zachry Construction Corporation
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Torts
Texas 14th Court of Appeals
December 15, 2016
14-10-00708-CV
Sharon McCally
Published
     The appellee company sued the appellant authority for breach of contract. Following a three-month jury trial, the trial court signed a final judgment awarding the appellee damages of $19,992,697, plus pre- and post-judgment interest. On remand from the Texas Supreme Court, numerous challenges to the trial court’s judgment remained. The appellate court found that reasonable and fair-minded people could find that the appellant’s order in response to the appellee’s submission of the frozen cutoff wall design violated section 5.10 of the Contract. Thus, the evidence was legally sufficient. Further, the court found that the expert’s damages model was not unreliable based on the appellant’s freeze-pipe removal assertion; conflicting evidence was presented on the issue and the jury resolved the conflicts in favor of the appellee, although it reduced the damages amount established by the expert’s model. Next, the appellant’s assertion regarding the sheet piles did not render the expert's testimony unreliable. Further, although the appellant submitted evidence that tended to contradict the appellee’s evidence, there was more than a mere scintilla of evidence on which a reasonable jury could find that the appellant’s failure to comply with the Contract resulted in damages to the appellee. Furthermore, because the appellant materially breached the Contract, it was barred from invoking sections 5.41 and 5.42 to bar the appellee’s claims for damages. Finally, the court rejected the remaining issues. Accordingly, the court affirmed the judgment of the trial court.


Appellant had not shown that the appellee Commission improperly granted the appellee City’s request for the amended permit to convey treated waste water effluent or that the appellee Commission violated any statute or committed any legal error in granting the request
R.E. Janes Gravel Company v. Texas Commission On Environmental Quality
Appellate: Civil, Environmental, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
December 15, 2016
14-15-00031-CV
John Donovan
Published
     The appellee city, applied to appellee Commission, for an amendment to an existing permit, which would authorize the appellee City to use a portion of the Brazos River to convey treated waste water effluent from a discharge point to a point downstream, where the effluent would be diverted for beneficial purposes. The appellant company, whose property was downstream from the proposed diversion point, contested the application. The appellee Commission issued an order granting the amended permit. In the instant suit, the appellant sought judicial review of that order and sued the appellees. A trial court rendered judgment for the appellees, affirming the appellee Commission’s order. The appellate court concluded the appellant had not shown that the appellee Commission improperly granted the appellee City’s request for the amended permit or that the appellee Commission violated any statute or committed any legal error in granting the request. Further, the Court found that the appellee Commission adopted the .47% carriage loss figure estimated by the appellee City, finding that the appellee City’s methodology and conclusion were reasonable and reliable. The Court concluded that the findings were supported by more than a scintilla of evidence and that the appellant had not met its burden to rebut the presumption that substantial evidence supported those findings. Accordingly, the Court affirmed the trial court’s judgment.


Because the appellant accepted coverage for his claim in full, the appellees only remedy was to request appraisal within sixty days of receiving the notice, and having failed to do so, appellees waived their right to contest appellant’s determination of the amount of loss
Texas Windstorm Insurance Association v. Jones
Appellate: Civil, Contracts, Damages, Insurance
Texas 1st Court of Appeals
December 15, 2016
01-16-00385-CV
Russell Lloyd
Published
     The instant permissive interlocutory appeal concerned recently enacted provisions of Chapter 2210 of the Texas Insurance Code, known as the Texas Windstorm Insurance Association Act (“TWIAA”). Appellee filed a first-party insurance claim against appellant, alleging breach of contract and violations of Insurance Code sections 2210.575 and 2210.576. The appellant filed a plea to the jurisdiction and alternative motion for summary judgment seeking dismissal of the appellees claims. On appeal, the appellant challenged the trial court’s amended order denying its plea and alternative motion. The appellate court noted that the Notice of Acceptance and accompanying documentation fulfilled the appellant’s statutory duties with respect to acceptance of a claim in full. Because the appellant accepted coverage for his claim in full, the appellees only remedy was to request appraisal within sixty days of receiving the notice. Having failed to do so, the appellees waived his right to contest the appellant’s determination of the amount of loss. Further, having determined that jurisdiction did not exist because there was no denial of coverage upon which the appellees may bring suit, the Court did not consider the appellees second issue. Accordingly, the Court reversed the trial court’s amended order denying the plea and alternative motion and rendered judgment dismissing the appellees claim.


Appellant could not defeat an otherwise valid and binding appraisal award simply by rejecting the appellee’s payment of the award, and appellant could not use the fact that the appraisal award was different from the original damage estimates as evidence of a breach of contract
Garcia v. State Farm Lloyds
Appellate: Civil, Contracts, Damages, Insurance, Procedure, Torts
Texas 4th Court of Appeals
December 14, 2016
04-16-00209-CV
Sandee Bryan Marion
Published
     In the instant lawsuit, the appellant alleged the appellees failed to properly investigate and adjust an insurance claim made under the appellant’s the appellee homeowner’s policy. After the lawsuit was filed, the parties agreed to an appraisal for the purpose of determining the amount of the loss. After completion of the appraisal, the appellee paid the appraisal award and the appellees moved for summary judgment on all of the appellant’s claims. The appellant then amended her petition to ask that the appraisal award be set aside. The trial court rendered summary judgment in favor of the appellees and signed a final judgment disposing of all of the appellant’s claims. The appellate court found that the appellant did not carry her burden to raise a fact issue on whether the appraisers exceeded their authority. Further, the court found that the appellant did not raise a fact issue on whether the appraisers were laboring under a mistake of fact by which their appraisal award was made to operate in a way they did not intend, such that the award did not speak the intention of the appraisers. Next, the court found that the appellant could not defeat an otherwise valid and binding appraisal award simply by rejecting the appellee’s payment of the award. Further, the court held the appellant failed to raise a fact issue on her breach of contract claim because she could not use the fact that the appraisal award was different from the original damage estimates as evidence of a breach of contract. Also, the court held that because it was undisputed the appellee paid the appraisal award, the appellant could not sustain her late payment claim. Furthermore, the court found that the appellant did not present evidence of an act so extreme that it caused injury independent of the policy claim. Finally, because the appellant’s unfair insurance practice claims and her DTPA section 17.50(a)(4) claim arise from the same theory as her common law bad faith claim, the court held that she failed to present evidence on her breach of common law bad faith claim or of an independent injury. Accordingly, the court affirmed the trial court’s judgment.


The record did not reflect that the juvenile appellant had executed a written waiver of his right to appeal when moving to voluntarily dismiss his appeal; thus, the court denied the motion to dismiss
In re E.J.E.
Appellate: Civil, Family, Juvenile, Procedure
Texas 8th Court of Appeals
January 25, 2017
08-16-00101-CV
Ann Crawford McClure
Published
     The trial court determined that the appellant had engaged in delinquent conduct and entered judgment committing him to the Texas Juvenile Justice Department. The court explained to the appellant and his parents in open court that the appellant had a right to appeal. The appellant subsequently exercised his right to appeal by filing a written notice of appeal. He was represented by appointed counsel on appeal. The appellant, a juvenile, had filed a motion through his attorney of record to voluntarily dismiss his appeal pursuant to Tex.R.App.P. 42.1(a)(1). The appellate court found that when a juvenile seeks to dismiss his appeal pursuant to Rule 42.1, the motion must be supported by a written waiver of the right to appeal in accordance with Section 51.09 of the Texas Family Code. That could be accomplished by including the appropriate waiver language in the motion and having the juvenile sign the motion, or by attaching the appellant’s written waiver of the right to appeal as an exhibit to the motion to dismiss. Accordingly, the court denied the motion to dismiss.


Because the respondent signed the Temporary Restraining Order after the handwritten motion to recuse was filed without complying with Rule 18a(f)(1), the TRO was void, and was subject to remedy by mandamus
In re Marshall
Appellate: Civil, Courts, Procedure, Torts, Wills/Trusts/Probate
Texas 14th Court of Appeals
January 24, 2017
14-17-00038-CV
Kevin Jewell
Published
     The relator filed a petition for writ of mandamus in the instant court. In the petition, relator asked the court to compel the respondent judge to vacate a Temporary Restraining Order (TRO). The appellate court found that the trial judge did not refer the motion to recuse, nor did he recuse himself, but rather denied the motion to recuse because it did not comply with Tex. R. Civ. P. 18a. The appellate court held that the trial court erred because Rule 18a(f) specifically stated that a trial judge must adhere to its mandates regardless of whether the motion complies with the requisites of Rule 18a. Further, because the respondent signed the TRO after the handwritten motion to recuse was filed without complying with Rule 18a(f)(1), the TRO was void. A TRO that was void was subject to remedy by mandamus. The court therefore conditionally granted relator’s petition for writ of mandamus and directed the respondent to vacate his TRO. The court’s stay of the TRO remained in effect until the respondent complied with the court's ruling.


Trial court did not err in setting aside sanctions orders against the arbitrator exhibiting partiality but erred in appointing the new arbitrator, where the parties must return to the American Arbitration Association for an appointment of a new arbitrator
Builders First Source - South Texas, LP v. Ortiz
ADR, Appellate: Civil, Procedure
Texas 14th Court of Appeals
January 26, 2017
14-16-00256-CV
Tracy Christopher
Published
     The instant was an interlocutory appeal of a trial court’s order setting aside two sanctions orders issued by an arbitrator before the American Arbitration Association (the AAA). The trial court held that the arbitrator’s sanctions orders were obtained through evident partiality by the arbitrator and appointed a new arbitrator over the dispute. Appellant argued that the trial court erred in setting aside the sanctions orders, and in removing the arbitrator and appointing a new arbitrator, because the arbitrator’s orders were interlocutory. The appellate court concluded that the sanctions orders were final because of a prior nonsuit of the claims in arbitration, and the court also concluded that, although the trial court could order arbitration before a new arbitrator, it erred in appointing that new arbitrator. Instead the parties must return to the AAA for an appointment of the new arbitrator. Appellee agreed that the entire case should be stayed pending the arbitration. Accordingly, the court affirmed in part and reversed and remanded in part the trial court’s order.


Because record showed that the fire the appellant started with an accelerant in a residential neighborhood was capable of causing death or serious bodily injury, the jury’s finding that the fire was a deadly weapon was proper, and that finding attached to appellant’s arson conviction
Pruett v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
January 25, 2017
PD-0251-16
Sharon Keller
Published
     The appellant was convicted of arson, and the jury made a deadly-weapon finding. The question before the court was whether the fire started by appellant was a deadly weapon when the fire was started with an accelerant in a residential neighborhood, was left unattended and uncontrolled by the appellant, and was ultimately extinguished through the efforts of the appellant’s neighbors and the Fort Worth Fire Department. The Texas Court of Criminal Appeals found that when evidence at trial demonstrated that someone ignites combustible material to intentionally burn down a house in a residential neighborhood, a deadly-weapon finding may appropriately attach to the arson conviction when the fire was capable of causing death or serious bodily injury. That was what happened in the case. Further, viewed in a light most favorable to the State, the evidence in the case supports a finding that the fire that the appellant started was a deadly weapon because it was capable of causing death or serious bodily injury. Lastly, the court held that the appellate court erred in concluding that the evidence was insufficient to support such a finding. The court therefore reversed the decision of the appellate court and affirmed the decision of the trial court.


Because the traffic stop was a reasonable seizure under the community-caretaking doctrine after the officer smelled the odor of alcohol and noticed appellant's passenger was slumped over through the open window, the trial court correctly overruled the appellant’s motion to suppress
Byram v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
January 25, 2017
PD-1480-15
Kevin Patrick Yeary
Published
     The State charged the appellant with driving while intoxicated with an open container in his possession. the appellant pleaded guilty. The appellate court reversed the appellant’s conviction and remanded. The Texas Court of Criminal Appeals held that the officer was reasonably engaged in a community-caretaking function when he pulled over the SUV to check on the appellant’s passenger. His initial seizure of the SUV and its occupants including the appellant was therefore reasonable. Accordingly, the court reversed the judgment of the appellate court and reinstate the judgment of the trial court.


At the time State filed its waiver and transfer petition in juvenile court, appellant was fifty-eight years of age and was not a “child” under Article 2338-1, and juvenile court lacked subject-matter jurisdiction and its orders were void; thus, appeal of waiver and transfer order was dismissed
In re M.K.
Appellate: Civil, Courts, Juvenile, Procedure
Texas 2nd Court of Appeals
January 23, 2017
02-16-00291-CV
Lee Gabriel
Published
     Because the appellant was fifteen years old at the time of the alleged offense and well over eighteen years of age, the State filed a petition in the juvenile court pursuant to section 54.02(j) of the Texas Family Code asking it to waive its jurisdiction over the instant case and to transfer the appellant to the criminal district court. After holding an evidentiary hearing, the juvenile court signed an amended order waiving jurisdiction and transferring the appellant to the criminal district court. The appellate court found that Title 3 was first enacted by the 63rd Legislature on May 25, 1973, but it did not become effective until September 1, 1973. Thus, Title 3 was not in effect on August 7, 1973. The predecessor statute to Title 3 was Article 2338-1 of the Revised Civil Statutes of Texas. Therefore, that Article 2338-1, as effective on August 7, 1973, was the law that governed the case. Having so concluded, the jurisdictional question presented was whether, under that law, the juvenile court in the instant case had jurisdiction to conduct the waiver and transfer proceeding that was the subject of the instant appeal. The court concluded that it did not. Further, the court found that at the time the State filed its waiver and transfer petition in the juvenile court, the appellant was fifty-eight years of age. He therefore was not a “child” under the terms of Article 2338-1. For that reason, in light of the authorities discussed the court was compelled to conclude that the juvenile court lacked subject-matter jurisdiction to conduct the waiver and transfer proceeding and to render the amended waiver and transfer order that was the subject of the instant appeal. When a court lacked subject-matter jurisdiction over a proceeding, any orders it rendered in that proceeding were void. Accordingly, the court declared its August 24, 2016 amended waiver and transfer order void, vacated that order, and dismissed the appeal.


Trial court’s error in failing to instruct the jury that their verdict on each charged offense must be unanimous was not egregious harm to the defendant, and indecency with a child charge only required sexual contact; no additional mental state linked to the alleged contact was required
Smith v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
January 24, 2017
14-15-00563-CR
Ken Wise
Published
     The appellant challenged his convictions for indecency with a child and super-aggravated sexual assault of a child. The appellate court found that the evidence presented, combined with the jury’s rejection of the appellant’s defense, demonstrated that the appellant did not suffer actual harm. Further, the appellant had not directed the court to any case holding that an additional mental state linked to the alleged contact was required, and the court had found none. Nor had the appellant explained exactly what additional instruction should have been provided. Lastly, the court rejected the appellant’s argument that the charge was erroneous because it did not include an additional mental state as to the act of touching. Having found no error, the court need not conduct a harm analysis. Accordingly, the court overruled the appellant’s issues and affirmed the trial court’s judgment.


Appellant did not provide evidence sufficient to raise a fact question that either his hypertension or his lower-back injury qualified as disabilities, and appellee showed that appellant was fired for insubordination, not in retaliation for reporting a claim to workers’ compensation
Datar v. National Oilwell Varco, L.P.
Appellate: Civil, Civil Rights, Employment, Gov't/Administrative, Workers' Compensation
Texas 1st Court of Appeals
January 19, 2017
01-15-00541-CV
Evelyn V. Keyes
Published
     The appellant sued the appellee company for various disability discrimination and retaliation claims under the Texas Commission on Human Rights Act (TCHRA) and the Texas Workers’ Compensation Act (TWCA). The trial court granted summary judgment in favor of the appellee dismissing all of the appellant’s claims. The appellate court found that several federal courts construing the analogous Americans with Disabilities Act (ADA) have held that an assertion of disability based solely on a diagnosis of hypertension, without any showing that the condition substantially limited work activities or major life activities, generally was insufficient to establish the existence of a disability for discrimination purposes. Further, the court held that the appellant failed to raise a fact question as to whether any of the injuries he relied upon constituted a disability within the meaning of the TCHRA. Furthermore, the court need not address these arguments by the appellee. Therefore, the appellant could establish a prima facie case of retaliation under the TCHRA or the TWCA, the burden then shifted to the appellee to provide a non discriminatory, non retaliatory reason for its actions. Accordingly, the judgment of the trial court was affirmed.


Trial court did not abuse its discretion in excluding evidence of family member's conviction to show alternative sexual knowledge or that victim was lying, where that evidence was too attenuated from victim's knowledge, and Confrontation Clause of same issue was not preserved for appeal
In re E.H.
Constitution, Criminal, Evidence, Juvenile, Procedure
Texas 8th Court of Appeals
January 18, 2017
08-15-00070-CV
Ann Crawford McClure
Published
     The appellant was charged with engaging in delinquent conduct by three acts of aggravated sexual assault of a child younger than 14 years of age, and two acts of indecency by sexual contact with a child younger than 17 years of age. The jury found that the appellant had engaged in two of the three acts of aggravated sexual assault and both acts of indecency with a child by sexual contact. The trial court sentenced the appellant to five years confinement, probated for two years. The appellate court found that to preserve a complaint for review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if those grounds were not apparent from the context of the request, objection, or motion. Further, because the trial judge did not have the opportunity to rule upon Confrontation Clause rationale, the issue was not preserved for appeal. Furthermore, the appellant did not make any Confrontation Clause objection to the trial court. The court therefore held that the appellant had waived his right to make a Confrontation Clause complaint on appeal. Accordingly, the trial court’s judgment was affirmed.


Appellants never owned an interest in pooled minerals located in the County, therefore, they had no obligation to pay taxes in that County
Chambers v. San Augustine County Appraisal District
Appellate: Civil, Oil, Gas, & Mineral, Real Property, Tax
Texas 12th Court of Appeals
January 18, 2017
12-15-00201-CV
Brian Hoyle
Published
     The instant case concerned the effect of mineral interest pooling on the lessor’s tax liability. In this ad valorem tax dispute, the appellants appealed from an adverse summary judgment rendered in favor of the appellee-District. The appellate court observed that giving effect to all language of the appellants’ leases, the court concluded, as a matter of law, that the leases authorized pooling but prohibit cross-conveyance of interests. Accordingly, the appellants never owned an interest in pooled minerals located in the County. Therefore, they had no obligation to pay taxes in that county. Because the appellee did not prove entitlement to judgment as a matter of law, the trial court erred in granting the appellee’s motion for summary judgment. Thus, the court reversed the trial court’s judgment and remanded the cause to the trial court for further proceedings in accordance with the instant opinion.


Appellant did not consent to personal jurisdiction in the forum for suits unrelated to arbitration, and appellee’s lawsuit made no mention of arbitration at the time of the special-appearance hearing; thus, trial court erred by denying the special appearance
Guam Industrial Services, Inc. v. Dresser-Rand Co.
Admiralty & Maritime, ADR, Appellate: Civil, Contracts, Procedure, Torts
Texas 1st Court of Appeals
January 19, 2017
01-15-00842-CV
Rebeca Huddle
Published
     The appellate court granted the motion for rehearing, withdrew the opinion and judgment of July 21, 2016, and issued the instant opinion and a new judgment in their stead. The instant was an accelerated interlocutory appeal from an order denying the appellant corporation’s special appearance. The appellee company sued the appellant in district court in Houston for breach of contract and other claims after the appellant failed to pay the appellee for repair and restoration work the appellee performed on a vessel. The appellee contended that the trial court had jurisdiction over its suit because the parties’ contract contained an arbitration provision that operated as a forum-selection clause by which the appellant consented to personal jurisdiction in Houston. The appellant filed a special appearance contending that the trial court lacked jurisdiction, which the trial court denied. The appellate court observed that the appellant did not consent to personal jurisdiction in Houston for suits unrelated to arbitration. The appellee’s lawsuit made no mention of arbitration at the time of the special-appearance hearing. Therefore, the court held that the trial court erred by denying the special appearance. The court sustained the appellant’s sole issue. Accordingly, the court reversed the trial court’s order denying the special appearance and rendered judgment granting the appellant’s special appearance and dismissing the case for lack of personal jurisdiction.


Continuous sexual abuse indictment did not need additional accusation of mental state; jury could reasonably find appellant committed at least two acts against the first child during period of thirty or more days, and testimony of bad acts appellant committed against second child were admissible
Buxton v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
January 19, 2017
01-15-00857-CR
Evelyn V. Keyes
Published
     A jury convicted appellant of the first-degree felony offense of continuous sexual abuse of a child and assessed his punishment at confinement for life without parole. The appellate court observed that a rational jury reasonably could have concluded beyond a reasonable doubt that appellant committed at least two acts of sexual abuse against the first child during a period thirty or more days in duration. Further, the trial court did not abuse its discretion by admitting the second child’s testimony concerning the extraneous bad acts that appellant committed against her. Accordingly, the court affirmed the judgment of the trial court.


State acted negligently in failing to retry appellant for thirty years following court of criminal appeals’ opinion on rehearing in 1983, and even thought that was extenuated by appellant's twenty-three year delay to assert his speedy trial right, appellant’s conviction was reversed
Hartfield v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
January 19, 2017
13-15-00428-CR
Gina M. Benavides
Published
     The jury convicted the appellant of the capital murder of the victim and assessed his punishment at death. On automatic review, the Texas Court of Criminal Appeals found error related to the exclusion of a potential juror, vacated the appellant's conviction, and ordered a new trial in its entirety in prior opinion. The court of criminal appeals denied the State’s motion and advised the State in an opinion on rehearing. The jury found the appellant guilty of murder and sentenced him to life imprisonment. The appellate court agreed with the trial court’s conclusion that the State acted negligently in failing to retry the appellant for thirty years following the court of criminal appeals’ opinion on rehearing in 1983. The appellant chose to no longer acquiesce to his incarceration in 2006, when he began pro se to assert his right to a speedy trial. Thus, the court agreed with the trial court that this factor weighs against the State, but was extenuated by the appellant's twenty-three year delay to assert his right. Further, the court was deeply mindful that the court's conclusion today means that a defendant who may be guilty of murder may go free. However, based on the United States Constitution, it was the only possible remedy. Lastly, the appellant asserted that the State violated his Sixth Amendment right to a speedy trial, and that the trial court erred in failing to grant his pre-trial motion to dismiss his indictment. Because the court agreed with the appellant, the court reversed the appellant's conviction and rendered an order of dismissal with prejudice.


Appellant failed to assert an alter ego theory to reach appellee personally on corporation’s contract breach; existence of an implied-in-fact contract barred appellant from recovery under a quantum meruit theory; and nothing showed necessary fraud elements of misrepresentation and reliance
Chico Auto Parts & Service, Inc. v. Crockett
Appellate: Civil, Contracts, Corporations, Damages, Environmental, Torts
Texas 8th Court of Appeals
January 18, 2017
08-15-00021-CV
Ann Crawford McClure
Published
     The appellant corporation appealed from an order granting summary judgment in favor of the appellee on its claims for breach of contract, quantum meruit, and fraud, in which the appellant sought to be reimbursed for cleaning up a well site. The appellate court found that the appellant failed to assert any alter ego theory in its response, and failed to allege any facts or to produce any evidence to hold the appellee personally liable for any of the first company’s alleged contractual obligations to the appellant. The court therefore concluded that the trial court properly granted summary judgment to the appellee on the appellant ’s breach of contract claim. Further, as Houston Med. Testing Servs., Inc. v. Mintzer, 417 S.W.3d 691, (Tex.App. – Houston [14th Dist.] 2013, no pet.), the existence of an implied-in-fact contract covering the remediation services barred the appellant from recovery under a quantum meruit theory for those same services. Furthermore, there was nothing in the appellant’s pleadings to support two essential elements of the appellant’s fraud claim—that any misrepresentation made was material, and that the appellant justifiably relied on a material misrepresentation. Thus, the trial court properly granted summary judgment on the appellant’s claim for fraud. Lastly, the appellant’s attorney argued at the summary judgment hearing that he needed additional time to ascertain which entity hired the appellant to perform the cleanup at the Well site, explaining that the appellant was attempting to get that information from the appellant, as a member and officer of both the companies. While the information would have been relevant to the appellant’s claims, the appellant made no attempt to explain what steps it had taken to obtain that information prior to filing its motion for continuance, much less why it had not determined who were the responsible parties before filing its lawsuit. Accordingly, the judgment was affirmed.


There was no legal duty on the appellees because the deceased had assisted them with housing and money, and at the time of the car trip with appellees, deceased was a fully competent individual, and appellants owed no duty to her to make decisions for her concerning travel
Aguilar v. Morales
Appellate: Civil, Damages, Torts
Texas 8th Court of Appeals
January 18, 2017
08-15-00098-CV
Ann Crawford McClure
Published
     The instant was an appeal from an order granting the appellees Texas Rule of Civil Procedure 91a motion to dismiss the appellants wrongful death action filed in the 205th trial court. The appellate court declined to adopt the appellants interpretation of the rule. Thus, because the court held that the appellees motion to dismiss was timely filed in the Probate Court on October 4, 2013, and their January 14, 2015, motion to dismiss in the trial court related back to the date of filing in the Probate Court. Further, the appellants petition failed to establish that the appellees owed a legal duty to the individual. Therefore, the court need not consider whether the facts in the petition supported the causation element of the appellants wrongful death claim. Lastly, given the finding in Group Two that the appellants petition had no basis in law or fact, it was difficult to see then how the late dismissal could have resulted in the rendition of an improper judgment. Having overruled all issues for review, the court affirmed the judgment of the trial court.


Trial court had the jurisdiction to provide pre-injury injunctive relief enjoining a party from developing an injection well in another county based on the claim the well will cause imminent and irreparable injury to the complaining party
Ring Energy v. Trey Resources, Inc.
Appellate: Civil, Damages, Oil, Gas, & Mineral, Procedure, Torts
Texas 8th Court of Appeals
January 18, 2017
08-15-00080-CV
Ann Crawford McClure
Published
     In the instant case, the appellee company obtained the requisite permits from the Texas Railroad Commission, but there was some dispute, unresolved on the record, as to whether the predecessor to the appellant company, which operated several nearby wells, got proper notice. Before the appellee started its injection program, the appellant filed suit in Andrews County seeking injunctive relief to stop the process because it claimed the water injection would cause it irreparable waste damage. The trial court ultimately dismissed the suit for want of jurisdiction. The appellate court found that the Legislature intended to allow pre-injury injunctive relief in the county where the injury was threatened, concluding that none of the authorities cited directly addressed the situation, and looking to the language of Tex.Nat.Res.Code Ann. Sections 85.321 and 85.322 in the context of the entire the Code Construction Act. The appellant of course carried a significant burden to demonstrate the requisites for injunctive relief. Whether it could ever meet that burden was not before the instant court. But the trial court has jurisdiction to at least hear the appellant’s claim. Accordingly, the order was reversed.


Decedent’s estate administrator did not have exclusive authority to prosecute wrongful death suit, where wrongful death beneficiaries, through their mother, objected to administrator pursuing claims on their behalf, and guardian ad litem did not trump mother’s right to represent them
Ordonez v. Abraham
Appellate: Civil, Damages, Procedure, Torts, Wills/Trusts/Probate
Texas 8th Court of Appeals
January 11, 2017
08-14-00157-CV
Ann Crawford McClure
Published
     Texas hornbook law teaches that when a person was killed by the negligence of another, two causes of action were potentially created: a survival claim by the estate of the deceased; and a statutory wrongful death claim for the wife, children and parents of the deceased. In the case, an order from a statutory probate court authorized the appellant as the dependent administrator, to pursue the survival claim of behalf of the estate. The parties dispute whether the probate court also expressly authorized the appellant to pursue the wrongful death claims. A trial court later permitted the mother of the appellant’s children to pursue wrongful death claims on their behalf which were then settled and resulted in a judgment extinguishing only the children’s wrongful death claims. The appellate court found that the court agreed with the appellees. The appellant’s affirmative steps of invoking the 327th’s jurisdiction to resolve the representation issue estops him from now denying that the 327th could modify prior orders in that regard. In that case, a litigant first filed suit in Dallas County because the court found he invited error, if any, in having the 327th participate in the selection of counsel and representation issue, Rule 173.4(d) defines the guardian ad litem’s role in litigation to include participation in mediations or proceedings necessary to determine the existence of a conflict, but otherwise limits the role in discovery or trial. Nothing in the rule supports the appellant’ contention that the guardian ad litem trumps a parent’s statutory right “to represent the child in legal action and to make other decisions of substantial legal significance concerning the child.” Therefore, the appellees respond that the objection was never urged below and was accordingly waived. Accordingly, the trial court's order was affirmed.


Evidence was legally and factually sufficient to show that the appellant, a deported, convicted drug smuggler from Mexico, engaged in conduct that endangered the child’s physical or emotional well-being, and termination of appellant’s parental rights was in the child’s best interest
In re R.A.G.
Appellate: Civil, Family, Juvenile
Texas 8th Court of Appeals
January 11, 2017
08-16-00178-CV
Ann Crawford McClure
Published
     The instant appeal was from a judgment terminating the parental rights of the appellant, to his son, the child. The appellate court found that if the disputed evidence that a reasonable fact finder could not have credited in favor of the finding was so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence was factually insufficient. Further, the court found that the evidence was legally and factually sufficient to establish a firm conviction or belief in the mind of the trier of fact that the appellant engaged in conduct that endangered the child’s physical or emotional well-being under Section 161.001(b)(1)(E), Texas Family Code. Next, the record contained some disputed evidence which we have included in the discussion of the Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976) factors. After reviewing those factors under the factual sufficiency standard, the court found that the evidence was factually sufficient for the trial court to establish a firm conviction that termination of the appellant’s parental rights was in the child’s best interest. Further, the appellant’s challenge to the conservatorship appointment was subsumed in his challenge to the termination of his parental rights. Finally, the appellant appeared at trial by telephone and his attorney questioned witnesses and made a final argument. Thus, the appellant waived his complaint about service. Accordingly, the order terminating the appellant’s parental rights to the child was affirmed.


Appellant failed to use ordinary care when it instructed the appellant individual on how to safely operate the 18-wheeler he was driving at the time of the accident and when it failed to determine whether the appellant individual’s seat position allowed him to see in front of the truck
JBS Carriers, Inc. v. Washington
Appellate: Civil, Damages, Evidence, Torts, Transportation, Wills/Trusts/Probate
Texas 4th Court of Appeals
January 11, 2017
04-15-00463-CV
Karen Angelini
Published
     The instant appeal arose out of a personal-injury negligence suit brought by the surviving children of the decedent, who was killed in an accident when she was struck by an 18-wheeler tractor-trailer driven by the appellant individual, an employee of the appellant corporation (the appellant). At trial, the jury determined that appellant individual’s negligent conduct was 50% responsible for the accident; the appellant’s negligent conduct was 30% responsible for the accident; and the decedent’s negligent conduct was 20% responsible for the accident. The appellate court agreed with the appellees' argument that if the appellant individual had been trained about the eighteen-foot blind spot in front of the 18-wheeler, “he would have known that he could not assume that just because he did not see anything in front of him” did not mean there was not anyone in front of him, based upon that evidence, “the jury was free to conclude that the appellant failed to use ordinary care when it instructed the appellant individual on how to safely operate the 18-wheeler he was driving at the time of the accident and when it failed to determine whether the appellant individual’s seat position allowed him to see in front of the truck.” The Court held that the jury’s finding of direct negligence against the appellant was supported by legally and factually sufficient evidence. Further, the Court found no abuse of discretion by the trial court in excluding the doctor’s testimony pursuant to Texas Rule of Evidence 403. Even the expert’s opinions were conclusory and speculative, could not be considered relevant evidence, there was other legally sufficient evidence in the instant case (besides the expert’s testimony) to support the jury’s findings of negligence against the appellants. And, the Court held that the evidence was legally and factually sufficient to support an award of mental anguish, and loss of companionship and society. Furthermore, the Court agreed with the appellees that the issue was one of capacity, not standing. Therefore, because the appellants did not properly raise the issue of capacity in the trial court, the trial court erred when it failed to include in its judgment the jury’s award of $406,316.00 in survival damages. Lastly, the appellees emphasizes that because the trial court’s judgment did not include survival damages or the correct amount of wrongful-death damages, it does not reflect the correct amount of prejudgment interest. In reviewing the jury’s verdict and the trial court’s judgment, the Court agreed with the appellees. Accordingly, the judgment was affirmed in part; reversed and remanded in part.


Trial court did not abuse its discretion in admitting the complainant’s sister’s testimony as excited utterances not prohibited by the rule against hearsay evidence
Pickron v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
January 31, 2017
14-16-00080-CR
Kem Thompson Frost
Published
     The appellant was convicted for murder and sentenced to life imprisonment. The appellate court observed that the trial court did not abuse its discretion in admitting the complainant’s sister’s testimony as excited utterances not prohibited by the rule against hearsay. Accordingly, the trial court’s judgment was affirmed.


Trial court abused its discretion by ordering relators to remove their attorney-client privilege and work-product privilege objections and to produce privileged documents, and by compelling first relator company to produce documents not within its possession, custody, or control
In re Fairway Methanol LLC
Appellate: Civil, Courts, Discovery, Evidence, Gov't/Administrative, Litigation: Personal Injury, Procedure
Texas 14th Court of Appeals
January 31, 2017
14-16-00884-CV
Tracy Christopher
Published
     The relator companies filed a petition for writ of mandamus in the instant court. In the petition, relators ask the court to compel the presiding judge of the county, to vacate his Order on the plaintiffs’ Motion to Compel. The appellate court found that the trial court clearly abused its discretion by ordering relators to remove their attorney-client privilege and work-product privilege objections and to produce certain documents that were protected by those privileges. There was no adequate remedy by appeal for that error. Further, the trial court abused its discretion by compelling the first relator company to produce documents that were not within its possession, custody, or control. The court therefore conditionally granted the petition for writ of mandamus.


The debtor company made the payments to the creditor appellee bank on behalf of the corporation, not in satisfaction of the appellant's personal obligation, before the default occurred, thus, appellant was responsible for contractual damages from the default as a guarantor
Julka v. U.S. Bank National Association
Appellate: Civil, Banking and Finance, Contracts, Creditor/Debtor
Texas 1st Court of Appeals
January 31, 2017
01-16-00348-CV
Jane Bland
Published
     The company secured the loan from a predecessor of the appellee Bank. The appellant executed a guaranty agreement in his individual capacity, in which he committed to pay up to $250,000 in damages to the appellee in the event of default. The company defaulted on the loan. The appellee foreclosed on the properties and sued to recover from the appellant under the guaranty. The appellee moved for summary judgment. The appellant responded with a cross-motion that raised the affirmative defenses of payment and estoppel. The trial court granted the appellee's motion and denied the appellant's. The appellate court found that the appellant transferred personal funds to the company for it to make payments, the company made those payments to the appellee on behalf of the corporation, not in satisfaction of the appellant's personal obligation. As a result, those payments were attributable solely to the company, and not to the appellant. Further, because the evidence establishes that the company, not the appellant, made the payments to the appellee before the default occurred, the trial court properly concluded that the appellant failed to raise a fact issue to defeat the appellee's traditional and no-evidence summary judgment on the guaranty. Lastly, the court held that the trial court did not err in granting summary judgment in favor of the appellee. Accordingly, the court affirmed the judgment of the trial court.


Officer acted in good faith in responding to a call for a suspect speeding recklessly and evading arrest, and could reasonably assume that the dangers presented by the suspect outweighed the risks that pursuit posed to the public; thus, officer was entitled to qualified immunity
City of Houston v. Collins
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
January 31, 2017
14-16-00449-CV
William J. Boyce
Published
     Appellee sued the appellant City after she was injured when a Houston police officer struck her vehicle. In the instant interlocutory appeal, the appellant contended the trial court erred by denying the appellant’s plea to the jurisdiction. The appellant argued there was no waiver of its governmental immunity from suit because the police officer was entitled to official immunity. The appellate court found that if a governmental employee was entitled to official immunity, the employee was therefore not “personally liable to the claimant according to Texas law.” And if the employee was not personally liable to the claimant, then the limited waiver under the Texas Tort Claims Act did not apply and the governmental employer remained immune from vicarious liability for the employee’s actions. Further, the court concluded that the appellant met its burden to present evidence that a reasonably prudent officer, under the same or similar circumstances, could have reasonably believed that the need for an immediate response outweighed the risks of the pursuit posed to the public. Furthermore, because the court have determined that the officer could have reasonably believed that he was responding to a call regarding a suspect who not only was driving recklessly and speeding but also was evading arrest — a more serious offense — evidence regarding how the radio call should have been initially coded did not controvert the appellant’s evidence that the officer acted in good faith. Accordingly, the court reversed the trial court’s order denying the appellant’s plea and dismissed the suit for lack of jurisdiction.


Appellant properly convicted of assault on a public servant with enhancement of the penalty as shown in the indictment, however, trial judge’s partiality invalidated appellant’s appeal waiver, where trial judge relied on unproven charges in enhancing the sentence proposed by the State
Carson v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
January 31, 2017
06-15-00170-CR
Bailey C. Moseley
Published
     The appellant entered an open plea of guilty to three counts of assault on public servants who were performing public servant duties, TEX. PENAL CODE ANN. Section 22.01(b) (West Supp. 2016), the penalties being enhanced by previous convictions, Section 12.425 (West Supp. 2016), and three counts of bail jumping, the trial court sentenced the appellant to fifty years’ imprisonment in each of the assault cases and ten years’ imprisonment in each of the bail-jumping cases. The appellant’s motion for new trial was overruled by operation of law. The appellate court found that the provisions of TEX. R. APP. P. 25.2 should not affect an appellant’s substantive rights, such as his right to appeal. Further, the presence on the bench of a judge who was not impartial deprived a defendant of his basic protections, and because it was a defect that affected the very framework within which the trial proceeds, it infected the entire trial process. Thus, it necessarily invalidated the appellant’s waiver of his right to appeal because at the time he executed the waiver, it was not possible for him to have known that the trial court would base its sentence on extrajudicial evidence. Furthermore, the facts of the instant case were distinguishable from those of Ex parte Broadway, 301 S.W.3d 694, 696 (Tex. Crim. App. 2009), and the court found that the appellant’s presentence waiver was unknowing and invalid as to any error in the punishment/sentencing phase of the trial because the appellant was in no position to know the nature of the claims he could have brought on appeal in the absence of the waiver. Lastly, the appellant sentence was some fifty-eight percent more burdensome than that originally proposed by the State. That was plainly harmful error which adversely impacted the appellant. He preserved the error by objecting to the procedure as soon as it was discovered. In that circumstance, harmful error had been committed. Accordingly, the judgment was partly affirmed, partly reversed and remanded.


State’s evidence was sufficient to affirmatively connect the juvenile appellant to the actual care, custody, control or management of the individually-packaged cocaine that was found at his feet, and to allow the jury to reasonably infer that he had the requisite intent to deliver the cocaine
In re A.P.
Criminal, Evidence, Juvenile, Procedure
Texas 8th Court of Appeals
January 27, 2017
08-15-00089-CV
Ann Crawford McClure
Published
     The appellant juvenile was charged by petition with engaging in delinquent conduct by possessing a controlled substance (cocaine), having an aggregate weight of one gram or more but less than four grams, with the intent to deliver. A jury found that he had engaged in the delinquent conduct as alleged in the petition, and the trial court, after finding that removal from his home was in his best interest, committed the appellant to the Texas Juvenile Justice Department. The appellant court found that the appellant acknowledged that he was present in a “suspicious place under suspicious circumstances” at the time the search warrant was executed. The court concluded that this evidence supported a reasonable inference that the appellant was involved in, or at the very least aware of, the ongoing activity that was admittedly taking place at the mobile home. Further, the logical force of the State’s evidence was clearly sufficient to affirmatively connect the appellant to the actual care, custody, control or management of the individually-packaged cocaine that was found at his feet, and to allow the jury to reasonably infer that he had the requisite intent to deliver the cocaine. Lastly, the jury was therefore free to reject the appellant's claim that he was simply an innocent bystander at the mobile home at the time the search warrant was executed. Accordingly, the court overruled the sole issue for review and affirmed the judgment of the trial court.


The evidence was legally insufficient to support the finding that the appellant conspired to breach the fiduciary duties owed by the second employee or the first employee to the appellee corporation
Wooters v. Unitech International, Inc.
Appellate: Civil, Contracts, Corporations, Damages, Employment, Torts
Texas 1st Court of Appeals
January 26, 2017
01-15-00174-CV
Jane Bland
Published
     Appellee corporation sued two former employees when it discovered that those employees had stolen the appellee’s trade secrets in preparation for launching a competing company. The appellee fired the two employees. During its investigation, the appellee learned that the first employee had asked the appellant, who was not the appellee employee, to join the employees in forming the new company. The appellee sued the appellant too, alleging that the appellant had conspired with the employees to breach their fiduciary duties to the appellee, to steal the appellee’s trade secrets, and to unlawfully convert the appellee’s property. The jury found in favor of the appellant on the latter two claims, determining that the appellant did not conspire to steal or to convert the appellee’s property. But it found that the appellant had conspired with the employees to breach their fiduciary duties to the appellee. The jury also found the employees liable under all three theories and awarded damages. The appellate court noted that because the appellee’s conspiracy claim against the appellant was based on the wrongful conduct of breach of a fiduciary duty by an employee against an employer, the court considered the law that defined the parameters of that duty. An employee had a duty to act primarily for the benefit of his employer in matters connected with his employment. Further, the court held that the evidence was legally insufficient to support the finding that the appellant conspired to breach the fiduciary duties owed by the second employee or the first employee to the appellee. Lastly, because that liability finding provided the sole support for assessing damages against the appellant, it was dispositive of his appeal. Accordingly, the court reversed the trial court’s judgment against the appellant and rendered judgment that the appellee took nothing against the appellant and affirmed the judgment in all other respects.


Appellant condominium owners had not shown that any condominium association board member had a duty to act in a way independent of the board, but failed to do so when demolishing rather than repairing damage to their complex, and appellees were entitled to immunity from personal liability
Brown v. Hensley
Appellate: Civil, Contracts, Corporations, Gov't/Administrative, Real Property, Torts
Texas 14th Court of Appeals
January 26, 2017
14-14-00981-CV
John Donovan
Published
     After a hurricane and a fire caused significant damage to their homes, a group of condominium owners sued their condominium association, the appellee association, and members of its board, the appellee members. The appellant owners argued that by failing to repair hurricane and fire damage to the condominium complex and by demolishing it, the appellee members were liable for breach of contract, negligence, gross negligence, violation of the duty of good faith and fair dealing, breach of fiduciary duty, tortious interference with contract, slander of title, damage to title, and conspiracy. The trial court granted summary judgment on the claims against the appellee members, and severed the dismissed claims from the remaining claims against the appellee association. The appellate court found that appellants had not shown that any named Board member had a duty to act in a certain way, separate from the rest of the Board, but failed to act accordingly. The appellees were entitled to summary judgment as they demonstrated their right to immunity from personal liability under the Texas Charitable Immunity and Liability Act as a matter of law. Accordingly, the court affirmed the trial court’s judgment.


Substantial evidence supported Commission’s finding that the Water District had developed and implemented a water conservation plan for the highest practicable levels of water conservation and efficiency achievable within its jurisdiction and was entitled to a permit for water transfer
Upper Trinity Regional Water District v. National Wildlife Federation
Appellate: Civil, Environmental, Gov't/Administrative, Oil, Gas, & Mineral
Texas 1st Court of Appeals
January 26, 2017
01-15-00374-CV
Rebeca Huddle
Published
     The appellants appealed the trial court’s judgment reversing and remanding a portion of the second appellant’s order granting the first appellant a permit for an inter basin water transfer. Appellee participated in a contested case hearing protesting the permit, and, following the second appellant’s grant of the permit, appealed to the district court. The trial court found that the second appellant erred in finding that the first appellant had developed and implemented a water conservation plan that would result in the highest practicable levels of water conservation and efficiency achievable within its jurisdiction, as required by section 11.085(l)(2) of the Water Code. The appellate court found that, there was more than a scintilla of evidence based upon which reasonable minds could have found that the first appellant developed a plan that complied with section 11.085(l)(2). Further, the evidence admitted at the hearing included a resolution by the first appellant’s Board of Directors officially adopting the conservation plan. The appellee did not dispute that the first appellant had officially adopted the plan. Thus, there was more than a scintilla of evidence based upon which reasonable minds could have concluded that the first appellant had not only developed but also had implemented a plan that complied with section 11.085(l)(2). Furthermore, the appellee did not mention Section 288.5(1)(B), the legal basis for the challenge, in its motion for rehearing, nor did it mention the first appellant’s five- and ten-year targets. Therefore, the appellee had not preserved error regarding its complaint based upon Section 288.5(1)(B). Lastly, the court concluded that reasonable minds could have reached the conclusion that the first appellant’s plan included a “description of the authority by which it will implement and enforce the conservation plan” based upon the plan’s provisions described above. Accordingly, the court reversed the trial court’s judgment and rendered judgment affirming the second appellant’s order.


Under the corpus delicti rule, no independent evidence corroborates that the very crime to which appellant confessed, failing to report child abuse, and for which she was prosecuted, actually happened
Bradford v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
January 26, 2017
14-15-00707-CR
Ken Wise
Published
     A jury found appellant guilty of failing to report child abuse. The appellate court found that there was some evidence that the appellant was concerned about the potential for child abuse as evidenced by her testimony that she would not allow the appellant unsupervised visits with the child due to the 2012 allegation. The evidence did not render the corpus delicti of failing to report abuse more probable than it would be without the evidence. Further, there was no independent evidence that anyone had cause to believe the father sexually assaulted the child consistent with the appellant’s extra judicial admission or as alleged by the state in the information. However, the state was not required to corroborate “each element and descriptive allegation” of failing to report child abuse, the instant case was not one where the defendant testified that the crime occurred in a slightly different manner than appellant described in the out-of court statement. Therefore, no independent evidence assures that the very crime to which the appellant confessed and for which she was prosecuted actually happened. Accordingly, the court reversed the trial court’s judgment.


Appellant's Petition for Discretionary Review Refused
Helmcamp v. State
Texas Court of Criminal Appeals
January 25, 2017
PD-1114-06
Concurring Opinion by Judge Yeary
Dissenting Opinion by Judge Alcala

In his instant pleadings, appellant, who is pro se and incarcerated, contends that he has been prevented from appealing the trial court’s order denying his motion for post-conviction DNA testing due to untimely notice of the court’s order. Appellant contends that the trial court signed its order denying his motion for DNA testing on May 20, but he did not receive notice of that order until July 25, which was long after the thirty-day window for filing a notice of appeal had passed.


Appellant's Petition for Discretionary Review Dismissed
Small v. State
Texas Court of Criminal Appeals
January 25, 2017
PD-1232-16
Per Curiam

A jury convicted Appellant of capital murder and punishment was assessed at confinement for life without parole. See Tex. Penal Code, § 12.31(a)(2). The Fourteenth Court of Appeals affirmed the conviction. Small v. State, ___S.W.3d___ (Tex. App. — Houston [14 ], delivered May 19, 2016). On October 18, 2016, Appellant filed a petition for discretionary review.


Speech-only provision was not an exception to the offense of interfering with public officer’s duties charged against appellant, and related to a defensive issue, and trial court was not required to give a jury instruction on that provision absent a request from defense counsel
Trevino v. State
Constitution, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
January 20, 2017
08-14-00216-CR
Yvonne T. Rodriguez
Published
     The appellant was convicted by a jury of interference with public duties, a Class B misdemeanor and sentenced by the trial court to one day in jail. The appellate court found that the state presented ample evidence that the appellant also engaged in physical conduct that interfered with a public officer’s, a police officer’s, duties. Therefore, there was no statutory or constitutional bar or prohibition against the appellant’s prosecution or conviction. Further, the court noted that even when requested, submitting a speech only instruction was not appropriate in every case in which the defendant was charged with interference with public duties. A trial court may properly reject the defendant’s request for a speech only instruction when the evidence did not support submission of the instruction. Furthermore, the court concluded that a speech only instruction relates to a discretionary defensive issue one which a trial court was not required to give absent a request from defense counsel and only then if the evidence supports the request. As such, the holding in Carney v. State, 31 S.W.3d 392, 396 (2000) reaffirmed the court earlier conclusion that the speech only provision relates to a defensive issue and that the trial court was not required to give an instruction on that provision absent a request from defense counsel. Finding no error in the jury charge, the court therefore decline to conduct a harm analysis. Accordingly, the trial court’s judgment was affirmed.
casemaker


Appellant had not established his trial counsel rendered ineffective assistance by failing to call witnesses during punishment phase of his trial; however, trial court improperly assessed court costs against appellant for both offense convictions in the single criminal action
Robinson v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
January 19, 2017
01-15-00808-CR
Evelyn V. Keyes
Published
     A jury convicted the appellant of the first-degree felony offenses of aggravated kidnapping and aggravated sexual assault. After the appellant pleaded true to the allegations in an enhancement paragraph, the trial court assessed his punishment at forty-five years’ confinement for both offenses, to run concurrently. The appellate court found that the record in the instant case, however, did not establish either of the elements. The court therefore concluded that the appellant had not established that his trial counsel rendered ineffective assistance by failing to call witnesses during the punishment phase of his trial. Further, because the appellant did not support his motion for new trial with any affidavits specifically setting out the factual basis for his claims, he was not entitled to a hearing on his motion. The court therefore held that the trial court did not abuse its discretion by failing to hold a hearing on the appellant’s motion for new trial. Furthermore, Code of Criminal Procedure Article 102.073 provided that when a defendant was convicted of two or more offenses in a single criminal action, the trial court “may assess each court cost or fee only once against the defendant.” The court agreed with the parties that the trial court erred in assessing those costs against the appellant for both offenses. Accordingly, the court affirmed the aggravated sexual assault conviction and modified the judgment resulting from the appellant’s conviction for aggravated kidnapping and affirmed as modified.
casemaker


In the absence of any evidence the manufactured home was real property, the County Court at Law did not have subject matter jurisdiction on appellant’s forcible detainer action to evict the appellee
Segoviano v. Guerra
Appellate: Civil, Contracts, Landlord and Tenant, Procedure, Real Property
Texas 8th Court of Appeals
January 13, 2017
08-15-00190-CV
Yvonne T. Rodriguez
Published
     The appellant filed a petition in the justice court for eviction of the appellee on the ground she was a trespasser. Following a hearing, the justice court dismissed the case for lack of jurisdiction and the appellant filed a notice of appeal to the County Court at Law. The appellee filed a motion to dismiss the appeal for lack of jurisdiction asserting that there was no landlord tenant relationship between the parties and she had entered into a contract with the appellants assuming a promissory note for the purchase of the mobile home. She filed suit against the appellants alleging breach of contract. In response to the appellee motion to dismiss, the County Court at Law granted the appellee motion to dismiss. The appellate court found that the appellant presented evidence to the County Court at Law showing that he and his wife have paid personal property taxes on the manufactured home each year from 2005 to 2015. These records reflect that the manufactured home had a personal property serial number. In the absence of any evidence that the manufactured home was real property, the County Court at Law did not have subject matter jurisdiction of the forcible detainer action. Therefore, the trial court did not err by dismissing the forcible detainer action for lack of jurisdiction. Accordingly, the judgment of the trial court's was affirmed.
casemaker


Trial court abused its discretion in denying Appellant’s request for self-representation in her jury trial for criminal solicitation of capital murder
Lathem v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
January 12, 2017
02-15-00228-CR
Kerry FitzGerald
Published
     A jury convicted the appellant of six counts of criminal solicitation of capital murder and assessed her punishment at fifty years’ confinement on each count. The trial court sentenced her accordingly. The appellate court concluded that the trial court abused its discretion in denying Appellant’s request for self-representation. The trial court was, therefore, bound to admonish her of the dangers and disadvantages of self-representation in order to determine that her request was made knowingly, intelligently, and voluntarily. It was incumbent upon the trial court to ensure that if the appellant persisted in her request, she would be afforded her constitutional right of self-representation. Further, the court concluded that the state’s argument that the overwhelming evidence rendered the error harmless lacks any merit. Therefore, the judgment of the trial court was reversed and the case was remanded.
casemaker


Jury charge submitted by the district court violated appellant’s double-jeopardy guarantee against multiple punishments for the same offense, where individual acts of abuse alleged were lesser-included offenses of the greater offense of continuous sexual abuse
Weber v. State
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
January 12, 2017
03-16-00338-CR
David Puryear
Published
     The appellant was charged with five counts of aggravated sexual assault of a child, with one count of continuous sexual abuse of a child, and with two counts of indecency with a child by exposure. The jury found the appellant guilty of the first two aggravated-sexual-assault counts, of the continuous-sexual-abuse count, and of the two indecency-by-exposure counts. At the end of the punishment phase of the trial, the jury recommended that the appellant be sentenced to 70 years’ imprisonment for both of the aggravated-sexual-assault convictions as well as the continuous-sexual abuse conviction and that he be sentenced to 10 years’ imprisonment for each of the indecency convictions, and the trial court rendered its judgments of conviction in accordance with the jury’s verdicts. The appellate court found that the appellant was given the same sentence for his aggravated-sexual-assault convictions as he was for his continuous-sexual-abuse conviction, as discussed earlier, the court of criminal appeals had explained that the individual acts of abuse alleged as part of the offense of continuous sexual abuse, including aggravated sexual assault, were lesser-included offenses of the greater offense of continuous sexual abuse. In light of that characterization, the court concluded that the appellant's conviction for continuous sexual abuse was the more serious offense. That conclusion was further buttressed by the fact that no conviction for continuous sexual abuse was eligible for parole whereas certain types of aggravated-sexual-assault convictions were eligible for parole. Thus, the court believed that the proper remedy was to vacate the appellant's two convictions for aggravated sexual assault and to uphold his conviction for continuous sexual abuse. Accordingly, the court reversed and vacated the appellant's convictions for aggravated sexual assault and affirmed the remainder of his convictions.
casemaker


Appellant company failed to show trial court abused its discretion when it admitted appellee’s medical records and bills to show causation for the motor-vehicle accident, and jury’s award for past medical expenses, pain and suffering and lost earning capacity was not contrary to the evidence
Hospadales v. McCoy
Appellate: Civil, Damages, Litigation: Personal Injury, Torts
Texas 1st Court of Appeals
January 12, 2017
01-16-00239-CV
Laura Carter Higley
Published
     In the instant motor-vehicle-accident case, the appellants appealed a judgment based on a jury verdict, awarding the appellee damages for past medical expenses, past lost earning capacity, and past pain and suffering, totaling $292,000. The appellate court found that in the instant case, in support of his causation opinion, orthopedic surgeon’s testimony showed that he relied on the appellee’s report regarding his past and present symptoms and on the appellee’s past and present medical records, including the past and present MRIs. The Court therefore held that orthopedic surgeon’s causation testimony was legally sufficient, and sufficiently reliable to support the jury’s negligence finding. And, the trial court’s decision not to hold a separate evidentiary hearing did not result in the rendition of an improper judgment nor did it prevent the appellant company from properly presenting the case on appeal. Further, as discussed, the appellant offered sufficient evidence to establish causation. Thus, the appellant company had failed to show on appeal that the trial court abused its discretion when it admitted the appellee’s medical records and bills. Furthermore, the court concluded that the jury’s award of $92,000 for past medical expenses was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. And concluded that the evidence was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust to support the award of $160,000 in damages for past pain and suffering. Lastly, the court concluded that the evidence would enable reasonable and fair-minded people to award $40,000 in past lost earning capacity damages. Accordingly, the court affirmed the trial court’s judgment.
casemaker


Trial court properly denied the City's plea to the jurisdiction of the time-limits election ballot measure contest by the contestants/appellees that alleged the appellees had failed to invoke the trial court's jurisdiction over the election contest or over the City
City Of Houston v. Bryant
Appellate: Civil, Election, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
January 12, 2017
01-16-00273-CV
Evelyn V. Keyes
Published
     In the instant election contest, contestants/the appellees, challenge a ballot measure concerning term limits for the appellant city elective offices. Following the November 3, 2015 election in which Houston voters approved a measure increasing term limits, the appellee filed the instant election contest, the second appellee intervened, and contestees/the appellants, filed a plea to the jurisdiction asserting that the appellee and the second appellee had failed to invoke the trial court’s jurisdiction over the election contest or over the appellants. The appellants relied primarily on Texas Election Code section 233.008, titled Return of Unserved Citation. The trial court denied the appellants’ plea. The appellate court rejected the appellants’ arguments that the trial court never acquired jurisdiction over the appellee’s election contest under section 233.008 and that section 233.008 did not permit an unserved petition to be reissued after the twenty-day period for serving the citation or returning it unserved had expired. Further, the case relied on by the appellants, Horine v. Kellam,123 S.W.2d 439, 439–40 (Tex. Civ. App.—San Antonio 1938, no writ) was distinguishable. In Horine, the court applied the predecessor to the current Election Code, which the appellate court had already held was materially different from the current version. Thus, the trial court had jurisdiction over the second appellee’s intervention in the instant case. Accordingly, the court affirmed the order of the trial court.
casemaker


Neither first nor second appellant contested appellee's assertion that the Agreement satisfied Rule 11, and because appellants challenge to the motion to compel attacked enforceability of the entire Agreement, trial court did not err in submitting the issue of arbitrability to the arbitrator
Human Biostar, Inc. v. Celltex Therapeutics Corporation
ADR, Appellate: Civil, Contracts, Corporations, Torts
Texas 14th Court of Appeals
January 19, 2017
14-15-00234-CV
John Donovan
Published
     Following mediation of the underlying dispute in the case, a Rule 11 of the Texas Rules of Civil Procedure settlement agreement (“the Agreement”), containing a provision to arbitrate “any disagreement resulting from negotiation and completion of this documentation,” was entered into between the appellee Corporation, the appellant companies and the park. The Agreement was made pursuant to Rule 11. Neither the first appellant nor the second appellant contest the appellee's assertion that the Agreement satisfied the requirements of Rule 11. The appellee's motion to compel arbitration was granted by the trial court. The trial court entered an order confirming the arbitration award. The second appellant filed a notice of restricted appeal and the first appellant filed a notice of appeal from that order. The appellate court found that the second appellant filed a notice of appeal within the time permitted by Rule 26.1(a) and therefore failed to meet the requirements of a restricted appeal. Thus, the court considered the second appellant's appeal without applying the strictures of a restricted appeal. Because the second appellant did, however, timely filed a notice of appeal that did not lack the requisite information, the court's jurisdiction had been invoked. Further, because the appellants challenge to the motion to compel attacked the enforceability of the entire Agreement, the trial court did not err in submitting the issue of arbitrability to the arbitrator. Furthermore, the record reflected that although the first appellant filed objections to the arbitrator’s award the day before the hearing on the motion to confirm the arbitration award, at the hearing the first appellant made no argument to the trial court regarding any lack of notice to the second appellant. Lastly, having overruled all the issues presented by both the appellants, the orders of the trial court were affirmed and the appellee’s motion was denied.  
casemaker


Appellant’s statement did not stem from interrogation because officer’s conduct of showing appellant the cocaine was not reasonably likely to elicit an incriminating response, and lack of Miranda warnings did require suppression of appellant’s statement
Joseph v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
January 19, 2017
14-15-00965-CR
Ken Wise
Published
     A jury found appellant guilty of possessing a controlled substance cocaine weighing less than one gram. The appellant challenged his conviction in a single issue, contending that the trial court erred by denying a motion to suppress his statement to police. The appellate court concluded that the appellant was not being interrogated when a police officer showed the appellant a baggie of cocaine in response to the appellant’s question, reviewing the issue de novo, the court agreed with the trial court’s ruling that there was no interrogation because the officer’s conduct of showing appellant the cocaine was not reasonably likely to elicit an incriminating response. Because the appellant’s statement did not stem from interrogation, the lack of Miranda warnings complying with Article 38.22 did not require the suppression of the appellant’s statement. Therefore, the trial court did not err by denying the motion to suppress on the basis. The trial court’s judgment was affirmed.
casemaker


Appellee established the requirements for expunction of her criminal record, except for requirement that presentment of charges was made because of mistake, or false information indicating absence of probable cause at the time of the dismissal, but that error was excused
Ex parte Smirl
Appellate: Civil, Civil Rights, Courts, Criminal, Gov't/Administrative, Procedure
Texas 7th Court of Appeals
January 12, 2017
07-16-00055-CV
Patrick A. Pirtle
Published
     Appellant, the State of Texas, brought the instant appeal challenging the trial court’s order granting the Petition for Expunction of Records filed by the appellee. The appellate court found that given the fact that the legislative intent behind the 2011 amendments to article 55.01 of the Texas Code of Criminal Procedure was to make expunctions available in cases involving a wrongful arrest, the Court Concluded the appellee established all the mandatory requirements of article 55.01(a)(2)(A)(ii). As such, the trial court did not abuse its discretion in ordering expunction of her criminal record. The State’s sole issue was overruled. Accordingly, the judgment was affirmed.
casemaker


By failing to request the submission of a jury issue regarding the award of reasonable and necessary attorney fees, the first appellee waived its right to recovery on appellants’ misrepresentation claim, in which they received a take-nothing judgment
Knoderer v. State Farm Lloyds
Appellate: Civil, Damages, Insurance, Torts
Texas 6th Court of Appeals
January 13, 2017
06-16-00009-CV
Bailey C. Moseley
Published
     The appellants home sustained extensive water damage resulting from the separation of a water pipe from its fitting. The appellate court reversed the trial court’s death penalty sanctions assessed against the appellants and remanded the cause for further proceedings in a prior opinion. On remand, the trial court assessed lesser sanctions against the first appellant in the amount of $333,157.57, being the attorney fees, expert fees, and costs incurred by the first appellee related to the first appellant's sanctionable actions. Thereafter, a lengthy jury trial ensued on the appellants misrepresentation claim against the first and second appellee brought pursuant to the Insurance Code. After exhausting the administrative remedies, the trial court entered a take-nothing judgment against the appellants on their claims against the first appellee, awarded the appellee an additional $353,036.75 in attorney fees under Section 541.153 of the Insurance Code, reaffirmed its order awarding lesser sanctions, and awarded the first appellee appellate attorney fees and costs of court. The appellate court found that the trial court did not abuse its discretion in its assessment of lesser sanctions against the first appellant. Further, based on the entire record, the court could not say that the spoliation instruction given by the trial court probably caused the rendition of an improper verdict. Therefore, the court found that the trial court’s error in submitting the spoliation evidence was harmless. Furthermore, the appellants' objection and motion to exclude the expert's testimony asserted after the conclusion of his direct testimony were untimely and did not preserve the complaint for the court's review. Lastly, by failing to request the submission of a jury issue regarding the award of reasonable and necessary attorney fees, the first appellee waived its right to recovery. Therefore, the court found that the trial court erred in awarding the first appellee attorney fees under Section 541.153. Accordingly, the court modified the trial court’s judgment to delete the award of attorney fees to the first appellee under Section 541.153 and affirmed the trial court’s judgment, as modified.  
casemaker


Due process requirement of unanimity on the essential elements of the offense of using a motor vehicle as a deadly weapon was not violated by allowing the jury to choose any of the disjunctive listed traffic violations as the act clearly dangerous to human life that caused the victim’s death
Munoz v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
January 04, 2017
04-15-00492-CR
Rebeca C. Martinez
Published
     The jury found the appellant guilty of felony murder, with an affirmative finding that the motor vehicle was used as a deadly weapon. The appellant pled true to the state’s enhancement allegation based on a prior felony conviction, which increased the punishment range to 15 to 99 years, or life, imprisonment. The trial court sentenced the appellant to life imprisonment. The appellate court concluded that the due process requirement of unanimity on the essential elements of the offense was not violated by allowing the jury to choose any of the disjunctive listed traffic violations as the act clearly dangerous to human life that caused the victim’s death. Finally, there was testimony that after the crash the appellant was observed reaching for a gun and that heroin was found in his car. The appellant was also on probation at the time. The evidence supported a reasonable inference that the appellant intended to evade arrest or detention and intended to flee from the police officers who were chasing his vehicle in their marked patrol units with lights flashing. Therefore, the court concluded the evidence was sufficient to establish that the appellant intentionally fled from a person he knew was a police officer who was attempting to lawfully arrest or detain him. Accordingly, the trial court’s judgment was affirmed.
casemaker


Because the trial court had yet to enter an order that granted or denied the appellants’ jurisdictional challenge, the court of appeals lacked subject matter jurisdiction over the interlocutory appeal
West Travis County Public Utility Agency v. CCNG Development Co., L.P.
Appellate: Civil, Contracts, Gov't/Administrative, Oil, Gas, & Mineral, Procedure
Texas 3rd Court of Appeals
January 04, 2017
03-16-00521-CV
Scott K. Field
Published
     The appellee company sued the appellants seeking damages for alleged breaches of a utility agreement, along with related declaratory and injunctive relief. The appellee then timely filed a motion for new trial and motion to reinstate the case asserting that it had not received notice of the court’s intent to dismiss the case as required by the local rules. The trial court granted the appellee’s motion for new trial and motion to reinstate and reinstated the case on the court’s active docket. The appellants then filed a notice of interlocutory appeal of the trial court’s order reinstating the case. The appellee filed a motion to dismiss the interlocutory appeal. The appellate court found that it was a fundamental precept that a court must not proceed to the merits of a case until legitimate challenges to its jurisdiction have been decided. In the instant case, the trial court exercised its discretion to defer its decision on the appellants’ jurisdictional challenge and to reinstate the case for further development. Because the trial court had yet to enter an order that granted or denied the appellants jurisdictional challenge, the Court lacked subject matter jurisdiction over the interlocutory appeal. Accordingly, the Court granted the appellee’s motion to dismiss and dismissed the appeal.
casemaker


Trial court must determine whether plaintiffs alleged a premises defect for which governmental immunity was waived by defendant water authority, but plaintiffs’ other allegations about the premises were relevant only to the negligent design of the dam, a discretionary governmental function
Tarrant Regional Water District v. Johnson
Appellate: Civil, Gov't/Administrative, Procedure, Torts
Texas 2nd Court of Appeals
December 30, 2016
02-16-00043-CV
Terrie Livingston
Published
     The instant was an interlocutory appeal from the denial of a plea to the jurisdiction based on alleged governmental immunity. In a single issue, the appellant district contended that the trial court erred by denying its plea to the jurisdiction because the Texas Tort Claims Act (TTCA) did not waive its immunity from suit on the claims brought by the appellee. The appellate court concluded and held that they did not allege a special defect. Thus, the court must address the appellant's final argument regarding whether the deceased daughter alleged a premises defect claim for which immunity was waived under section 101.021. But the court sustained its issue as to the appellee complaints about the remainder of the premises, including that the appellant should have filled in the scour hole during the 2002 redesign and 2003 rebuild of Dam No. 2 to a depth of only three feet below the kayak chute. Having overruled the appellant's sole issue in part, the court affirmed the trial court’s order denying the appellant’s plea to the jurisdiction in part as set forth in the opinion. But having sustained its issue in part as to some of the appellees’ claims as detailed, the court reversed the trial court’s order as to those claims and rendered a judgment of dismissal of those claims only.
casemaker


Evidence showed appellant premeditated the murder of his former girlfriend and his baby child and destroyed evidence by arson; appellant did not have a reasonable expectation of privacy in cell phone tower records, and his act of trying to obtain a gun and silencer was probative of his intent
Olivas v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
December 30, 2016
02-14-00412-CR
Kerry FitzGerald
Published
     The appellant appealed his conviction for capital murder. The trial court sentenced the appellant to life in prison. The appellate court found that viewing the evidence in the light most favorable to the jury’s verdict, and taking the reasonable inferences from that evidence, the evidence showed that the appellant stabbed the mother to death and then set fire either to the baby directly using gasoline or using gasoline to set a fire immediately around his bed, and thus killed him by burning him to death. Further, the reasonable inference from the evidence was that the appellant was in the mother’s apartment and that he attempted to create an alibi by sending the text minutes after he had committed the murders and set the fire. Next, it was the jury’s province to rectify the conflicting evidence and the reasonable inferences from the evidence, and the court must presume that the jury resolved this conflict in favor of its verdict. Further, testimony from investigators revealed that because of the fire, it was expected that DNA would not be found. Furthermore, a reasonable inference from the evidence was that the appellant desired that the mother and baby be gone because he loathed them and that the appellant believed that he would not have to pay child support if both of them were dead. Also, set fire either to the baby directly using gasoline or used gasoline to set a fire immediately around the baby’s bed, and thus killed him by burning him to death. Next, the court held that the State in the instant case, when they obtained the historical records from a third party concerning the appellant’s cellphone usage for the time in question, did not violate either the Fourth Amendment of the United States Constitution or Article I, Section 9 of the Texas Constitution. Finally, the trial court did not abuse its discretion in regards to its Tex. R. Evid. 403 ruling regarding the individual's testimony. Accordingly, the court affirmed the trial court’s judgment.
casemaekr


Trial court erred when it concluded that the law supplied a term in the 1906 instrument that the appellants’ alleged obligations must be performed within a reasonable time, that a reasonable time for performance had passed, and that the mineral interest therefore reverted to the appellees
Richardson v. Mills
Appellate: Civil, Contracts, Oil, Gas, & Mineral, Real Property
Texas 12th Court of Appeals
December 30, 2016
12-15-00170-CV
James T. Worthen
Published
     The appellate court withdrew its prior opinion and judgment filed on October 5, 2016 and substituted it with instant opinion and a corresponding judgment in their place. For years, the appellees had received royalty payments for one-half of the oil, gas, and other minerals of the subject property. When those royalty payments abruptly stopped in October 2010, the appellees filed suit against the appellants, seeking to have the payments resumed. The appellees’ dispute with the appellants revolves around the construction of two instruments. The trial court signed a judgment that the appellees take one-half of the oil, gas, and other minerals under the subject property and that the appellants take nothing. The appellants filed a motion for new trial, which was overruled by operation of law. The appellate court held that the 1906 instrument was an unambiguous mineral deed by which the appellees predecessors conveyed a one-half interest in the minerals under the subject property to the appellants. The court likewise held that the trial court erred in concluding that the 1906 instrument was an executory contract. Moreover, the court held that the trial court erred when it concluded that the law supplied a term in the 1906 instrument that the appellants’ alleged obligations must be performed within a reasonable time, that a reasonable time for performance had passed, and that the mineral interest therefore reverted to the appellees. Further, the court held that the 1908 release was unambiguous and that it did not have a connection to the 1906 mineral deed. Thus, the trial court erred in determining otherwise and considering extrinsic evidence to construe the instruments. Accordingly, the court reversed the trial court’s judgment and rendered judgment that the appellees take nothing.
casemaker


Appellant had not established that counsel was ineffective for failing to object to the single instance of unintended testimony
Ferreira v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 29, 2016
14-15-00767-CR
Sharon McCally
Published
     A jury convicted the appellant of aggravated robbery. The trial court sentenced the appellant to 35 years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. The appellate court found that the court indulged a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. On the silent record, the court could not conclude that counsel’s inaction was so outrageous that no competent attorney would have engaged in it. Therefore, the appellant had not established that the instant counsel was ineffective for failing to object to the single instance of unintended testimony.
casemaker


U.S. v. Salerno, 481 U.S. 739 (1987) did not establish a clear and convincing evidence for pretrial bail, nor did it mandate that a trial court determine that additional bond conditions would not adequately protect the safety of the community before imposing them on appellant
Ex parte Shires
Constitution, Courts, Criminal, Evidence, Gov't/Administrative, Procedure
Texas 2nd Court of Appeals
December 29, 2016
02-16-00348-CR
Bonnie Sudderth
Published
     Appellant was indicted on four counts of sexual offenses against a minor. Appellant filed a petition for writ of habeas of corpus, which was denied by written order of the trial court. The appellate court found that the trial court was presented with evidence and argument by the appellant’s counsel suggesting that an additional bond condition—requiring the appellant to wear a SCRAM device to monitor his alcohol intake—could reasonably assure the safety of the community, and the trial court noted that it received that evidence. The Court may imply that the trial court found that the use of a SCRAM device did not reasonably assure the safety of the victim or the community. As the legislature noted in proposing section 11b, detainment offered protection “in a way that a bail bond, community monitoring, or even electronic monitoring never could.” Further, because United States v. Salerno, 481 U.S. 739, 746–52, 107 S. Ct. 2095, 2101–104 (1987) merely evaluated the express terms of the BRA, a federal statute, and dealt only with restrictions regarding an accused’s right to bail at the initial outset of criminal proceedings, the Court declined the appellant’s invitation to extend Salerno to impose such requirements on Section 11b of the Texas Constitution. Appellant had not met his burden to show that section 11b was facially unconstitutional. Accordingly, the Court affirmed the judgment of the trial court.
casemaker


Because the assistance of a law enforcement officer to conduct DWI sobriety tests at the traffic stop of the appellant was necessary, the twenty-one minutes spent awaiting his arrival served legitimate law enforcement purposes, and the delay was not unreasonable under the Fourth Amendment
Cagle v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
December 29, 2016
06-16-00028-CR
Josh R. Morriss III
Published
     After denying his motion to suppress, the trial court received the appellant’s plea of no contest to the driving while intoxicated (DWI) charge and found him guilty. The appellant appealed the denial of his motion to suppress. The appellate court found that because the assistance of a law enforcement officer to conduct DWI sobriety tests in that situation was necessary, the twenty-one minutes spent awaiting his arrival served legitimate law enforcement purposes. Further, the court found that, given the totality of the circumstances and balancing the public interest served against the appellant’s right to be free from arbitrary detention, the twenty-one-minute delay was not unreasonable under the Fourth Amendment. Viewing the evidence in the light most favorable to the trial court’s ruling, further the court held that the trial court did not err in denying the appellant’s motion to suppress all evidence obtained as a result of the detention. Accordingly, the court affirmed the trial court’s judgment.
casemaker


Evidence supported jury’s verdict of medical abuse by appellant against her daughter, appellant pediatric nurse’s Facebook posts were probative of state’s harm-causing theories, and appellant did not allege that she was in custody when she made statements to court-appointed guardian ad litem
Ripstra v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 29, 2016
14-15-00842-CR
Martha Jamison Hill
Published
     The appellant was charged with two felony offenses of intentionally or knowingly causing serious bodily injury to a child. After the jury found her guilty, it assessed punishment at 20 years’ confinement for each offense, to run concurrently. The appellate court found that viewing the evidence in the light most favorable to the jury’s verdict, the court concluded that the jury’s finding that appellant caused serious bodily injury to Rachel by introducing sodium into her body and the jury’s rejection of the appellant’s misdiagnosis and over-medicalization theories were supported by legally sufficient evidence. Further, the trial court did not err in denying her motion to suppress and the trial court reasonably could have concluded that the probative value of the proffered evidence was substantially outweighed by a danger that the jury would have been confused or distracted from the main issue in the instant case whether, under those facts, the appellant medically abused the appellant's daughter. Accordingly, the court affirmed the judgment of the trial court.
casemaker


Insurer constructively delivered funds for insurance claims to insured by delivering a check to the insured’s attorney, and even though the attorney converted the check without insured’s indorsement and retained the funds, insurer was not liable under Prompt Payment provisions to insured
Gusma Properties v. The Travelers Lloyds Insurance Co.
Appellate: Civil, Banking and Finance, Insurance, Litigation: Commercial
Texas 14th Court of Appeals
December 29, 2016
14-15-00892-CV
Sharon McCally
Published
     The appellants challenged the trial court’s granted of summary judgment in favor of the appellee corporation on the appellants’ claim under the Texas Insurance Code’s prompt payment provisions and denial of the appellants amended motion for partial summary judgment. The appellate court found that the agency principles arising from the facts of the instant case were entirely consistent with section 3.309 of the Texas UCC and therefore supplementary. Having determined that traditional agency principles were not displaced by section 3.309, the court turned to the question of delay in payment under the Prompt Payment provisions. Moreover, the court was to construe the Prompt Payment provisions liberally to promote the underlying statutory policy favoring prompt payment of claims. However, drawing the check as Travelers did served to protect insureds in the appellants’ position by requiring their indorsements before proper negotiation. Accordingly, the trial court's judgment was affirmed.
casemaker


State failed to show that securing a warrant before obtaining the blood draw from appellant would have been too difficult, time-consuming, or labor-intensive under the circumstances, and given jury’s preoccupation with the blood draw, admission of that evidence was reversible error
Colura v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 29, 2016
01-15-01013-CR
Jane Bland
Published
     The appellant was charged with driving while intoxicated—felony enhanced. A jury found him guilty, and the trial court assessed a probated sentence of ten years, requiring 280 community-service hours and other conditions, and suspended the appellant’s driver’s license for two years. The appellate court found that in the instant court, the record did not contain any explanation for the failure to obtain a warrant or that any anticipated delay would have jeopardized the ability to obtain evidence of intoxication. The Court therefore held that the State failed to bear its burden to show that securing a warrant before obtaining the blood draw from the appellant would have been too difficult, time-consuming, or labor-intensive under the circumstances. None of the grounds urged by the State supported admission of the blood draw evidence. The Court therefore held that the trial court erred in denying the appellant’s motion to suppress. Further, the jury instruction incorporated both alternative methods for proving intoxication. The jury’s questions during deliberations, however, show a focus on the blood draw evidence. The jury sent out three questions and requests, all pertaining to the blood sample. On the record, the Court could not say beyond a reasonable doubt that the erroneously admitted blood draw evidence did not contribute to the appellant’s conviction. Accordingly, the judgment was reversed and remanded.
casemaker


Though trial court could have credited witnesses’ accounts that anyone associated with appellant’s case, having been indicted for murder, could potentially be in danger from appellant or his family connections, $500,000 was an excessive bail amount for the sole charged offense of stalking
Ex parte Irsan
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 29, 2016
01-16-00315-CR
Evelyn V. Keyes
Published
     The appellant was charged with the third-degree felony offense of stalking. After the trial court initially denied bail, the appellant filed an application for a writ of habeas corpus and requested that a reasonable bond be set. The appellate court found that the trial court could have credited the first twin brother's and FBI Agent's testimony and determined that anyone connected with the appellant’s case, including the appellant sister, first twin brother, the officers who had met with her, prosecutors, and courtroom personnel could potentially be in danger from the appellant or her family connections. That factor therefore also weighed in favor of a high bond. Further, the court concluded that $500,000 was an excessive bail amount for the sole charged offense of stalking in the instant case and the court remanded the case to the trial court to set a reasonable bail, to determine what conditions, if any, to impose on the appellant, and to allow both parties the opportunity to present any further evidence relevant to the amount of bail. Accordingly, the court reversed the trial court’s judgment setting bail at $500,000 and remanded the instant case to the trial court.
casemaker


Rational jury could have found appellant intentionally or knowingly caused victim’s death, because, while there was some evidence that he was not trying to kill the victim, there is no evidence from which the jury could infer that appellant did not intend to shoot and seriously injure the victim
Braughton v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 29, 2016
01-15-00393-CR
Harvey Brown
Published
     A jury found the appellant guilty of murder and assessed his punishment at 20 years’ confinement. The appellate court viewing the evidence in the light most favorable to the jury’s finding, concluded that a rational jury could have found that the appellant intentionally or knowingly caused the victim’s death. The evidence was thus legally sufficient to support the jury’s finding that the appellant acted with the required mental state to commit murder. The Court must affirm, however, if, “after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt.” Applying those standards, after reviewing all of the evidence, the Court concluded that legally sufficient evidence supported the verdict. Further, while there was some evidence that he was not trying to kill the victim, there is no evidence from which the jury could infer that the appellant did not intend to shoot and seriously injure the victim. The evidence did not support submission of an instruction on deadly conduct, and the trial court therefore did not err by denying the appellant’s request for such an instruction. Accordingly, the Court affirmed the judgment of the trial court.
casemaker


Appellant did not suffer harm from lack of sudden passion instruction; had indicated to friend two days before the homicide that he planned to kill his wife who had been taunting him with text messages and photographs from another individual
Herrera v. State
Criminal
Texas 4th Court of Appeals
December 30, 2016
04-16-00138-CR
Patricia O. Alvarez
Published
The appellant was charged with the murder of his wife. After previously returning a guilty verdict, a jury sentenced the appellant to thirty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. In his sole issue on appeal, appellant contended that the trial court erred in failing to include an instruction on sudden passion. The appellate court found that even viewing all of the evidence in the appellant’s favor, it was unlikely that the jury would have found sudden passion had the trial court included the requested instruction. The record did not support that, based on the trial court’s failure to provide the requested sudden passion instruction, the appellant suffered some harm as required by Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh’g). The overwhelming evidence presented at trial was that the conflict between appellant and his wife had been mounting for weeks. Appellant was convinced she was having an affair and she was clearly taunting him with photographs and text-messages from another individual, the court of appeals explained. And on cross-examination during the sentencing phase, a psychologist--when questioned about testimony that appellant indicated to another individual two days before the homicide that he planned to kill his wife--conceded those statements were inconsistent with sudden passion. Accordingly, the appellate court affirmed the trial court's judgment.
casemaker


Mandamus conditionally granted enforcing forum-selection clause in injured seaman dispute; agreement supported by consideration, execution did not violate collective bargaining terms
In re OSG Ship Management, Inc.
Admiralty & Maritime, Employment, Litigation: Personal Injury, Procedure
Texas 14th Court of Appeals
December 29, 2016
14-16-00240-CV
J Brett Busby
Published
Relator filed a petition for writ of mandamus in the appellate court, seeking enforcement of a forum-selection clause in an agreement it made with one of its seamen after he was injured. The court of appeals conditionally granted the writ, determining that the agreement at issue contained a clause selecting a Florida forum, that it was supported by consideration, and was not invalid under the Federal Employers Liability Act. Further, its execution without the involvement of a union representative did not violate the parties' collective bargaining agreement. 
casemaker


Summary judgment in commercial lease dispute over security deposit reversed; affidavit and voice messages from appellant's employee showed that appellant acted with honest regard for appellee's rights and was prevented from inspecting premises
FP Stores, Inc. v. Tramontina US, Inc.
Landlord and Tenant, Litigation: Commercial
Texas 1st Court of Appeals
December 29, 2016
01-16-00031-CV
Evelyn V. Keyes
Published
Appellant was the former commercial landlord of appellee. The appellee sued the appellant for breach of contract and violation of Texas Property Code section 93.011, alleging that the appellant retained its security deposit in bad faith. The trial court granted summary judgment in favor of the appellee. The appellate court reversed, holding that the appellant presented more than a scintilla of evidence that it acted in good faith, thus precluding summary judgment on the appellee's claim for violation of Property Code section 93.011. Indulging every reasonable inference and resolving any doubts in the appellant's favor, the affidavit and voice messages from an individual who worked for the appellant showed that the appellant acted with an honest regard for the appellee's rights and did not intend to deprive the appellee of its lawfully due refund—that it initially "dropped the ball" and then attempted, in good faith, to inspect the premises, but was prevented from doing so. As such, the appellant also presented more than a scintilla of evidence supporting its affirmative defenses of impossibility, the court of appeals concluded.
casemaker


Trial court properly granted summary judgment on request for declaratory judgment, claims for negligence, defamation, misappropriation of funds, wrongful foreclosure, but erred granting it on claims based on violations of the Texas Uniform Condominium Act
Yeske v. Piazza Del Arte, Inc.
Appellate: Civil, Contracts, Creditor/Debtor, Damages, Real Property, Torts
Texas 14th Court of Appeals
December 22, 2016
14-15-00633-CV
Ken Wise
Published
     To stop a non-judicial foreclosure on his condominium unit, appellant filed a lawsuit against the appellee individuals who served on the board of directors of the condominium’s homeowners association and two corporations. The appellant sought declaratory relief and also asserted numerous claims for damages against the appellees. In a series of interlocutory orders, the trial court ruled in favor of the defendants on all of the appellant’s claims. The trial court then severed the homeowners association’s counterclaims, making the interlocutory orders disposing of the appellant’s claims final. The appellate court concluded that the appellant had pleaded a claim for breach of fiduciary duty against second appellee individual that had a basis in law, and therefore the trial court erred in granting second appellee individual’s Tex. R. Civ. P. 91a motion to dismiss. In the instant case, a summary judgment failed to specify the grounds upon which the trial court relied for its ruling and the appellant does not challenge on appeal the grounds raised in the appellees’ traditional summary judgment motion to defeat the appellant’s defamation claims. And, the appellant failed to point out the evidence that raises a fact issue on each of the elements of the claims challenged in the appellees’ no-evidence summary judgment motion and did not address the claims on appeal. Further, the appellees’ summary judgment motion was not broad enough to encompass the appellant’s Texas Uniform Condominium Act (TUCA) claims other than those related to the appellant’s claim that the Association never existed. Furthermore, the court agreed that the appellant’s statutory claims under the Texas Uniform Condominium Act were so interwoven with the Association’s claims against the appellant for unpaid condominium dues and fees that they involved the same facts and issues and should be tried together. Lastly, the trial court erred in awarding attorney’s fees and expenses to the appellees. Accordingly, the judgment was affirmed in part and reversed and remanded.


Juvenile court's waiver of jurisdiction and transfer order vacated; made only one case-specific finding in support
Bell v. State
Criminal, Juvenile, Procedure
Texas 1st Court of Appeals
December 15, 2016
01-15-00510-CR
Rebeca Huddle
Published
The state filed a petition in a juvenile court alleging that appellant had engaged in delinquent conduct by committing aggravated robbery with a deadly weapon. The juvenile court waived its jurisdiction and transferred the case to criminal trial court, where the appellant pleaded guilty without an agreed recommendation, and the trial court deferred a finding of guilt and placed him on community supervision for six years. The state later filed a motion to adjudicate, alleging that appellant had violated the terms of his supervision. The trial court granted the motion and sentenced the appellant to 20 years' imprisonment. On appeal, his sole issue was that the juvenile court abused its discretion by waiving jurisdiction without making adequate case-specific findings to support its action. The court of appeals agreed, holding that because the juvenile court's only "case-specific" finding regarding the offense was that it was against the person of another, the juvenile court abused its discretion by waiving jurisdiction solely on the basis that the welfare of the community required criminal proceedings because of the seriousness of the offense. Accordingly, the court vacated the juvenile court's transfer order and the criminal trial court's judgment, dismissed the criminal trial court case, and remanded the case to the juvenile court for further proceedings.
casemaker


Complaints about use of victim's closed-circuit testimony in aggravated sexual assault of a child prosecution rejected; no statutory requirement for videotaping, appellant could not show harm from what jury may have seen before actual testimony began
Coulter v. State
Criminal, Evidence
Texas 1st Court of Appeals
December 15, 2016
01-15-00018-CR
Sherry Radack
Published
The jury convicted the appellant of aggravated sexual assault of a child, and the trial court assessed punishment at 35 years' confinement. The victim testified via closed-circuit television. On appeal, the appellant complained about the absence of a videotape of the testimony and what the jury may have seen before the actual testimony began. The court of appeals first observed that there was no statutory requirement for such a videotape. A judge may order at his discretion but it was not compulsory, especially where as here there was no timely request for videotaping from the appellant. Further, the appellate court also found that the appellant had not shown how he had been harmed either by the absence of the moments of activity that occurred just prior to the jury's entrance from the reporter's official record, or by the child's presence on the stand as the jury entered. Based on the record from the abatement hearing, it was unlikely that the jury was able to see the child on the screen as they entered because the screen was behind them, and, even if they did see the child and the prosecutor talking to her, it was unlikely that her presence on the video screen for such a short amount of time was more damaging than her testimony itself, the court of appeals concluded. Accordingly, the trial court's judgment was affirmed.
casemaker


Sufficient evidence of intent to defraud another in forgery prosecution; appellant fled scene before teller returned his documents and lacked any relationship with payor, short time between theft of financial instrument and passage of forged document
Leroy v. State
Banking and Finance, Criminal
Texas 1st Court of Appeals
December 15, 2016
01-15-01054-CR
Michael C. Massengale
Published
A jury convicted the appellant of forgery, and the court assessed punishment at five years in prison. In a single issue on appeal, he contended that the evidence was insufficient to support a finding that he intended to defraud or harm another. The court of appeals noted that the state demonstrated that appellant became irate while waiting for the teller to return his documents, and he left the credit union without his identification, his bank card, or the check in question. From this evidence, the jury could have concluded that appellant had fled the scene, which itself was a suspicious circumstance from which the jury could infer that appellant knew the check was forged. Further, appellant lacked any relationship with the payor, and there was a short time between the theft of the financial instrument and passage of the forged document. These two factors could also establish intent to defraud, the appellate court explained.  Accordingly, the trial court's judgment was affirmed.
casemaker


Challenge to portion of court costs after judgment adjudicating guilt rejected; statute authorized assessment of $50 for serving capias and $5 for arrest without a warrant
Martinez v. State
Criminal
Texas 1st Court of Appeals
December 15, 2016
01-15-00592-CR
Rebeca Huddle
Published
The appellant challenged the trial court's judgment adjudicating his guilt and sentencing him to 20 years' confinement. In his sole issue on appeal, he argued that there was insufficient evidence to support $255 of the $549 in court costs assessed in the judgment. The appellate court found that the record supported the assessment of the challenged fees, reflecting that the appellant was initially arrested pursuant to a warrant, and that issuance of capias was requested with the filing of each of the four motions to adjudicate, corresponding to five instances of serving capias. And the state asserted that the appellant's new law violation formed the basis for an arrest without a warrant. The applicable statute authorized the assessment of $50 for serving capias and $5 for arrests without a warrant, the court of appeals explained. Accordingly, the trial court's judgment was affirmed.
casemaker


Trial court royalty calculation reversed; royalty and gas purchase agreement paragraphs in lease had independent purposes, minimum gas sales price formula provision did not alter gas royalty based on market value at the well provision
Westport Oil & Gas Co., L.P. v. Mecom
Contracts, Damages, Oil, Gas, & Mineral
Texas 4th Court of Appeals
December 14, 2016
04-15-00714-CV
Patricia O. Alvarez
Published
This was an oil and gas lease construction case; its disposition turned on the relationship between the royalty and gas purchase agreement paragraphs. The royalty owners sued the appellant company alleging underpayment of royalties. The trial court construed the lease to determine the applicable royalty. It calculated the royalty owed based on the gas purchase agreement's formula for calculating the minimum sales price, rather than the royalty paragraph’s express provision that the gas royalty owed was a percentage of the market value at the well. Having reviewed the lease and the applicable law, the court of appeals determined that the proper construction was that the royalty owed was a percentage of the market value at the well. The lease was unambiguous, its royalty and gas purchase agreement paragraphs had independent purposes, and paragraph 17’s minimum gas sales price formula did not alter paragraph 3’s gas royalty based on the market value at the well provision, the appellate court explained. Accordingly, the judgment of the trial court was reversed in pertinent part. 
casemaker


On Appellant’s Petition for Discretionary Review, Court of Appeals Affirmed
Bailey v. State
Texas Court of Criminal Appeals
December 14, 2016
PD-1087-15
Opinion by Judge Johnson
Dissent by Judge Alcala

A jury convicted appellant of felony failure to appear/bail jumping because she failed to appear as required for a pretrial court setting. The jury assessed punishment at ten years’ imprisonment and a $10,000 fine. On appeal, appellant asserted ineffective assistance by her trial counsel because he violated the attorney-client privilege by questioning her prior trial counsel about confidential communications with appellant without appellant’s consent. Appellant also alleged that the trial court abused its discretion in overruling her mistrial motion, which was based on a claim of ineffective assistance of counsel for that violation of appellant’s attorney-client privilege. The First Court of Appeals overruled her claims and affirmed the judgment and sentence. Upon reconsideration of its original opinion, it withdrew that opinion and issued an en banc opinion, which also affirmed the trial court’s judgment and sentence. Bailey v. State, 469 S.W.3d 762, 764-65, 780, n.* (Tex. App.–Houston [1 Dist.] 2015) (op. on rehearing) (en banc). We granted appellant’s st petition for discretionary review, which raised five grounds for review.


On Appellant’s Petition for Discretionary Review, Court of Appeals Reversed
Cary v. State
Texas Court of Criminal Appeals
December 14, 2016
PD-1341-14
Opinion by Judge Hervey

Appellant, Stacy Stine Cary, was convicted by a jury of six counts of bribery, one count of money laundering, and one count of engaging in organized criminal activity. Her sentence was probated, but she was ordered to serve 30 days’ confinement as a condition of her probation. A split panel of the Dallas Court of Appeals affirmed her convictions. Cary v. State, No. 05-12-01421-CR, 2014 WL 4261233 (Tex. App.—Dallas Aug. 28, 2014) (not designated for publication). In four grounds, she alleges that the evidence was legally insufficient to support her convictions, and in a fifth ground she argues that the trial court reversibly erred when it excluded certain evidence. Because we sustain her 1 first and fourth grounds, we will reverse and render an acquittal on each count and need not reach the other three grounds for review.


On Appellant’s Petition for Discretionary Review, Court of Appeals Reversed
Bullock v. State
Texas Court of Criminal Appeals
December 14, 2016
PD-1453-15
Opinion by Judge Alcala
Concurring Opinion by Judge Yeary

Henry Richard Bullock, Jr., appellant, was convicted by a jury of the offense of theft of a furniture delivery truck, a third-degree felony. In his sole ground in his petition for discretionary review, appellant contends that the court of appeals erred by upholding the trial court’s decision that had declined his request for a lesser-included-offense jury instruction on attempted theft. We agree with appellant that there is more than a scintilla of evidence in the record from which a rational fact finder could have found that he was guilty only of attempted theft of the truck, rather than theft, and thus the court of appeals erred by concluding that the trial court properly declined to give the lesser-included-offense instruction. We, therefore, reverse the judgment of the court of appeals, and we remand this case to that court for it to consider in the first instance whether the trial court’s failure to give a lesser-included-offense instruction on attempted theft harmed appellant.


On Appellant’s Petition for Discretionary Review, Court of Appeals Affirmed
Cary v. State
Texas Court of Criminal Appeals
December 14, 2016
PD-0445-15
Opinion by Judge Hervey

David Cary was convicted by a jury of six counts of bribery, one count of money laundering, and one count of engaging in organized criminal activity. His punishment was assessed at fourteen years’ confinement on each count to run concurrently with one day credit. He appealed the judgments of conviction, and a unanimous panel of the court of appeals found that there was insufficient evidence to support his convictions, entering an acquittal on each count. David Cary v. State, 460 S.W.3d 731 (Tex. App.—Dallas 2015). The issue in this case is whether the court of appeals misapplied the standard for legal sufficiency. We conclude that it did not, and we will affirm the judgment of the court of appeals.


On Appellant’s Petition for Discretionary Review, Refused
Griffith v. State
Texas Court of Criminal Appeals
December 14, 2016
PD-0445-15
Concurring Opinion by Judge Hervey
Dissenting Opinion by Judge Alcala

Griffith argues that the period during which a defendant can file a motion for new trial in criminal cases is unconstitutional because it does not allow appellate counsel a meaningful opportunity to present ineffective-assistance-of-counsel claims. However, because there are a number of such claims that can be raised in a motion for new trial, and because Griffith did not take every step available to him to raise a meaningful ineffective claim in his case, the Court refused his petition for discretionary review.


 

Appellant was subject to a lawful traffic stop because his vehicle did not have a functioning right brake light, and officers did not unlawfully extend the stop while waiting for a tow truck when they asked for appellant’s consent to the pat-down which revealed his possession of drugs
King v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
December 08, 2016
02-15-00472-CR
Sue S. Walker
Published
     After the denial of the appellant's motion to suppress, the appellant pleaded guilty to possession of a controlled substance of an amount more than four grams but less than two hundred grams and pleaded true to the repeat offender notice. Following a sentencing hearing, the trial court sentenced the appellant to twelve years’ confinement. In two issues, the appellant argued that the trial court erred by denying his motion to suppress. The Appellate Court found that the trial court reviewed a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. The court gave almost total deference to a trial court’s rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but the court review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Further, the appellant was pulled over pursuant to a lawful traffic stop because his vehicle was traveling without a functioning right brake light. Furthermore, officers still had need to control the scene when the officer asked for the appellant’s consent to the pat-down. Namely, the officers were waiting for a tow truck to impound the appellant’s vehicle. Also, the court therefore held that the traffic stop was not improperly extended, and the court overruled the appellant’s first issue. Lastly, because the court overruled the appellant’s first issue relating to his consent to the pat-down, the court need not decide the appellant’s second issue concerning whether officer-safety concerns justified the pat-down. Accordingly, the court affirmed the trial court’s judgment.
casemaker


Defendant was entitled to recover her litigation costs incurred after rejection of her settlement offer by the plaintiff, since the judgment was significantly less favorable, and after offsetting defendant's litigation costs, trial court entered a take-nothing judgment in favor of the defendant
Bobo v. Varughese
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Torts
Texas 6th Court of Appeals
December 09, 2016
06-16-00048-CV
Burgess
Published
     After a four-day trial, a Tarrant County jury returned a verdict in favor of the appellant for $40,358.21 for injuries she received in a motor vehicle accident with the appellee. The appellee filed a motion to modify judgment, and the trial court entered its amended final judgment in which it (1) awarded the appellant $43,823.13, including the damages awarded by the jury, prejudgment interest, and court costs, (2) awarded the appellee $44,857.27 in litigation costs incurred after the appellant rejected her settlement offer made pursuant to Rule 167.2 of the Texas Rules of Civil Procedure, and (3) entered a take-nothing judgment in favor of the appellee after offsetting her litigation costs against the amount of judgment in favor of the appellant. The appellate court found that the trial court incorrectly calculated the amount of prejudgment interest in the instant case. Nevertheless, the amount of prejudgment interest was not relevant under the Rule 167.4(a) comparison. Therefore, the trial court was correct to offset the two amounts and enter a take-nothing judgment in favor of the appellee. Accordingly, the Court affirmed the trial court’s judgment.
casemaker


Appellant, owner of several appellee homeowner association’s condominiums units, failed to pay an assessment for property repairs, breaching his obligations under the declaration and appellee was entitled to levy and collect the insurance deficiency assessment without a vote
Akhtar v. Leawood HOA, Inc.
Appellate: Civil, Contracts, Corporations, Damages, Gov't/Administrative, Insurance, Real Property
Texas 1st Court of Appeals
December 08, 2016
01-15-00694-CV
Rebeca Huddle
Published
     The appellee corporation, the homeowners’ association for the appellee Condominiums, sued the appellant, owner of several appellee Condominiums units, in justice court after the appellant failed to pay an assessment for repairs of the property. The justice of the peace conducted a bench trial and found the appellant liable. The appellant appealed to the county court, which conducted a de novo bench trial and found the appellant liable, awarding the appellee its damages and attorney’s fees. The county court found for the appellee, awarding it $6,120 for the unpaid assessments, costs, and attorney’s fees of $7,500. The appellate court found that the county court did not base its holding on an analysis of Article VI. Further, the county court reasoned that the appellee collected the insurance deficiency assessment in accordance with sections 5.2, 5.3, and 5.4 of the declaration, and the appellant was therefore obligated to pay the assessment. But an erroneous conclusion of law did not require reversal if the county court nonetheless rendered the proper judgment. Furthermore, the court held that legally sufficient evidence supported the county court’s judgment that the appellant breached his obligations under the declaration and that the appellee was entitled to levy and collect the insurance deficiency assessment without a vote. Finally, the court therefore did not reach the appellant’s arguments regarding unjust enrichment. Accordingly, the county court judgment was affirmed.
casemaker


Doctrine of sovereign immunity rendered appellant immune from any remedy pleaded by appellee in her suit for unlawful retaliation for filing a workers’ compensation claim, and may be asserted as an affirmative defense, but it was not properly raised in a plea to jurisdiction
Texas Department of Family And Protective Services v. Mitchell
Appellate: Civil, Damages, Employment, Gov't/Administrative, Procedure, Workers' Compensation
Texas 1st Court of Appeals
December 08, 2016
01-16-00101-CV
Michael C. Massengale
Published
     The appellee filed suit against the appellant department alleging that it fired her in unlawful retaliation for filing a workers’ compensation claim. The appellant filed a consolidated plea to the jurisdiction and motion to dismiss based on the doctrine of sovereign immunity. The trial court denied the plea. The appellate court conclude that Kerrville State Hospital v. Fernandez, 28 S.W.3d 1 (2000) expressly held that the language now codified in Section 501.002(d) did no more than incorporate the Tort Claims Act’s cap on actual damages and its bar on exemplary damages. Further, the court concluded that to the extent the doctrine of sovereign immunity rendered the appellant immune from any particular remedy pleaded by the appellee, its immunity was immunity from liability, not immunity from suit. Therefore, such immunity may be asserted as an affirmative defense, but it was not jurisdictional in nature and was not properly raised in a plea to the jurisdiction. Accordingly, the trial court's order was affirmed.
casemaker


Appellant failed to move to dismiss indictment at the first opportunity, and though counsel objected to denial of separate habeas proceeding, the appellate errors were not preserved in the criminal case, and counsel was not ineffective, since appellant ultimately accepted a plea bargain
Enard v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 08, 2016
14-15-00855-CR
Kem Thompson Frost
Published
     The appellant was charged by indictment with the offense of intentionally or knowingly violating a civil commitment requirement imposed under Texas Health and Safety Code section 841.082 after having been adjudicated and civilly committed as a sexually violent predator under Texas Health and Safety Code Chapter 841. The trial court denied the appellant’s request for habeas corpus relief and the appellant appealed the denial. The trial court then pronounced sentence in each case and signed judgments of conviction, assessing punishment for each offense at two years, with the sentences to run concurrently. The appellate court presumed for the sake of argument that the trial court properly took judicial notice and that the trial court denied an oral motion by appellant to dismiss the indictment on the grounds stated in the habeas-corpus application and the equal protection grounds stated at the hearing. Further, the court could not conclude that the appellant’s counsel’s failure to preserve error as to the appellate complaints was conduct so outrageous that no competent attorney would have engaged in it. However, the appellant did not preserve error as to his appellate challenges, and the court could not conclude that the appellant’s counsel’s failure to preserve error in the trial court constituted ineffective assistance of counsel. Accordingly, the trial court's judgment was affirmed.
casemaker


Appellee’s vague threat to “get” the second-grader, together with her aggressive walking and finger-shaking while chaperoning a school field trip, did not constitute an assault as an objective threat of imminent bodily injury to a person of reasonable sensibility in light of the circumstances
Jones v. Shipley
Appellate: Civil, Education, Torts
Texas 1st Court of Appeals
December 08, 2016
01-16-00046-CV
Rebeca Huddle
Published
     While chaperoning a school field trip, the appellee allegedly rushed toward a second grader, the minor, and shook her finger at him while stating she would get him. The minor’s parents, the appellants sued the appellee for assault by threat of bodily injury. The trial court granted the appellee’s motion to dismiss under Texas Rule of Civil Procedure 91a. The appellate court found that assuming the truth of the appellants’ allegations, the appellee’s vague threat to get the minor together with her aggressive walking and finger-shaking during a school field trip do not constitute an objective threat of imminent bodily injury to a person of reasonable sensibility in light of the circumstances. Because the words and conduct alleged, though unkind, are insufficient to hold the appellee liable for assault by threat, the court held that the trial court correctly dismissed the appellants’ suit under Rule 91a. Accordingly, the court affirmed the trial court’s judgment.
casemaker


Trial testimony established that appellant had “made parole” at the time of the offense and was still on parole throughout trial, and State conceded that the judgment should be modified to delete the provision that the sentence not begin to operate until the earlier sentence ceased
Martinez v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
December 07, 2016
10-16-00217-CR
Al Scoggins
Published
     In the instant appeal the appellant complained that the trial court abused its discretion in ordering the sentence in the instant case to run consecutive to a prior sentence in which the appellant was on parole and the assessment of court costs violates his equal protection rights in light of the Texas Supreme Court’s recent pronouncement in Campbell v. Wilder, 487 S.W.3d 146, 152 (2016). The appellate court found that the trial testimony established that the appellant had “made parole” at the time of the offense and was still on parole throughout trial, the state concedes that the judgment should be modified accordingly to delete the provision that the sentence not begin to operate until the sentence in 2011-2033-C2 ceased to operate.” After the court review of the record, the court agreed that the judgment should be modified. Thus, the court sustained the appellant’s first issue and modified the trial court’s judgment to delete the provision ordering the sentence in the instant case to run consecutively with the sentence imposed in cause number 2011-2033-C2. Therefore, the court could not say that the appellant met his burden in showing that he was denied equal protection of the law through the assessment of court costs upon his conviction. Accordingly, the court modified the trial court’s cumulation order and affirmed the judgment as modified.
casemaker


Judgments of conviction, appellant testifying he had been incarcerated for aggravated assault and aggravated robbery, and witnesses’ knowledge of the enhancement offenses, was sufficient for fact-finder to conclude appellant was the person who perpetrated the crimes used to enhance his sentence
Henry v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 07, 2016
PD-0511-15
Lawrence E. Meyers
Published
     A jury convicted the appellant, of evading arrest with a motor vehicle. At the punishment stage of trial, the jury found that the appellant was previously convicted of two felony offenses, resulting in an enhanced sentence of sixty years’ imprisonment. The appellate court affirmed the trial court’s judgment. The Texas Court of Criminal Appeals found that the totality of the evidence adduced by the State included the judgments of conviction, the appellant testifying that he had been incarcerated for aggravated assault and aggravated robbery at some point, the doctor testifying to the same, and the appellant’s cousin’s knowledge of the enhancement offenses. While the pieces of evidence may be legally insufficient standing on their own, it was possible for a reasonable finder of fact to conclude that the appellant was convicted of the enhancement offenses. Accordingly, the judgment of the appellate court was affirmed.
casemaker


All of the evidence that was before the trial court before it made its ruling should be available to, and considered by, the reviewing court, and appeal of the denial of appellant’s post-conviction motion for DNA testing was remanded to the court of appeals
Asberry v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 07, 2016
PD-1409-15
Cheryl Johnson
Published
     The appellant was charged with a murder, indicted and convicted by a jury. In preparation for trial, some items of evidence had been subjected to DNA testing. The appellant complained to the court of appeals that the trial court had erred by failing to appoint an expert for an independent examination of the DNA evidence. The appellate court affirmed his conviction and life sentence in 2009 in the first opinion. In his petition for discretionary appeal, appellant argued that the appellate court had improperly required that he file an affidavit from an expert in order for the trial court to approve funds for an independent DNA examination. The court affirmed the appellate court in the second opinion. In 2013, the appellant filed a motion, pursuant to Chapter 64, for retesting of DNA evidence, which was granted by the trial court. The Texas Court of Criminal Appeals found that the instant position conflicted with the decisions of other courts of appeals that had addressed the issue and with the purpose of Chapter 64, which permits comparison of the proof offered at trial with the proof currently available and thus necessitates a review of the prior proceedings. Further, the instant court had also spoken on the issue, acknowledging a policy that allowed for broad discretion in the trial court to consider matters within the knowledge of the trial court in both rulings by the trial court and appellate review. Furthermore, all of the evidence that was before the trial court before it made its ruling should be available to, and considered by, the reviewing court. Accordingly, the court remanded the cause to the appellate court for reconsideration consistent with the opinion.
casemaker


Three-member neutral arbitration panel unanimously declared the meaning of the disputed language of “transportation costs” and “commodity costs” provisions of the Option Agreement and issued an award in appellee’s favor, which award was not an abuse of the panel’s power
Denbury Onshore, LLC v. Texcal Energy South Texas, L.P.
ADR, Appellate: Civil, Contracts, Oil, Gas, & Mineral
Texas 14th Court of Appeals
December 06, 2016
14-15-00439-CV
Marc W. Brown
Published
     The appellant corporation and the appellee corporation began negotiations and, in November 2006, signed an Option Agreement. Pursuant to an arbitration provision in the Option Agreement, the appellee brought a claim in arbitration against the appellant for declaratory judgment. After an evidentiary hearing, the three-member neutral arbitration panel unanimously declared the meaning of the disputed language of the “transportation costs” and the “commodity costs” provisions of the Option Agreement and issued an award in the appellee’s favor. The appellant filed an application to modify and vacated the arbitration award. The appellant challenged the trial court’s judgment confirming an arbitration award in favor of the appellee, and denying the appellant’s motion to vacate or modify the award. The appellate court found that the panel issued a unanimous, 13-page written award, which provided almost four pages of background facts, including details of the parties’ negotiation of the Option Agreement and the exact language of the “Co2 Costs” provision. Further, the award contained the panel’s findings with regard to the meaning of both “commodity costs” and “transportation costs,” with five pages of analysis detailing reasons for its findings. Furthermore, the panel’s arbitration award was not so irrational or devoid of authority that the panel was merely dispensing its own idea of justice and the court could not conclude that the panel exceeded its powers based on the form of its award. Moreover, the court already had determined that the parties did not clearly agree to expanded judicial review of the award for reversible error. Finally, the appellant had not met its burden under the Federal Arbitration Act (FAA) or the Texas General Arbitration Act (TAA) to show that the arbitration panel exceeded its powers by disregarding the Option Agreement and dispensing its own brand of justice. Thus, the court concluded that the trial court did not err in confirming the arbitration panel’s award. Accordingly, the trial court's judgment was affirmed.
casemaker


Appellant had a reasonable expectation of privacy in the text message’s content, and State could not compel turn over of appellant's content-based communications without a warrant supported by probable cause, and trial court erred in failing to suppress the content of Appellant's text messages
Love v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 07, 2016
AP-77,024
Kevin Patrick Yeary
Published
     In July 2013, a jury convicted the appellant of capital murder for the March 28, 2011 murders of two victims during the same criminal transaction. Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced the appellant to death. The Texas Court Of Criminal Appeals found that the review of the improperly admitted text messages showed that the text messages suggested that: the murders were committed to avenge the appellant’s friend’s (the individual) death; appellant was involved in the offense with two of his friends; he believed the individual would have been proud of them; he concealed the murder weapons; he was hiding in McGregor; he attempted to obtain new weapons after the offense; he asked his sister to provide an alibi; and he was proud of what he had done. After a review of the record as a whole, the Court found that the probable impact of the improperly-admitted text messages was great. As the Court could not determine beyond a reasonable doubt that the text messages did not contribute to the jury’s verdict at the guilt phase, the Court held that the error was not harmless. Accordingly, the judgment of the trial court was reversed, and the cause was remanded for a new trial.
casemaker


Plaintiff’s revised tariff for using its ethylene pipeline was discriminatory, and Railroad Commission’s finding of discriminatory, common-carrier rates was not arbitrary and capricious
Westlake Ethylene Pipeline Corporation v. Railroad Commission of Texas And Eastman Chemical Company
Appellate: Civil, Contracts, Gov't/Administrative, Oil, Gas, & Mineral, Transportation
Texas 3rd Court of Appeals
December 07, 2016
03-15-00728-CV
David Puryear
Published
     The appellant owned and operated a pipeline that solely transported liquefied ethylene and ran between Mont Belvieu and Longview, Texas. The first appellee company filed a complaint with the second appellee alleging that the appellant’s new tariff, published and filed with the second appellee in 2013 was discriminatory. The second appellee’s final order rejected the appellant’s 2013 Tariff, concluding that the tariff may not be enforced, and ordered that the appellant publish and file with the second appellee a revised tariff that was not discriminatory and conforms to the tariff attached to the final order as Exhibit A. The appellate court found that the appellant framed the effect of the 2013 Tariff as having a disparate impact on different shippers rather than constituting disparate treatment of them, such distinction was without a difference on the instant record, which supported the second appellee’s reasonable conclusion that the proposed tariff would provide an unreasonable or undue preference to the appellant’s affiliate if permitted to take effect. The evidence as a whole was such that reasonable minds could have reached the conclusion that the second appellee must have reached in order to justify its action. The second appellee’s discrimination findings and conclusions were not affected by any error of law. However, the court concluded previously with respect to the appellant’s third issue, the second appellee had not exceeded its statutory authority by resolving the discrimination complaint in the manner in which it did despite the appellant’s attempt to frame the agency’s decision as one interfering in private contractual matters. Therefore, the appellant’s contention that the second appellee’s order was arbitrary and capricious because it interferes in private contractual matters which the court concluded that the appellant has not identified any of the circumstances under which courts have previously found agency orders to be arbitrary and capricious. Accordingly, the trial court's order was affirmed.
casemaker


Juvenile court transferred appellant to stand trial as an adult because the criteria were met and appellant did not advance any argument to support his claim the juvenile court abused its discretion in transferring him other than his sufficiency challenges
In re H.Y.
Appellate: Civil, Constitution, Courts, Criminal, Gov't/Administrative, Juvenile, Procedure
Texas 1st Court of Appeals
December 06, 2016
01-16-00501-CV
Rebeca Huddle
Published
     The instant was an accelerated appeal from the juvenile court’s second order waiving jurisdiction and transferring the appellant to criminal district court to stand trial as an adult. The appellant was previously transferred, but a panel of the instant Court reversed that order pursuant to Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014), because it did not include the findings required by the Juvenile Justice Code for transfer pursuant to section 54.02(a). Yado v. State, No. 01-14-00578-CR, 2015 WL 3982045, (Tex. App.—Houston [1st Dist.] June 30, 2015, no pet.). On remand, the juvenile court again waived its jurisdiction and certified the appellant, who was at that point over the age of 18, to stand trial as an adult. The appellate court found that the appellant was not actually complaining about the statute’s treatment of children, but rather, the statute’s treatment of those who have reached the age of 18 and were no longer minors and the appellant had not demonstrated that the statute discriminated against a suspect class; accordingly, the court would apply rational basis review. Further, considering all of the evidence presented, the juvenile court’s probable cause finding was not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust and the court hold that the juvenile court’s probable cause finding was supported by legally and factually sufficient evidence. Moreover, the juvenile court’s order indicated that it transferred the appellant because it found that the Juvenile Justice Code section 54.02(j) criteria were met and the appellant did not advance any argument to support his claim that the juvenile court abused its discretion in transferring him other than his sufficiency challenges. Finally, in light of the court's review of the sufficiency of the evidence, the court held that the juvenile court’s decision represented a reasonably principled application of the section 54.02(j) factors and, therefore, was not an abuse of discretion. Accordingly, the court affirmed the juvenile court’s order.
casemaker


It was undisputed appellant timely filed its original petition in district court appealing the Board’s tax-value determination of the appellant’s property, but trial court erred in concluding it lost subject-matter jurisdiction when the appellant filed an amended petition changing the grounds
United Airlines, Inc. v. Harris County Appraisal District
Appellate: Civil, Gov't/Administrative, Real Property, Tax
Texas 14th Court of Appeals
December 06, 2016
14-15-01014-CV
John Donovan
Published
     The instant was an ad valorem tax appeal case in which the appellant challenged the County Appraisal District’s valuation of property owned by the appellant. The appellant exhausted its administrative remedies by protesting the valuation to the appraisal review board. The appellant then sought judicial review by timely filing an appeal of the valuation of the appraisal review board to the district court pursuant to Chapter 42 of the Tax Code. After the appellant amended its petition, the appellee filed a plea to the jurisdiction, which the trial court granted and dismissed the appellant’s case. The appellant contended the trial court retained jurisdiction at all relevant times. The appellant further argued that the trial court abused its discretion by failing to exercise it was plenary power and allow the appellant to cure any alleged jurisdictional defect. Thus, the appellant maintains the trial court erred in granting the appellee’s plea and dismissing the case. The Appellate Court found that a plea to the jurisdiction was a dilatory plea by which a party challenged the court’s authority to determine the subject matter of the action. Further, it was undisputed that the appellant met the jurisdictional requirements in by timely filing its original petition in the district court appealing the Board’s value determination of the appellant’s property as listed in the nine of the appellee account numbers that were attached to the petition. Furthermore, the trial court erred in concluding it lost subject-matter jurisdiction when the appellant filed an amended petition changing the grounds. Also, in the instant regard, the appellant contended that it was an abuse of discretion to dismiss the instant action without considering either the appellant’s motion to withdraw or its second amended petition. The court's disposition on the appellant’s first two issues made it unnecessary to address those contentions. Accordingly, the court reversed the judgment of the trial court and remanded the instant case for proceedings in accordance with the instant court’s opinion.
casemaker


Denial of petition for expunction affirmed; appellant had never been arrested when he was detained at school for possession of a simulated controlled substance, no equal protection violation
Ex parte Enger
Constitution, Criminal, Family, Juvenile
Texas 14th Court of Appeals
December 08, 2016
14-15-00846-CV
John Donovan
Published
This appeal arose from the trial court's order denying a petition for expunction. The appellant contended the trial court erred in construing section 52.01(b) of the Texas Family Code and article 55.01 of the Texas Code of Criminal Procedure to exclude an adult with a juvenile detention record from the remedy of expunction. At the age of sixteen, appellant was detained at school for possession of a simulated controlled substance. In exchange for his removal from school, the matter was dropped. As an adult, a background check and social study report revealed documents regarding the detention. The court of appeals noted that arrest was a threshold requirement under the expunction statute. And for the purposes of the statute, the appellant had never been arrested. Thus, because the appellant did not prove all statutory requirements were satisfied, the court held the trial court did not abuse its discretion in denying his petition for expunction. Further, the appellate court also rejected appellant's claims of an equal protection violation. Appellant's argument was that he was not being treated the same as people who were arrested when they were adults, not that he was being treated differently from others who were detained as juveniles. Because appellant was not claiming that people similarly situated to him were treated differently under the law, there was no equal protection violation, the court of appeals explained. Accordingly, the order of the trial court was affirmed.
casemaker


Dismantlement, removal, and restoration obligations in federal right-of-way were not transferred when appellant owner withdrew from Trans-Alaska Pipeline System Agreement and transferred its interest to appellees, and when obligations accrue must be determined by a court, not arbitrators
Unocal Pipeline Company v. BP Pipelines (Alaska) Inc.
ADR, Appellate: Civil, Contracts, Corporations, Oil, Gas, & Mineral
Texas 1st Court of Appeals
December 08, 2016
01-15-00266-CV
Evelyn V. Keyes
Published
     The appellate court granted the motion for rehearing, withdraw it’s opinion filed on May 17, 2016. The appellant company, filed a suit for declaratory judgment seeking resolution of controversies arising from its withdrawal from the Trans-Alaska Pipeline System and the accompanying System Agreement. The appellant and the appellee companies filed cross-motions for summary judgment regarding interpretation of the transfer provisions in the agreement. The appellate court held that the trial court erred in concluding that the a dismantlement, removal, and restoration requirement (DR&R) obligations contained in the federal right-of-way were not transferred when a withdrawing owner like the appellant withdraws from the System Agreement and transfers its interest to the appellees. DR&R obligations were transferred, but the Net Salvage Value due to the withdrawing party to purchase an interest thus burdened was determined by subtracting the value of the DR&R obligation at the time of the transfer from the gross salvage value of the interest transferred. Further, when the obligation accrues must be considered and determined as a matter of law by a court before the valuation of the withdrawing party’s interest and obligations interests and obligations that would be transferred to the appellees could be completed by the arbitrators. Accordingly, the judgment was reversed, rendered and remanded.
casemaker


Aggravated sexual assault of a child conviction affirmed; sufficient evidence of penetration, three-year delay by a young child in disclosing sexual abuse by a relative did not demonstrate unreliability
Buentello v. State
Criminal, Evidence
Texas 1st Court of Appeals
December 08, 2016
01-15-00834-CR
Harvey Brown
Published
The appellant was convicted of aggravated sexual assault of a child and sentenced to life imprisonment. The court of appeals rejected his contention that there was insufficient evidence of penetration. The victim testified unequivocally that appellant penetrated her. She did not know whether it was his finger, penis, or some other object, but it touched her "on the inside," was "moving around," and "hurt" her. This testimony provided legally-sufficient evidence of penetration, the appellate court held. Further, any of the alleged deficiencies in the testimony—such as whether the victim told the forensic investigator during her interview about the penetration or disclosed additional aspects of the assault at trial that she had not previously mentioned—did not diminish the legal sufficiency of her direct trial testimony on the issue. Finally, a three-year delay by a young child in disclosing sexual abuse by a relative did not, by itself, demonstrate unreliability to the extent that would require a conclusion that the trial court was outside the zone of reasonable disagreement in admitting the statement to an investigator. Accordingly, the judgment of the trial court was affirmed.
casemaker


Convictions for two of three counts of DWI with a child passenger vacated; allowable unit of prosecution one offense for each incident of driving or operating a vehicle
Gonzalez v. State
Constitution, Criminal
Texas 13th Court of Appeals
December 08, 2016
13-16-00134-CR
Dori Contreras Garza
Published
The appellant pleaded guilty to and was convicted of three counts of driving while intoxicated (DWI) with a child passenger, a state jail felony. On appeal, she argued by one issue that the double jeopardy clause prevented her from being convicted for three counts of DWI with a child passenger--one for each child present in the vehicle--arising out of the same traffic accident. The court of appeals agreed, citing a recent opinion from another appellate court in the state interpreting the applicable statute, Penal Code section 49.045. The court stated that it concurred with the reasoning of that opinion and held that the allowable unit of prosecution for a DWI with a child passenger was one offense for each incident of driving or operating a vehicle. Accordingly, the court vacated the appellant's convictions on two of the three counts.
casemaker


Texas Highway Beautification Act’s outdoor-advertising regulations and rules were content-based regulations of speech that failed strict scrutiny, as the Act’s differentiation and restrictions on political signage was not narrowly tailored to achieve a compelling government interest
Auspro Enterprises, LP v. Texas Department of Transportation
Appellate: Civil, Constitution, Gov't/Administrative, Transportation
Texas 3rd Court of Appeals
December 08, 2016
03-14-00375-CV
Jeff Rose
Published
     The appellate court withdrew the opinion and judgment dated August 26, 2016, substituted the following opinion and judgment in their place, and denied the appellee’s motion for rehearing. On July 7, 2011, the appellant company, placed a sign supporting Ron Paul’s 2012 presidential campaign on its property. The appellee Department sent a letter to the appellant explaining that its sign was “illegal” because all outdoor signs must be permitted and, although there was a specific exemption under appellee rules for political signs, the exemption only allowed political signs to be displayed 90 days before and 10 days after an election. The letter ordered the appellant to remove the sign. After the appellant failed to remove the sign, the appellee brought an enforcement action in trial court for injunctive relief and civil penalties. The trial court granted final judgment in the appellee’s favor. During the appellant’s appeal from the trial court’s final judgment, the Texas Supreme Court granted certiorari and heard oral argument in Reed v. Town of Gilbert, 135 S. Ct. at 2226, prompting the Court to grant the appellant’s motion to abate the instant appeal pending the resolution of Reed. The appellate court held that, under Reed’s framework, the Texas Highway Beautification Act’s outdoor-advertising regulations and related appellee rules were content-based regulations of speech subject to strict scrutiny. Further, in the instant case, the appellee had to demonstrate that the Act’s differentiation between types of signs furthered a compelling governmental interest and it was narrowly tailored to that end. The appellee acknowledged that it could not do that, and the Court could not disagree. For the same reasons, the related appellee rules likewise could not meet such an exacting standard. Therefore, the Act’s sign regulations and related appellee permitting rules failed strict scrutiny. Furthermore, given that the federal Highway Beautification Act—the primary impetus for the Texas Act and, in fact, the law on which the Texas Act “is conditioned”—seemed to share the same constitutional flaws as did the Texas Act under Reed. Finally, the Court thought it was worth noting that the Court—in the holding later reversed by the supreme court in Texas Department of Transportation v. Barber, 111 S.W.3d at 98—addressed and rejected the same suggestion by the appellee that the Court could remedy any constitutional flaws in the Act by eliminating all exemptions, leaving a total ban on outdoor advertising. The Court’s response was to invoke the Supreme Court’s reasoning in City of Ladue v. Gilleo. And as the Court did then, it concluded, “The same might be said of the Texas Highway Beautification Act.”Accordingly, the Court reversed the trial court’s judgment and rendered judgment severing Subchapters B and C from the Texas Highway Beautification Act as unconstitutional content-based restrictions on speech.
casemaker


Under Policy’s unambiguous language, the Property destroyed by fire did not fall within the definition of “residence premises” because appellee never resided there during the Policy term nor did she intend to reside there, and there was no insurance coverage for the Property
American Risk Insurance Company, Inc. v. Serpikova
Appellate: Civil, Contracts, Damages, Insurance
Texas 14th Court of Appeals
December 06, 2016
14-14-00859-CV
Kem Frost
Published
     In the instant insurance-coverage case, the appellant insurer under a homeowner’s policy appealed the trial court’s determination that, as a matter of law, the policy provided coverage for the insured’s loss resulting from a fire. The appellate court found that, under the Policy’s unambiguous language, the Property did not fall within the definition of “residence premises” because the appellee never resided on the Property during the term of the Policy nor did she intend to reside on the Property during the 60 days after the Policy’s effective date. There was no coverage for the appellee’s loss; therefore, the trial court erred in impliedly granting summary judgment as to the appellee’s first, third, and fourth grounds. Further, the Court found that in Greene v. Farmers Insurance Exchange, 446 S.W.3d 761 (Tex. 2014), the Supreme Court of Texas held that a circumstance that lead to a lack of coverage under an insurance policy was not a breach or violation that triggered application of Texas Insurance Code section 862.054. Thus, under the clear wording of the statute and under Greene, the statue did not apply to the coverage issues in the instant case and so could not prohibit the appellant from denying coverage under the Policy. Therefore, the trial court erred in impliedly granting summary judgment as to the appellee’s second ground. Accordingly, the Court reversed the trial court’s judgment, and remanded the case to the trial court for further proceedings consistent with the instant opinion.
casemaker


Requested discovery by the drilling company of the identity of the informant to the oil and gas trade association did not violate First Amendment, and the association waived challenges under Free Flow of Information Act; ordered deposition did not circumvent Texas Citizen Participation Act
International Association of Drilling Contractors v. Orion Drilling Company LLC
Appellate: Civil, Constitution, Discovery, Oil, Gas, & Mineral, Procedure
Texas 1st Court of Appeals
December 06, 2016
01-16-00187-CV
Jane Bland
Published
     The appellant association was a non-profit organization based in Houston. Its members were participants in the global oil and gas drilling industry. Both the appellees were the appellant association members. In November 2015, the appellant received an incident report. The reported incident occurred on the first appellee’s rig that at the time was using the second appellee’s control systems. The appellees requested that the appellant identify the person who had reported the incident. The appellant refused, citing its desire to maintain the confidentiality of its sources. The appellees then filed the Texas Rule of Civil Procedure 202 petition. The trial court ruled that the petition had merit and “the likely benefit of allowing the requested deposition to investigate their potential claims outweighs the burden or expense of the procedure.” The appellate court found that the appellant had not demonstrated that a Rule 202 deposition to discover the identity of the source of the incident report violated the First Amendment. Further, in any event, a Rule 202 petition need not plead a specific cause of action; instead, Rule 202 required only that the petitioner “state the subject matter of the anticipated action, if any, and the petitioner’s interest therein.” In that instance, the trial court narrowed the scope of the deposition to the disclosure of the identity of the informant and the informant’s communications with the appellant about the incident, which may be answered on written questions. In the absence of any evidence regarding the significance of the burden, the Court could not say that the trial court abused its discretion in ordering the deposition for that reason. Furthermore, the appellees had pleaded that the identity of the informant would reveal whether a cause of action for business disparagement existed against that informant. The Court found that the appellant had not demonstrated any reversible error in the petition’s alleged defects. Lastly, because the appellant did not move to dismiss the proceeding by invoking the Texas Citizens’ Participation Act (TCPA), the appellant had not preserved the last argument for the review. Accordingly, the Court affirmed the order of the trial court.
casemaker


Appellant’s 60-day deadline to file his motion to dismiss appellee’s Texas Citizens Participation Act claim for alleged defamatory and illegal political advertisements was not tolled or reset by filing of the supplemental petition or trial court’s order granting special exceptions
Jordan v. Hall
Appellate: Civil, Civil Rights, Constitution, Election, Gov't/Administrative, Procedure, Torts
Texas 1st Court of Appeals
December 06, 2016
01-16-00430-CV
Rebeca Huddle
Published
     The appellant challenged the trial court’s denial, as untimely, of the appellant’s motion to dismiss under the Texas Citizens’ Participation Act (TCPA). The appellee sued the appellant alleging that the appellant placed a defamatory and illegal political radio advertisement about the appellee during the appellee mayoral campaign. Three days later, and without service of the petition, the appellant filed an answer with special exceptions. The appellant moved to dismiss the suit under the TCPA five months later, and the trial court denied the motion as untimely. The appellate court found that the court agree with the sister court’s analysis in Bacharach v. Garcia, 485 S.W.3d 600 (2016). It was well settled that the purpose of the TCPA was to allow the defendant early in the lawsuit to dismiss claims that seek to inhibit the defendant’s constitutional rights to petition, speak freely, associate freely and participate in government as permitted by law. Thus, an amended petition asserting claims based upon new factual allegations may reset a TCPA deadline as to the newly added substance, the deadline for a TCPA motion was not reset when the plaintiff filed an amended petition that adds no new claims and relies upon the same factual allegations underlying an original petition. The factual allegation underlying the appellee’s causes of action in his original petition and in his supplemental petition was the appellant’s purportedly illegal placement of the radio advertisement. Likewise, the claims asserted in the supplemental petition were a subset of those asserted in the original petition. Lastly, the appellant’s 60-day deadline to file his TCPA motion was not tolled or reset by the filing of the supplemental petition or the trial court’s order granting special exceptions. Therefore, the court held that the trial court did not err by denying the appellant’s TCPA motion as untimely. Accordingly, the trial court's order was affirmed.
casemaker


Because appellant had not been exonerated, whether on direct appeal, by habeas corpus relief, or otherwise, his criminal conduct was the cause of his conviction, and his tort claims against appellee, his appointed attorney, were barred under Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995)
Stallworth v. Ayers
Appellate: Civil, Consumer, Contracts, Professional Responsibility, Torts
Texas 1st Court of Appeals
December 06, 2016
01-16-00012-CV
Evelyn V. Keyes
Published
     The appellant sued his former appointed criminal counsel, the appellee, for breach of contract, breach of fiduciary duty, gross negligence, and violations of the Deceptive Trade Practices Act (DTPA) arising from his conviction in a criminal case. The appellee moved for dismissal under Texas Rule of Civil Procedure 91a, arguing that the appellant’s suit had no basis in law. The trial court granted the motion and dismissed the case. The appellate court found that the criminal court appointed the appellee to defend the appellant against an assault charge. The appellant was convicted of this offense and received a prison sentence. The appellant’s original petition and his amended petition indicated that he was incarcerated at the time of filing both petitions. In his amended petition, filed after the appellee moved to dismiss the case pursuant to Rule 91a, the appellant acknowledged that he had not been exonerated, stating, Plaintiff claims that he does have the right to sue the defendant for the claims stated breach of contract, breach of fiduciary duty, gross negligence, and DTPA violations even if he was not exonerated. Because the appellant had not been exonerated for the underlying offense whether on direct appeal, by habeas corpus relief, or otherwise, his criminal conduct was the cause in fact of his conviction, and his tort claims against the appellee were barred as a matter of law under Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995). Accordingly, the court affirmed the judgment of the trial court.
casemaker


Although appellant elected to have the jury assess his punishment, the trial court had statutory authority to impose a restitution order, and trial court did not abuse it’s discretion in ordering appellant to pay $300 in restitution to the aggravated robbery victim
Ortegon v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 06, 2016
01-15-00880-CR
Evelyn V. Keyes
Published
     A jury convicted the appellant of the first-degree felony offense of aggravated robbery and, after appellant pleaded true to the allegations in two enhancement paragraphs, assessed his punishment at forty years’ confinement. In one issue, the appellant contended that the trial court improperly required him to pay restitution to the complainant because the jury did not specify restitution as part of his sentence in its punishment verdict. The appellant requested that the instant court modify his judgment of conviction to delete the restitution requirement. The Texas Court of Appeals found that although the appellant was correct that restitution “serves as appropriate punishment for the convicted criminal,” restitution was also “a victim’s statutory right” and serves several purposes beyond punishing the defendant. Further, the Court of Criminal Appeals had noted that, at common law, “the power to impose restitution rested with the judge” and that “since then, the authority to impose restitution had remained by statute with the judge.” Furthermore, the court's sister courts had repeatedly held that it was “the function of the trial court, not the jury, to establish the amount of restitution for inclusion in the sentence.” Lastly, although the appellant elected to have the jury assess his punishment, the trial court had statutory authority to impose a restitution order. Thus, the trial court did not abuse it's discretion in ordering appellant to pay $300 in restitution to Washington. Accordingly, the court affirmed the judgment of the trial court.
casemaker


Petitioner’s motion to transfer venue was not frivolous and there was no evidence the motion was presented for an improper purpose, and trial court abused its discretion by awarding attorney’s fees to the Real Parties in Interest and in denying the motion to transfer venue
In re Green
Appellate: Civil, Procedure, Real Property, Wills/Trusts/Probate
Texas 8th Court of Appeals
December 02, 2016
08-16-00233-CV
Yvonne T. Rodriguez
Published
     The suit was filed against the petitioner individually and as trustee of the testamentary trust formed for the benefit of the first individual beneficiary and the second individual beneficiary, and in his capacity as former controlling stockholder of National Foundry, and as principal shareholder and president of Patriot Steel Fabrication. The petitioner answered and filed a motion to transfer venue based on the mandatory venue provision found in Section 115.002(b)(2) of the Texas Property Code. After exhausting the administrative remedies, the trial court denied the motion to transfer venue to Ector County and awarded attorney’s fees to the Real Parties in Interest. The Appellate Court found that the petitioner’s motion to transfer was not frivolous and there was no evidence in the record that the motion was presented for an improper purpose. The trial court abused its discretion by awarding attorney’s fees to the Real Parties in Interest. Issue Two was sustained. Further, having sustained both issues, the court conditionally granted mandamus relief. The trial court was directed to withdraw the order that denied the motion to transfer venue and awarded attorney’s fees to the Real Parties in Interest, and it was further directed to enter an order granting the petitioner’s motion and transferring venue of the case to Ector County. Furthermore, the writ would issue only in the event the trial court failed to comply within a reasonable period of time. Accordingly, the court conditionally granted mandamus relief.
casemaker


After his guardian's death, the petitioner did not request that one be appointed when he applied to have his incapacity redetermined, and in restoration of capacity proceeding, trial court could not determine whether a non-existent guardian’s powers should be restricted or remain unchanged
In re Guardianship of Person and Estate of Tonner
Appellate: Civil, Civil Rights, Health Care, Procedure, Wills/Trusts/Probate
The Supreme Court of Texas
December 02, 2016
14-0940
Per Curiam
Published
     Years after his guardian’s death, the petitioner applied for full or at least partial restoration of his capacity. The trial court dismissed the application, finding that the petitioner’s capacity had not been restored. The court of appeals affirmed. The Texas Supreme Court found that TEX. EST. CODE Section 1202.051(3) authorized a ward to apply for an order finding that he was only partly incapacitated and limiting the guardian’s powers or duties accordingly. But after the guardian's death, the petitioner had no guardian, and he did not request that one be appointed when he applied to have his incapacity redetermined. The trial court could certainly have appointed a successor guardian at any time, and while the instant appeal had been pending, it has done so. But the court could not determine whether a non-existent guardian’s powers should be restricted or remain unchanged. Accordingly, the petitioner’s petition for review was granted, and without oral argument, TEX. R. APP. P. 59.1, the judgment of the court of appeals was affirmed.
casemaker


Appellant was on notice the State would seek a deadly weapon finding by virtue of the offenses with which he was charged; however, appellate court modified the trial court’s judgment to reflect that appellant was convicted of burglary of a habitation with intent to commit aggravated assault
Turner v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
December 02, 2016
06-15-00220-CR
Bailey C. Moseley
Published
     The appellant was convicted by a jury of burglary of a habitation with intent to commit aggravated assault and was sentenced to twenty-five years’ incarceration. The appellate court found that the indictment clearly alleged burglary of a habitation with the attempted commission, or the commission, of aggravated assault. The appellant was ultimately convicted of burglary of a habitation with intent to commit aggravated assault, he was nevertheless on notice that based on the offenses charged, the state might seek an affirmative finding on the use of a deadly weapon. Thus, the court held that the appellant was on notice that the state would seek a deadly weapon finding in the instant case by virtue of the offenses with which he was charged. Furthermore, the court had the authority to modify the judgment to make the record speak the truth when the matter has been called to their attention by any source. French v. State, 830 S.W.2d 607, 609 (1992). Therefore, the court modified the trial court’s judgment to reflect that the appellant was convicted of burglary of a habitation with intent to commit aggravated assault. Accordingly, the trial court’s judgment was affirmed.
casemaker


Challenge to sequencing of "guilty" and "not guilty" on jury verdict form rejected; placement in an otherwise proper form did not indicate a trial court was biased or influence a jury to vote in a particular way
Joshua v. State
Criminal
Texas 1st Court of Appeals
November 22, 2016
01-15-01060-CR
Sherry Radack
Published
The appellant challenged his conviction for possession of heroin with intent to deliver. In a single issue, he complained that the jury verdict form should have first provided the jury the option of finding appellant "not guilty" before the option of "guilty" or alternatively, that the verdict form should have admonished the jury that the placement of "guilty" before "not guilty" was not a comment on the court's opinion of appellant's guilt. The court of appeals noted that the state indicated that the only requirement for a written verdict form was that "it must set out every 'guilty' and 'not guilty' option that was available to the jury." And the state indicated that the instant court, and other appellate courts in the state, had rejected appellant's identical argument, concluding that that the placement of "guilty" before "not guilty" in an otherwise proper verdict form did not indicate a trial court was biased or influence a jury to vote a particular way. As such, the appellant had not demonstrated error in the trial court's verdict form here, the court of appeals held. The judgment of the trial court was thereby affirmed.
casemaker


Enforcement of deed restrictions providing that home should be used solely for residential purposes upheld; appellant was using his home for transient purposes where agreement with guests provided for two-day stays
Tarr v. Timberwood Park Owners Association Inc.
Contracts, Real Property
Texas 4th Court of Appeals
November 16, 2016
04-16-00022-CV
Karen Angelini
Published
The central issue in the instant case was whether the deed restrictions imposed by the appellee subdivision homeowners' association which provided that home should be "used solely for residential purposes" prevented the appellant homeowner from leasing his home for short periods of time to individuals who had no intent to remain in the home. The trial court granted the appellee's motion for summary judgment and denied the appellant's motion. The appellate court found that because the record showed that the appellant was using his home for transient purposes and not solely residential purposes in violation of the restrictive covenant, the trial court correctly granted summary judgment in favor of the appellee and rendered a take-nothing judgment against the appellant. The leasing agreement discussed a check-in time of 4 p.m. and a check-out time of 11 a.m. The agreement required a two-night minimum stay and stated that a two-day rate would be charged to guests who left early, the court of appeals explained. Such agreement was not consistent with a renter who had the intent to remain at the home. Accordingly, the judgment of the trial court was affirmed in pertinent part.
casemaker


On State’s Petition for Discretionary Review, Court of Appeals Affirmed
Miles v. State
Texas Court of Criminal Appeals
November 16, 2016
PD-0847-15 & PD-0848-15
Opinion by Judge Johnson

Appellant was convicted of the sexual assault and compelled prostitution of a fifteen-year-old complainant. The jury assessed punishment at seven and twenty-three years’ incarceration respectively. The trial court cumulated the sentences. On appeal, the court of appeals affirmed the judgment in the sexual-assault case, but modified the judgment in the compelling-prostitution case to delete the cumulation order and affirmed that judgment as modified. On direct appeal, appellant asserted that the trial court erred by ordering him to serve his sentences consecutively and contended that the cumulation statute does not authorize stacking a sentence for compelling prostitution onto a sentence for sexual assault of a child when both offenses arise out of the same criminal episode and are prosecuted in a single criminal action. After analyzing the plain language of the general cumulation statute, Section 3.03 of the Penal Code, the court of appeals determined that “[t]he unambiguous language of Section 3.03(b) provides that a sentence for compelling prostitution may not be stacked with a sentence for sexual assault of a child when the offenses arise out of the same criminal episode and are prosecuted in a single criminal action.” The court of appeals held that the trial court erred in cumulating appellant’s sentences and reformed the judgment of the trial court to delete the cumulation order. We granted the state’s petition for discretionary review, which disputed the deletion of the cumulation order: “Did the court of appeals err in holding that Section 3.03(b) of the Texas Penal Code does not allow the cumulation of sentences for two offenses listed within different paragraphs of subsection (b) of the stacking statute?” We affirm the judgment of the court of appeals.


On Application for a Writ of Habeas Corpus, Granted
Ex Parte David Ray Lea
Texas Court of Criminal Appeals
November 9, 2016
WR-82,867-01
Opinion by Judge Hervey

We filed and set this case for submission to decide the proper disposition of the motion to revoke Applicant’s (Lea’s) community supervision because the statute used to revoke his supervision has been declared facially unconstitutional. We conclude that he is entitled to relief.


On Appellant’s Petition for Discretionary Review, Court of Appeals Affirmed
Thomas v. State
Texas Court of Criminal Appeals
November 9, 2016
PD-1086-15
Opinion by Judge Richardson

Appellant, Jeremy Thomas, was tried for the murder of Vernon Keith Moses. While the jurors were deliberating guilt, they requested that the court read to them a portion of a witness’s testimony, which is permitted under Texas Code of Criminal Procedure Article 36.28. The trial court complied. The jury resumed deliberations and ultimately found Appellant guilty. Appellant was sentenced to life in prison. On direct appeal, Appellant claimed that the trial court erred by reading too little testimony to the jury. The First Court of Appeals agreed that the trial court erred under Article 36.28 by failing to read additional testimony that would have been responsive to the jury’s request, but it also held that the error was harmless and therefore affirmed Appellant’s conviction. We agree that the trial court’s error was harmless and affirm the judgment of the First Court of Appeals.


State's application for permissive appeal in MDL on manipulation of motor vehicle emission-control equipment allegations denied; state's issues involved disputes between plaintiffs over control of litigation and its spoils, did not dispose of controlling questions of law
In re Volkswagen Clean Diesel Litigation
Appellate: Civil, Consumer, Environmental, Torts
Texas 3rd Court of Appeals
November 04, 2016
03-16-00673-CV
Jeff Rose
Published
The dispute in the instant proceeding concerned EPA allegations that the appellant manufacturer manipulated emission-control equipment on certain of its diesel automobiles and misrepresented that those vehicles complied with U.S. emission laws. In the wake of the EPA's notice of violation, more than sixty consumer and environmental lawsuits were filed against the appellant by the state, local governments, and private parties in Texas courts. On the appellant's motion, the Texas Multi-District Litigation (MDL) Panel transferred the Texas state cases to two MDL pre-trial courts in Travis County for "consolidated or coordinated pretrial proceedings"--one court presiding over the consumer-protection cases and the other the environmental cases. In multiple motions, the state asked the MDL pre-trial court to dismiss the nineteen counties' lawsuits on various grounds. The MDL pre-trial court denied the state's motions and then granted the state permission to seek an interlocutory appeal of those orders. The court of appeals noted that the issues on which the state relied to justify permissive interlocutory appeal involved disputes between the plaintiffs over control of the litigation and its spoils. While those issues may be important to the plaintiffs' strategy and division of damages, if any, they did not dispose of controlling questions of law in the litigation because they did not implicate or advance the determination of liability, damages, or the viability of the underlying claims against the appellant for its alleged violations of the Clean Air Act, the appellate court explained. As such, immediate resolution of the state's motions would not materially advance the ultimate termination of the litigation. The state's application for permissive appeal was thereby denied.
casemaker


Challenge to records custodian affidavit in forcible-detainer action rejected; not required to recite exact words that appeared in rule
Ermisch v. HSBC Bank USA, National Association
Banking and Finance, Evidence, Real Property
Texas 3rd Court of Appeals
November 04, 2016
03-16-00080-CV
Jeff Rose
Published
In this forcible-detainer action, the appellants challenged the trial court's final judgment granting possession to the appellee bank. They asserted that the trial court erred by admitting a business-records affidavit and accompanying evidence in granting appellee's motion for summary judgment because the records custodian qualified her affidavit statement that the facts were true and correct with the phrase "to the best of my knowledge and belief". The court of appeals disagreed, finding that the custodian's affidavit complied with the requirements under Texas Rule of Evidence Rules 902(10)(b) and 803(6)—she was not required to recite the exact words that appeared in the rule nor was she required to state that all facts in the affidavit were "true and correct." Further, reading the affidavit as a whole, the appellate court concluded that the trial court could have reasonably determined that the custodian's affidavit demonstrated she was testifying based on personal knowledge and the "obvious effect" of her testimony regarding her role as custodian of records was that her statements were true and correct. As such, the trial court did not abuse its discretion in admitting the affidavit as competent summary-judgment evidence. The judgment of the trial court was thereby affirmed.
casemaker


Summary judgment for appellee after security guard trip and fall on its property affirmed; appellant was aware of the materials on the ground she fell over
Wallace v. Arcelormittal Vinton, Inc.
Employment, Litigation: Personal Injury
Texas 8th Court of Appeals
November 02, 2016
08-15-00095-CV
Ann Crawford McClure
Published
Appellant, who worked the nighttime shift as a security guard, was severely injured in a fall at the appellee's premises. She was employed by a third party. Her live petition alleged that she was an invitee on the premises and she claimed that she fell over a "metal object" which constituted a dangerous condition that the appellee knew of, or should have known of, and failed to correct or warn. The trial court granted the appellee's traditional motion for summary judgment, but did not specify the grounds. The court of appeals found that in the record here, the amount of scrap in front of the machine shop changed over time, but the record also supported appellee's claim that appellant knew about the obstacles as she first entered the machine shop on the night of the accident. She conceded that nothing changed in the fifteen minutes she was inside, until she came out and fell. She also conceded the same amount or more of scrap was in front of the shop the night before. So while the amount of materials may have changed over time, it did not change in the time immediately preceding the fall, and she would have been aware of the materials there when she first transversed the area to get into the machine shop. As such, the summary judgment proofs established that the appellant was aware of the materials on the ground, and accordingly, the appellee owed no duty to make them safe or warn her of what she already knew. Finally, because the appellant could not overcome this independent ground for granting the summary judgment, the court need not address the remaining possible grounds asserted in the motion for summary judgment. The judgment of the trial court was thereby affirmed.
casemaker


Grant of new trial reversed; even if it was error for trial court not to submit application paragraph for charge as it related to section 9.04, such error did not harm appellee
State v. Sciacca
Criminal
Texas 1st Court of Appeals
October 27, 2016
01-15-00953-CR
Sherry Radack
Published
The appellee was on trial following a parking lot confrontation with another motorist during which she displayed a pistol. After the jury found the appellee "guilty of aggravated assault, as charged in the indictment," the appellee filed a motion for new trial, asserting, among other things, that "the appellee was denied a fair trial when the Court failed to give jurors an application paragraph in the jury instructions relating to TEX. PENAL CODE Section 9.04." The trial court granted the appellee's motion for new trial, noting "Granted as to Issue 2—Court's failure to include application paragraph." The state appealed, arguing that even if it was error for the trial court not to submit an application paragraph for the charge as it related to section 9.04, such error did not harm appellee. The court of appeals agreed with the state, noting that the 9.04 abstract paragraph was in the charge, and the defense counsel was permitted to argue the substance of the very application paragraph he sought to include in the charge. Further, the appellee's harm, if any, was even less than that of the defendant in Reynolds v. State, 371 S.W.3d 511 (Tex. App.—Houston 2012), who received no section 9.04 paragraphs in the charge at all, neither abstract nor application. Harmless error was also found in Reynolds. Accordingly, the appellate court reversed the trial court's order granting a new trial and remanded for sentencing based on the jury's verdict.    
casemaker


Adjudication of guilty for sexual assault of child affirmed; Articles 46B.108 and 46B.111 inapplicable, trial court did not abuse its discretion in finding appellant competent
Timmons v. State
Criminal
Texas 8th Court of Appeals
October 26, 2016
08-13-00306-CR
Yvonne T. Rodriguez
Published
The appellant challenged the trial court's judgment adjudicating her guilty of sexual assault of a child. The appellate court found that Articles 46B.108 and 46B.111 of the Texas Code of Criminal Procedure were inapplicable to the appellant as they were to be utilized only when a defendant was returned to the court incompetent and was unlikely to be restored to competency in the foreseeable future and the charges were not dismissed. None of these circumstances were present here. Thus, the court overruled the appellant's issue that the trial court failed to conduct a hearing pursuant to Articles 46B.108 and 46B.111. As to the second issue, the record at the hearing clearly indicated that defense counsel represented to the trial judge that the appellant was competent based on the state hospital's report. Further, the trial court indicated that he found the appellant competent after taking judicial notice of the state hospital's report, his observations of the appellant, and defense counsel's representation that the appellant was competent.  Finally, the hearing record revealed that the appellant responded lucidly and appropriately to the questions propounded to her by the court, her attorney, and the state. She agreed that she had a better understanding of the proceedings at the hearing than she did prior to her treatment at the state hospital. She was no longer suffering from hallucinations, she knew her name, was oriented to time and would offer unsolicited information in an effort to persuade the trial judge to continue her probation. This testimony indicated she fully understood the accusations and entered into her plea freely and voluntarily.  Thus, the trial court did not abuse its discretion in finding the appellant competent, and its judgment was affirmed.
casemaker


Convictions for bail jumping and failure to appear reversed; bond did not name court in which she was to appear, no evidence indicating appellant had actual notice of trial setting before date of trial
Ferguson v. State
Criminal
Texas 6th Court of Appeals
October 27, 2016
06-16-00046-CR
Burgess
Published
The appellant was arrested for possession of a controlled substance in an amount less than one gram. She was released after posting a $100,000.00 surety bond. After hearing evidence that the appellant missed a December 14, 2015, trial date for the underlying offense, a jury convicted her of bail jumping and failure to appear. In accordance with the jury's assessment, the trial court sentenced the appellant to two and one-half years' imprisonment and ordered her to pay a $5,000.00 fine, but suspended the sentence and placed her on five years' community supervision. The central issue on appeal was whether the state had demonstrated that appellant had prior notice to appear for a trial setting that was specifically set for December 14, 2015. The court of appeals answered the question in the negative, noting that appellant's instanter bond did not name the court in which she was to appear and there was no other evidence indicating appellant had actual notice of the trial setting before the date of the trial. No one sent her written notice and no one was able to reach her via the phone. Further, there was no evidence indicating appellant had engaged in a course of conduct designed to prevent her from receiving such notice, the appellate court explained. Accordingly, the judgment of the trial court was reversed, and judgment rendered by the court of appeals acquitting appellant of bail jumping and failure to appear.  
casemker


On Appellant’s Petition for Discretionary Review, Vacated and Remanded to Court of Appeals
Metts v. State
Texas Court of Criminal Appeals
October 19, 2016
PD-1054-15 & PD-1055-15
Opinion by Judge Yeary

In 2004, Appellant pled guilty to two charges of sexual assault of a child and was placed on deferred adjudication community supervision for each offense. Before Appellant entered his plea, he and a prosecutor representing the State appeared at a status hearing to waive Appellant’s right to a jury trial. The prosecutor later became a district court judge and, nine years later, she adjudicated Appellant guilty and sentenced him to ten years of confinement for each offense. Appellant appealed to the Eleventh Court of Appeals, contending for the first time that the trial court’s judgments were void because the judge was constitutionally and statutorily disqualified from presiding over cases in which she had previously acted as counsel for the State. The court of appeals rejected Appellant’s assertions and affirmed the trial court’s judgments. We granted Appellant’s petition for discretionary review to consider his contention that the court of appeals erred by holding that the trial judge’s prior involvement in the cases as a prosecutor did not render her constitutionally and statutorily disqualified from adjudicating Appellant’s guilt. We will vacate the judgments of the court of appeals and remand the causes for further proceedings consistent with this opinion.


On State’s Petition for Discretionary Review, Court of Appeals Affirmed
Moore v. State
Texas Court of Criminal Appeals
October 19, 2016
PD-1634-14
Opinion by Judge Meyers

Appellant, Aaron Jacob Moore, was charged with Aggravated Sexual Assault of a Child. Although he was 16 years old at the time of the offense, charges were not filed until after his 18 birthday. Because Appellant was over 18 years of age when charges were filed, the State filed a petition for discretionary transfer from juvenile court to criminal district court under Family Code Section 54.02. The juvenile court waived its jurisdiction and transferred the case. The criminal district court deferred adjudication and placed Appellant on 5 years’ community supervision. Appellant appealed, claiming that the juvenile court improperly transferred the case because the State failed to show that, for reasons beyond the control of the State, it was not practicable to proceed in juvenile court before his 18 birthday as required under Family Code Section 54.02(j)(4)(A). The court of appeals vacated the trial court’s judgment, holding that the juvenile court lacked jurisdiction to transfer the case. The State filed a petition for discretionary review, which we granted to determine whether the court of appeals’s construction of “the state” in Family Code Section 54.02(j)(4)(A) requires dismissal of a case with prejudice without consideration of the factors for oppressive delay in violation of the separation of powers doctrine. We will affirm the court of appeals.


On State’s Petition for Discretionary Review, Court of Appeals Affirmed
State v. Copeland
Texas Court of Criminal Appeals
October 12, 2016
PD-1549-15
Opinion by Judge Hervey

Shirley Copeland was charged with possession of a dangerous drug after police searched the vehicle she was in and found prescription pain medication in a plastic bag. She filed a motion to suppress, arguing that the search of the car was illegal. The trial court granted the motion and sua sponte issued findings of fact and conclusions of law. This is the State’s third appeal from the trial court’s ruling granting the motion to suppress. The State’s initial appeals focused on whether the police had the consent of the driver and Copeland to search the vehicle. In the first appeal, we held that Copeland could not deny consent for police to search the vehicle when the driver and registered owner of the vehicle did consent to the search. In the next appeal, we held that the State did not procedurally default its argument at trial or on appeal that the driver freely and voluntarily gave his consent to search his vehicle. We then remanded the cause again, instructing the court of appeals to determine if there was an alternative theory of law upon which to uphold the ruling of the trial court. Specifically, we noted that, in her motion to suppress, Copeland argued that the length of her detention was unreasonable but that the State did not challenge that argument on appeal. On remand, the court of appeals held that the State procedurally defaulted the length-of-detention issue. It reasoned that, because the State argued at trial that the length of Copeland’s detention was reasonable, the issue was a theory applicable to the case, and as a result, the State was obliged to make that argument on appeal or forfeit it through inaction. The State appealed, and we exercised our discretionary review power to determine (1) whether the court of appeals erred when it held that the State procedurally defaulted the length-of-detention issue, and (2) whether the court of appeals properly performed the analysis instructed by this Court. Because we agree with the court of appeals that the State procedurally defaulted the length-of-detention issue on appeal, we will affirm the judgment of the court of appeals.


On State’s Petition for Discretionary Review, Vacated and Remanded to Court of Appeals
State v. Cortez
Texas Court of Criminal Appeals
October 12, 2016
PD-1652-15
Opinion by Presiding Judge Keller

Holding that a traffic stop was illegal, the trial court granted a motion to suppress. One of the State’s arguments on appeal was that, if the police officer was mistaken about whether appellee had committed a traffic offense, the traffic stop was nevertheless legal as a reasonable mistake of law under Heien v. North Carolina. Citing cases from our Court that predate Heien, the court of appeals concluded that even a reasonable mistake about the law would not justify a stop. However, the court of appeals did not discuss Heien. We conclude that the court of appeals failed to address every issue necessary to the disposition of the case. Consequently, we vacate the decision of the court of appeals and remand the case for reconsideration under Heien.


On Appellant’s Petition for Discretionary Review, Court of Appeals Affirmed
Wright v. State
Texas Court of Criminal Appeals
October , 2016
PD-1137-15
Opinion by Presiding Judge Keller

On direct appeal from the revocation of “regular” community supervision, appellant contended that his sentence was illegal. Before us, appellant contends that the court of appeals erred in applying the habeas harm analysis from Ex parte Parrott to his case on direct appeal. We reject appellant’s complaint because his illegal-sentence claim on direct appeal from his revocation proceeding was a collateral attack on the judgment from the original plea proceeding. Consequently, we affirm the judgment of the court of appeals.