Because jury verdict was insufficient to support a finding of abandonment of particular deed restrictions absent findings regarding the nonwaiver provision, reversed and remanded for entry of an injunction against appellees for operating a business out of their residential subdivision property
Vance v. Popkowski
Appellate: Civil, Contracts, Gov't/Administrative, Real Property
Texas 1st Court of Appeals
May 25, 2017
01-15-00897-CV
Michael C. Massengale
Published
     The instant appeal arose from a dispute over the enforcement of deed restrictions. The purchasers of deed-restricted property in a residential subdivision began operating a business from a single-family residence located on the property. Appellants, who also owned property in the subdivision, claimed that the operation of the business violated the deed restrictions. The appellants brought suit seeking a permanent injunction prohibiting operation of the business. The appellees admitted that they were operating a business but asserted as an affirmative defense that the deed restrictions had been abandoned. A jury found that the restrictions had been abandoned, and the trial court rendered judgment in favor of the appellees. The appellate court found that Jury findings that specific deed restrictions have been abandoned, standing alone, were insufficient to overcome a nonwaiver provision and establish the affirmative defense of abandonment. In the instant case, the evidence did not establish conclusively, as a matter of law, that there was a waiver of the nonwaiver provision. Further, the jury did not make any findings with respect to the waiver of the nonwaiver provision. Thus, the appellees did not secure findings sufficient to sustain their affirmative defenses of abandonment and waiver, and accordingly they waived the two defenses. The appellees admitted that they were operating a business from their residential property in Cypress Point Estates. Restriction No. 15 prohibited the operation of a business from any lot in the subdivision. Thus, the evidence conclusively established the appellants claim that the appellees were in violation of the deed restrictions. Because of the disposition of the issue, the court did do not reach the appellants second and third issues regarding the sufficiency of the evidence to support the trial court’s judgment. Accordingly, the court reversed and remanded.


Appellant could not be retried for first-degree burglary without violating Double Jeopardy Clause, but trial court did not err declaring a mistrial after determining jury was deadlocked on whether appellant committed lesser-included offense of second-degree burglary, and he could be retried
Traylor v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
May 25, 2017
13-13-00371-CR
Rogelio Valdez
Published
     The jury found the appellant guilty of first-degree burglary of a habitation, and the trial court sentenced him. The appellate court found that the appellant could not be retried for the offense of first-degree burglary without running afoul of the double jeopardy clause’s prohibition on successive trials; yet that was exactly what happened at his second jury trial, which resulted in a conviction for first-degree burglary. The court therefore sustained the appellant’s second issue to the extent that he argued that his conviction for first-degree burglary violated the double jeopardy clause. Further, according great deference to the trial court as the court must, the court held that the trial court exercised sound discretion in declaring a mistrial after determining that the jury was genuinely deadlocked regarding whether the appellant committed the lesser-included offense of second-degree burglary. Furthermore, the court overruled the appellant’s second issue to the extent that he argued no manifest necessity existed to declare a mistrial. The court’s holding meant that a retrial for second-degree burglary was not barred by double jeopardy. Accordingly, the court reversed the trial court’s judgment and remanded the case for further proceedings.


Trial court erred by failing to offset damages appellee insurer was entitled to recover from underinsured motorist by the amount of the settlement in underlying personal injury case; insurer was entitled to offset for settlement amount, where spouse did not have a community interest therein
Farmers Texas County Mutual Insurance Co. v. Okelberry
Appellate: Civil, Contracts, Damages, Insurance, Litigation: Personal Injury, Torts
Texas 14th Court of Appeals
May 25, 2017
14-15-01081-CV
Ken Wise
Published
     The instant was a suit between an insured and his insurance company over the amount due to the insured from his underinsured motorist (UIM) coverage following a settlement in an underlying personal injury lawsuit. The appellate court found that the evidence conclusively showed that all of the money was paid to the appellee as compensation for his damages, regardless of which party had the burden to prove how much of the settlement was paid or payable to the appellee for his damages. Thus, as a matter of law, the appellant was entitled to an offset of $639,988.77 for the entire amount of the payments shown to be paid or payable to the appellee for his damages. Lastly, the court held that the trial court erred by failing to offset the damages the appellee was entitled to recover from the underinsured motorist by the amount of the settlement in the underlying case. Accordingly, the court reversed the trial court’s judgment and remanded to the trial court with instructions to render a judgment awarding the appellant company a credit for the full amount of the settlement of the appellee's claims.


A rational trier of fact could have found that appellant committed indecency by exposure on at least three occasions, thus his multiple convictions did not violate double jeopardy principles and appellant was not seized when he voluntarily accompanied police to the police department
Hawkins v. State
Constitution, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
May 25, 2017
11-15-00106-CR
John M. Bailey
Published
     The jury convicted the appellant of one count of aggravated sexual assault (Count One), three counts of indecency with a child by contact (Counts Two, Four, and Six), and three counts of indecency with a child by exposure (Counts Three, Five, and Seven). The jury assessed his punishment at confinement for seventy-five years in the Institutional Division of the Texas Department of Criminal Justice on the aggravated sexual assault conviction. The appellate court found that a rational trier of fact could have found that the appellant committed indecency by exposure on at least three occasions, including the two occasions for which he had challenged the sufficiency of the evidence and asserted that his double jeopardy rights were violated. Further, the appellant was not seized within the meaning of the Fourth Amendment. Since the appellant was not arrested, the court need not address whether the circumstances surrounding the appellant’s confession sufficiently broke the causal chain between his arrest and his confession. Accordingly, the court affirmed the judgments of the trial court.


Commercial tenant was not required to give written notice of the landlord's alleged breach and an opportunity to cure, and trial court did not err in rejecting appellant’s two jury-charge complaints regarding requested wording of instructions regarding tenant’s occupancy restrictions
Ho & Huang Properties, L.P. v. Parkway Dental Associates, P.A.
Appellate: Civil, Contracts, Damages, Landlord and Tenant, Real Property
Texas 14th Court of Appeals
May 24, 2017
14-14-00528-CV
Kem Thompson Frost
Published
     The instant appeal, the second in the instant case, arose out of a landlord-tenant dispute under a commercial lease. The appellee sued the appellants, asserting breach of the lease. On remand following the first appeal, the trial court rendered judgment on the jury’s verdict, awarding the appellee actual damages and attorney’s fees. The appellate court found that the appellants had not shown that the trial court erred in failing to render judgment that the appellee take nothing by its claims based solely on the jury’s event-of-default finding in response to Question 3. The trial evidence was legally sufficient to support the jury’s excuse finding in response to Question 4, the jury’s damage finding in response to Question 5, the jury’s material-failure-to-comply finding in response to Question 1, and the jury’s attorney’s-fees findings in response to Question 6. The trial evidence was factually sufficient to support the jury’s material-failure-to-comply finding in response to Question 1. Section 27 of the lease did not require the appellee to give the appellants notice and an opportunity to cure before the appellee may sue the appellants for a breach of the lease. The trial court did not abuse its discretion by refusing the appellants’ request for an instruction on Section 32 of the lease or by refusing the appellants’ request to insert the word competitive into an instruction in Question 1. And, the trial court did not err in calculating prejudgment interest. Accordingly, the court affirmed the trial court’s judgment.


Appellee failed to identify any ground for modification of the retaliatory discharge award under Federal Arbitration Act and trial court erred in rendering judgment for less than the full amount awarded in arbitration; record did not support award of sanctions against appellant or his counsel
Guerra v. L&F Distributors, LLC
ADR, Appellate: Civil, Contracts, Damages, Employment, Torts
Texas 4th Court of Appeals
May 24, 2017
04-16-00233-CV
Luz Elena D Chapa
Published
     After arbitration of the appellant's retaliatory discharge claims against the appellee company, both parties requested the trial court confirm the arbitration award. The trial court rendered judgment against the appellee for the amounts awarded by the arbitrator, less any and all federally required withholdings. The trial court also entered a sanctions award against the appellant. The appellate court found that the final judgment included additional terms that changed the arbitration award. Nothing in the record suggested the trial court’s additional terms were arbitrated or required to effectuate the arbitration award or were necessary to render an enforceable judgment, and no grounds had been shown for vacating or modifying an arbitration award under the Federal Arbitration Act (FAA) . Thus, the trial court impermissibly modified the arbitration award. Further, the trial court’s order stated the sanction was imposed in accordance with the Texas Rules of Civil Procedure, but did not identify a specific rule. The appellant contended that the court was limited to reviewing the sanctions order under Rule 13 because that was the only potentially applicable rule of civil procedure. The appellee disagreed, and argued that because the trial court did not identify or track a specific rule, the court determine whether the award was proper under the trial court’s inherent authority. Thus, the sanction could not be affirmed under either authority. Further, the FAA required the trial court to render a judgment for the amount awarded by the arbitrator and contains no requirement that the appellant consent to anything less. The record did not support findings that the appellant failed to comply with the award or that his conduct was without justification. The court concluded that the record contains no evidence that the appellant or his counsel acted in bad faith or interfered with the trial court’s core functions. Thus, the trial court abused its discretion in awarding sanctions. Accordingly, the judgment was reversed and rendered in part, modified in part and affirmed as modified.


Trial court erred in determining that Oklahoma had exclusive continuing jurisdiction over the child, where Oklahoma paternity and support order was not a child custody determination and Texas was child’s home state before appellee commenced its termination action
In re C.R.-A.A.
Appellate: Civil, Family, Gov't/Administrative, Juvenile
Texas 4th Court of Appeals
May 24, 2017
04-16-00782-CV
Marialyn Price Barnard
Published
     After the appellee department initiated termination proceedings against the parents of the child, but before the final hearing, the associate judge based on a motion filed by Father signed an order in which she determined Oklahoma had exclusive continuing jurisdiction over the child under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the child should be placed with Father in Oklahoma pursuant to the Interstate Compact on the Placement of Children (ICPC); and the appellee should be dismissed as the child’s temporary managing conservator. The trial court adopted the associate judge’s order. The appellate court held the trial court erred in determining that under the UCCJEA, Oklahoma had exclusive continuing jurisdiction over the child. The 2014 Oklahoma paternity and support order was not a child custody determination and the record established Texas was the child’s home state before the appellee commenced its termination action. At the time of the associate judge’s order, the Texas court had jurisdiction over the custody matter involving the child. Further, the court held the ICPC applied only to out-of-state placements of children with foster care or as a preliminary to a possible adoption. The compact does not apply to interstate placements of children with their natural parents. Thus, in the instant case the court held the associate judge and the trial court erred in ruling the ICPC was applicable to the child’s placement with Father. Accordingly, the court reversed the trial court’s order and remanded.


Officer had reasonable suspicion to initiate traffic stop after responding to anonymous call dispatch and observing appellant’s vehicle exhibiting typical movements of driving while intoxicated; two experts’ testimonies of appellant’s blood analysis chemistry were admissible
Ashby v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 23, 2017
01-15-00182-CR
Rebeca Huddle
Published
     The appellant was charged by information with and, during a jury trial, pleaded guilty to the misdemeanor offense of driving while intoxicated. There was no plea bargain or punishment recommendation by the State. The trial judge released the jury and sentenced the appellant to 180 days’ confinement, probated for one year, and a $1,000 fine. The appellate court found that based on the officer's testimony that he observed the appellant's erratic driving—which was supported by his dash cam video, the trial court reasonably determined that the officer had reasonable suspicion to believe that the appellant may have been intoxicated. The first doctor testified about the process of analyzing the appellant's blood, and the second doctor explained the significance of that analysis and its result. Neither Guzman nor the cases relied upon by Guzman foreclose the use of two scientific experts involved in the analysis of a blood sample from testifying concerning their respective parts of the analysis. For the foregoing reasons, the court concluded that the trial court did not err in allowing the State to introduce evidence of Trifluorome thylphenylpiperazine (FMPP) in the appellant's blood. Accordingly, the court affirmed the trial court’s judgment.


First appellant insurer participated in appraisal process and promptly tendered full amount of umpire’s award for appellee insured’s loss; trial court erred in denying appellants’ motion for directed verdict on appellee's extra-contractual claims after he refused to accept the tendered award
National Security Fire & Casualty Company v. Hurst
ADR, Contracts, Damages, Insurance, Torts
Texas 14th Court of Appeals
May 23, 2017
14-15-00714-CV
John Donovan
Published
     The jury found the first appellant corporation breached its duty of good faith and fair dealing and awarded $25,000 as damages. The appellants brought the instant appeal from a judgment entered in accordance with the jury’s verdict in favor of the appellee, the first appellant corporation’s insured. The appellate court found that because the evidence conclusively demonstrated that the first appellant fully and timely paid the appraisal award, the appellee was precluded from maintaining his prompt payment claim as a matter of law. Further, according to the appellee’s own testimony, his only quarrel with the initial payment was that it was too low and the appellee subsequently filed suit and eventually invoked the appraisal clause and the first appellant participated in the appraisal process and, following the umpire’s award, timely tendered the full amount of the loss and the trial court erred in denying the appellants’ motion for directed verdict on the appellee's extra-contractual claims. Furthermore, the binding appraisal process was an extra-judicial means designed to avoid litigation on the issue of damage and an insured couldn't defeat an otherwise valid and binding appraisal award simply by refusing to accept the insurer’s payment of the award or by asserting extra-contractual claims that were derivative of the policy claim and to hold otherwise would obviate the very purpose of the binding appraisal process. Finally, the trial court erred in denying the motion for directed verdict. The court therefore reversed the judgment of the trial court and rendered judgment that the appellee’s take nothing on his claims.


Appellee auto dealer did not engage in alleged violations of the Texas Deceptive Trade Practices Act when it refused to correct mechanical issues appellant experienced on the purchased vehicle after installing a lift kit that restricted repair under the warranty in effect
Washburn v. Ford
Appellate: Civil, Consumer, Contracts, Torts
Texas 14th Court of Appeals
May 23, 2017
14-16-00459-CV
Martha Hill Jamison
Published
     The appellant challenged the trial court’s grant of summary judgment in favor of the appellee as to the appellant’s Texas Deceptive Trade Practices Act (DTPA) claims. The appellate court found that salesperson offered the appellant an extended warranty, which he declined to purchase. The deposition testimony thus established that the appellee did not make any false representation involving a price reduction. In response, the appellant presented no evidence to raise an issue of fact as to the DTPA affirmative misrepresentation claim. Thus, the appellee conclusively established that it did not make false or misleading statements of fact concerning the reasons for, existence of, or amount of any price reduction. Further, the appellant did not present evidence in response to the summary judgment motion raising an issue of fact as to any such knowledge. Moreover, the appellee showed that it did not fail to disclose information regarding possible restrictions on the warranty. Thus, the appellee conclusively established that it did not fail to disclose known material information to the appellant in violation of the DTPA. Finally, the appellee established that did not take advantage of the appellant’s lack of the knowledge to a grossly unfair degree. the appellant did not present evidence in response raising an issue of fact as to his knowledge. Thus, the appellee conclusively established it did not engage in an unconscionable course of action. Accordingly, the court affirmed the judgment of the trial court.


Because the book as a whole and each of the complained-of gists and passages were not defamatory as a matter of law, trial court did not err in granting summary judgment on the family’s libel claim
Johnson v. Phillips
Appellate: Civil, Entertainment, Intellectual Property, Torts
Texas 1st Court of Appeals
May 23, 2017
01-15-00173-CV
Rebeca Huddle
Published
     After siblings, first appellant and the second appellant, sued the individual for the individual’s protracted abuse of their family, a Houston attorney defended the individual against the allegations in a 2008 civil trial. The defendants moved for traditional and no-evidence summary judgment, arguing that the book constituted a fair report of the 2008 trial and that neither the book as a whole nor any of the complained-of passages was defamatory. The trial court granted summary judgment without specifying its reasons, and the family appealed, arguing that the book was defamatory and not protected by the fair report privilege. The appellate court found that the family violence gist and passages 1 through 19, when considered in the context of the book as a whole, were not reasonably capable of defamatory meaning. Further, reasonable readers could determine for themselves whether the individual’s version of those events was believable given that he was a habitual liar and had an incentive to make himself appear more sympathetic and the court concluded that the perjury and dishonesty gist and passages 28 through 32 were not reasonably capable of defamatory meaning. Furthermore, the passages in that gist fairly present competing theories and testimony, permitting the reader to draw his own conclusions and the court concluded that passages 33 through 39 were not reasonably capable of defamatory meaning. Because the book as a whole and each of the complained-of gists and passages were not defamatory as a matter of law, the court held that the trial court did not err in granting summary judgment on the family’s libel claim. Accordingly, the trial court’s judgment was affirmed.


Trial court correctly granted appellee’s special appearance and dismissed the case for want of jurisdiction, where appellant’s tort claims did not demonstrate appellee’s choice to enter Texas and conduct business, but in Switzerland, and any contract claims were governed by German law
Hatzenbuehler v. Essig
Appellate: Civil, Contracts, International, Procedure, Torts
Texas 1st Court of Appeals
May 23, 2017
01-16-00515-CV
Jane Nenninger Bland
Published
     The deceased sued the appellee, alleging that the appellee and others falsely represented the cauldron to be of ancient Celtic origin. With the appellee’s assistance, the deceased purchased the cauldron at a Swiss bankruptcy sale. The deceased alleged that he later discovered that the cauldron was likely created by the Nazis in the 1940’s, making it significantly less valuable. The deceased died during the pendency of the suit and his widow, the appellant, succeeded him as plaintiff. The live pleading alleged that the appellee committed fraud, fraudulent inducement, negligent misrepresentation, and breach of contract in connection with the cauldron transaction. The appellee specially appeared, contending that the trial court lacked personal jurisdiction over him. The trial court agreed, granted the special appearance, and dismissed the suit. The appellate court found that the allegations and evidence supporting the appellant’s tort claims did not demonstrate the appellee’s choice to enter Texas and conduct business, but in Switzerland. Further, any legal injury arising from the appellant’s fraud, negligent misrepresentation, and breach-of-contract causes of action against the appellee occurred when the deceased purchased the cauldron in Switzerland pursuant to a contract with the appellee that was executed in Switzerland and governed by German law. Therefore, the court held that the trial court correctly granted the appellee’s special appearance and dismissed the case for want of jurisdiction. Accordingly, the court affirmed the judgment of the trial court.


Jury was instructed on lesser-included offense of assault; district clerk supplemented clerk’s record with venire list and parties strike lists; and State proved beyond a reasonable doubt appellant was convicted of two prior felony offenses in the enhancement paragraphs of the indictment
Nard v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
May 19, 2017
06-16-00124-CR
Ralph K. Burgess
Published
     The appellant was convicted of the offenses of aggravated assault with a deadly weapon and deadly conduct. He elected to have the trial court assess punishment, and after a punishment hearing, the trial court sentenced the appellant to serve seventy years’ imprisonment on the present charge. On appeal of his aggravated assault with a deadly weapon conviction, the appellate court found that the verdict form provided three options: a finding that the appellant was guilty of aggravated assault with a deadly weapon, a finding that the appellant was guilty of assault, or a finding that the appellant was not guilty of either offense. The district court’s charge accurately stated the law and gave the jury the option of finding the appellant guilty of the lesser-included offense of assault. Further, at the court's request, the district clerk supplemented the clerk’s record with the venire list and the parties’ strike lists. The appellant had presented no supplemental argument or allegation of error after the supplementation was completed. Furthermore, given the totality of the evidence presented, there was sufficient evidence upon which a jury could found that the second enhancement paragraph was true beyond a reasonable doubt. Accordingly, the court affirmed the trial court’s judgment and sentence.


CEO and CFO of the company of which they were shareholders could not enforce the Delaware forum-selection clause against respondents under the transaction-participant doctrine, or at common law, where the shareholders agreement was separate from the financing agreement
Pinto Technology Ventures L.P v. Sheldon
Appellate: Civil, Business, Contracts, Litigation: Commercial, Procedure, Securities
The Supreme Court of Texas
May 19, 2017
16-0007
Eva M. Guzman
Published
     The respondents were shareholders in the corporation, a developer and manufacturer of medical devices. The first respondent founded the corporation in 1999 and served as its Chief Executive Officer (CEO) until 2008. The second respondent, the corporation’s consultant from 2002 to 2012, was the co-inventor of vascular-stent technology the corporation licensed in 2000. Both the respondents initially acquired the corporation common stock through their business relationship with the company. In the appellate court’s analysis regarding the scope of the Delaware forum-selection clause, the Shareholders refute both its application as to the second respondent, because he only signed shareholder agreements designating a Texas forum, and its enforcement by the corporation CEO and CFO as nonsignatories under any of the asserted theories. The Texas Supreme Court found that the CEO and CFO could not rely on the transaction-participant doctrine to enforce the forum-selection clause against the respondents. Furthermore, the shareholders agreement was separate and distinct from the financing agreement and even though disputes arising out of the shareholders agreement may concern other events connected with the transaction, the record bore no evidence that the parties ever agreed in writing on a particular forum for an action arising from the financing transaction. Thus, the instant argument failed. Finally, because the CEO and CFO could not enforce the forum-selection clause against the respondents under the legal theories presented, the trial court erred in granting their motion to dismiss. Accordingly, the court reversed the appellate court's judgment, rendered judgment dismissing the respondents’ claims in part, and remanded the case to the trial court for further proceedings in part.


It was not the statute, but rather the appellees’ failure to comply with the expert-report deadline, that prevented them from pursuing their surgical malpractice claims against the appellant
University of Texas Health Science Center at Houston v. Joplin
Appellate: Civil, Constitution, Gov't/Administrative, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
May 18, 2017
14-16-00538-CV
Marc W. Brown
Published
     In the instant interlocutory appeal, the appellant Health Center challenged the trial court’s denial of the appellant’s motion to dismiss the appellees lawsuit with prejudice for failure to serve an expert report and curriculum vitae (CV) pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. Because the the appellees failed to comply with the service requirement under section 74.351(a), subjecting their claims to mandatory dismissal under section 74.351(b), the court conclude that the trial court abused its discretion and the appellant Health Center timely filed the instant interlocutory appeal. The appellate court found that the appellees did not point to, nor have the court found, any evidence raising a fact issue that they did not have a reasonable opportunity to be heard on their claims against the appellant. Instead, it was the appellees’ failure to timely serve an expert report that prevented them from pursuing their claims against the appellant. Further, it was not the statute, but rather the appellees’ failure to comply with the expert-report deadline, that prevented them from pursuing their claims against the appellant. Furthermore, the Texas courts have rejected as applied due process challenges to section 74.351 under similar circumstances. Furthermore, the court accordingly rejected the appellees’ contention that the court application of section 74.351 to their claims against the appellant violated the Texas Constitution. The appellees’ arguments reurging Scoresby and Hebner in support of their constitutional claims did not convince the court otherwise. Finally, the court reversed the denial of the appellant’s motion to dismiss and render judgment dismissing the appellees’ claims against the appellant with prejudice. Because the appellant was entitled to an award of reasonable attorney’s fees and court costs, the court remand for a determination of the amount of that award.


Appellee directors breached their fiduciary duties to the appellant, when the directors’ son opened a nearly identical restaurant to the appellant’s restaurant after the appellant company lost its lease for the location space, but appellant company failed to mitigate its damages
E.L. & Associates, Inc. v. Pabon
Appellate: Civil, Contracts, Corporations, Damages, Real Property, Torts
Texas 14th Court of Appeals
May 18, 2017
14-15-00631-CV
William J. Boyce
Published
     The appellant company sued the appellees, the directors and their adult son after the appellant lost a lease for a restaurant it operated and the directors’ son opened a nearly identical restaurant in the same location. A jury found that the appellee directors breached their fiduciary duties to the appellant. The jury further found that the appellee son, assisted in the appellees breaches of fiduciary duty. The jury awarded no damages to the appellant. The appellate court found that it was, admittedly, uncommon for a situation to present itself in which a party could mitigate damages before they occur. It was because the injury-causing occurrence typically results in immediate injuries. But the case presented a unique situation because it involved a breach of fiduciary duty, which may not result in immediate damages. Furthermore, based on the evidence, the record before the court could support a jury finding that the appellant failed to reasonably mitigate its damages, its loss of the restaurant location, by having the individual sign and become guarantor of a lease after learning of the appellee directors breaches but before the month-to-month lease was terminated in February 2011, or the appellee son signed the new lease for the same location. Thus, the trial court did not err by including a mitigation instruction in the damages question. Accordingly, having concluded that the inclusion of a mitigation instruction in the damages question was not error, the court affirmed the trial court’s judgment.

Appellant’s rights to confrontation were not violated by limiting cross-examination of complainant, where complainants credibility was not relevant to evidence that appellant misapplied more than $200,000 of fiduciary property; jury’s fine imposed was lawful, even if there was an ambiguity
Ette v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
May 18, 2017
02-16-00173-CR
Mark T. Pittman
Published
     A jury found the appellant guilty of the first-degree offense of misapplying more than $200,000 of fiduciary property. The jury then assessed the appellant’s punishment at ten years’ confinement and a $10,000 fine, recommending the suspension of the confinement but not the fine. The appellate court held that the trial court did not violate the appellant’s rights of confrontation and to present a defense by refusing to let him cross-examine the complainant about possible misrepresentations concerning another property unrelated to the bonds and unrelated to the documents prepared by the appellant regarding his fees for those bonds. Further, the context of the oral pronouncement in the instant case made clear that the appellant, the State, and the trial judge understood the sentence to be what appeared in both the verdict and the judgment ten years’ confinement and a $10,000 fine. Therefore, the court resolved the discrepancy in favor of the jury verdict. Finally, an appellate court’s authority to modify incorrect judgments depends neither on a party’s request nor on whether a party objected in the trial court. Accordingly, the court affirmed the trial court’s judgment as modified.

Oil and gas operator could drill from surface estate through leased subsurface to reach it’s own subsurface mineral rights in the adjacent property without trespass and contractual interference to the subsurface mineral leaseholder
Lightning Oil Company v. Anadarko E&P Onshore, LLC
Appellate: Civil, Contracts, Oil, Gas, & Mineral, Real Property
The Supreme Court of Texas
May 19, 2017
15-0910
Phil Johnson
Published
     The instant case concerns whose permission was necessary for an oil and gas operator to drill through a mineral estate it did not own to reach minerals under an adjacent tract of land. The respondent company, entered into an oil and gas lease that restricted its use of the surface estate and required it to drill from off-site locations when prudent and feasible. As a result, the respondent planned to locate well sites on the surface of adjacent tracts and use horizontal drilling to produce minerals from its lease. The company, owned an adjacent surface estate and agreed that the respondent could drill from the surface of the company. The petitioner, lessee of the minerals underlying the company, was not a party to the agreement. The petitioner sought to enjoin the respondent from drilling on the company, claiming that the petitioner’s consent was necessary before the respondent could drill through the the company’s subsurface covered by its mineral lease. The trial court dismissed the claim. The appellate court affirmed. The Texas Supreme Court found that the number of wells a pass-through driller might drill was not relevant with respect to claims in trespass against that driller. Thus, even though the exact number of wells the respondent planned to drill was disputed, that dispute did not affect the disposition of the trespass issue. Thus, the court affirmed the appellate court’s judgment regarding the trespass issue. Further, the petitioner did not contend that the Agreement failed to grant the respondent consent to drill on the company. the respondent was exercising its rights under the Agreement when it prepared to drill on the company, and so far as the record shows, its drilling plans were within the rights granted in the Agreement and did not tortiously interfere with the petitioner’s contractual lease rights. Thus, the court agreed with the appellate court that the respondent was entitled to summary judgment on the tortious interference with contract claim. Accordingly, the judgment was affirmed.

Trial court lacked authority constitutional, statutory, or inherent, to require petitioner to reinstate a county judicial employee at a specific salary, and lacked authority to bind Commissioners Court, because respondent failed to name anyone but petitioner in request for injunctive relief
Henry v. Cox
Appellate: Civil, Constitution, Courts, Employment, Gov't/Administrative
The Supreme Court of Texas
May 19, 2017
15-0993
Don R. Willett
Published
     The county, like all Texas counties, was governed by a commissioners court. In 2000, the the county Commissioners Court hired the individual as Director of Justice Administration (DJA), a position the Commissioners Court, acting in its policymaking capacity as the county’s governing body, had created a few years earlier. The individual worked as the DJA until 2014, when the petitioner judge fired her. At the time of her termination, the individual’s yearly salary was $113,000. The petitioner maintains he and other commissioners were dissatisfied with various aspects of the individual’s performance. The Commissioners Court later ratified the petitioner’s decision to terminate the individual. After a job posting for a new DJA was advertised, the respondent judge issued a sua sponte order requiring the petitioner to reinstate the individual. The respondent filed suit in his own trial court, but before a visiting judge against the petitioner, arguing the salary range for the new position was unreasonable. The trial court issued a temporary restraining order and a temporary injunction. A divided appellate court affirmed. The Texas Supreme Court found that the trial court lacked the authority constitutional, statutory, inherent, or otherwise to require the petitioner to reinstate a county judicial employee at a specific salary. At most, the trial court should have directed the Commissioners Court to reset the range. As it stands, however, the trial court lacked the authority to bind the Commissioners Court in the first place, because the respondent failed to name anyone but the petitioner in the request for injunctive relief. The trial court thus erred in issuing the temporary injunction. Accordingly, the court reversed the appellate court’s judgment and remanded.

Appellee had no traditional members and individuals it sought to represent have insufficient indicia of membership to confer associational standing upon appellee to bring the suit against city ordinance prohibiting sex offenders against minors from residing in certain places on their behalf
City of Westworth Village v. Texas Voices for Reason and Justice, Inc.
Appellate: Civil, Civil Rights, Constitution, Corporations, Criminal, Gov't/Administrative, Procedure
Texas 2nd Court of Appeals
May 18, 2017
02-16-00106-CV
Lee Gabriel
Published
     In 2007, the appellant city adopted an ordinance prohibiting any person required to register as a sex offender because of an offense involving a victim who was younger than seventeen from establishing a residence within 1,000 feet of any location where children commonly gather. A violation of the ordinance constitutes a misdemeanor and subjects violators to a fine not exceeding $500 for each day a violation occurs. The appellee, a Texas nonprofit corporation, sued the appellant on behalf of its members, claiming the ordinance violates the state constitution. The appellant filed a plea to the jurisdiction, arguing that the appellee lacks standing to sue on behalf of its members. The trial court denied the plea, prompting the appellant to bring this accelerated interlocutory appeal. The appellate court could not conclude that the appellee had members when the law under which it was created and by which it was governed says that it did not. Therefore, the court concluded that the appellee did not qualify as a traditional membership organization for purposes of associational standing. Further, the court found that the appellee had no traditional members and that the individuals it sought to represent in the instant lawsuit have insufficient indicia of membership to confer associational standing upon the appellee to bring the instant suit on their behalf. Finally, in arguing that the appellee had no members for purposes of associational standing, the appellant’s first issue challenged the existence of a jurisdictional fact. The evidence relevant to that issue was undisputed and did not raise a fact question on the jurisdictional issue. Therefore, the court concluded that, having sustained the appellant’s first issue, the appropriate disposition was to reverse the trial court’s order denying the appellant’s plea to the jurisdiction and to render judgment dismissing the appellee’s claims for lack of subject-matter jurisdiction. Accordingly, the judgment was reversed and rendered.

Because two-year statute of limitations barred respondent residents claims for a nuisance and trespass, the court reversed the court of appeals’ judgment and reinstated trial court’s take-nothing judgment
Town Of Dish v Atmos Energy Corporation
Appellate: Civil, Environmental, Procedure, Real Property, Torts
The Supreme Court of Texas
May 19, 2017
15-0613
Jeffery Brown
Published
     The petitioner energy companies owned four natural-gas compressor stations and a metering station just outside the respondent town. Respondent residents began complaining about the noise and odor emanating from those facilities as early as 2006, but did not sue until 2011. The trial court granted a series of summary-judgment motions brought by the energy companies on various grounds, including limitations. The court of appeals reversed the trial court on limitations, holding that the energy companies failed to prove as a matter of law that the residents’ claims accrued before February 28, 2009. The Supreme Court Of Texas found that more than a scintilla of evidence in the respondent residents’ affidavits and the Wolf Eagle report may support their claims generally, but no evidence rebutted fourth petitioner’s contention it was not one of the alleged offenders. As the respondent residents never responded to fourth petitioner’s no-evidence point, the trial court properly granted the fourth petitioner’s summary-judgment motion. Further, the court found that the petitioners have proven that any legal injury the respondent residents suffered commenced, at the latest, in May 2008. There was no objective evidence showing that the complained-of conditions worsened in the summer of 2009. Even if they did, the respondent residents’ claims had already accrued more than two years before they sued. Accordingly, the court reversed the court of appeals’ judgment and reinstated the trial court’s take-nothing judgment.


Individual was driving his personal vehicle to work, and appellant had no control over his driving; thus, trial court erred by failing to grant appellant summary judgment on appellee's claim seeking to hold appellant vicariously liable for individual's allegedly negligent operation of his truck
OCI Beaumont LLC v. Barajas
Appellate: Civil, Employment, Litigation: Personal Injury, Torts
Texas 9th Court of Appeals
May 18, 2017
09-16-00406-CV
Hollis Horton III
Published
     The appellee filed a suit against the individual and the appellant company seeking to recover for the injuries she suffered when the individual struck her with his truck. In the instant permissive appeal, the appellate court addressed whether a trial court or an intermediate appellate court, in the first instance, should expand the doctrine of vicarious liability by utilizing the access doctrine to hold a business vicariously liable for the negligence of its employee, who, while commuting to work, was involved in an autopedestrian collision in a parking lot which was not owned by the employer but was the location where the employer arranged for its employees to park. The appellate court found that the appellant's summary-judgment evidence conclusively established that the individual was driving his personal vehicle while on his way to work and had nothing to do with the risks associated with his job as a mechanical engineer. And, nothing in the summary-judgment record showed that the appellant had the right to control or controlled the manner that the individual drove his truck on the day his truck struck the appellee in the parking lot next to the appellant's plant. The court sustained the appellant's issue, and held that the trial court erred by failing to grant the appellant's motion for summary judgment on the appellee's claim seeking to hold the appellant vicariously liable for the individual's allegedly negligent operation of his truck. Accordingly, the court reversed the trial court’s order denying the appellant's motion as to the appellee's vicarious liability claim, and the court remanded the case to the trial court for further proceedings.


Based on Texas Supreme Court's most recent precedents regarding limitations on civil court jurisdiction to decide challenges to penal laws, district court lacked subject matter jurisdiction over appellees’ claims that Disposable Container and Cooler Ordinances were unconstitutional
City of New Braunfels v. Stop The Ordinances Please
Appellate: Civil, Civil Rights, Constitution, Courts, Criminal, Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
May 18, 2017
03-14-00198-CV
Bob Pemberton
Published
     The appellant city appealed a final judgment from the district court striking down, as unconstitutional, the so-called Disposable Container Ordinance (Can Ban) and a portion of the Cooler and Container Ordinance. The appellant City argued chiefly that the district court lacked subject-matter jurisdiction to decide the legal challenges that have been brought against the ordinances. The district court also permanently enjoined the appellant City from enforcing, spending public funds, or collecting fines or any other penalties as to the Disposable Container Ordinance and the cooler-size restriction in the Cooler & Container Ordinance. The appellate court found that the taxpayer standing represents an exception to the general rule of Texas law that the plaintiff show a particularized injury to establish his or her constitutional standing, a jurisdictional requirement that was distinct and independent from the aforementioned jurisdictional limits on civil court’s equity jurisdiction to address penal enactments. Because the court concluded that the summary-judgment evidence conclusively established that the district court did not have subject-matter jurisdiction over the appellees’ claims, the court must sustain the appellant City’s first issue and need not reach other issues it raised. Finally, having concluded that Morales precluded the district court’s subject-matter jurisdiction over the appellees’ claims, the court must reverse the final summary judgment and render judgment dismissing the appellees’ claims for want of subject-matter jurisdiction.


Appellant failed to preserve for appellate review his complaints concerning the evidence of his own gang affiliation, as well as that of cousin, friend and witness as a Rule 404(b) violation
Rawlins v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 18, 2017
01-16-00435-CR
Evelyn Keyes
Published
     The jury convicted the appellant, of the first-degree felony offense of murder and, after finding the allegations in an enhancement paragraph true, assessed his punishment at thirty-eight years’ confinement. The appellate court found that because the appellant did not re-urge his relevancy objection, move to strike the evidence, and request an instruction to disregard on the basis that the State did not connect up that the appellant and the complainant cousin were in rival gangs, he had failed to preserve for appellate review his complaint about the trial court’s conditional admission of evidence of his gang affiliation. Further, the court therefore held that the appellant had not preserved a complaint that admission of evidence of his gang affiliation violated Rule 404(b). Furthermore, to the extent the appellant complained about the admission of evidence that the cousin, individual friend, and the individual witness were all affiliated with gangs, appellant did not object to the instant evidence in the trial court. To preserve a complaint for appellate review, the party must make the complaint to the trial court by timely request, objection, or motion. Because the appellant failed to object to the evidence of cousin’s, friend’s and the witness gang affiliations, he had preserved no complaint about this evidence for appellate review. Finally, the court therefore held that the appellant had failed to preserve for appellate review his complaints concerning the evidence of his own gang affiliation, as well as that of cousin, friend and witness. Accordingly, the court affirmed the judgment of the trial court.


Appellee had not demonstrated that the three admissions conclusively negated an element of the deceased’s negligence cause of action; thus, the trial court erred in rendering summary judgment in favor of appellee
Ramirez v. Noble Energy, Inc.
Appellate: Civil, Discovery, Torts
Texas 1st Court of Appeals
May 18, 2017
01-16-00155-CV
Evelyn V. Keyes
Published
     In the instant personal injury case, the deceased sued the appellee for negligence after he allegedly sustained injuries while unloading a truck on the appellee’s property. After the deceased failed to timely respond to the appellee’s requests for admissions, the appellee moved for summary judgment. While the case was pending in the trial court, the deceased died, and his wife and the personal representative of his estate, the appellant, took over prosecution of his suit. The trial court granted the appellee’s summary judgment motion. The appellate court found that the record did not affirmatively reflect that the other eight requests seek to authenticate or prove the admissibility of documents or involve uncontroverted facts and thus were not merits-preclusive, and, indeed, the evidence was to the contrary. Therefore, the court agreed with the appellant that the deemed admissions had a merits-preclusive effect, implicating due process concerns. Thus, the court turn to whether the appellee demonstrated that, in failing to timely respond to the requests for admissions, the deceased acted with flagrant bad faith or callous disregard. Further, the deceased answered the discovery requests, albeit one day after the new response deadline set by the trial court. That was therefore not a situation in which the deceased or his counsel deliberately refused to participate in discovery. Next, as the appellee acknowledges, the trial court denied its motion for sanctions, and the trial court did not order the deceased to submit further responses to the appellee’s discovery requests. Therefore, the court did not agree that the alleged inadequacy of the deceased’s discovery responses justifies a presumption of callous disregard for the discovery rules. Furthermore, the appellee presented no evidence that withdrawal of the deemed admissions would cause it undue prejudice or that withdrawal would not serve presentation of the merits. Therefore, the trial court erroneously denied the deceased’s motion to withdraw deemed admissions. Finally, to the extent the trial court considered the deceased’s actual admissions, the appellee had not demonstrated that the three admissions conclusively negated an element of the deceased’s negligence cause of action. Thus, the trial court erred in rendering summary judgment in favor of the appellee. Accordingly, the judgment was reversed and remanded.


Given evidence demonstrating appellant’s lack of regular involvement with his children, his inexperience with parenting, and his inadequate living conditions, trial court did not abuse its discretion in limiting his visitation to regular daytime visits
Syed v. Masihuddin
Appellate: Civil, Family, Juvenile
Texas 1st Court of Appeals
May 18, 2017
01-16-00071-CV
Evelyn V. Keyes
Published
     Appellant, appealed the trial court’s final decree of divorce terminating his marriage to the appellee. The appellate court found that in his second issue, the appellant made numerous challenges to the accuracy of the trial court’s fact findings, arguing that many of them were not supported by sufficient evidence. In his third issue, the appellant argued several of the trial court’s fact findings constituted improper consideration in evaluating his rights of possession of or access to U.K. and U.H. However, because the court concluded that the findings were supported by sufficient evidence to allow the trial court to make its determination deviating from the standard possession order and that the trial court’s determination did not constitute an abuse of discretion, the court need not analyze every one of the remaining findings of fact. Further, given the findings and supporting evidence demonstrating the appellant’s lack of regular involvement with his children, his inexperience with parenting, and his inadequate living conditions, the court could not say the trial court abused its discretion in limiting his visitation to regular daytime visits. The visitation schedule set out by the trial court was not more restrictive than necessary to balance the children’s interest in “having frequent and continuing contact with parents who have shown the ability to act in the best interest of the child” and their interest in having a safe, stable environment. Accordingly, the court affirmed the trial court’s final decree.


Evidence was sufficient to support trial court’s finding that termination of appellants’ parental rights to the child was in child’s best interest, where father was incarcerated at time of hearing, and mother was victim of domestic violence, barely able to care for herself
In re R.S.-T.
Appellate: Civil, Family, Juvenile
Texas 4th Court of Appeals
May 17, 2017
04-16-00724-CV
Patricia O. Alvarez
Published
     The instant was an accelerated appeal of the trial court’s order terminating the appellants parental rights to their child. The First appellant contends the evidence did not support the trial court’s termination based on Texas Family Code subsections 161.001(1)(b)(D), (E), and (O). The first appellant also contended the trial court failed to properly conduct the requested de novo hearing pertaining to the parental terminations. The appellate court found that the trial court heard from numerous witnesses and also reviewed several reports filed with the court during the pendency of the case. In making its determination, the trial court was called upon to determine the child’s best interest; above all, the trial court must consider the child’s placement in a safe environment. Further, reviewing the evidence under the two sufficiency standards, and giving due consideration to evidence that the trial court could have reasonably found to be clear and convincing, the court concluded the trial court could have formed a firm belief or conviction that terminating the second appellant's parental rights to the child was in child’s best interest. Furthermore, the trial court found the first appellant committed three statutory grounds supporting termination of his parental rights and that termination of his parental rights was in child’s best interest; he did not appeal the trial court’s best interest determination. Finally, the trial court further found the second appellant committed the statutory grounds supporting termination of her parental rights and that termination of the second appellant’s parental rights was in child’s best interest and the second appellant only appealed the best interest of the child finding. Having reviewed the evidence, the court concluded the evidence was legally and factually sufficient to support the trial court’s finding by clear and convincing evidence that termination of the second appellant’s parental rights to the child was in the child’s best interest. Accordingly, the court overruled the second appellant’s sole issue on appeal and affirmed the trial court’s order terminating the second appellant’s parental rights.


The exchange between the appellant and the officers was a consensual encounter that did not trigger Fourth Amendment protections, where officer only drew his weapon after the pat-down search revealed an item, a syringe, which appellant emptied on the ground and concealed in his palm
Warden v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
May 17, 2017
04-16-00099-CR
Patricia O. Alvarez
Published
     A county jury found the appellant guilty of felony tampering with physical evidence. It also found two enhancement paragraphs true and sentenced the appellant to twenty-five years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. The appellate court found that during the pat-down search that the officer felt something in the appellant’s jacket pocket, and the appellant reacted. He drew the syringe from his pocket, expelled the fluid on the ground, held the syringe in his fist, and moved towards the officer. Only then did the officer draw his weapon. As the sole trier of fact and judge of credibility, the trial court was free to believe or disbelieve all or any of the witnesses’ testimony. Thus, the court could not say the trial court abused its discretion in determining that the encounter between the appellant and the officers was a consensual encounter. Therefore, the appellant failed to meet his initial burden to show that there had been a seizure. Finally, the exchange between the appellant and the officers was a consensual encounter that did not trigger Fourth Amendment protections. Accordingly, the court affirmed the trial court’s judgment.


Second individual established superior title to the property by long-term use, and after transferring the property to the appellee, appellee had perfected title by adverse possession and was entitled to immediate title and possession; appellant failed to preserve his joinder claim
Brown v Snider Industries, LLP,
Appellate: Civil, Procedure, Real Property
Texas 6th Court of Appeals
May 17, 2017
06-16-00078-CV
Bailey C. Moseley
Published
     The appellant heir of the deceased individuals, brought a trespass to try title action against the appellee LLP, in 2013, alleging himself to be one of the joint owners of an 8.151-acre tract in Harrison County, Texas. The trial court granted the appellee’s motion, holding that the appellee had perfected title to the realty in question by adverse possession and was entitled to immediate title and possession of it. The appellant had appealed the ruling, contending that the trial court erred in granting the first individual’s motion for summary judgment because first individual had failed to join indispensable parties and that first individual failed to conclusively prove the elements of adverse possession as a matter of law. The appellate court found that the undisputed evidence showed that in 1978, about a year after the 1977 letter, the first individual’s predecessor in interest, the second individual filed the Affidavit of Use and Possession, claiming long-term use of and superior title to the property, and a correction deed to the same property was filed in 1980. Further, several filings in the deed records of Harrison County, Texas, show public declarations that the first individual claimed the property by right. In the Affidavit of Use and Possession, the first individual’s predecessor in interest claimed to own a 94.824-acre tract that included the property at issue, and a correction deed to the same property was filed in 1980. Finally, the second individual executed a deed of the 94-acre tract to the appellee corporation, which, in 1992, conveyed it to the second individual again, who, three years later, conveyed it back to the appellee corporation which, in 2002 was converted into appellee LLP. Thus, the undisputed evidence established through both public declaration and open, visible acts, that the first individual entered, possessed, and used the property under a claim of right. Accordingly, the trial court’s judgment was affirmed.


Appellant, which held the executive rights regarding the appellees’ mineral interest, breached its executive duty by refusing to lease the appellees’ mineral interest
Texas Outfitters Limited, LLC v. Nicholson
Appellate: Civil, Contracts, Damages, Oil, Gas, & Mineral, Real Property, Torts
Texas 4th Court of Appeals
May 17, 2017
04-16-00392-CV
Luz Elena D Chapa
Published
     The appellant company appealed a money judgment the trial court rendered in favor of the appellees. The appellant, which held the executive rights regarding the appellees’ mineral interest, argued it did not breach its fiduciary duty of utmost good faith and fair dealing by refusing to lease the appellees’ mineral interest. The appellate court found that taken together, the trial court’s findings disclosed the ground that the trial court found supported a $867,654 damages award: a breach of the executive duty. The court therefore held the trial court’s fact-findings were sufficient to support the judgment. And, viewing all of the evidence in a neutral light, the court could not say the trial court’s finding that the appellant breached its executive duty was so against the great weight and preponderance of the evidence that it was clearly wrong or manifestly unjust. Further, while there were other factual differences between the instant case and Lesley v. Veterans Land Bd. of Tex., 352 S.W.3d 479, 480-81 (Tex. 2011), the material facts were the same. Furthermore, the court could not agree with the appellant’s suggestion that the evidence established that had it accepted the company’s offer, the appellees would have sued and the appellant would have been liable for accepting a sub-market bonus rate. Lastly, the circumstances giving rise to the breach of duty in the instant case were sufficiently similar to the circumstances giving rise to the breach of duty in Lesley. Similarly, the court need not and did not address whether the executive’s mere failure to execute any lease the non-executives desire was a breach of the executive duty. As such, the opinion should not be understood as announcing any rule or principal beyond those the supreme court announced in Lesley or KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 81-82 (Tex. 2015). The court simply concluded that under Lesley and KCM Financial, sufficient evidence supported the trial court’s finding that the appellant breached its executive duty by refusing to lease. Accordingly, the court affirmed the trial court’s judgment.


Evidence was legally and factually sufficient to support jury’s finding that appellant attorney failed to hold funds belonging to the individual or doctors separate from his own funds, on the allegation that he prematurely received the retainer from the escrow account
De Los Santos v. Commission for Lawyer Discipline
Appellate: Civil, Courts, Ethics, Gov't/Administrative, Professional Responsibility
Texas 4th Court of Appeals
May 17, 2017
04-16-00065-CV
Irene Rios
Published
     The instant appeal arose from an attorney disciplinary proceeding in which a jury found the appellant failed to hold funds belonging to a client separate from his own funds, a violation of Texas Disciplinary Rule of Professional Conduct 1.14(a). The appellate court found that upon review of all of the evidence presented, it concluded that the evidence was legally and factually sufficient to support the jury’s finding that the appellant failed to hold funds belonging to the individual or doctors separate from his own funds. Further, a complaint to a jury charge was waived unless it was presented to the trial court by specific objection. Thus, to preserve a jury-charge complaint a party must make the trial court aware of the complaint, timely and plainly, and obtained a ruling. The record did not reflect that the appellant objected to the alleged jury-charge error. Thus, the appellant waived the complaint on appeal. Furthermore, the appellant presented his own evidence and testimony to defend any allegation that he commingled funds belonging to the individual with his own funds. The appellant presented testimony and an adequate defense to the allegation that he prematurely received the $10,000 retainer from the escrow account. Therefore, the trial court did not abuse its discretion by overruling the appellant's special exceptions. Accordingly, the court affirmed the trial court’s judgment. 


Ruling on motion to suppress was not evidence and officer's testimony at the hearing was either cumulative of video evidence appellee had already seen or collateral because it was not material to suppression issue in co-defendant's case; appellee’s ineffective assistance claim was untimely
State v. Arizmendi
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 17, 2017
PD-0623-16
Sharon Keller
Published
     The appellee was ultimately charged with possession with intent to deliver methamphetamine in an amount of more than 400 grams. She entered into an agreement to plead guilty and received a sentence of twenty-five years’ confinement and a $5,000 fine. The Texas Court of Criminal Appeals found that the appellee could have asked to speak to the arresting officer or could have sought a police report. Further, even if neither of those requests could be satisfied, she nevertheless could have filed a motion to suppress and obtained the officer’s testimony at a suppression hearing just as her codefendant did. Consequently, the appellee’s failure to obtain the officer’s testimony at the suppression hearing was due to her lack of diligence. Although the appellate court did not resolve the instant issue, the State argued that the court should reach it for the sake of judicial economy and ordinarily, when the court rejected a appellate court’s disposition of an issue, the court remanded the case to that trial court to address any remaining issues that need to be addressed. Furthermore, that claim was raised for the first time at the hearing on the motion for new trial, and that hearing was conducted outside the thirty-day period. At the hearing, the State objected that the ineffective assistance claim was untimely, and the State was correct. The trial court was barred from considering the ineffective assistance claim. Finally, the court concluded that the appellate court erred in upholding the trial court’s decision to grant the motion for new trial. Accordingly, the court reversed the judgments of the courts below and remanded the case to the trial court.


Appellant had not shown Article 39.15 of Texas Code of Criminal Procedure was unconstitutional because it denied defense attorneys evidence they need to confront juvenile witnesses for their possible bias or motive
Gonzalez v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 16, 2017
01-15-00902-CR
Laura Carter Higley
Published
     A jury found appellant guilty of the offense of aggravated sexual assault of a child on the first offense and indecency with a child on the second. The appellant elected for the jury to assess punishment, and it assessed his punishment at confinement for twenty years on the first offense and five years on the second offense, to run concurrently. The appellate court found that viewing the evidence in the light most favorable to the jury’s verdict, as the court must, the court concluded that a rational trier of fact could have found that the appellant committed the offense of aggravated sexual assault of and indecency with a child, and the court deferred to that finding. The jury could resolve any contradictions between the girls’ live testimony and earlier forensic interviews in favor of the girls’ account. Thus, the court held that the evidence was sufficient to support the appellant’s conviction for aggravated sexual assault of and indecency with a child. Further, the appellant had not shown that Article 39.15 of the Texas Code of Criminal Procedure denied the appellant access to information necessary to allow him to confront the juvenile witnesses. Therefore, he had not shown that Article 39.15 was unconstitutional because it denies defense attorneys the evidence they need to confront juvenile witnesses for their possible bias or motive. Lastly, because the argument did not strike over the shoulders of counsel, the conduct did not rise to a level sufficient to overcome the presumption that the jury followed the curative instruction. As the instruction was curative, the trial court did not abuse its discretion in denying the mistrial. Accordingly, the court affirmed the judgment of the trial court.


The trial court erred by denying the appellant’s motion to dismiss the appellee’s health care liability claims for failure to timely serve an expert report
Hopebridge Hospital Houston, L.L.C. v. Lerma
Appellate: Civil, Health Care, Procedure, Torts
Texas 14th Court of Appeals
May 16, 2017
14-16-00849-CV
Kevin Jewell
Published
     The appellee alleged that, after he was admitted to the appellant for an accidental prescription medication overdose, the appellant’s employees committed assault and battery while forcing him to remain in his bed. Contending the appellee’s claims were health care liability claims governed by Texas Civil Practice and Remedies Code Chapter 74, the appellant filed a motion to dismiss and for attorney’s fees because the appellee did not serve an expert report as the code required. The trial court denied the motion. The appellate court found that in the instant case, the merits of the appellee’s claims would depend on whether the conduct of the appellant’s alleged employees involved permissible or necessary actions to restrain and confine a patient to bed, or whether the alleged employees’ conduct exceeded the bounds of patient care. The appellee’s allegations therefore implicated a breach of health care, medical care, or patient safety—standards that would require expert testimony to prove or refute them. Based on the foregoing, the court concluded that the record did not conclusively establish that the “only possible relationship between the alleged offensive contact” and the rendition of medical care, health care, or safety was the fact that it took place in a hospital. Because the entire record demonstrated that the appellant was a health care provider and the alleged assault and battery occurred while the appellant was providing medical care, or health care, or patient safety, the claims against the appellant were presumptively health care liability claims section 74.351(a)’s expert report requirements. The trial court erred by denying the appellant’s motion to dismiss the appellee’s health care liability claims for failure to timely serve an expert report. Further, because the court concluded that the appellee’s claims were subject to the expert report requirement and no report was served, the trial court erred by failing to dismiss the appellee’s claims and awarded the appellant reasonable attorney’s fees and costs of court. Accordingly, the court reversed and rendered.


45-day deadline for filing judicial review claims under Workers’ Compensation Code was not jurisdictional, and trial court erred in granting appellee insurer’s plea to the jurisdiction
Chicas v. Texas Mutual Insurance Co.
Appellate: Civil, Employment, Gov't/Administrative, Insurance, Procedure
Texas 1st Court of Appeals
May 16, 2017
01-16-00226-CV
Sherry Radack
Published
     The trial court granted the appellee corporation's plea to the jurisdiction and dismissed the appellant's suit for judicial review because it was not filed within 45 days of a final decision by the Division of Workers’ Compensation [DWC]. In so ruling, the trial court necessarily concluded that the 45-day time limit for filing a suit for judicial review was a jurisdictional, statutory prerequisite. The appellate court found that judicial review, by its very nature may delay treatment, but the Legislature nonetheless chose to provide such a review. Further, the deadline for filing the judicial review was jurisdictional or not did not change that. The suit must still be timely, even though the timeliness did not affect jurisdiction, but merely the plaintiff’s right to proceed with the suit. Furthermore, the trial courts that erroneously proceed to judgment without jurisdiction in a suit for judicial review would forever have their judgments open to reconsideration and that was precisely the threat to finality that Kazi sought to end. Moreover, the Texas Mutual’s plea to the jurisdiction was entirely premised on the assumption that the tolling provision found in section 16.064 did not apply to statutory prerequisites that were jurisdictional, and that the 45-day deadline for filing judicial review claims was jurisdictional. However, the court held that the 45-day deadline for filing judicial review claims found in section 410.252(a) of the Labor Code was not jurisdictional. Therefore, the trial court erred in granting Texas Mutual’s plea to the jurisdiction. Accordingly, the court reversed the judgment of the trial court and remanded for further proceedings.


State presented sufficient evidence appellant was criminally responsible for robbery of complainant under the law of parties, where appellant fled in his vehicle with the other individuals, abandoned the vehicle containing complainant’s purse, and hid in a dumpster to avoid capture
Rodriguez v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 16, 2017
01-16-00401-CR
Evelyn V. Keyes
Published
     A jury convicted appellant of first-degree felony offense of aggravated robbery and assessed his punishment at thirty-eight years’ confinement plus a $5,000 fine. The appellate court found that the State’s theory at trial was that appellant aided the two individuals (the individuals) in robbing the complainant by driving the getaway vehicle. On appeal, the appellee State focused solely on arguing that appellant was guilty of aggravated robbery under the law of parties. The court therefore agreed with the appellant that the State presented no evidence that the appellant committed the offense of aggravated robbery of the complainant as a primary actor. Further, the court found that the appellant fled in his vehicle when officers activated their emergency lights, and he, along with the two individuals (the individuals), abandoned the vehicle—which contained complainant’s purse—and hid in a nearby dumpster to avoid capture. Viewing the evidence in the light most favorable to the verdict, as the court must when reviewing the sufficiency of the evidence, a reasonable jury could have concluded beyond a reasonable doubt that the appellant, with the intent to promote or assist the commission of the robbery of complainant, aided the individuals to commit the offense. The court held that the State presented sufficient evidence that the appellant was criminally responsible for the robbery of complainant under the law of parties. Accordingly, the court affirmed the judgment of the trial court.


Trial court abused its discretion in finding that the cattle and calves in gestation or on the ground were the separate property of the appellee and not part of the community estate
In re Marriage of Stegall
Agricultural, Appellate: Civil, Family
Texas 7th Court of Appeals
May 12, 2017
07-15-00392-CV
Mackey K. Hancock
Published
     The appellant appealed the trial court’s Final Decree of Divorce, limited to the court’s property division and, specifically, the classification of cattle as the separate property of the appellee. The appellate court found that nothing in the appellee's motion or the record reflected that the appellant's acceptance of the benefits was a clear intent to acquiesce in the judgment’s validity. Rather, the appellant had consistently challenged the trial court’s characterization of certain property as the appellee's separate property. In the absence of proof of irremediable disadvantage to the appellee and circumstances reflecting the appellant's clear intent to acquiesce in the judgment’s validity, the court were obliged to dispose of the present appeal on the merits. Further, the trial court abused its discretion in finding that 191 head of cattle and calves in gestation or on the ground were the separate property of the appellee and not part of the community estate. Because the cattle constitute a large portion of the community estate, the trial court’s mischaracterization of the property as the appellee's separate property had a profound affect on the just and right division of the community estate and the court must, therefore, remand the entire community estate for a new division. Thus, the court reversed the trial court’s just and right division of the community estate, and remanded for a new division of the community estate. Accordingly, the court reversed the property-division portion of the judgment and remanded that portion for a new trial and in all other respects, the judgment was affirmed. 


Since arbitrator clarified that all the parties’ future income was partitioned as of the mediated settlement agreement date, petitioner's future income partitioned to him encompassed the discretionary bonus paid to him after that date
Loya v. Loya
Appellate: Civil, Family
The Supreme Court of Texas
May 12, 2017
15-0763
Debra Lehrmann
Published
     In the instant divorce proceedings, the parties entered into a mediated settlement agreement (MSA) after nearly two years of litigation. The central issue was whether the MSA partitioned a discretionary employee bonus the petitioner husband received nine months after the decree was entered. The petitioner contended that the bonus constituted future income and earnings that the mediated settlement agreement (MSA) partitioned to him, while the respondent wife contended that part of the bonus was earned during the marriage and constituted undivided community property. The trial court granted summary judgment for the petitioner, but the appellate court reversed. The Texas Supreme Court found that the MSA in the instant case dictated how the parties must resolve disputed interpretations of its terms. To the extent the MSA did not clearly partition future income, the arbitrator clarified that all of the parties’ future income was partitioned as of June 13, 2010. Further, the petitioner's future income encompassed the 2011 discretionary bonus, which was neither owed nor paid to him until nine months after the MSA was signed. Accordingly, the court reversed the appellate court's judgment and rendered judgment for the petitioner.


Trial court abused its discretion by ordering a nonparty to allow petitioners to enter onto his property and submit to a search of his bunker to inspect firearms subject to a security agreement, and relator established that it was entitled to mandamus relief
In re Sun City Gun Exchange, Inc.
Appellate: Civil, Civil Rights, Constitution, Courts, Creditor/Debtor, Discovery, Gov't/Administrative, Real Property
Texas 8th Court of Appeals
May 12, 2017
08-16-00357-CV
Ann Crawford McClure
Published
     Relator filed a mandamus petition against respondent Judge of the 448th District Court of El Paso County, Texas. The relator asked the appellate court to order the respondent to vacate an order compelling a non-party, to allow entry onto his real property and personal residence located in El Paso, Texas, for the purpose of photographing, inspecting, and video-recording all firearms and related property located in a firearms storage facility in the basement of the nonparty’s homestead. The court granted the relator’s motion to stay the discovery order pending resolution of the instant original proceeding. The appellate court found that while the relator offered to allow counsel for the petitioners to view certain guns at a neutral location, it made the offer in an effort to resolve the discovery dispute and to prevent entry onto the nonparty’s property. The offer did not operate as a waiver of the relator’s objections to the motion for entry onto the nonparty’s property. Further, to the extent the trial court granted the order for entry onto the nonparty’s land based on provisions in the security agreement allowing the secured party to inspect the collateral, it abused its discretion. The petitioners failed to establish they could not obtain the information sought through less intrusive means. the nonparty offered to produce the firearms which he identified in his interrogatory response, but the petitioners rejected the offer. The trial court abused its discretion by ordering a nonparty to allow the petitioners to enter onto his property and submit to a search of his bunker when they failed to establish relevance or good cause for the inspection. Furthermore, the petitioners have no right to roam through the nonparty’s property, photograph every item contained within the nonparty’s bunker, and record the serial numbers of firearms which belong to the nonparty or other persons. Once the information was recorded and in the possession of person’s outside of the nonparty’s control, the nonparty and any other owners whose property was stored in the bunker was in danger of permanently losing substantial rights and an appellate court could not correct the trial court’s error. The relator had established that it was entitled to mandamus relief. Accordingly, the court conditionally granted mandamus relief.


While first Judge lacked authority to file findings, trial court erred by failing to direct first Judge to request second Judge to file findings, where though second Judge's term expired during period respondent requested findings, section 30.002(a) authorized him to file after his term expired
Ad Villarai, LLC v. Pak
Appellate: Civil, Courts, Procedure
The Supreme Court of Texas
May 12, 2017
16-0373
Per Curiam
Published
     The issue in the instant case was whether a newly elected trial-court judge or the former judge she replaced may file findings of fact following a bench trial over which the former judge presided before his term expired. The appellate court held that neither judge could file the findings. The court reverse the appellate court judgment and remanded the instant case to that court with instructions that it abate the appeal and direct the trial court to correct the error by requesting that the former judge file findings. The respondent appealed the trial court’s judgment, arguing in part that the first judge’s findings were invalid because she lacked authority to file them. The Texas Supreme Court found that because the second Judge's term of office expired on December 31, 2014, which was within the period for filing the findings the respondent requested, the Texas Civil Practice and Remedies Code section 30.002(a) granted the second Judge authority to file the findings even after his term expired. Further, because the second Judge's term expired during the period prescribed for filing the findings the respondent requested, section 30.002(a) authorized him to file the findings even after his term expired. Furthermore, the respondent conceded that section 30.002(a) applied to the instant factual scenario, but contends that the second Judge only had authority to file findings during the court’s plenary power over the instant case. The respondent offered no authority to support the instant proposition, and the court decisions have recognized a contrary rule. Moreover, the court granted the petition for review and without hearing oral argument and the court reversed the appellate court's judgment. While the court agreed that the first Judge lacked authority to file findings, the trial court erred by failing to direct first Judge to request that second Judge file the findings. Finally, the court remanded to the appellate court with instructions for it to abate the appeal and direct the trial court to request that the second judge file findings in the case. Finally, if the trial court reports that the second judge failed or refused to file findings as and when requested, the appellate court may then remand the case to the trial court for a new trial.


Petitioner university’s campus police station was a governmental unit for purposes of law enforcement and petitioner was entitled to pursue an interlocutory appeal on denial of the plea to the jurisdiction as the defendants to the plaintiff’s unreasonable deadly force suit
University of The Incarnate Word v. Redus
Appellate: Civil, Civil Rights, Constitution, Education, Gov't/Administrative, Procedure, Torts
The Supreme Court of Texas
May 12, 2017
15-0732
John P. Devine
Published
     The petitioner was a private university that maintains a campus police department. The instant case arose from the petitioner officer's use of deadly force following a traffic stop. The incident resulted in the death of the deceased, the petitioner student the officer pulled over on suspicion of driving while intoxicated. The deceased’s parents, the respondents sued the petitioner and the officer for their son’s death. The petitioner raised governmental immunity as a defense in its answer and later asked the trial court to dismiss the suit in a plea to the jurisdiction. The trial court denied the plea, and the petitioner took an interlocutory appeal under section 51.014(a)(8) of the Civil Practice and Remedies Code. The appellate court dismissed the appeal. The Texas Supreme Court found that the Legislature had authorized the petitioner to enforce state and local law using the same resource municipalities and the State use to enforce law, commissioned peace officers. The petitioner’s officers have the same powers, privileges, and immunities as other peace officers. Because law enforcement was uniquely governmental, the function the Legislature had authorized the petitioner to perform and the way the Legislature had authorized the petitioner to perform it strongly indicate that the petitioner was a governmental unit as to that function. Thus, the court found that the petitioner was a governmental unit for purposes of law enforcement and that the petitioner was therefore entitled to pursue an interlocutory appeal under section 51.014(a)(8) of the Civil Practice and Remedies Code. Accordingly, the court reversed the appellate court’s judgment and remand for it to resolve the petitioner’s interlocutory appeal.


Petitioner lacked statutory (and contractual) authority to cancel policy; 10-day stated-notice precondition to cancellation in section 651.161(b) of Texas Premium Finance Act, unlike other statutes, did not allow for a “substantial compliance” approach to compliance
BankDirect Capital Finance, LLC v. Plasma Fab, LLC
Appellate: Civil, Contracts, Insurance, Torts
The Supreme Court of Texas
May 12, 2017
15-0635
Don R. Willett
Published
     The respondent company obtained a general liability insurance policy from the company and financed the policy through a premium finance agreement with the petitioner. The petitioner paid the annual premium to the company, and the respondent company made monthly payments to the petitioner. The respondent company did not pay the past-due premium by December 4, and the petitioner sent a notice of cancellation to the company that evening. Four days later, a fire destroyed an apartment complex where the respondent company’s employees worked. The next day, the respondent company tendered the overdue amount, and the petitioner requested that the company reinstate the policy. the company refused, citing internal procedures forbidding reinstatement of policies that have been cancelled three times. the respondent company was sued for damages arising out of the fire. The company denied coverage, and judgment for almost $6 million was ultimately rendered against the respondent company. The respondent company and the respondent individual, its sole shareholder, sued the company and the petitioner for breach of contract, breach of fiduciary duty, deceptive trade practices, and negligent misrepresentation. The trial court granted summary judgment to the company and the petitioner on all claims. The appellate court reversed. The Texas Supreme Court found that the respondent company received notice, but it did not receive notice as required by law, meaning the petitioner lacked statutory (and contractual) authority to cancel the policy. The 10-day stated-notice precondition to cancellation in section 651.161(b) of the Texas Premium Finance Act, unlike other statutes, did not allow for substantial compliance. A looser, nontextual construction may temper statutory absoluteness and lead to more congenial policy outcomes, but fair reading now and again yields unfair results. As adjudicators the court must read section 651.161(b) as written—in a manner faithful to what the law actually says despite its imperfections. The petitioner contended the purpose of the statute was satisfied. But the 181 legislators who may have had 181 different motives, reasons, and understandings nowhere codified an agreed purpose. When decoding statutory language, the court were bound by the Legislature’s prescribed means. Accordingly, the court affirmed the appellate court’s judgment and remanded.


Stock sale agreement between petitioner and second corporation was unambiguous and did not unequivocally express the parties’ mutual intent to make respondent a third-party beneficiary trial court erred by submitting that issue to the jury and instructing them to consider extrinsic evidence
First Bank v. Brumitt
Appellate: Civil, Contracts, Corporations, Damages, Evidence, Torts
The Supreme Court of Texas
May 12, 2017
15-0844
Jeffrey S. Boyd
Published
     The instant case arose from the unsuccessful sale of a Houston-area information-technology first corporation. The Respondent who owned the first corporation, agreed to sell his stock to another Houston-area information-technology company, the second Corporation. The second corporation's owner and president, initially wanted to purchase the respondent's stock in two companies, the first corporation and the third corporation. The trial court entered judgment based on the jury’s verdict, awarding the respondent $1,006,000 as breach-of-contract damages, $250,000 as damages for negligent misrepresentation, and $250,000 as exemplary damages for gross negligence. Including attorney’s fees and pre-judgment interest, the respondent’s award totaled $1,815,460 plus court costs, post-judgment interest, and attorney’s fees on appeal. The Texas Supreme Court found that the trial court permitted the jury to consider extrinsic evidence as a basis for adding a term to the parties’ contract, instructing the jury that the parties’ intent to make the respondent a third-party beneficiary could be established using other evidence if the intent to benefit a third party was not expressed in the contract itself. Because the contract’s language was unambiguous, the trial court not a jury should have determined the parties’ intent as a matter of law, and it could not do so by relying on extrinsic evidence to create an intent that the contract itself did not express. Further, the court conclude that the agreement between the petitioner Bank and the second corporation did not clearly and fully express the parties’ intent to make the respondent a third-party beneficiary, and the trial court erred by submitting that issue to the jury and by permitting the jury to consider extrinsic evidence to add to the parties’ agreement. The court thus reversed the appellate court’ judgment upholding the petitioner’s liability to the respondent for breach of contract. Because the petitioner had not addressed the sufficiency-of-the-evidence issue in its briefing to this Court, the court believed it was better to remand for the appellate court to consider and address the issue in the first instance. Furthermore, the agreement between the petitioner and second corporation was unambiguous and did not clearly, wholly, and unequivocally express the parties’ mutual intent to make the respondent a third-party beneficiary. Finally, the trial court erred by submitting that issue to the jury and by instructing the jury to consider extrinsic evidence and the court reversed the appellate court's judgment, render judgment for the petitioner on the respondent’s breach-of-contract claim, and remanded the case to the appellate court for further consideration.


Jury could have found petitioner’s incontinence was itself a disability, and court of appeals erred in holding petitioner had to prove that his congestive heart failure was the disability that caused his urinary incontinence to show respondent improperly terminated him because of a disability
Green v. Dallas County Schools
Appellate: Civil, Civil Rights, Employment, Evidence, Gov't/Administrative
The Supreme Court of Texas
May 12, 2017
16-0214
Per Curiam
Published
     In the instant disability-discrimination case, the trial court entered judgment on the jury’s verdict in favor of the employee (the petitioner). The court of appeals reversed, holding the petitioner offered no evidence he was terminated “because of” his congestive heart failure. The Supreme Court Of Texas found that three physicians defined incontinence as “the inability to control your urine.” the court concluded that the evidence, along with the uncontested evidence that the petitioner suffered from “the involuntary loss of urine” on the occasion for which he was fired, was sufficient to support a finding that his incontinence itself was a disability. Further, in any event, the trial court’s charge instructed the jury that, for purposes of establishing that the respondent “knew of his disability,” the respondent could act “through its officers and employees,” not just through its “decisionmakers.” the respondent did not object to the instruction, so the court must measure the sufficiency of the evidence in light of the jury instruction. Consistent with the jury charge, the record contained legally sufficient evidence that the bus drivers, who were the respondent's employees—and thus the respondent itself—knew of the petitioner’s urinary incontinence. Furthermore, the jury’s task was to decide whether the respondent improperly terminated the petitioner “because of” a disability. No one disputed that the respondent fired the petitioner because of his urinary incontinence, and based on the jury charge and the evidence presented, we conclude the jury could have found the petitioner’s incontinence was itself a disability. The court of appeals thus erred in holding that the petitioner had to prove that his congestive heart failure caused his urinary incontinence. Accordingly, the court reversed the court of appeals’ judgment and remanded.


Board members were employed by petitioner under provisions of the Texas Unemployment Compensation Act such that when their terms of service ended or their workload was reduced, they became eligible for unemployment compensation benefits
Harris County Appraisal District v. Texas Workforce Commission
Appellate: Civil, Employment, Gov't/Administrative, Procedure
The Supreme Court of Texas
May 12, 2017
16-0346
Phil Johnson
Published
     In the instant case the court considered whether several members of the Harris County Appraisal Review Board are, or were, employed by the petitioner under provisions of the Texas Unemployment Compensation Act (TUCA) such that when their terms of service ended or their workload was reduced, they became eligible for unemployment compensation benefits. The respondent Commission (the respondent) determined that they were. The district court disagreed and set the respondent’s decisions aside. The court of appeals reversed. The Texas Supreme Court found that under the Tort Claims Act, “‘Employee’ meant a person, who was in the paid service of a governmental unit, but did not include a person who performed tasks the details of which the governmental unit did not have the legal right to control.” Thus, Board members were not precluded from meeting the definition of “employment” under TUCA simply because they exercise independent judgment, or the content and result of their decisions were not under the direct control of the petitioner. Further, the Tax Code provisions the petitioner relied on did not control the definition of “employment” or “employee” for purposes of TUCA. Thus, the Tax Code did not prohibit or prevent a Board member from being an employee of the petitioner for TUCA purposes. Furthermore, considering all the factors, the court concluded that there is more than a scintilla of evidence to support the respondent’s determination that an employment relationship existed between the petitioner and the claimants. Thus, there was substantial evidence to support the respondent’s determination that they were entitled to unemployment compensation. Lastly, although it was clear that the Legislature was concerned with the independence and neutrality of appraisal review boards, those considerations did not warrant an extension of the members of the judiciary exemption in the instant case. Therefore, the court agreed with the court of appeals’ determination that Board members did not fall within TUCA’s exemption for members of the judiciary. Accordingly, the court affirmed the judgment of the court of appeals.


Commercial landlord had not expressly waived contractual nonwaiver provision by accepting late payments from tenant, and could proceed on its forcible detainer action against tenant, who failed to exercise lease extension option by fulfilling all the contractual terms and conditions
Shields Limited Partnership v. Bradberry
Appellate: Civil, Contracts, Landlord and Tenant, Real Property, Torts
The Supreme Court of Texas
May 12, 2017
15-0803
Eva M. Guzman
Published
     In the instant forcible-detainer action, the petitioner, a commercial landlord sought to oust a long-term tenant, the respondents claiming a superior right of immediate possession under a lease-extension option. Though the the respondents frequently defaulted on the lease’s rental-payment terms, the petitioner regularly accepted the respondents rental payments when tendered and without protest. The parties had agreed, however, that the petitioner's acceptance of late installment of Rent should not be a waiver and should not estop the petitioner from enforcing that provision or any other provision of the lease in the future, all waivers must be in writing and signed by the waiving party, and any forbearance of enforcement should not be construed to constitute a waiver. After exhausting the administrative remedies, the appellate court summarily rejected the petitioner's alternative argument that, even if the respondents had successfully exercised the extension option, he was in default under the lease based on his failure to pay Consumer Price Index (CPI)-adjusted rent starting June 1, 2012. Although the petitioner had asked the trial court to take judicial notice of the CPI, including for April 2012, which produced a new base rental rate of $3,340 per month, the appellate court said the petitioner failed to ask the trial court to take judicial notice of the April 2013 CPI specifically. The Texas Supreme Court found that though it did not hold a nonwaiver provision may never be waived, there must, at a minimum, be some act inconsistent with its terms. Further, the record bears no evidence that the petitioner acted inconsistently with the contract’s express terms. Nor had the respondents identified any false or misleading representation supporting an equitable-estoppel bar to eviction, as the respondents asserts. Thus, the court reversed the appellate court's judgment rejecting the petitioner's forcible-detainer action, rendered judgment in the petitioner's favor, and remanded to the trial court to award attorney’s fees in accordance with the parties’ contract.


Section 33.021(c) was not constitutionally overbroad in violation of First Amendment, was not vague, and did not violate Dormant Commerce Clause, where statute could not be interpreted to prohibit online communications that were intended to result in a meeting with a minor solicited online
Ex parte Moy
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 09, 2017
14-16-00420-CR
Martha Hill Jamison
Published
     In the instant case, the appellant was indicted for the felony offense of online solicitation of a minor under Texas Penal Code, challenged in eight issues the constitutionality of the statute. The appellate court agreed with its sister court that Lo required the court to conclude that Texas Penal Code Section 33.021(c) regulates conduct and only unprotected speech. The court, therefore presumed the statute’s validity and placed the burden of demonstrating unconstitutionality on appellant. Further, the court concluded that Section 33.021 was not unconstitutionally vague because it could not be interpreted to prohibit online communications that were not intended to result in a meeting. Furthermore, Section 33.021, by contrast, did not punish communication of explicit materials to minors. Instead, it criminalizes online solicitation of minors with the intent to engage in sexual conduct. Protecting children from sexual predators was a legitimate local public interest. Any effect of the statute on interstate commerce was only incidental in relation to the local benefit of the statute. The statute was even handed. Accordingly, concluding that Section 33.021(c) was not constitutionally overbroad in violation of the First Amendment, was not vague, and did not violate the Dormant Commerce Clause, the court affirmed.


Trial court abused its discretion by refusing to enforce forum-selection clause, suit was dismissed, and appellate court conditionally granted the writ of mandamus for trial court to dismiss as moot appellant’s appeal from the denial of its special appearance
In re Bloom Business Jets LLC
Appellate: Civil, Contracts, Creditor/Debtor, Procedure, Torts
Texas 1st Court of Appeals
May 09, 2017
01-16-00832-CV
Harvey Brown
Published
     The appellant corporation formerly crewed and maintained an airplane for the appellee corporation under contract. The appellee terminated the contract after their business relationship soured and the appellant placed a lien on the plane. The appellee then sued the appellant in Harris County. The trial court denied the appellant’s special appearance and motion to dismiss. The appellant now petitioned for a writ of mandamus regarding the denial of its motion to dismiss and appealed from the denial of its special appearance. The appellate court found that the appellee’s remaining claims for breach of contract, fraud, and negligent misrepresentation were likewise claims involving the parties contract and therefore were subject to its forum-selection clause and the court concluded that the appellant sought mandamus relief with respect to all of the appellee’s claims, not just those relating to the appellant’s lien. Further, as the instant suit must be dismissed due to the forum-selection clause, the court need not decide whether the trial court had personal jurisdiction over the appellant and the trial court denied the appellant’s special appearance and motion to dismiss. The appellant now petitions for a writ of mandamus regarding the denial of its motion to dismiss and appealed from the denial of its special appearance. Because the trial court abused its discretion by refusing to enforce the forum-selection clause, the court conditionally granted the writ and dismissed as moot the appellant’s appeal. Finally, the court trusted that the trial court would comply with these directives, and the writ would issue only if the trial court did not do so. Accordingly, the court dismissed as moot the appellant’s appeal from the denial of its special appearance and its motion to consolidate that appeal with the mandamus proceeding.


Appellate court conditionally granted relators’ petition for writ of mandamus and ordered trial court to vacate its order denying relators’ production of plaintiffs’ unredacted emails, where the emails were not created in anticipation of litigation and were crucial to relators’ defense
In re Kubosh Bail Bonding
Appellate: Civil, Courts, Discovery, Gov't/Administrative
Texas 1st Court of Appeals
May 16, 2017
01-16-00417-CV
Evelyn Keyes
Published
     In the instant mandamus proceeding, relators, asked the instant Court to vacate the trial court’s order refusing to require real parties in interest (the Plaintiffs) to produce unredacted copies of twelve emails (the Emails) exchanged among one of the Plaintiffs’ counsel of record, a paralegal for the other law firm representing the Plaintiffs, and a third party defendant and also a real party in interest. The trial court ruled that the Emails were protected from discovery under the work product privilege. The appellate court found that because the Emails were exchanged prior to Youngblood’s and Nash’s suffering an alleged injury, Youngblood and Nash did not have a good faith belief that there was a substantial chance that litigation would ensue on their behalf, and, therefore, the Emails were not created and exchanged in anticipation of litigation. Thus, the court held that the trial court abused its discretion by ruling that the Emails were privileged work product that should not be produced to the relators. Further, even if the Emails constituted work product, the Plaintiffs waived the work product privilege under the offensive use doctrine and the court therefore held that the trial court abused its discretion by failing to order the Plaintiffs to disclose the unredacted Emails to the relators. Furthermore, the Emails did not merely include discussions about the logistics of reserving a conference room at Provost Umphrey so Youngblood and Nash could make their calls to the relators. Those emails go to the heart of the relators’ case. Without those Emails, the relators’ ability to present a viable claim or defense at trial was severely compromised and the court therefore held that mandamus relief was warranted in the instant case. Finally, the court conditionally granted the relators’ petition for writ of mandamus and ordered the trial court to vacate its order denying the relators’ production of the unredacted Emails. The writ would only issue if the trial court failed to comply.


By proceeding to rule on the motion to dismiss in favor of appellee correction officers with prejudice, rather than staying appellant inmate’s judicial grievance proceedings for 180 days, trial court abused its discretion
Morgan v. Whitfield
Appellate: Civil, Civil Rights, Constitution, Gov't/Administrative
Texas 8th Court of Appeals
May 11, 2017
08-16-00080-CV
Ann Crawford McClure
Published
     The appellant was an inmate incarcerated with the Texas Department of Criminal Justice. Proceeding pro se and in forma pauperis, the appellant sued the appellees, the warden and two correctional officers alleging they failed to protect him when another inmate beat him with a cup on January 20, 2016. On behalf of the appellees, the Texas Attorney General’s Office (OAG) filed a motion to dismiss the appellant’s lawsuit pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code, which places numerous procedural requirements on an inmate who sues in forma pauperis. The trial court granted the motion to dismiss without a hearing and entered judgment dismissing the appellant’s claims with prejudice. The appellate court found that the appellant could have properly filed suit 180 days after the date he filed his grievance on February 4, 2016, even without a written decision from the grievance system. the appellant’s response showed that he had not yet received the written grievance decision, but had proceeded to file suit before the 180 days had elapsed. Tex.Civ.Prac.& Rem.Code Ann. Section 14.005(c) specifically requires that when a claim was filed before the grievance system procedure was complete, the court shall stay the proceedings with respect to the claim for a period not to exceed 180 days to permit completion of the grievance system procedure. By proceeding to rule on the motion to dismiss rather than staying the proceedings as required by Section 14.005(c), the trial court acted without reference to Section 14.005(c) and thus abused its discretion. Accordingly, the judgment was reversed and remanded.


Appellant failed to raise a fact issue on each element of its limitations defense, a defense appellee was not required to negate, and could not now claim the defense after failing to do so in the Public Utility Commission hearing on appellee’s interconnectivity agreement breach claim
New Talk, Inc. v. Southwestern Bell Telephone Co.
ADR, Appellate: Civil, Contracts, Damages, Discovery, Gov't/Administrative, Technology
Texas 2nd Court of Appeals
May 11, 2017
02-15-00199-CV
Elizabeth Kerr
Published
     The instant dispute arose because the appellant corporation believed that the appellee was overcharging it by not giving certain credits under their agreement; over a period of time, then, the appellant engaged in what was essentially self-help by unilaterally reducing what it paid the appellee. Dissatisfied that the trial court sided with the appellee by concluding that an earlier Public Utility Commission arbitration in the appellee’s favor precluded the appellant from getting a do-over, the appellant was now before the instant court. The appellate court found that the appellant failed to raise a fact issue on, much less conclusively prove, each element of its limitations defense, a defense that the appellee was not required to negate. Further, the trial court therefore did not err by granting the appellee summary judgment on its breach-of-contract claim for the instant reason as well. But even though the appellee objected to New Talk’s summary-judgment evidence on various grounds, including authentication, the trial court never ruled on those objections. Because the trial court did not sustain the appellee’s objections and thereby exclude the appellant’s evidence, the appellant’s inability to authenticate its evidence was of no effect, and the appellant suffered no harm. Because the trial court’s error, if any, in freezing discovery was harmless, the court overruled the instant


Trial court did not omit testimony bearing on disputed issue identified by jury, and did not abuse its discretion by excluding testimony relating minor victim's reaction to appellant's apology; given limitation to exclude unconstitutional court fees from judgment, trial court’s judgment affirmed
Horton v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
May 11, 2017
02-16-00229-CR
Bonnie Sudderth
Published
     Appellant was charged with indecency with a child. The jury found the appellant guilty and sentenced him to two years’ confinement. The appellate court found that in the instant case, the jury’s note requested testimony from the victim and the appellant concerning the “description of the apology” and specifically noted a dispute among the jurors over “what Appellant apologized for.” The note therefore focused on what appellant said to the victim the morning after the incident, not on how the victim reacted or what she said in response. Because the trial court in the instant case strictly complied with article 36.28 code of criminal procedure by conveying to the jury the “particular point in dispute, and no other” and did not omit testimony that clearly bore on the disputed issue as identified by the jury, the trial court did not abuse its discretion by excluding the portion of testimony relating the victim’s reaction to the appellant’s apology. Further, since the issuance of Salinas v. State, No. PD-0170-16, 2017 WL 915525, at *4, *5 (Tex. Crim. App. Mar. 8, 2017), the court have also rejected the exact challenges brought by the appellant to section 133.102(e)(5). Therefore, the court declined the appellant’s invitation to revisit those issues, and therefore again held that section 133.102(e)(5) and article 102.0186 were facially constitutional. Accordingly, the judgment was affirmed.


Medical expenses award supported by legally sufficient evidence of causation; first appellee not impermissibly awarded more damages than those “paid or incurred”: many attorney statements defendant complained of were invited or provoked by defendant's own statements and theory of the case
Amigos Meat Distributors, L.P. v. Guzman
Appellate: Civil, Damages, Employment, Litigation: Personal Injury, Torts, Workers' Compensation
Texas 1st Court of Appeals
May 11, 2017
01-16-00149-CV
Sherry Radack
Published
     The first appellee went to work as a truck driver for the appellant in 2008. As part of his job, he had to lift and carry frozen animal carcasses. In May 2011, the first appellee was injured lifting a 175-pound frozen cow carcass. He and his wife (the appellees), sued the appellant, a worker’s compensation non-subscriber. The jury found that the appellant’s negligence proximately caused the first appellee’s injury, and awarded to him $287,809.94 in past medical expenses, $150,000 in past pain and mental anguish, and $150,000 in past physical impairment. The trial court entered judgment on that verdict. The appellate court concluded that legally sufficient causation evidence linked the 2011 injury to the first appellee’s 2014 surgery. Thus, there was legally sufficient evidence to support the award of medical expenses related to the first appellee’s back surgery. Further, the court need not determine if the flyer was relevant, competent, or authenticated, because the court agreed that it should disregard the flyer and deposition excerpts relied upon by the appellant that were not before the trial court when it admitted the first appellee’s medical billing records. And, the record reflected that the first appellee remained liable for the amounts originally billed by the medical providers; thus, evidence showing the amounts billed by his medical providers was admissible. Furthermore, given the record evidence that the appellant engaged in surveillance and recording of the first appellee’s family and that the trial court sustained the appellant’s “outside the record” objection to the question about whether the appellant was still engaged in surveillance, the court concluded that the appellant had not demonstrated that the questioning of the office manager amounted to incurable, improper argument. Lastly, in context of the entire record, the court concluded that many of the statements the appellant complained of were invited or provoked by the appellant's own statements and theory of the case. To the extent that any of the statements were improper, nothing the appellant cited individually or in the aggregate was so egregious as to be incurable. Accordingly, the court affirmed the trial court’s judgment.


Mother's and Father's property, including Father's vested remainder interest in the disputed properties, passed into the parents' trust when the parents' joint will was probated in 1952, and Father's 1993 will did not revoke the parents' trust, and provided for child was not a pretermitted child
Jinkins v. Jinkins
Appellate: Civil, Family, Real Property, Wills/Trusts/Probate
Texas 1st Court of Appeals
May 11, 2017
01-16-00194-CV
Rebeca Huddle
Published
     The instant appeal involved a dispute among the four children of the appellee father regarding ownership of mineral interests in 17 properties. The appellant child appealed a summary judgment declaring that the four children each own a 1/4 interest in the properties. The appellate court found that the appellees’ sole basis for claiming that the appellant's claims were time-barred was the fact that appellee's 1993 will was probated in 2001. But the appellees adduced no evidence that any of the trust property was distributed to the four children by the 1993 will so as to cause the appellant's claims to accrue and trigger any statute of limitations. In short, the mere fact that the 1993 will was probated in 2001 did not raise a fact issue about the applicability of limitations, much less conclusively established that the appellant's claims accrued at that time. Thus, the appellees failed to conclusively establish their limitations defense or raise a fact issue about the applicability of limitations. Further, because the appellant sought title to and possession of the disputed property interests, his claims fell within the category of claims required to be brought as trespass-to-try-title actions. Although resolution of those claims required construction of wills, the fact that the Uniform Declaratory Judgments Act (DJA) might otherwise cover his claims did not mean his claim may be brought under the DJA if it must be brought as a trespass-to-try-title action. Thus, the trial court did not err by granting summary judgment dismissing the appellant's declaratory judgment claim and related claim for attorney’s fees. Accordingly, the judgment was affirmed as reversed.


Evidence confirmed the court’s finding that parental termination was in the child’s best interest because the appellant knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of her minor son
In re L. M. M.
Appellate: Civil, Family, Juvenile
Texas 1st Court of Appeals
May 11, 2017
01-16-00961-CV
Sherry Radack
Published
     The instant was an appeal from an order terminating the appellant's parental rights to her minor son, on the grounds that she knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child, and that termination was in the child’s best interest. The appellate court found that considering all the evidence, including the appellant’s insistence that she was not aware of about any of the minor son’s injuries, there was sufficient evidence to produce a firm belief or conviction in the trial court’s mind that the appellant knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the minor son. under section 161(b)(1)(D). Further, the guardian ad litem was bothered by the appellant’s physically threatening her sister while holding the minor son. Both the Department’s representatives and the Guardian ad litem opined that termination of the appellant’s parental rights and adoption of the minor son by the the appellant’s brother and the appellant’s brother's wife was in the minor’s best interest. Finally, the court agreed with the Department that the evidence confirmed a firm basis for the court’s finding that parental termination was in the child’s best interest, and no evidence of significance was present to outweigh that decision. Accordingly, the court affirmed the trial court’s order terminating the appellant’s parental rights.


Appellant's fraudulent inducement claims were time-barred, and appellee’s counterclaim for breach of the settlement agreement was not excused by jury’s fraud finding, and jury’s finding that appellee sustained no damages from appellant’s breach of the settlement agreement was not supported
Syrian American Oil Corporation, S.A. v. Pecten Orient Company
Appellate: Civil, Contracts, Oil, Gas, & Mineral, Procedure, Torts
Texas 1st Court of Appeals
May 11, 2017
01-15-00424-CV
Jane Bland
Published
     The instant case arose out of a settlement agreement reached between the appellant and the appellee of oil and gas properties. In that settlement agreement, the parties released each other from any and all claims against one another, known or unknown, as of the time it was made. Seventeen years later, the appellant brought the instant suit against the appellee for fraud, claiming that the appellee had fraudulently induced the owner into the settlement. The appellee counterclaimed against the appellant for breach of the settlement agreement, seeking its attorney’s fees as damages for that breach. A jury found that the appellant should have discovered any fraud in 1989, as of the date that the parties reached their settlement. As to the appellee’s counterclaim for breach of the settlement agreement, the jury found that the appellant had breached the settlement agreement by bringing the instant suit. But the jury also found that the appellee had fraudulently induced the appellant into entering the settlement agreement, and declined to award damages to the appellee. The trial court entered a take-nothing judgment against both parties’ claims. The appellate court held that the trial court properly entered judgment against the appellant’s claims for fraud based on the jury’s findings and the applicable statute of limitations. Further, the court held that the trial court properly granted summary judgment on the appellant’s claim for breach of contract in connection with the deep and lateral agreement. Further, the court held that the appellant’s breach of the settlement agreement, as found by the jury, was not excused by the jury’s other finding that the appellee fraudulently induced the appellant into entering the settlement agreement and was not barred by limitations. Finally, the court held that the jury’s finding that the appellee sustained nothing in damages as a result the appellant’s breach of the settlement agreement was not supported by the uncontroverted evidence. Accordingly, the court affirmed the judgment of the trial court that the appellant take nothing on its claims and reversed and remanded the appellee’s claim for breach of the settlement agreement for a new trial.


Trial court erred by finding appellee spouse was disabled on her own testimony to support an award of spousal maintenance, and based on evidence of appellee’s abilities, financial concerns, and business opportunities, trial court's division of property was disproportionate and unjust
Roberts v. Roberts
Appellate: Civil, Evidence, Family
Texas 4th Court of Appeals
May 10, 2017
04-16-00170-CV
Irene Rios
Published
     The instant was the second appeal from a divorce proceeding between appellant husband and the appellee wife. In the previous appeal, the previous court affirmed in part and reversed in part the trial court’s order of divorce decree. The appellate court remanded the cause to the trial court for determination of a just and right division of the marital estate and proper spousal maintenance determination. Following remand, the trial court entered an Order on Issues Remanded by the Fourth Court of Appeals (Remand Order). The appellate court found that based upon the testimony and evidence presented, the trial court erred by finding the appellee suffered from an incapacitating disability to support an award of spousal maintenance. The court reversed the portion of the trial court’s Remand Order awarding spousal maintenance based upon a finding that the appellee was disabled. Further, the record contained substantive and probative evidence of the appellee's abilities, financial concerns, and business opportunities. Based on that evidence, the trial court’s division of property was so disproportionate as to be manifestly unfair and unjust. Thus, the court reversed the portion of the trial court’s Remand Order as it pertains to property division and remanded the portion for determination of a just and right division of community property. Accordingly, the order was reversed and remanded in part and reversed and rendered in part, the divorce decree was modified in part with regard to spousal maintenance and affirmed in part as modified and reversed and remanded in part with regard to division of property.


Evidence was sufficient to convict appellant of continuous sexual abuse of a child younger than 14, objection to magistrate’s presiding over jury selection was properly overruled, and defense counsel’s proposed commitment question was improper and would not lead to a valid challenge for cause
Garner v. State
Courts, Criminal, Evidence, Procedure
Texas 5th Court of Appeals
May 10, 2017
05-16-00707-CR
Lana Myers
Published
     A jury convicted the appellant of continuous sexual abuse of a child younger than fourteen and assessed punishment at life imprisonment. The appellate court found that deferring to the jury’s determination of the credibility of the witnesses and the weight to be given their testimony, based on the cumulative force of all the evidence when viewed in the light most favorable to the verdict, and considering the reasonable inferences to be drawn from that evidence, the court found a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Further, the trial judge swore in the jury, presided over trial on the merits, charged the jury, accepted their verdict, and rendered judgment based on it. Thus, the trial court did not err by overruling the objection to the magistrate’s presiding over jury selection. Finally, because defense counsel’s proposed commitment question would not lead to a valid challenge for cause, the question was improper and the trial court did not abuse its discretion by prohibiting defense counsel from asking the question. Accordingly, the court affirmed the trial court’s judgment.


Sperm donor had standing to modify court ordered possession of the child, which order was a novation to the Donor Agreement that previously barred donor from seeking a legal relationship with the child, where parties mutually agreed on acceptance of a new contract by the agreed order
In the interest of B.N.L.-B., a child
Appellate: Civil, Contracts, Family, Juvenile
Texas 5th Court of Appeals
May 10, 2017
05-16-00025-CV
Lana Myers
Published
     The appellant appealed the trial court’s order modifying a previous possession order and giving appellee additional possession time with the child. The appellant brought eight issues asserting the trial court lacked jurisdiction to render the orders in the instant case, abused its discretion by awarding the appellee rights and duties concerning the child as well as additional access and possession of the child, and abused its discretion by denying the appellant’s claim for breach of contract and her request for attorney’s fees. The appellate court found that because the appellant agreed to the appellee’s having trial court ordered possession of the child, which necessarily included the possibility of future modification of the order by the trial court, the court concluded there was no violation of her due process rights resulting from the trial court’s modification of the May 14, 2009 order in accordance with the Family Code. Further, the trial court’s findings of fact and conclusions of law did not directly address the elements of the appellant’s breach-of-contract cause of action. Furthermore, the appellant's breach-of-contract cause of action was based on the continued viability of the Donor Agreement and the trial court found the May 14, 2009 order constituted a novation of the Donor Agreement, and legally and factually sufficient evidence supported that finding. Therefore, the trial court did not abuse its discretion by denying the appellant’s claim for breach of contract. Finally, the appellant did not explain why the trial court’s failure to award her attorney’s fees was inequitable and unjust and the appellant had not shown the trial court abused its discretion by failing to award her attorney’s fees under the Texas Civil Practice and Remedies Code section 37.009. Thus, the trial court did not abuse its discretion by denying the appellant’s claim for attorney’s fees. Accordingly, the trial court's judgment was affirmed.


Trial court did not err by admitting appellant’s penitentiary packet as punishment evidence; there was no evidence prior convictions were not final, or incomplete cause number prejudiced appellant; and appellant failed to rebut presumption jury followed instruction on his right to testify
Davy v. State
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
May 05, 2017
07-16-00262-CR
James T. Campbell
Published
     The appellant appealed his sentences for possession of methamphetamine and tampering with physical evidence. The appellate court found that there was no evidence that either prior conviction was appealed or was otherwise not final. It was thus presumed the first prior judgment was final on February 28, 2002, and the second prior judgment was final on January 15, 2004. The offense for which the appellant was convicted in the second prior judgment occurred on July 7, 2003. The appellant made no attempt to rebut the presumption of finality. There was therefore no fact concerning finality for the jury to find. The trial court did not err in failing to instruct the jury as the appellant argued. Further, the indictment correctly alleged the convicting court, county of conviction, offense and date of conviction. The appellant did not demonstrate in the trial court and he did not argue there that the incomplete cause number misled him to his prejudice. Nor would the variance be reflected in the hypothetically correct jury charge by which the court determined the sufficiency of the evidence. Lastly, because the record did not show the trial court committed fundamental error it was necessary for the appellant to preserve the complaint he urged. Because he chose not to raise the complaint in the trial court, his fourth issue was not preserved for the court's review. Accordingly, the court affirmed the judgments of the trial court.


Trial court erred in failing to dismiss appellee’s claims founded on appellants’ communications, but did not err by failing to dismiss appellee’s claims for misappropriation of information predicated on appellant’s conduct that was not communications under Texas Citizens Participation Act
Elite Auto Body LLC v. Autocraft Bodywerks, Inc.
Appellate: Civil, Civil Rights, Constitution, Torts
Texas 3rd Court of Appeals
May 05, 2017
03-15-00064-CV
Bob Pemberton
Published
     The instant litigation was initiated by the appellee company, which described itself as an auto-repair shop that offered full-service, high-end collision restoration to all makes and models of vehicles. The appellants consisted principally of a competing auto-repair business, the appellant company, a one-time, appellee employee who founded the appellant company in 2008 or 2009; and, a production manager who had been with the appellee for six years before leaving in 2014 to join the appellant company. Alongside the more traditional litigation responses of a general denial, affirmative defenses, and a counterclaim seeking attorney’s fees for the appellee’s alleged bad-faith claim of misappropriation, appellants invoked the Texas Citizens Participation Act (TCPA), seeking dismissal of the appellee’s suit. Following the hearing, the trial court signed an order denying appellants’ motion. The appellate court found that the prima facie case for each essential element of each claim in question must be made with clear and specific evidence. While the appellee attempted on appeal to recharacterize its affidavit as sufficing to survive dismissal, that proof falls below the element-by-element, claim-by-claim exactitude required by the TCPA. Thus, the trial court erred in failing to dismiss the appellee’s claims to the extent founded on appellants’ communications. Further, the trial court did not err by failing to dismiss the appellee’s claims to the extent they were predicated factually on conduct by appellants that did not constitute communications as defined by the TCPA. Accordingly, the judgment was affirmed, reversed and remanded.


Claimant was not required to present an expert report that would establish the alleged sexual assault on her mother at the nursing home in fact occurred, but merely a causal linkage between facility's asserted breach of the duty of care for patient safety and the harm and injury claimant alleged
Gracy Woods I Nursing Home v. Mahan
Appellate: Civil, Elder Law, Evidence, Health Care, Torts
Texas 3rd Court of Appeals
May 04, 2017
03-15-00596-CV
Bob Pemberton
Published
     The instant was an appeal taken by a health care provider, a nursing home (the appellant), to challenge the district court’s denial of its motion to dismiss a “health care liability claim” based on the claimant’s asserted noncompliance with the Medical Liability Act’s expert-report requirement. The appellate court found that the medical expert (the expert) described the “reasonable precautions” that the appellant allegedly should have taken—including twenty-four hour monitoring, regular checks, and moving the decedent to a room close to the nursing station—“to protect the decedent from the foreseeable consequences of her impairment, including sexual assault.” The expert stated that those precautions were not taken, and the decedent was sexually assaulted, thereby rendering her “tearful and afraid even after the decedent was removed from the facility.” The court could not conclude that the trial court abused its discretion by determining that the expert’s report “represented an objective good faith effort to comply with the definition of an expert report,” i.e., that the report “provided a fair summary” of the expert’s opinions regarding the causal link between the appellant’s alleged breach and the decedent’s alleged injuries. Further, the expert endeavored to exclude various possible causes—other than a sexual assault of the decedent while she was at the appellant —that might otherwise explain the decedent’s vaginal injuries. The court need not determine the sufficiency of the expert’s report as to the issue because, the expert’s report was not required to establish that the decedent was in fact sexually assaulted. Accordingly, the judgment was affirmed.


Because jury charge on continuous sexual abuse offense correctly instructed jury that it did not need to "agree unanimously on … specific acts of sexual abuse…,” court could not be certain which multiple indecency and two aggravated assault offenses jury unanimously agreed appellant committed
Hines v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
May 04, 2017
02-15-00468-CR
Terrie Livingston
Published
     The jury convicted the appellant of one count of continuous sexual abuse of a child under the age of fourteen (Count One) and a separate count of indecency with a child by contact, alleging contact with the complainant’s breast (Count Five). In accordance with the jury’s assessment, the trial court sentenced the appellant to forty-five years’ confinement on Count One and twenty years’ confinement on Count Five. The appellate court found that the court of criminal appeals had held that mandatory reformation did not apply to circumstances where there were multiple lesser-included offenses that meet the criteria for reformation, or where a court had no way to determine which degree of the lesser-included offense the jury found the appellant guilty of. Further, here the State proved that the appellant committed at least two separate offenses of indecency with a child and two separate offenses of aggravated sexual assault of a child. Because the charge on the continuous sexual abuse offense correctly instructed the jury that it did not need to “agree unanimously on which specific acts of sexual abuse were committed by the appellant or the exact date when those acts were committed,” the court could not be certain which, if any, of the multiple indecency and two aggravated assault offenses the jury unanimously agreed the appellant committed. Therefore, in accordance with court of criminal appeals authority, the court must remand for a new trial on the underlying indecency with a child offenses and aggravated sexual assault offenses alleged in Count One and proved by the State.


Appellant tampered with governmental records by falsifying firearms qualifications forms for reserve officers in the reserve police force, and he was not entitled to an instruction on local government’s authority over police, as requested instruction was not related to a statutory defense
Chambers v. State
Criminal, Evidence, Gov't/Administrative, Procedure
Texas 13th Court of Appeals
May 04, 2017
13-16-00079-CR
Dori Contreras Garza
Published
     The appellant was convicted on fourteen counts of tampering with governmental records with intent to defraud or harm, each a state jail felony. He was sentenced to two years in state jail and a $2,800 fine, with the jail sentence suspended and community supervision imposed for five years. The appellate court found that the firearms qualifications records at issue in the instant case were governmental records for purposes of the tampering statute. Further, the appellant was not entitled to a jury charge instruction on local government code section 341.012 because, to the extent he asserted a defensive theory relating to that statute, it consisted only of negating the element of the State’s case. Furthermore, the court found that a felony tampering charge did not require pleading or proof of a pecuniary or property loss by the government. Thus, the evidence was sufficient to support the intent finding and the trial court properly exercised jurisdiction. Accordingly, the trial court’s judgment was affirmed.


Trial judge was disqualified from acting on the ground that he sua sponte obtained personal knowledge about contested facts of appellee’s arrest on suspicion of driving while intoxicated and used that personal knowledge in ruling on a motion to suppress in appellee’s favor
State v. Haworth
Criminal, Evidence, Procedure
Texas 13th Court of Appeals
May 04, 2017
13-15-00519-CR
Leticia Hinojosa
Published
     The appellee was arrested on suspicion of driving while intoxicated. the appellee refused to provide a breath or blood specimen, and he was later charged by criminal complaint with one count of driving while intoxicated. The State appealed from the trial court’s granting of a motion to suppress filed by the appellee. The appellate court found that the trial judge’s action in basing his ruling not on the evidence, but, at least in part, on his personal knowledge of contested facts, was error requiring disqualification. Further, the court held that the trial judge was disqualified from acting on the ground that he sua sponte obtained personal knowledge about contested facts and used that personal knowledge in ruling on a motion to suppress. Having concluded that the trial judge was disqualified, the actions taken by the judge are therefore void. Accordingly, the order granting the appellee’s motion to suppress was reversed, and the case was remanded.


Appellant did not object to appellee’s motion to reduce agreement incident to divorce to judgment, trial court had authority to render an agreed judgment on the settlement agreement, which was final and enforceable, and appellee’s attorney could act as receiver under the turnover statute
Bergenholtz v. Eskenazi
Appellate: Civil, Creditor/Debtor, Family, Procedure
Texas 8th Court of Appeals
May 03, 2017
08-15-00144-CV
Yvonne T. Rodriguez
Published
     The parties divorced on October 20, 2009. On that same date, the parties also entered into an agreement incident to divorce (AID) for the purpose of dividing the marital estate. The appellant appealed from an order granting turnover relief and appointing a receiver. The appellate court found that given that the appellant disregarded the stay and sought affirmative relief from the trial court during the pendency of the stay, and he did not object based on the stay until long after the trial court entered the June 9, 2014 order, the court declined to hold that the order was void. Further, because the appellant did not withdraw his consent to the settlement agreement, the trial court had authority to render an agreed judgment based on the settlement agreement. Furthermore, the appellant did not take a direct appeal from the June 9, 2014 order. The court concluded that the June 9, 2014 order was final and enforceable because it reduced the settlement agreement to judgment and disposed of the appellant's claim for offsets. Lastly, the record did not support the appellant's representation that the appellee non-suited all of her claims in the case, including her efforts made over the last several years to enforce the parties’ settlement agreement. The issues raised in the appellant's second supplemental brief were overruled. Accordingly, having overruled each issue presented on appeal, the court affirmed the judgment of the trial court.


Plaintiff contract assignee proved defendant contractor was required to provide structural engineering services free from defects to the defendant assignor, however, because credits from settlements with other parties reduced the judgment to $0, plaintiff was not entitled to attorneys’ fees
Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air
Appellate: Civil, Contracts, Damages, Litigation: Commercial, Torts
Texas 3rd Court of Appeals
May 03, 2017
03-14-00738-CV
Cindy Olson Bourland
Published
     The instant case arose from alleged defects in the design and construction of a hotel near the airport in Austin. The appellees, the owner of the hotel at the time that the alleged defects were discovered, filed suit against multiple defendants involved in the design and construction of the hotel, alleging that the defendants’ work caused the hotel to have a defective foundation that caused building movement and further damage. The appellant filed a motion asking the trial court to apply settlement credits to the damage amount based on the payments the appellees received from its settlements with the geotechnical engineer, and the general contractor. The trial court granted the appellant’s motion. In its final judgment, the trial court applied the settlement credits (a total of $1,170,000) to the amounts awarded in damages and attorney’s fees and ordered that the appellees recover the remaining amount, which was $516,650.96. The appellate court found that given the language used in the jury charge and the evidence in the record, the court concluded that the evidence was legally sufficient to support the jury’s damages award under subsection (a) above. Further, in the instant case the trial court properly applied settlement credits to the jury awards, leaving the appellees with less than $0 in damages. The final judgment from the trial court reflected the application of the settlement credits ($1,170,000) to the total of the amount of actual damages ($785,000) plus attorney’s fees ($901,650.96), leaving the appellees with a judgment for the remainder of the attorney’s fees, which was $516,650.96. The bottom line was that the application of the settlement credits reduced the judgment award of actual damages to less than $0. Thus, the appellees did not obtain an “enforceable judgment” against the appellant for damages that “modified the appellant’s behavior for the appellees ’ benefit by forcing the appellant to pay an amount of money it otherwise would not pay.” Taking Texas Supreme Court precedent into account, as it must, the circumstances of the case compelled to reach the conclusion that the trial court erred in awarding attorney’s fees to the appellees. Accordingly, the court reversed the trial court’s final judgment and rendered judgment that the appellees take nothing.


Interest conveyed in 1942 Deed was a mineral interest and not a royalty interest, conveying a 1/4 mineral interest and not a fixed royalty interest, where provision for future leases showed grantees would be entitled to an equivalent royalty interest of 1/4 of any future royalty negotiated
Reed v. Maltsberger/Storey Ranch, LLC
Appellate: Civil, Contracts, Oil, Gas, & Mineral, Real Property
Texas 4th Court of Appeals
May 03, 2017
04-16-00231-CV
Karen Angelini
Published
     The appellants believing they owned a 1/4 mineral interest and thus, were owed 1/4 of the 22.5% royalty, sued the limited partnership, the appellees, the individual and the limited partnership and the other individual for declaratory judgment. The appellants also brought a declaratory judgment action against the appellee companies, the successors in interest to a claimed royalty reservation burdening the leased property. The appellee companies filed a counterclaim for declaratory relief, alleging that the limited partnership had correctly construed the 1942 Deed and was properly paying the appellants a 1/32 fixed royalty. The appellees, the individual and the limited partnership and the other individual filed a counterclaim for declaratory relief, also alleging the appellants were entitled to only a 1/32 fixed royalty. The trial court denied the motion for summary judgment filed by the appellants and granted the motions for summary judgment filed by the appellee companies and the appellees, the individual and the limited partnership and the other individual. The appellate court found that the considering whether inconsistencies might exist and how they may be harmonized was part of the process for determining intent, it was not merely a cross-check method of validating an interpretation derived by segregating key terms and phrases. That was to say, meaning derived without reference to context was not confirmed merely because such a construction would not produce an inconsistency with another provision. Further, the lease in existence at the time the 1942 Deed was signed provided for a 1/8 royalty, and the grantees were entitled to 1/4 of that 1/8 royalty. That provision made clear that under future leases, which may provide for an amount different from a 1/8 royalty, the grantees would be entitled to an equivalent royalty interest that was, 1/4 of any future royalty negotiated. That interpretation considers the 1942 Deed as a whole and harmonizes all provisions. Thus, the court held that the interest conveyed in the 1942 Deed was a mineral interest and not a royalty interest. Accordingly, the judgment was reversed and rendered in part, and reversed and remanded in part.


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 appellate court withdrew its opinion filed on December 20, 2016, substituted the instant opinion and overruled the motion for rehearing as moot. 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 waived complaint trial court did not order psychological and substance abuse evaluations in presentence investigation report, and trial counsel’s failure to object to absence of evaluations was not ineffective assistance, but trial court erroneously assessed duplicative costs and fees
Cain v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 02, 2017
14-16-00141-CR
Martha Hill Jamison
Published
     The defendant pleaded guilty to three offenses of aggravated robbery. After the trial court ordered a presentence investigation report (PSI), it sentenced the appellant to 25 years’ imprisonment as to each offense, to run concurrently. The appellate court found that the appellant waived his complaint that the trial court did not order psychological and substance abuse evaluations. The appellant had not shown that he received ineffective assistance of counsel based on his trial counsel’s failure to object to the absence of such evaluations in the PSI. However, the appellant established that the trial court erroneously assessed duplicative costs and fees against the appellant in each of his cases. Accordingly, the judgment was affirmed as reformed.


State presented sufficient evidence appellant intentionally or knowingly caused bodily injury to complainant by dragging her through the house, and child’s testimony did not show she was not competent to testify; thus, Class A misdemeanor offense of assault on a family member was affirmed
Baldit v. State
Criminal, Evidence, Family, Procedure
Texas 1st Court of Appeals
May 02, 2017
01-16-00119-CR
Evelyn V. Keyes
Published
     A jury convicted the appellant, of the Class A misdemeanor offense of assault on a family member. Pursuant to an agreement between appellant and the State, the trial court assessed appellant’s punishment at 180 days’ confinement in the Harris County Jail. The appellate court found that even if, as appellant contended, his focus was not to injure the complainant but to take the phone away from her and then leave the house, the record reflected that after the complainant fell to the floor during the struggle over her phone, appellant dragged her through multiple rooms of the house, while her body hit numerous objects in the house, before he was able to take the phone away from her. A reasonable jury could have inferred from the evidence that appellant was aware that his conduct was reasonably certain to result in bodily injury to the complainant and, thus, that he acted with knowledge. The Court held that the State presented sufficient evidence that the appellant acted with the requisite culpable mental state for the offense of assault on a family member by bodily injury. Further, the court found that whether the complainant improperly influenced the substance of the complainant's daughter (the child) testimony was a matter relating to the child ’s credibility as a witness, not her competency. Courts have held, that there was no precise age under which children were deemed incompetent to testify. Although the child did not testify that she understood the important of the oath that she had taken, she testified that she understood the difference between the truth and a lie, that she understood the importance of telling the truth, and that she promised to tell the truth while in the courtroom. The court concluded that the child’s testimony did not demonstrate on its face that she was not competent to testify. Accordingly, the court affirmed the judgment of the trial court.


No evidence was presented of a recent overt act or pattern of behavior that would justify the appellant’s continued treatment in inpatient care; there was legally insufficient evidence to support the trial court’s renewal order for appellant’s involuntary commitment to a mental hospital
Rodriquez v. State
Appellate: Civil, Civil Rights, Criminal, Gov't/Administrative, Health Care
Texas 14th Court of Appeals
May 02, 2017
14-16-00579-CV
Tracy Christopher
Published
     In 1998, the appellant was found not guilty by reason of insanity in the capital murder of her infant child. Following her acquittal, the trial court issued an order involuntarily committing the appellant to inpatient treatment at a mental hospital. Concluding that the appellant still met the criteria for involuntary commitment for continued inpatient mental health services, the trial court issued an order renewing its commitment order for a period of one year. The appellate court found that the appellant’s legal premise was incorrect, as a motion from the State was not a jurisdictional prerequisite to a renewal order. Under the terms of Former Article 46.03, the trial court may conduct a hearing to determine whether a person should remain in inpatient treatment on its own motion. Further, the record contained legally sufficient evidence to support the first and third elements of Tex. Health & Safety Code Section 574.035(a), but there was no evidence to support the second element. All of the clinical experts including the State’s agreed that the appellant should be transferred to outpatient care, and no evidence was presented of a recent overt act or pattern of behavior that would justify the appellant’s continued treatment in inpatient care. Therefore, the court found that there was legally insufficient evidence to support the trial court’s renewal order. Accordingly, the court reversed the trial court’s order and rendered the judgment.


Trial court did not abuse its discretion in finding doctor unqualified and striking some of his expert opinions because he had not performed the medical procedure at issue within four years, or for those he could have expressed, the excluded opinions did not establish a medical malpractice claim
Johnson v. Harris
Appellate: Civil, Evidence, Health Care, Procedure, Torts
Texas 8th Court of Appeals
April 19, 2017
08-15-00149-CV
Ann Crawford McClure
Published
     The appellant filed a medical malpractice suit against the appellees over complications from a breast reduction surgery. The case proceeded through discovery and was near its trial date when the defendant doctors challenged the qualifications of the doctor, who was the only liability expert the appellant designated to testify at trial. The trial court granted both doctors’ objections to the doctor’s testimony, and dismissed the case as to both the appellees. The appellate court found that if the appellant was really concerned with how the suit was disposed, as distinct from why, she needed to raise that issue with the trial court. Thus, any error in dismissing the case was waived. Further, the trial court asked a legitimate question under the text of the MLIA. Having not gotten a satisfactory answer, the court could not say the trial court abused its discretion in striking the procedure-specific opinions based on the staleness of the expert’s knowledge. Furthermore, the testimony regarding any breach by the appellee on the April 5th visit would not have supported a verdict and thus even if the doctor were qualified to provide the excluded opinions, the appellant had shown no reversible error. Finally, the trial court did not abuse its discretion in finding the doctor unqualified to express some of the opinions that he did, or for those he could have expressed, the excluded opinions did not establish a viable claim. Accordingly, the judgment was affirmed.


Though juvenile appellant’s appeal from juvenile court’s commitment order was without merit and was affirmed, appointed counsel could not withdraw because the appeal was not exhausted, and appellant’s family had not retained a different attorney, nor had new counsel been appointed
In re A.H.
Criminal, Evidence, Juvenile, Procedure
Texas 2nd Court of Appeals
April 27, 2017
02-16-00320-CV
Terrie Livingston
Published
     The instant was an appeal from a juvenile court’s order committing the appellant, the juvenile delinquent to the custody of the Texas Juvenile Justice Department after previously adjudicating him delinquent for committing the felony offense of assault on a public servant. The appellate court found that in In re P.M., a termination of parental rights appeal, state supreme court held in reliance on family code Section 107.013 providing that appointed counsel continued to serve in that capacity until the date all appeals were exhausted or waived––that the mere filing of an Anders brief in the appellate court did not warrant the withdrawal of that counsel for purposes of proceeding in the state supreme court. Further, the record did not show that either of the latter two events had occurred there, and under the reasoning of In re P.M., the case had not terminated because not all appeals had been exhausted. Accordingly, even though the court had affirmed the trial court’s judgment, the court nevertheless denied the counsel’s motion to withdraw. 


Appellant’s actions in the appellee’s suit did not substantially invoke the judicial process; therefore, the appellee failed to carry its heavy burden to show that the appellant waived its contractual right to arbitrate the contract dispute
Legoland Discovery Centre (Dallas) LLC v. Superior Builders LLC
ADR, Appellate: Civil, Contracts
Texas 2nd Court of Appeals
April 27, 2017
02-16-00425-CV
Lee Gabriel
Published
     The appellant company hired the appellee to be the general contractor for a water-feature addition to the appellant’s entertainment center. The appellant believed that the appellee did not complete the work contracted for and damaged adjacent property. The appellant also began to receive nonpayment notices from several of the appellee’s subcontractors and suppliers. The appellant notified the appellee that it would terminate the contract under its terms unless the appellee cured the defaults. The appellee filed suit against the appellant, raising claims for breach of contract, violation of the Prompt Payment Act, quantum meruit, and promissory estoppel. The appellant appealed from the trial court’s interlocutory order denying its motion to compel arbitration. The appellate court found that the appellant’s actions in the appellee’s suit did not substantially invoke the judicial process; therefore, the appellee failed to carry its heavy burden to show that the appellant waived its contractual right to arbitrate. Accordingly, the court reversed the trial court’s order, and remanded.


Five-year sentence, less than ten-year maximum for DWI conviction with two prior DWI convictions, was not unconstitutionally excessive, where prior convictions were almost 20 years old, trial court did not willfully impose a predetermined sentence, and did not demonstrate bias
Banister v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
April 27, 2017
02-16-00320-CR
Sue S. Walker
Published
     Appellant stipulated to two prior convictions for driving while intoxicated (DWI) and entered an open plea of guilt to the felony offense of DWI—third. The trial court found the appellant guilty of driving while intoxicated and sentenced him to five years’ imprisonment. The appellate court overruled the portion of the appellant’s first point challenging his sentence under the Eighth Amendment because the appellant did not raise his disproportionate-sentence claim in the trial court, it was forfeited. further, the record did not establish that the trial court either arbitrarily failed to consider the entire range of punishment or willfully imposed a predetermined sentence. Furthermore, the record indicated that the trial court did consider the full range of punishment because it imposed a five-year sentence, which was less than the ten-year maximum punishment allowed for a DWI conviction with two prior DWI convictions; did not willfully impose a predetermined sentence; and did not demonstrate bias. Because the record did not clearly indicate a denial of the appellant’s due-process rights, the court overruled the remainder of the appellant’s sole point. Accordingly, the judgment was affirmed.


Appellants produced information requested by appellee, and trial court erred in denying appellants’ plea to jurisdiction because appellee’s Public Information Act claim was moot and appellee was not entitled to attorney’s fees; case reversed and dismissed for lack of subject-matter jurisdiction
Nehls v. Hartman Newspapers, LP
Appellate: Civil, Civil Rights, Damages, Discovery, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
April 27, 2017
01-16-00121-CV
Rebeca Huddle
Published
     Appellee sued the appellants under the Texas Public Information Act (PIA) and the Uniform Declaratory Judgment Act (UDJA) seeking: (1) an order compelling appellants to produce identifying information about the individual who filed a complaint with the sheriff’s office regarding allegations of attempted bribery made by two school district trustees; (2) a declaratory judgment that the appellee is entitled to the requested information; and (3) attorney’s fees. Appellants produced the requested information and filed a plea to the jurisdiction asserting that the lawsuit was moot and should be dismissed. The trial court denied appellants’ plea. The appellate court found that the the appellee did not receive judicially sanctioned relief on the merits as required under Intercont’l Grp. P’ship and as the City of Houston v. Kallinen. Therefore, there was no “live” issue regarding whether the appellee was entitled to attorney’s fees under the PIA. Because appellants’ disclosure rendered the appellee’s PIA claim and its related attorney’s fees claim moot, the trial court erred in denying the appellants’ plea to the jurisdiction with regard to the appellee’s PIA claim unless an exception to the mootness doctrine applied. Further, the appellee’s bare contention that there was a possibility of a future violation by appellants did not establish that a reasonable expectation existed that the appellee would be subjected to the same action again. Thus, the instant case did not fall under the “capable of repetition yet evading review” exception to the mootness doctrine. Furthermore, the appellee was not entitled to attorney’s fees under the UDJA because its claim for declaratory relief was merely incidental to, that was, it sought the same relief as, its central theory of relief arising under the PIA. Accordingly, the court reversed the trial court’s denial of appellants’ plea to the jurisdiction and dismissed the case for lack of subject-matter jurisdiction.


Because respondent was indicted for felony online harassment only under section 33.07(a)(1), trial court did not have jurisdiction to declare entire statute unconstitutional; subsection (a)(1) was held content neutral and not unconstitutionally overbroad or vague under intermediate scrutiny
Ex parte Maddison
Constitution, Criminal, Evidence, Procedure, Technology
Texas 10th Court of Appeals
April 26, 2017
10-16-00081-CR
Al Scoggins
Published
     The respondent was indicted for the felony offense of online harassment under section 33.07(a)(1) of the Texas Penal Code. He filed a pre-trial application for writ of habeas corpus in which he asserted that section 33.07 was unconstitutional because it violated the First Amendment, the Due Process Clause, and the Dormant Commerce Clause of the United States Constitution. The respondent requested that the trial court declare section 33.07 unconstitutional and, in turn, dismiss his indictment. The trial court granted habeas relief, declaring all of section 33.07 unconstitutionally overbroad and vague as written. The appellate court concluded that, because section 33.07(a)(1) promoted a substantial governmental interest, the appellant State’s interest would be achieved less effectively without the law, and the means chosen were not substantially broader than necessary to satisfy the State’s interest; therefore, section 33.07(a)(1) survived intermediate scrutiny. The court further concluded that the respondent failed to establish that section 33.07(a)(1) was facially unconstitutional under the First Amendment due to being substantially overbroad. Further, the court agreed with the reasoning and conclusion of the Ex parte Bradshaw, 501 S.W.3d 665, (2016) Court. Therefore, the court could not say that section 33.07(a)(1) was unconstitutionally vague. And given that the court have concluded that section 33.07(a)(1) was not unconstitutionally overbroad or vague, the court necessarily disagreed with the underpinnings of the trial court’s order in the instant case. Accordingly, the judgment was reversed and remanded.


Texas Citizens Participation Act applies to appellee's claims for slander of title and fraudulent liens appellant filed to perfect his security interests for impending litigation between the parties, but appellee failed to establish a prima facie case on each essential element of those claims
Quintanilla v. West
Appellate: Civil, Constitution, Contracts, Creditor/Debtor, Damages, Procedure, Torts
Texas 4th Court of Appeals
April 26, 2017
04-16-00533-CV
Rebeca C. Martinez
Published
     The appellee sued the appellant for slander of title and fraudulent liens arising out of the appellant's filing of financing statements in the public records to perfect a security interest in the appellee's assets. The appellant appealed the trial court’s order denying his motion to dismiss the claims under the Texas Citizens Participation Act (TCPA). The appellate court found that the appellant proved by a preponderance of the evidence that the Financing Statements were filed in the context of impending litigation between the appellant and the appellee over payment of the Commodity Trading Agreement (CTA) Note, and therefore they were made in exercise of the right to petition. Further, the TCPA applied to the appellee's claims for slander of title and fraudulent liens, but further concluded that the appellee failed to establish a prima facie case on each essential element of those claims. Thus, the trial court’s order denying the appellant's motion to dismiss was reversed and the cause was remanded to the trial court for further proceedings.


Appellant failed to show reasonable probability the outcome of his trial on sexual assault and sexual contact with a child charges would have been different had he elected to have a jury trial; thus, appellant was not prejudiced by counsel's erroneous advice that he would only receive probation
Miller v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 26, 2017
PD-0891-15
Elsa Alcala
Published
     Appellant was charged with aggravated sexual assault of a child and indecency with a child by sexual contact. Appellant waived his right to a jury trial and pleaded not guilty at a bench trial to the charges. The trial court found appellant guilty on both charges and sentenced him to twenty-two years’ and ten years’ imprisonment, respectively. Appellant filed a motion for new trial alleging ineffective assistance of counsel on the basis that his trial counsel had erroneously promised him that he would receive probation if he was found guilty by the trial court. The trial court denied appellant’s motion for new trial, and appellant timely appealed. On appeal, the court of appeals affirmed the trial court’s decision to deny appellant’s motion for new trial. The Court Of Criminal Appeals concluded, that the second alternative appropriately applied Strickland v. Washington 466 U.S. 668 (1984)'s traditional prejudice outcome-based standard. By examining the totality of the record, including the proceedings at the evidentiary bench trial that occurred in the instant case, the court determined that the appellant had failed to show a reasonable probability that the outcome of the proceeding would have been different had he elected to have a jury trial. The court held that the court of appeals properly determined that the appellant was not prejudiced by counsel’s erroneous advice. Accordingly, the court affirmed the court of appeals judgment.


Record reflected appellant invited trial court to conduct a fresh punishment hearing before a different jury because jury saw him shackled before he testified, and appellant could not take advantage of invited error to complain that the mistrial declaration returned the case to pretrial status
Ex parte Pete
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 26, 2017
PD-0771-16
Kevin P. Yeary
Published
     The instant case involves an appeal from a trial court judge’s denial of relief in a pre-trial application for writ of habeas corpus. The Texas Court of Criminal Appeals found that after the trial court took the matter under advisement, and after another extensive break—during which any discussion of the scope of the mistrial that may have occurred was not memorialized on the record, the trial court made a pronouncement on the record with respect to the scope of the mistrial the appellant was requesting: The defense had made a motion for mistrial with regard to the punishment phase of this trial. I’m going to grant that motion for mistrial with regard to the punishment phase. Further, the appellant did not speak up at that point to contradict the trial court’s apparent assertion that the appellant himself had asked for a mistrial only to the extent of a new punishment phase. For all the record revealed, the appellant was content with the accuracy of the trial court’s characterization. Lastly, because the record reflected without contradiction that the appellant in fact invited the trial court to conduct a fresh punishment hearing before a different jury, he should not be heard to complain about it in subsequent habeas corpus proceedings or on appeal. Accordingly, the court reversed the judgment of the appellate court and remanded the cause to the trial court for further proceedings. 


Appellee conclusively established the statute of limitations had expired when appellant sued him by amending the pleadings to include appellee as a codefendant to the tort claim filed against his wife, and appellant failed to raise a fact issue to avoid limitations under relation-back doctrine
Chavez v. Andersen
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
April 25, 2017
14-16-00008-CV
Marc W. Brown
Published
     The appellant filed suit against the individual, alleging personal injuries from a vehicular collision. More than two and a half years after the collision, the appellant amended her pleadings to name the individual's husband as a new appellee and sought to recover for personal injuries from the same incident. The appellee pleaded the affirmative defense of statute of limitations and filed a traditional motion for summary judgment on that defense. The trial court granted the motion. The appellate court found that the appellee conclusively established that the statute of limitations had expired when the appellant sued him, and the appellant failed to raise a fact issue to avoid limitations. Thus, the court concluded that the trial court properly granted summary judgment in the appellee's favor. Accordingly, the court affirmed the trial court’s summary judgment.


Appellant committed felony murder acting in furtherance of the store theft conspiracy while riding in car driven by coconspirator eluding police that crashed into victim; officer’s pre-warning questioning was inadvertent and appellant’s post-warning statements were knowingly and voluntarily made
Howard v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
April 25, 2017
01-16-00120-CR
Harvey Brown
Published
     The appellant was indicted for felony murder. She was convicted and sentenced to 35 years’ confinement and fined $10,000. The appellate court found that the second application paragraph did not permit a misdemeanor conspiracy to serve as the underlying offense for convicting the appellant of felony murder under the felony murder statute. Rather, it permitted a felony murder committed by the appellant’s co-conspirator, to serve as the basis for convicting the appellant of felony murder under the conspiracy-liability statute. Therefore, the second application paragraph correctly applied the law to the facts. Further, the evidence did not show that the officer deliberately employed a two-step question first, warn later interrogation strategy. Rather, it showed that he accidentally began the interview with questioning, realized he had forgotten to read the appellant her Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966) warnings when she started making inculpatory statements, then provided her the warnings, obtained a valid waiver, and continued the interview. Affording almost total deference to the trial court’s factual findings, the court held that the trial court did not commit clear error in finding that the officer’s pre-warning questioning was inadvertent and that the appellant’s post-warning statements were knowingly and voluntarily made. Accordingly, the judgment was affirmed.


Trooper had probable cause to arrest appellant for DWI after police found appellant’s vehicle parked and running unattended in a convenience store parking lot next to restaurant where appellant returned to the vehicle from, he admitted drinking alcohol, and he failed field sobriety tests
Dansby v. State
Criminal, Evidence, Procedure
Texas 12th Court of Appeals
April 28, 2017
12-15-00269-CR
James T. Worthen
Published
     The appellant appealed his conviction for driving while intoxicated. The appellant was charged by information with DWI and pleaded not guilty. After a bench trial, the trial court found the appellant guilty and assessed his punishment at confinement for 180 days, suspended for a term of twenty months, and a $300 fine. The appellate court found that the evidence similarly showed that no one approached Trooper and claimed any connection with the appellant or the vehicle and the trooper administered field sobriety tests on the appellant. He exhibited one of eight clues on the walk and turn test, two of four clues on the one leg stand test, and all six clues on the HGN test. Further, considering all the evidence independent of the appellant’s extrajudicial confession in the light most favorable to the trial court’s verdict, the court concluded that the instant evidence rendered the corpus delicti more probable than it would be without the evidence. Furthermore, viewing the evidence in the light most favorable to the trial court’s verdict, the court concluded that the trial court was rationally justified in finding, beyond a reasonable doubt, that the appellant operated the vehicle. Moreover, viewing the evidence in the light most favorable to the trial court’s verdict, the court concluded that the trial court was rationally justified in finding, beyond a reasonable doubt, that the appellant was intoxicated when he drove to the restaurant, and the evidence was legally sufficient to support the appellant’s conviction. Finally, the court concluded that the above evidence rendered the truck registration evidence harmless and after considering everything in the record, the court could not conclude that the trial court’s error had a substantial or injurious effect on the verdict. Accordingly, the court affirmed the trial court’s judgment.


Respondent had a preexisting duty to perform under the contract, and jury found respondent violated that duty, even if it was nonmaterial, before petitioner breached by withholding payment; thus, Court of Appeals erred in holding petitioner’s breach barred recovery of damages
Bartush-Schnitzius Foods Co. v. Cimco Refrigeration, Inc.
Appellate: Civil, Contracts, Damages, Torts
The Supreme Court of Texas
April 28, 2017
16-0054
Per Curiam
Published
     The instant contract dispute involved competing breach claims by a food-product manufacturer (the petitioner), and a refrigeration contractor (the respondent). The jury found that both parties failed to comply with their agreement and assessed damages accordingly, but the trial court rendered judgment solely for the petitioner. The court of appeals reversed and remanded for entry of judgment solely in the respondent’s favor. The Supreme Court Of Texas found that in Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196 (Tex. 2004), the court outlined several factors enumerated in the Restatement that were “significant in determining whether a failure to perform is material.” By contrast, in Mustang the court held that a contractor’s failure to meet a deadline in contravention of an express time-is-of-the-essence clause was a material breach as a matter of law. No such conclusive evidence of materiality existed in the instant case. Because reasonable jurors could have disagreed on whether the respondent breached a material obligation, the court may not overrule the jury’s implied finding on that issue. Further, the jury’s findings that the respondent failed to comply with the agreement first and that its failure to comply was not material meant that (1) the petitioner remained liable for its subsequent failure to comply, but (2) the petitioner’s claim for damages caused by the respondent’s prior breach remained viable. The respondent had a preexisting duty to perform under the contract, and the jury found that the respondent violated that duty before the petitioner breached by withholding payment. Therefore, the court of appeals erred in holding that the petitioner’s breach barred its recovery of damages for the respondent’s failure to perform a preexisting obligation. Accordingly, the court reversed the court of appeals’ judgment and remanded the case to that court to consider the parties’ unaddressed issues.


Trial court abused its discretion by denying appellant’s motion to clarify by determining that appellant was not entitled to her proportionate share of the accumulated cost-of-living-allowances in appellee’s retirement pay as ordered and awarded in the divorce decree
Smith v. Burt
Appellate: Civil, Family
Texas 8th Court of Appeals
April 28, 2017
08-14-00317-CV
Yvonne T. Rodriguez
Published
     The appellant was appealing from an order denying her petition to enforce and for clarification of the divorce decree. The appellate court found that the award was based on the accumulated cost-of-living-allowances (COLA). When the November 25, 2002 order was read as a whole, it was apparent that the court interpreted the divorce decree as awarding the appellant an interest in the accumulated COLA. Unfortunately, the order’s language which focuses on the appellee’s receipt of the COLA, as opposed to focusing on the COLA to which he was entitled, had led to confusion. The trial court abused its discretion by denying the appellant’s motion to clarify the November 25, 2002 order and by determining that the appellant was not entitled to her proportionate share of the accumulated COLA to which the appellee was entitled. Accordingly, the judgment was reversed and remanded.


Respondent failed to establish that the petitioner hospital illegally retaliated against her or tortuously interfered with her contract for employment at another hospital for her report against a doctor for allegedly failing to obtain a patient’s informed consent
El Paso Healthcare System, Ltd. v. Murphy
Appellate: Civil, Contracts, Damages, Employment, Health Care, Torts
The Supreme Court of Texas
April 28, 2017
15-0575
Jeffrey S. Boyd
Published
     The petitioner company appealed from a judgment awarding damages to the respondent on her claims for statutory retaliation and tortious interference. The appellate court affirmed the trial court’s judgment based on a jury’s findings that the petitioner retaliated against the respondent and interfered with her employment contract after she reported that a physician failed to obtain a patient’s informed consent. The Texas Supreme Court found that the respondent's conclusion that the doctor did not obtain the patient’s informed consent as the law requires was merely conjecture and surmise. Lacking any evidence to support the respondent's subjective conclusion, the record could not support a finding that the respondent's belief was objectively reasonable. No evidence showed that the respondent reported a legal violation in good faith, and her retaliation claim must fail as a matter of law. Further, West Texas OB had agreed to pay the respondent at a particular rate on a monthly basis for the hours she worked, it had not agreed to schedule the respondent at Las Palmas, or indeed at any hospital. The evidence did not support a finding that the petitioner interfered with the respondent's legal rights under her existing agreement with West Texas OB, so the the respondent's tortious-interference claim must fail. Lastly, the respondent failed to establish that the petitioner illegally retaliated against her or tortuously interfered with her contract with West Texas OB. Accordingly, the court reversed the trial court’s judgment and rendered judgment that the the respondent took nothing on her claims.


Sufficient evidence supported respondent’s mental-anguish award, sanctions and attorney’s fees as the prevailing party in his malicious prosecution claim against petitioners, but the exemplary damages award was unconstitutionally excessive
Bennett v. Grant
Appellate: Civil, Damages, Procedure, Torts
The Supreme Court of Texas
April 28, 2017
15-0338
Don R. Willett
Published
     The dispute between two ranchers, the petitioner individual and the individual, began over fifteen years ago, when thirteen of the individual’s cattle meandered onto the petitioner individual’s land. the petitioner individual was indicted for cattle theft. He was eventually acquitted, but he and his company, the petitioner corporation, were found liable in the prior civil suit for the converted cattle, resulting in $5,327.11 in actual damages and $1.25 million in exemplary damages. The petitioner individual had initiated the pending civil suit by suing the respondent for slander, based on allegations that the respondent had told the individual and others that the cattle belonged to the individual. After the respondent was cleared of criminal charges and his record expunged, he filed a counterclaim in the civil suit for malicious prosecution. A jury found the petitioner individual and the petitioner corporation liable to the respondent for malicious prosecution. The trial court awarded the respondent $10,703 in actual damages, and $1 million each against the petitioner individual and the petitioner corporation in exemplary damages. The trial court also assessed sanctions of $269,644.50 against the petitioner individual for filing a frivolous slander claim. The appellate court reduced exemplary damages to $512,109 each against the petitioner individual and the petitioner corporation. The Texas Supreme Court agreed with the appellate court that sufficient evidence supported the respondent’s $5,000 mental-anguish award. The $5,703 attorney-fee award was not contested on appeal. Further, the respondent was required to post a $10,000 bond immediately to avoid imprisonment and to hire attorneys to quash the indictment. And if convicted of attempted bribery, he could face up to $10,000 in penalties. However, the respondent had the burden to prove that imprisonment was likely an impossible burden given the preclusive effect of limitations. The appellate court engaged in speculation when making its calculations, contrary to the definition of potential harm provided by the United States Supreme Court. Finally, the jury answered the question in their jury charge. Thus, the petitioner individual’s sanctions award should be upheld. Accordingly, the judgment was affirmed, reversed and remanded.


Traditional cause-in-fact standard applied to petitioner's malpractice claim to determine if but-for respondent lawyers’ negligence, outcome in prior litigation would have been favorable to petitioner, and petitioner failed to raise an issue of material fact of causation in his negligence claims
Rogers v. Zanetti
Appellate: Civil, Damages, Professional Responsibility, Torts
The Supreme Court of Texas
April 28, 2017
15-0557
John P. Devine
Published
     The instant appeal concerned a summary judgment in a legal-malpractice action. The appellate court affirmed the summary judgment in the petitioner attorneys’ favor, concluding that no summary-judgment evidence existed to raise a fact issue as to causation, an essential element of the clients’ malpractice claim. The Texas Supreme Court found that the first petitioner's malpractice claim, alleging the negligent failure to join the first respondent and his law firm as responsible third parties, similarly failed because the petitioner's antecedent fraud supported the liability ultimately imposed and likewise rendered this malpractice allegation causally irrelevant. Thus, the appellate court did not err in applying the court's traditional cause-in-fact standard to the petitioner's malpractice claim. Further, because the petitioner needed competent expert testimony on causation to withstand summary judgment, and because he offered none, the appellate court did not err in affirming the trial court’s summary judgment with respect to the second respondent's failure to designate a rebuttal expert. Lastly, the court agreed that the petitioner's evidence about the settlement offer failed to raise a genuine issue of material fact on causation. The summary-judgment record contained no evidence that the petitioner's would have settled the Alexander case for $450,000. Accordingly, the judgment of the appellate court was affirmed.


Nondiscriminatory taxation of surplus natural gas stored and held without a destination for future resale did not violate the Commerce Clause or Section 11.12 of the Texas Tax Code, which provided a state-law exemption for taxes that would otherwise violate federal law
ETC Marketing, Ltd. v. Harris County Appraisal District
Appellate: Civil, Constitution, Gov't/Administrative, Oil, Gas, & Mineral, Tax
The Supreme Court of Texas
April 28, 2017
15-0687
John P. Devine
Published
     The Commerce Clause of the United States Constitution limited a state’s power to tax interstate commerce. But that limit was not all-encompassing, and states may tax some property despite its interstate character. The instant case required Supreme Court of Texas to determine whether those constitutional limits barred property taxes levied on natural gas stored in Texas while awaiting future resale and shipment to out-of-state consumers. The Texas Supreme Court found that having met all the prongs of Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, (1977), the tax levied in the instant case withstood constitutional scrutiny. And because the tax did not violate the Commerce Clause, neither did it violate Section 11.12 of the Texas Tax Code, which provided a state-law exemption for taxes that would otherwise violate federal law. To be clear, the holding did not constitute blanket approval of any taxation of stored natural gas. As was the case with all property, there may be circumstances in which taxation of gas ran afoul of the Commerce Clause. The instant scenario—nondiscriminatory taxation of surplus gas held without a destination for future resale—was just not one of them. Accordingly, the judgment of the court of appeals was affirmed.


Based on the record, appellant juvenile’s plea of true was entered intelligently, knowingly, and voluntarily, and the appellant had failed to show the trial court abused its discretion in denying the motion to withdraw the plea of true
In re A.A.R.
Constitution, Criminal, Evidence, Juvenile, Procedure
Texas 8th Court of Appeals
April 28, 2017
08-15-00051-CV
Yvonne T. Rodriguez
Published
     The appellant, a juvenile, was charged with criminal mischief. The trial court accepted the plea of true, adjudicated the appellant delinquent, and entered a disposition of probation. The appellate court found that the record showed that the appellant was admonished, and he was aware and understood the consequences of entering a plea of true. It was apparent from the record the appellant entered a plea of true voluntarily and of his own free will, without any assurances or promises by the trial court or anyone else. Based on the review of the record, the appellant’s plea of true was entered intelligently, knowingly, and voluntarily, and the appellant had failed to show the trial court abused its discretion in denying the motion to withdraw the plea of true. Accordingly, the trial court’s judgment was affirmed.


Railroad Commission did not have exclusive or primary jurisdiction over respondent landowner’s contamination claims against petitioner gas-lease operator, where operator had common-law duties to remediate, and the dispute was arbitrable under the Settlement Agreement
Forest Oil Corporation v. El Rucio Land and Cattle Company, Inc.
ADR, Appellate: Civil, Contracts, Damages, Environmental, Gov't/Administrative, Oil, Gas, & Mineral, Procedure, Torts, Transportation
The Supreme Court of Texas
April 28, 2017
14-0979
Nathan L. Hecht
Published
     Through family entities, the respondent controlled the 27,000-plus-acre the Ranch once owned by his great-grandfather, for whom the City, on the River near the southern tip of Texas, was named. The petitioner corporation had produced natural gas on the Ranch for over 30 years. The petitioner's leases cover about 1,500 acres, and it maintained a processing plant on 5.75 acres. In the 1990s, the respondent sued the petitioner for underpayment of royalties and underproduction of the lease. The trial court vacated the award’s $10 million bond requirement but otherwise denied the petitioner’s motion. The appellate court affirmed. The Texas Supreme Court granted the petitioner’s petition for review. The Texas Supreme Court found that because the respondent’s claims were inherently judicial, the doctrine of primary jurisdiction did not apply and vacatur was not warranted for failure to abate the arbitration hearing. Further, the trial court judged the witnesses’ credibility and weight of their testimony, ultimately concluding that the arbitrator should not be disqualified for failure to disclose a trivial, non-prejudicial, not consummated invitation to act as mediator. The trial court’s implied finding that the arbitrator was unaware of the mediation was supported by the evidence. Accordingly, the appellate court’s judgment was affirmed.


Because top-lease holder did not obtain a finding that the well was incapable of production in paying quantities on the material date under the plain language of the lease when shutting-in the well, the producer's lease remained valid
BP America Production Company v. Red Deer Resources, LLC
Appellate: Civil, Contracts, Oil, Gas, & Mineral, Procedure, Real Property
The Supreme Court of Texas
April 28, 2017
15-0569
Paul W. Green
Published
     The instant case involved the shutting-in of the gas well. The petitioner company owned an oil and gas lease covering approximately 2,113 acres (the lease). The respondent company discovered the low production from the lease and obtained top leases. The respondent sued the petitioner more than sixty days after the petitioner shut-in the well, and asked the trial court to declare that the petitioner’s lease had terminated. The trial court signed a judgment declaring that the petitioner’s lease had lapsed and terminated for the lease being incapable of producing in paying quantities when the well was shut-in and that a reasonably prudent operator would not continue to operate the well. The appellate court affirmed the trial court’s judgment. The Texas Supreme Court held that the submission of Questions 3 and 4 was improper and that the jury’s affirmative answer to those questions could not support a judgment against the petitioner because Question 3 did not track the clear language of the lease, which required that the determination regarding capability of production in paying quantities be made on the date that gas was last sold or used. Because the jury answered no to Question 1, the respondent failed to obtain a favorable finding against the petitioner that could support a judgment. Thus, the court did not reach whether the jury’s answer to Question 1 was a failure to find or affirmative finding for the petitioner, whether legally sufficient evidence supported the verdict, or whether the trial court erred by refusing the petitioner’s requested instructions. Accordingly, the court reversed the judgment of the appellate court and rendered a take-nothing judgment in favor of the petitioner.


Petitioner physician subject to a malpractice claim did not establish that she was an employee of a governmental unit under the Texas Tort Claims Act, where there was no evidence that the foundation employing petitioner and the public hospital where she worked were a single entity
Marino v. Lenoir
Appellate: Civil, Corporations, Health Care, Procedure, Torts, Wills/Trusts/Probate
The Supreme Court of Texas
April 28, 2017
15-0610
Don R. Willett
Published
     The deceased received prenatal care at the university. the deceased experienced breathing difficulties, and she and her unborn children died. the deceased’s mother and the father of the deceased’s living child (collectively the respondents) brought a medical malpractice suit against the petitioner and other defendants. The petitioner filed a motion to dismiss under the election-of-remedies provision of the Tort Claims Act, specifically section 101.106(f). The trial court granted the motion. The appellate court reversed and remanded as to the petitioner. The Texas Supreme Court found that that the petitioner made no argument that the Foundation and the center should be treated as a single entity and that, for purposes of section 101.106, the petitioner was both paid by and under the control of such umbrella entity. The court did not know whether such an argument could prevail, given the evidence that the Foundation was a separately incorporated entity with its own articles of incorporation and bylaws. Suffice it to say that an argument for disregarding corporate formalities was not made. Also, the court noted that, in the trial court, the petitioner suggested in her motion to dismiss that the Foundation and the center were separate entities. Accordingly, the court affirmed the judgment of the appellate court.


Although trial court's order appointing family and protective services as children’s managing conservator and appellant mother as children's possessory conservator was within its discretion, it insufficiently specified the terms of appellant mother’s possession of or access to the children
In re J.Y.
Appellate: Civil, Constitution, Family, Juvenile
Texas 6th Court of Appeals
April 28, 2017
06-16-00084-CV
Bailey C. Moseley
Published
     The Texas Department of Family and Protective Services (the Department) filed a petition to terminate the parental rights of the appellant mother and the father to their three children. After a bench trial, the trial court issued an order naming the Department as permanent managing conservator of the children and naming the appellant and the father as possessory conservators of the children. The appellant appealed the order of the trial court. The appellate court found that despite the parental presumption in the appellant’s favor, the court could not determine that the trial court abused its discretion in deciding that it was not in the children’s best interests to be returned to the appellant’s care, or in deciding that the appellant’s appointment as managing conservator of the children would impair their physical health or emotional development, The trial court’s decision was not contrary to the preponderance of the evidence. Further, the court found that the appellant’s Due Process and Equal Protection complaints were inadequately briefed, thus she has waived those complaints on appeal. Furthermore, the real problem with the trial court’s order in the instant case was that it was not sufficiently specific as to the times and conditions for the appellant’s possession of or access to the children. Accordingly, the judgment was partly reversed and remanded, partly affirmed.


Section 150.002(e) required dismissal of petitioner’s substandard engineering claims against respondent because an expert affidavit was not filed with the petition; however, petitioner could re-suit respondent, because trial court had discretion under the statute to dismiss without prejudice
Pedernal Energy, LLC v. Bruington Engineering, Ltd.
Appellate: Civil, Contracts, Damages, Oil, Gas, & Mineral, Procedure, Torts
The Supreme Court of Texas
April 28, 2017
15-0123
Phil Johnson
Published
     The petitioner company sued the respondent company and others for damages resulting from a fracturing operation on the petitioner's gas well. The petitioner alleged that the respondent provided substandard engineering services in connection with the operation, but failed to file a certificate of merit expert affidavit with its claim. The respondent moved for dismissal and the petitioner non-suited, then re-sued the respondent by amended petition accompanied by an expert affidavit. The trial court denied the respondent's motion to dismiss, the respondent appealed, and the case was remanded with instructions. The trial court then dismissed the petitioner's amended claim without prejudice. The appellate court held that Section 150.002(e) of the Civil Practice and Remedies Code required the petitioner's claim to be dismissed with prejudice because an expert affidavit was not filed with the original petition. The Texas Supreme Court reversed the judgment of the appellate court and reinstated the judgment of the trial court. The Texas Supreme Court found that the Legislature did not explicitly declare its purpose in enacting section 150.002. And although its title, Certificate of Merit, did not limit or expand the meaning of the statutory provisions, the title nevertheless gives some indication of the Legislature’s intent in enacting the Section. That indication coincides with the court's previous explanation that a Section 150.002(e) dismissal was a sanction to deter meritless claims and bring them quickly to an end. Further, the trial court did not abuse its discretion by refusing to dismiss the claims with prejudice. Whether the respondent had an avenue of relief other than dismissal of the petitioner's claims with prejudice for the extra time and expense it had incurred was not a question before the court. Accordingly, the court reversed the judgment of the appellate court and reinstated the judgment rendered by the trial court.


Mexican company’s indirect ownership interest in the the companies and its breweries, together with its indirect ownership interest in petitioner, triggered the prohibitions outlined in section 102.07 as to the petitioner and its application for a retail permit to sell alcohol
Cadena Comercial USA Corp. v. Texas Alcoholic Beverage Commission
Appellate: Civil, Business, Constitution, Gov't/Administrative
The Supreme Court of Texas
April 28, 2017
14-0819
Phil Johnson
Published
     The instant case required the Texas Supreme Court to interpret Texas’s “tied house” statutes that prohibit overlapping ownership between the manufacturing, wholesaling, and retailing segments of the alcoholic beverage industry. The Mexican beverage company (Mexican company) owned 20% of the stock in two other companies (the companies) which in turn own breweries. The brewers hold non-resident manufacturer’s permits in Texas. The Mexican company also owned, through intermediate holding companies, 100% of the petitioner, a company formed to operate convenience stores in Texas. When the petitioner sought a retailer’s permit to sell alcohol, the respondent Commission protested the permit’s being granted on the basis that the company’s ownership interests in the petitioner and the companies would violate the tied house statutes if the permit were granted. The county judge agreed with the respondent. The district court judge did likewise, and the court of appeals affirmed. The Texas Supreme Court found that the Mexican company, by its stock ownership in the companies, had a commercial or economic interest that provided a stake in the financial performance of an entity engaged in brewing alcoholic beverages. The interest, coupled with the Mexican company’s indirect ownership interest in the petitioner, who would be a retailer of alcoholic beverages if the permit were granted, would violate section 102.07. Thus, the court agreed with the court of appeals’ interpretation of section 102.07(a) Further, the respondent and county judge were acting within their authority when they refused to grant the petitioner’s application for a permit upon finding that granting it would result in a violation of section 102.07(a). And, the court agreed with the court of appeals’ determination that the petitioner failed to establish an equal protection claim based on the respondent’s treatment of its permit application. Furthermore, it was hard to conceive of a business enterprise that would refuse to divest itself of one share of overlapping stock in order to obtain a permit. And it was equally hard to conceive of the respondent expending the resources necessary to litigate a one-share, cross-tier holding. Accordingly, the judgment of the court of appeals was affirmed.


Trial court did not err in overruling appellant's motion to suppress DWI evidence from traffic stop where 911 caller was specific enough for trooper to find appellant on the road, and appellant committed a traffic infraction on video while weaving across the roadway in trooper’s presence
Oringderff v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
April 24, 2017
06-16-00085-CR
Ralph K. Burgess
Published
     The appellant was convicted of the offense of felony driving while intoxicated (DWI) in violation of Sections 49.04 and 49.09(b) of the Texas Penal Code and was sentenced to fifty years’ incarceration. The appellate court found that virtually all of the factors relied upon by the United States Supreme Court in finding reasonable suspicion to instigate the traffic stop in Navarette v. California, 134 S.Ct. 1683, 1687 (2014) were present here. First, the anonymous caller used the 911 system to report the conduct. Second, the 911 caller described his location, described the vehicle, and reported the vehicle’s license plate number. Third, the 911 caller reported that the vehicle in question had “been weaving on both sides of the road,” which the Supreme Court noted was “dangerous behavior strongly correlated with drunk driving.” Fourth, Trooper followed the appellant’s vehicle, and the dash-cam video depicted the vehicle swerve over the fog line before the appellant was stopped, which corroborated the information provided by the 911 caller. Finally, by drifting over the fog line, the appellant arguably committed a traffic offense in Trooper’s view. Consequently, based on the totality of the circumstances as presented and reviewed by the trial court, the trial court did not abuse its discretion in denying the appellant’s motion to suppress evidence. Further, the term “intoxicated” was defined as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body”. The evidence in the instant case was similar to the evidence that was found to be sufficient in other cases. Therefore, the record supported the jury’s finding of guilt beyond a reasonable doubt. Accordingly, the court affirmed the trial court’s judgment.


Appellants were each found out of compliance with Texas’s insurance and financial-responsibility requirements and did not preserve their challenges; Unified Carrier Registration Act did not preempt appellee from requiring appellants to re-register to regain their intrastate operating authority
Sunset Transportation, Inc. v. Texas Department of Transportation
Appellate: Civil, Gov't/Administrative, Insurance, Transportation
Texas 3rd Court of Appeals
April 21, 2017
03-14-00385-CV
Bob Pemberton
Published
     The two appellants were affiliated interstate motor carriers that at all relevant times have each been registered in compliance with the Unified Carrier Registration Act of 2005 (UCR Act). Each carrier had also obtained Texas intrastate operating authority from the appellee department. The district court found that both the appellants had their intrastate authority revoked for failing to maintain insurance or proof of financial responsibility and that the appellee and its rules had not run afoul of UCR preemption or Transportation Code Section 643.002 either legally or factually. The dispositive issues in the instant appeal concerned whether the appellants' compliance with the Unified Carrier Registration requirements excused it, by virtue of either federal preemption or Texas law’s own internal limitations, from complying with Texas requirements with respect to any intrastate operations it also conducts. The appellate court found that because the appellants were each found out of compliance with Texas’s insurance and financial-responsibility requirements and did not preserve any challenge to those determinations, the UCR Act did not preempt the appellee from requiring the appellants to re-register in order to regain their intrastate operating authority. Further, The most that could be said in support of the appellants’ proposed construction was that Section 643.002(1)’s motor carrier operations exempt from registration by the UCR Act could conceivably be read to reference, in addition to interstate operations, intrastate operations that were subjected to prohibited annual renewals, essentially making Section 643.002’s exemption coextensive with the Act’s preemptive scope. But that would merely return the instant court to the questions regarding the UCR Act that the court had already answered adversely to the appellants. Accordingly, the judgment was affirmed and dismissed.


Appellee was not qualified to advance to a second-year residency, and he had not established a prima facie case for race- or nationality-based hostile work environment or retaliation; thus, trial court erred in denying appellant’s plea to jurisdiction under Texas Commission on Human Rights Act
University of Texas Health Science Center at Tyler v. Nawab
Appellate: Civil, Civil Rights, Employment, Gov't/Administrative, Health Care, Procedure, Torts
Texas 6th Court of Appeals
April 21, 2017
06-16-00083-CV
Ralph K. Burgess
Published
     After being warned that his progress in medical knowledge and patient care was not satisfactory, the appellee, a first-year resident in the appellant’s Internal Medicine Residency Program, was notified that his contract would not be renewed for a second year. After his contract ended, the appellee, who was of Pakistani descent, filed a charge of discrimination with the appropriate state and federal agencies alleging that the appellant had discriminated against him based on his race, color, and national origin and that he had suffered retaliation by the appellant. Subsequently, the appellee filed the instant lawsuit against the appellant asserting causes of action under the Texas Commission on Human Rights Act (TCHRA) for retaliation, hostile work environment, and discrimination based on his race, religion, and national origin and for intentional infliction of emotional distress. Sixteen months after the suit was filed, the appellant filed a plea to the jurisdiction, which the trial court granted in part, dismissing the appellee’s claims for religious discrimination, intentional infliction of emotional distress, and punitive damages. However, the trial court denied the plea as to the appellee’s other claims under the TCHRA. The appellate court found that the appellee did not establish a prima facie case of race- or nationality-based hostile work environment. Therefore, the court found the trial court erred in denying the appellant’s plea to the jurisdiction on the claim. Further, the appellee produced no evidence that his complaints to the appellant would have alerted it that he was complaining of discrimination based on race or national origin. Furthermore, the bare allegation in his original petition that the retaliation was based on race or national origin discrimination would not survive a plea to the jurisdiction challenging the existence of jurisdictional facts. Thus, the court found that the appellee did not establish a prima facie case of retaliation. Therefore, the trial court erred in denying the appellant’s plea to the jurisdiction on the claim. Accordingly, the court reversed the judgment of the trial court and rendered judgment dismissing the appellee’s suit.


Trial court did not err by admitting copies of text messages on victim’s phone sent after victim’s body was discovered based on best evidence rule, and given evidence of appellant’s blood at the scene and possession and use of victim’s debit card and cell phone in Georgia, any error was harmless
Ellis v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
April 20, 2017
02-16-00144-CR
Bonnie Sudderth
Published
     The appellant appealed his conviction for murder. The appellate court found that the relevance of the text message conversations was not in any way dependent upon the truth of the messages themselves. In fact, on the record, it could hardly be disputed the victim's messages to the two individual's were manifestly false. Instead, the relevancy hinged on the text messages being purportedly sent by the victim from his phone after the victim's dead body had already been discovered, combined with the discovery of the victim's phone in the appellant’s and the third individual's possession after they were apprehended in Georgia. Thus, the trial court did not abuse its discretion by admitting the text message conversations over the appellant’s hearsay objection. Further, even assuming, without holding, that the process Sergeant employed to generate exhibits 140 and 141 did not meet the Tex. R. Evid. 1001(d) definition of original—as a printout or other output—Sergeant's testimony nevertheless supported the admission of the text message conversations as other evidence when the original could not be obtained. At that point, any challenge by the appellant would go not to admissibility but to the weight to be given the evidence, with final determination left to the trier of fact. Thus, the trial court did not err by admitting the text message conversations based on the best evidence rule. Lastly, considering the evidence, in addition to the evidence that the appellant’s blood was found at the scene and that he was in possession of and had used the victim's debit card on his journey to Georgia, the court could not say that any erroneous admission of the text message exhibits had a substantial or injurious effect on the jury’s verdict. Accordingly, the court affirmed the judgment of the trial court.


Offenses of kidnapping and interference with child custody against appellant for taking her daughter to Mexico for 12 years required proof of different facts and were not the same for double jeopardy, but warrant-execution fees reduced because appellant was committed and released a single time
Llorens v. State
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
April 21, 2017
03-16-00257-CR
David Puryear
Published
     After the divorce, the appellant moved to Mexico with her young daughter, and remained there for twelve years before being discovered by authorities. Eventually, the appellant was arrested and charged with kidnapping and with interference with child custody. The appellant entered a guilty plea to both charged offenses and requested that the district court assess her punishment for both offenses. The trial court sentenced the appellant to two years’ imprisonment for the interference charge and to six years’ imprisonment for the kidnapping charge. The appellate court found that only two of the factors identified by the court of criminal appeals potentially weighed in favor of finding a double-jeopardy violation. Given the resolution of the remainder of the factors, particularly the conclusion that the two offenses have different gravamen, and in light of the presumption that the two offenses were not the same for double-jeopardy purposes stemming from the earlier determination that the two offenses require proof of different facts, the court concluded that there was no double-jeopardy violation present on the face of the record in the instant case. Further, the court found that in addition to the costs that the appellant outlined, section 51.851 of the Government Code authorized the imposition of an electronic filing fee and provides that “in addition to other court costs, a person shall pay $5 as a court cost on conviction of any criminal offense in a trial court, county court, or statutory county court.” Therefore, there was a basis for the additional $5 cost. And, in its appellee’s brief, the State agreed that “the amount of the appellant’s commitment and release fees should be reduced by $30.00” because the record shows that the appellant “was committed and released but a single time.” The court modified the trial court’s judgment pertaining to the appellant's kidnapping conviction to reduce the warrant-execution fee to $150 and to reduce the commitment and release fees to $5 each. Accordingly, the judgment was affirmed as modified.


There was no record of the publication of a proposed Agreed Judgment for the environmental enforcement action against the pro se appellees, and the final judgment in the case, based on the purported Agreed Judgments, was rendered without the State’s consent and was reversed
State v. Brazoria County
Appellate: Civil, Environmental, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
April 20, 2017
01-16-00334-CV
Evelyn V. Keyes
Published
     The appellee county filed an environmental enforcement action against pro se appellees for violations of state and county regulations regarding sewage disposal and the use of on-site sewage facilities, and it named the Texas Commission on Environmental Quality (TCEQ) as a necessary and indispensable party to the lawsuit pursuant to Texas Water Code. The State of Texas, acting by and through TCEQ, appeared in the case as an aligned-party plaintiff. The appellee county and the pro se appellees then negotiated and presented to the trial court a series of Agreed Judgments. The State objected to those agreed judgments, and the trial court overruled the State’s objections and entered final judgment resolving the case and attaching the agreed judgments as exhibits to its judgment. The appellate court found that both the State’s objection, on file with the trial court at the time it rendered judgment, and the Certification of the Absence of Publication provided by the director of the Government Filings Section of the Office of the Texas Secretary of State, stating that there was no record of the publication of a proposed Agreed Judgment for the case, demonstrated that none of the parties had complied with the requirements. Lastly, the final judgment in the case, based on the purported Agreed Judgments, was rendered without the State’s consent and must be set aside. Accordingly, the court reversed the judgment of the trial court and remanded for further proceedings.


Record did not show the Comal County charge for fraudulent use or possession of identifying information was based on the same items of identifying information as the Hays County conviction for fraudulent use or possession of identifying information for double jeopardy purposes
State v. Donaldson
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
April 20, 2017
03-16-00085-CR
Melissa Goodwin
Published
     The appellee was indicted in Comal County for five counts of theft of property and one count of fraudulent use or possession of identifying information. The appellee moved to quash the indictment. The trial court granted the appellee’s motion to quash in part. The appellate court found that the record before it did not demonstrate that the Comal County charge for fraudulent use or possession of identifying information was based on the same units of prosecution that was, the same items of identifying information—as the Hays County conviction for fraudulent use or possession of identifying information. Therefore, the record did not demonstrate that the offenses were the same for double jeopardy purposes. Consequently, the appellee had not met his burden of proving prior jeopardy. Thus, the trial erred in granting the appellee’s motion to quash. Accordingly, the judgment was reversed and remanded.


Reasonable factfinder could have found beyond a reasonable doubt appellant did not shoot the dog to prevent loss to personal property, and challenged testimony was admissible to discredit defense’s theory the boxer was aggressive to appellant and to show potential motive, preparation, and intent
Atnipp v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
April 20, 2017
11-14-00287-CR
Mike Willson
Published
     The jury found the appellant guilty of the offense of cruelty to a non-livestock animal and assessed punishment at confinement for two years. However, the jury recommended that the trial court suspend the imposition of the sentence and place the appellant on community supervision. The trial court agreed, suspended the imposition of the sentence, and placed the appellant on community supervision for four years. The appellate court held that a reasonable factfinder could have concluded beyond a reasonable doubt that the appellant did not shoot the boxer to prevent loss of or damage to his personal property. Further, a definition was unnecessary where the trial court included the definition of owner and property in the jury charge. The jury would have had common knowledge and experience that a dog was an owner’s property. Next, the trial court subsequently instructed the jury that there were no laws of wildlife management, wildlife or depredation control, or shooting preserve practices as regulated by state and federal law that applied to the instant case. The trial court did not err when it instructed the jury. Further, the State’s questioning sought to attack the individual’s credibility and, thus, was relevant under Rule 401 of the Texas Rules of Evidence. Further, extraneous acts were aimed to discredit the appellant by demonstrating that he had a bad character or that he had a propensity for committing bad acts. That type of propensity evidence was the exact type of evidence that was expressly prohibited by Rule 404(b). Furthermore, the trial court did not abuse its discretion when it determined that the evidence should not be excluded under Rule 403. The testimony was highly probative to discredit the defensive theory that the boxer acted aggressively toward the appellant and to show potential motive, preparation, and intent. Finally, the court rejected the remaining issues. Accordingly, the court affirmed the judgment of the trial court.


Appellant firefighter’s interest was remote and contingent on future events such as ranking among top candidates on a promotional list, and his intervention into the suit by City against firefighters that had participated in scheme to cheat on fire department’s promotional exam was not essential
Smith v. The City of Garland
Appellate: Civil, Employment, Gov't/Administrative, Procedure
Texas 5th Court of Appeals
April 20, 2017
05-16-00474-CV
Jason E. Boatright
Published
     The instant was a dispute about promotions in the City of Garland (“City”) fire department. The City sued appellant and many other City fire fighters, including the people who were appellees in the instant case. The appellee City voluntarily dismissed the appellant from the suit, but he later intervened, suing the appellees who the appellee City had not dismissed from the case. The appellees moved to strike the appellant’s intervention, and for entry of final judgment. The trial court granted their motions. The appellate court found that in the instant case, no party sought to challenge “grades and the method of grading” or any Commission decision. The promotional candidates suspected of cheating resigned. The appellee City filed the suit, and the Fire Fighter appellees later filed their counterclaim, to resolve their dispute regarding how to fill the resulting vacancies in accordance with Chapter 143. The Court concluded the trial court properly exercised its jurisdiction over that dispute. Further, the court found that the appellant’s interest was remote, and contingent on future events such as his ranking among the top candidates on a promotional list. The appellant’s intervention was not essential to protect that remote interest. The Court concluded the trial court did not abuse its discretion by striking the appellant’s petition in intervention. Accordingly, the court affirmed the trial court’s judgment.


The relator had not shown that he was entitled to mandamus relief to compel the judge of the trial court to rule on his motion to reduce sentence, where relator had not shown that his motion to reduce his sentence had been properly presented to the trial court
In re Henry
Appellate: Civil, Constitution, Courts, Criminal, Evidence, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
April 18, 2017
14-17-00250-CR
Per Curiam
Published
     The relator filed a petition for writ of mandamus in the instant court. In the petition, the relator asked the appellate court to compel the presiding judge of the trial court, to rule on the relator’s motion to reduce sentence. The appellate court found that the documents attached to the relator’s petition for writ of mandamus did not reflect a file stamp establishing that they were filed in the trial court. The relator also had not shown that his motion has been presented to the trial court nor had he shown how long the motion had been pending since presentment. The trial court was not required to consider a motion that had not been called to its attention by proper means. The relator had not shown that he was entitled to mandamus relief. Accordingly, the court denied the relator’s petition for writ of mandamus.


Trial court erred in denying pretrial habeas relief to appellant, whose case was transferred from juvenile court nine years ago but still no trial, because, if he were tried and convicted, the deficient transfer order would be vacated on appeal, making a trial a waste of judicial resources
Ex parte Arango
Appellate: Civil, Constitution, Courts, Criminal, Evidence, Gov't/Administrative, Juvenile, Procedure
Texas 1st Court of Appeals
April 18, 2017
01-16-00607-CR
Rebeca Huddle
Published
     When the appellant was 16, a juvenile court concluded that because of the seriousness of the offense with which he was charged—aggravated robbery with a deadly weapon, the welfare of the community required criminal proceedings. The juvenile court therefore transferred the case to criminal district court, for him to be tried as an adult. Nine years later, the appellant, still having not been tried, filed a pretrial habeas application in the criminal district court, contending that the juvenile court’s transfer was deficient under Moon and therefore failed to vest the criminal district court with jurisdiction. The trial court denied habeas relief. The appellate court found that because Moon required reversal irrespective of whether the evidence was sufficient to support the transfer, the court declined the State’s invitation to deny habeas relief on the basis that the appellate record did not include a record of the transfer hearing. Further, the State contended that even if the juvenile court’s order was deficient and the appellant's claim was cognizable on a pretrial writ of habeas corpus, the criminal district court did not abuse its discretion by denying habeas relief because the Juvenile Justice Code prohibits a criminal court from remanding a juvenile after the juvenile court has waived jurisdiction. Accordingly, the court reversed the trial court’s order denying a pretrial writ of habeas corpus in first case and rendered judgment granting the writ of habeas corpus, setting aside the juvenile court’s transfer order, and dismissing the indictment in second case and remanded the case to the juvenile court for further proceedings.


Appellant personally engaged in criminal scheme and course of conduct of theft of property; challenged instruction was not based on “reasonable hypothesis”; probable cause existed to search appellant’s residence; and trial court did not abuse discretion in denying appellant self-representation
Long v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 18, 2017
14-16-00149-CR
Marc W. Brown
Published
     Appellant was indicted for theft of property from multiple complainants, with a total value over $200,000, pursuant to one scheme and continuing course of conduct, beginning about March 1, 2008, and continuing through January 31, 2009. The jury returned a guilty verdict and assessed appellant’s punishment at confinement for life. The appellate court found that a reasonable jury could have found beyond a reasonable doubt that, pursuant to one scheme or continuing course of conduct, appellant unlawfully appropriated the complainants’ property with the intent to deprive them of such property, and that the total value of such aggregated theft was over $200,000. Further, the challenged instruction in the instant case was not the “reasonable hypothesis” one requested and rejected in Hankins v. State, 646 S.W.2d 191 (Tex. Crim. App. 1981) . Nor was it based on the “reasonable hypothesis” analytical construct rejected in Geesa v. State, 820 S.W.2d 154, 159–61 (Tex. Crim. App. 1991), the trial court did not err by including this instruction. The court need not determine whether any egregious harm resulted. And, the magistrate had a substantial basis to find probable cause that evidence of aggregated theft would be found at appellant’s property. Therefore, probable cause existed to search appellant’s residence on January 16, 2009. Furthermore, the record did not reflect that any of the items seized in October 2009 was offered or admitted at trial. Lastly, in the instant case, regardless of appellant’s competence to stand trial, the trial court expressed concern with appellant’s mental competency to represent himself. Even appellant acknowledged that he did not consider himself at full mental capacity. The court concluded that the trial court did not abuse its discretion in denying appellant’s self-representation at trial. Accordingly, the court affirmed the trial court’s judgment.


Trial court erred in ordering refunds of excess property improvement district assessments distributed to current property owners under a title-holder methodology rather than to the payers of the assessments, which included property owners and developers, on a pro rata basis
MHI Partnership, Ltd. v. City of League City
Appellate: Civil, Gov't/Administrative, Real Property, Tax
Texas 14th Court of Appeals
April 18, 2017
14-15-00457-CV
Kem Thompson Frost
Published
     Claimants (the 515 claimants who submitted competing claims as defendants. The defendants in the instant case were among the named defendants) refunded special assessments under a municipal statute appealed the trial court’s judgment in an interpleader action. They challenged both the sufficiency of the evidence to support various fact findings and the methodology the trial court used to determine which claimants were entitled to the refunds. The appellate court found that the trial evidence was legally insufficient to support the trial court’s findings of fact 8–11, 19–22, and 31–34. Under the unambiguous wording of the plaintiff City Ordinance 2013-38, the trial court reversibly erred in ordering distribution of refunds to the record owners of each property at the time of the trial court’s judgment. The proper methodology was to distribute the refunds after proceedings to determine each claimant’s proportionate share, if any, of the refund for the subject property, an amount which should be equal to the proportionate share of the total amount of assessments paid on the property that the claimant paid. Accordingly, the court reversed the trial court’s judgment and remanded.


Appellant had not shown a reasonable probability that earlier disclosure of the witness’ changed statement would have resulted in a different trial outcome, and appellant was temporarily detained for the purpose of conducting a DWI investigation and was not in custody for purposes of Miranda
Kuether v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 18, 2017
14-15-00357-CR
Martha Hill Jamison
Published
     After finding the appellant guilty of driving while intoxicated (DWI), the jury assessed punishment at one year of community supervision. The appellate court found that the appellant had not shown a reasonable probability that earlier disclosure of the witness’ changed statement would have resulted in a different trial outcome. Further, although the record did not show the exact duration of the detention, officer’s testimony indicated that as soon as the appellant was apprehended, he was escorted to the patrol car, and the officer approached him shortly thereafter. After observing the appellant and conducting a short investigation on the scene, the officer decided to take the appellant for sobriety testing. Once they arrived, the officer gave the appellant the Miranda v. Arizona, 384 U.S. 436, 478–79 (1966) warnings. Given the totality of the circumstances, it was reasonable for the trial court to conclude that the appellant was temporarily detained for the purpose of conducting a DWI investigation and was not in custody for purposes of Miranda. Accordingly, the judgment was affirmed.


Only a portion of the arbitrator’s award was based on an issue outside of the arbitrator's authority, and that portion could have been excised from the award, and trial court should have modified the award, rather than vacating it in its entirety
In re S.M.H.
ADR, Appellate: Civil, Family, Procedure
Texas 14th Court of Appeals
April 13, 2017
14-16-00566-CV
Tracy Christopher
Published
     The instant was an appeal from a final judgment in a suit affecting the parent-child relationship. The parties elected to submit their dispute to binding arbitration, but after the arbitrator issued her award, the trial court vacated the award upon finding that the arbitrator had exceeded her authority. The appellate court although agreed that the arbitrator exceeded her authority, it believed that vacatur was not the correct remedy. Only a portion of the award was based on an issue outside of the arbitrator’s authority, and that portion could have been excised from the award without affecting the merits of the arbitrator’s other decision, which was based on an issue properly submitted to her. The trial court should have modified the award, rather than vacating it in its entirety. Further, there was no provision in the Texas Arbitration Act (TAA) that precluded the trial court from proceeding to a trial on the merits after an arbitration award has been vacated. And as discussed, the portion of the award that should have been vacated addressed an issue—possession—that the parties expressly agreed would not be subject to arbitration. And, the mother waived any complaint about the lack of service. Furthermore, mother made an oral request for a continuance, unsupported by an affidavit, and the record did not reveal an agreement by the parties or an argument that a continuance should have been granted by operation of law. Absent one of those grounds, the court must presume that the trial court did not abuse its discretion by denying the requested continuance. Accordingly, the judgment was reversed in part and remanded and partly affirmed.


Section 133.102 violated the Separation of Powers clause requiring the consolidated fee funds go to the comprehensive rehabilitation and abused children’s counseling accounts, but not law enforcement and education accounts, but the Salinas holding was not retroactive to the appellant
Hawkins v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
April 13, 2017
02-16-00104-CR
Mark T. Pittman
Published
     The appellant pled guilty to the offense of possession of less than a gram of a controlled substance—methamphetamine, and the trial court convicted him and sentenced him to six months’ confinement in state jail. The appellate court followed the Texas Court of Criminal Appeals in holding unconstitutional the provisions of local government code Section 133.102 requiring the allocation of funds from the consolidated fee to the comprehensive rehabilitation account and the abused children’s counseling account. Further, the court again upheld the provision apportioning a percentage of the consolidated fee to the law enforcement officers standards and education account. Finally, the court heeded the directive of the Texas Court of Criminal Appeals precluding the court from applying its Salinas holding retroactively to modify the appellant’s consolidated fee. Accordingly, the court affirmed the trial court’s judgment.


Jury had no evidence before it on the bargain, reliance, or restitution damages for appellant’s actual damages from appellee’s breach, and appellant’s claim for money had and received was not barred by the express contract and trial court erred by ordering JNOV and take nothing judgment
Norhill Energy LLC v. McDaniel
Appellate: Civil, Contracts, Damages, Oil, Gas, & Mineral, Procedure, Real Property
Texas 2nd Court of Appeals
April 13, 2017
02-16-00011-CV
Bonnie Sudderth
Published
     The appellant and the appellee entered into a two-year oil and gas lease on 240 acres of the appellee’s land. the appellant’s owner, admitted that at the time the lease was executed, he had minimal experience in the oil and gas business. Although the appellee initially denied that he had agreed to pay $50,000 to purchase the lease back from the appellant, alleging that the appellant's owner had forged his name to the October 19 documents, the appellee conceded at trial that he had signed the agreement, that he had understood it. Both parties moved for judgment notwithstanding the verdict (JNOV). In its JNOV motion, the appellant asked the trial court to substitute the $50,000 damage award on the money-had-and-received action in place of the $0 amount the jury found for breach of contract. The trial court denied that request. The trial court subsequently denied the appellant’s motion for new trial. The appellate court found that other than the appellant's owner’s testimony that, prior to entering into the October 19 Assignment agreement with the appellee, he intended to sell his unexpired leasehold interest to another party for $50,000, and the appellee’s agreement to pay the appellant $50,000 for the assignment, the jury had no evidence before it whether related to benefit of the bargain, reliance, or restitution damages as to the appellant’s actual damages that resulted from the appellee’s breach. Further, the court held that the appellant’s claim for money had and received was not barred by the existence of the express contract and that the trial court erred by granting JNOV for the appellee and by rendering a take-nothing judgment against the appellant on its money-had-and-received claim. Accordingly, the judgment was reversed and rendered.


Results of horizontal gaze nystagmus test were properly admitted, where appellant’s only challenge to the test was that the officer failed to ask him if he had any recent head injuries or whether he was wearing glasses, and officer appropriately screened appellant before performing the test
Williams v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 13, 2017
14-16-00292-CR
Kevin Jewell
Published
     Appellant challenged his conviction for misdemeanor driving while intoxicated (“DWI”) on the grounds that the evidence was insufficient to support his conviction and the trial court reversibly erred by denying his motion to suppress the horizontal gaze nystagmus (“HGN”) test results. The appellate court considering the cumulative force of all the evidence viewed in the light most favorable to the State, and concluded that a rational juror could have found beyond a reasonable doubt that appellant was intoxicated under the impairment theory of intoxication. Further, the court found that the appellant’s only challenge to the HGN test was that the officer failed to ask him if he had any recent head injuries or whether he was wearing glasses. The officer appropriately screened appellant before performing the HGN test, and appellant’s issue lacked merit. The trial court was not required to believe the appellant’s testimony; the trial court was the sole judge of the credibility of the witnesses at the suppression hearing. Instead, the trial court was entitled to credit the officer’s testimony that the appellant was a good candidate for the HGN test over the appellant’s testimony. Under those circumstances, the trial court did not abuse its discretion in admitting the results of the HGN test. Accordingly, the judgment was affirmed.


There was a direct relationship between improper conduct and the sanction because the Sanctions Order set out line item amounts of specific costs incurred by appellee for appellants’ failure to quash the deposition, and trial court did not abuse its discretion in awarding monetary sanctions
Wilson v. Shamoun & Norman, LLP
Appellate: Civil, Contracts, Damages, Discovery, Procedure, Professional Responsibility
Texas 5th Court of Appeals
April 13, 2017
05-15-01448-CV
David Evans
Published
     The appellee company represented the doctor in his divorce case in the 254th trial court. The appellee withdrew from the case and was succeeded by the appellant company. The appellant individual was an attorney at the appellant company. The appellee later filed a petition in intervention in the divorce case alleging the doctor failed to pay its fees. The appellee then nonsuited its intervention and filed a new case against the doctor in the 101st trial court. The doctor responded by filing an answer and a motion to transfer the fee case back to the 254th trial court. The appellee served a deposition notice for the doctor for April 15, 2015. After exhausting the administrative remedies, the trial court ordered the appellants to pay the appellee's attorney’s fees and expenses related to the deposition in the amount of $1,837.50. The trial court severed the Sanctions Order. The appellate court found that the Denial of Transfer Order at issue in the case did not contain a disposition of any substantive claim or any party. Thus, the court concluded that In re Daredia was distinguishable and inapplicable based on the Denial of Transfer Order’s language. Thus, the Denial of Transfer Order did not constitute a final judgment and resolve the appellants’ issue against them. Further, the appellants elected to appear at the date and time of the deposition only to immediately suspend the deposition causing the appellee to incur travel expenses and preparation costs. On that record, the court could not conclude that the trial court abused its discretion and the court resolved the appellants’ issue against them. Furthermore, there was a direct relationship between the improper conduct and the sanction because the Sanctions Order set out line item amounts of specific costs incurred by the appellee for the appellants failure to quash the deposition. Lastly, the trial court appropriately considered all sanctions and could have determined the sanctions imposed to be the lesser sanctions of the alternatives presented. Thus, the trial court did not abuse its discretion in awarding monetary sanctions in the amount of $1,837.50 and resolve the appellants issue against them. Accordingly, the court affirmed the trial court’s judgment.


Appellant failed to show by a preponderance of the evidence a reasonable probability that exculpatory DNA test results from post-conviction testing would change the outcome of his trial and that his request was not made to unreasonably delay execution of his sentence or administration of justice
Reed v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 12, 2017
AP-77,054
Michael E. Keasler
Published
     The appellant sought post-conviction DNA testing of over forty items collected in the course of investigating the victim’s sexual assault and murder. That investigation culminated in the appellant’s conviction and sentence of death for the capital murder of the victim. The trial judge denied the motion. The Texas Court of Criminal Appeals found that the appellant failed to show by a preponderance of the evidence a reasonable probability that exculpatory DNA test results would change the outcome of his trial and that his request was not made to unreasonably delay the execution of his sentence or the administration of justice. Thus, the court concluded that the trial judge did not err in denying the appellant’s Chapter 64 motion. Accordingly, the court affirmed the trial judge’s denial.


State failed to meet its burden of demonstrating mistrial was a manifest necessity, because it was possible to continue with trial had the trial court entertained other alternatives to declaring a mistrial; thus, appellant's second prosecution for the same offense was barred by double jeopardy
Ex parte Perez
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 13, 2017
14-16-00332-CR
Ken Wise
Published
     After twelve jurors and an alternate were empanelled and sworn, and jeopardy attached, the trial court recessed the trial. The court attempted to recall the jurors four months later with less than one day’s notice. It appeared that two of the jurors had moved out of the county, and only five jurors actually showed up. The trial court declared a mistrial over the appellant’s objection. The appellate court found that because proceeding to verdict with the out-of-county juror was a less drastic alternative to a mistrial, double jeopardy barred the the appellant’s retrial. Further, the Beaumont Court of Appeals held that a short continuance was a less drastic alternative to a mistrial. Thus, retrial was barred by double jeopardy. Next, all the appellant had to do to forfeit a challenge to the out-of-county juror was remain silent. But instead, after the trial court informed the parties that two jurors moved out of the county, the appellant insisted, I want the same jury back. Thus, any implied finding that the appellant refused the out-of-county juror was not supported by the record. Further, after a delay in the case of more than four months, the trial court should have considered granting another short continuance upon learning of the inadequacy of the notice provided to the jurors. The trial court abused its discretion by failing to consider that less drastic alternative to a mistrial. Furthermore, because reasonable, less drastic alternatives were available at the time the trial court declared a mistrial, the record did not support a finding that it was impossible to continue with trial. Finally, the trial court could have proceeded to try that one- or two-day case to a verdict with the jury that the parties chose, and then gone forward with any competency proceedings after a guilty verdict. The appellant’s retrial was barred by double jeopardy. Accordingly, the court reversed the trial court’s order and the case was remanded.


Trial court abused its discretion by declining to further consider relator's motion to modify Temporary Orders based on its erroneous legal conclusion the relator was required to comply with the inapplicable Section 156.102, and by denying the relator's motion to confer with the oldest child
In re McPeak
Appellate: Civil, Courts, Family, Procedure
Texas 14th Court of Appeals
April 13, 2017
14-17-00104-CV
J Brett Busby
Published
     The instant was a divorce and child custody case involving the relator, real party-in-interest (RPI), and three children. The relator and the RPI executed and the trial court approved Agreed Temporary Orders, which, ordered the relator to move the children to county or contiguous counties, and if the relator failed to comply, the children would be turned over to the RPI's possession. The presiding judge of the trial court of the county signed orders denying the relator's motion for the court to confer with the oldest child and declining to further consider the relator's motion to modify the Temporary Orders. The judge specified that he declined to further consider the motion to modify because the relator did not file an affidavit that complied with the Texas Family Code. The relator filed a petition for writ of mandamus. The appellate court found that the relator was entitled to relief because a motion to modify temporary orders was governed by Section 105.001 of the Texas Family Code, not Section 156.102. Section 156.102 only applies to a motion to modify a final order that designates the person having the exclusive right to designate the primary residence of a child. The Temporary Orders were not final orders. Further, the trial court abused its discretion by declining to further consider the relator's motion to modify the Temporary Orders based on its erroneous legal conclusion that the relator was required to comply with the inapplicable Section 156.102. The trial court also abused its discretion by denying the relator's motion to confer with the oldest child, who was age 13, as required by Section 153.009(a) of the Texas Family Code. Thus, the court conditionally granted the petition for writ of mandamus in part and denied in part.


Trial court erred in granting City’s motion to dismiss for governmental immunity under plea to the jurisdiction standards, and not under Rule 91a, where appellants pleadings sufficiently stated a cause of tort action susceptible to raise potential waiver of immunity under Texas Tort Claims Act
Reaves v. City of Corpus Christi
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 13th Court of Appeals
April 13, 2017
13-15-00057-CV
Nelda V. Rodriguez
Published
     The appellants sued the appellee city for personal injury allegedly caused by its employee. The suit alleged that the officer negligently conducted a high-speed chase of a drunk driver, which ended when the driver ran a red light and struck the appellants’ vehicle. The appellee filed a Tex. R. Civ. P. 91a motion to dismiss, arguing that because the appellee had governmental immunity, the suit against the appellee had no basis in law. The appellate court found that because the trial court missed the 45-day deadline specified in Rule 91a.3(c), the trial court had no authority to grant the appellee's motion. Having concluded that the deadline was mandatory but not jurisdictional, the court could not agree. Further, the appellee's motion specifically stated that the motion was brought under rule 91a, addressed itself towards the appellants’ causes of action, and contended that those claims had no basis because the allegations rendered it impossible to state a valid waiver of immunity under the Texas Tort Claims Act (TTCA). The court were of the opinion that the case must therefore be judged under the constraints of rule 91a, since that was the procedural framework which the appellee's motion invoked, upon which the appellants relied, and by which the trial court decided the case. Furthermore, the appellee's 91a motion did not mention the appellants’ direct claims against the appellee for negligent entrustment, negligent hiring and/or screening of driver qualifications, negligent training and supervision, negligent retention, negligent contracting, and negligent maintenance. Thus, the trial court ordered that the plaintiff take nothing against the appellee and that the appellants’ suit against the appellee be dismissed in its entirety, with prejudice. Accordingly, the judgment was reversed and remanded.


Defendant’s guilty pleas, that were otherwise valid, did not become invalid as involuntary and unknowing because laboratory tests determined defendant was carrying a different illicit substance
Ex parte Broussard
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 12, 2017
WR-83, 014-01
Michael E. Keasler
Published
     The applicant pleaded guilty to delivery of cocaine and was sentenced to eight months’ imprisonment. The Texas Court of Criminal appeals found that in the applicant's sworn judicial confession he stipulated that “he had read the indictment and he committed each and every element alleged. Invalidating the applicant’s guilty plea based on later-obtained evidence, which was known to be unknown at the time of the plea, would contradict Brady and trivialize the importance and solemnity of sworn statements, judicial confessions, and testimony generally. Further, the court held that Mable’s guilty plea to possession of a controlled substance was involuntary because, in fact, he was not carrying any illicit substances. It was the complete lack of illicit substances that qualified as a crucial fact in Mable’s involuntary plea calculus. Furthermore, because the laboratory tests confirmed that the applicant was carrying an illicit substance listed in penalty group 1, the applicant was not entitled to the relief Mable affords those applicants whose cases fall within the specific circumstances presented in Mable itself. Finally, the guilty plea was not necessarily involuntary when the defendant misapprehended a known unknown. As such, guilty pleas that were otherwise valid did not become invalid merely because laboratory tests determined the defendant was carrying a different illicit substance. For that reason, accordingly, the court denied the applicant’s writ of habeas corpus.


 

There was no evidence individual directed appellant in commission of the murder, and appellant was not entitled to an instruction defining accomplice; evidence of child support was relevant to connect appellant to the victim; and victim’s telephone statements were a present sense impression
Castillo v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
April 13, 2017
11-14-00280-CR
John M. Bailey
Published
     The jury convicted the appellant of murder and assessed his punishment at confinement for fifty years in the Institutional Division of the Texas Department of Criminal Justice. The appellant challenged his conviction in five issues on appeal. The appellate court found that because the evidence was disputed as to whether or not the individual had the intent to commit murder, the trial court did not err in submitting an accomplice as a matter of fact instruction to the jury with respect to the individual. Further, the court had found no evidence that the individual directed the appellant before or during the commission of the murder. Therefore, the appellant was not entitled to a jury instruction that included the term directed in the definition of accomplice. Furthermore, the appellant was obligated to pay the victim monthly child support as a result of the hearing. There was evidence that the appellant was struggling financially and may not have been able to make those payments. While evidence of motive or opportunity was insufficient alone to corroborate an accomplice witness, it may be considered in connection with other evidence tending to connect the accused with the crime. Lastly, there was no evidence that the victim had any motivation to lie to her mother about whom she spoke to on the phone or about the contents of the phone call. Therefore, it was not an abuse of discretion for the trial court to admit the statement as a present sense impression of the victim. Accordingly, the court affirmed the judgment of the trial court.


State’s warrantless acquisition of appellant’s cell phone records did not require suppression, where records were given voluntarily, and appellant did not have an expectation of privacy in numbers he dialed or location information from signals relayed by cell towers transmitting his calls
Hankston v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 12, 2017
PD-0887-15
Richardson
Published
     Following the denial of his motion to suppress, appellant was convicted of murder and was sentenced to twenty years in prison. The Fourteenth Court of Appeals affirmed the appellant’s conviction, holding that the warrantless acquisition of the appellant’s cell phone records from Sprint (comprised of call logs and historical cell site location information (“CSLI”)) did not violate the appellant’s rights under the Fourth Amendment or under Article I, Section 9 of the Texas Constitution. The Court Of Criminal Appeals addressing the appellant’s claims within the framework of the Texas Constitution, Art. I, Section 9, held that the appellant did not have a legitimate expectation of privacy in the numbers he dialed on his cell phone or the location information derived from the signals relayed by the cell towers transmitting his calls. There was a voluntary conveyance of the cell phone records, and, under the third-party doctrine, that conveyance destroyed the reasonable expectation of privacy in the conveyed information. The court concluded that the State’s acquisition of the appellant’s cell phone records did not violate Art. I, Section 9 of the Texas Constitution. Accordingly, the court affirmed the judgment of the Fourteenth Court of Appeals. 

Although they were not qualified to perform motorcycle accident reconstruction, the detective’s reconstruction and the officer’s testimony that he did not believe appellant’s version of the accident were properly admitted as opinions based on each expert witness’ years of experience and training
Rhomer v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
April 12, 2017
04-15-00817-CR
Sandee Bryan Marion
Published
     The appellant was indicted on three counts felony murder, intoxication manslaughter, and manslaughter. A jury found the appellant guilty on all three counts and assessed punishment at seventy-five years’ confinement. In its judgment, the trial court abandoned counts two and three and sentenced the appellant to seventy-five years on only count one. The appellate court found that based on the experience and training, the detective formulated a conclusion that the point of impact occurred in the individual’s lane of traffic. The trial court did not abuse its discretion in determining the detective was qualified to offer an expert opinion. Further, the field of accident reconstruction was a legitimate one, the subject matter of the detective’s expert testimony was within the scope of that field, and his testimony properly relied upon and/or utilized the principles involved in the field. The trial court did not abuse its discretion by finding the detective’s expert opinion to be reliable. Finally, although the officer admitted he was not qualified to perform accident reconstructions, he stated he regularly writes crash reports as a patrol officer and had received years of training on how to investigate and document a crime scene. Thus, the trial court did not abuse its discretion by allowing the officer to testify he did not believe the appellant’s version of how the accident occurred. Accordingly, the court affirmed the trial court’s judgment.


In its guilty verdict, jury must have either found State’s witness was an accomplice and there was sufficient evidence to corroborate witness’ testimony or it found the witness was not an accomplice and no corroboration was necessary; evidence was sufficient to show witness was not an accomplice
Vanhalst v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
April 12, 2017
06-16-00080-CR
Ralph K. Burgess
Published
     The appellant was convicted of murdering the victim and was sentenced to serve forty-seven years’ confinement in prison. The appellate court found that the trial court instructed the jury that if it found the State’s witness was an accomplice, it could not find the appellant guilty unless there was other evidence before it which corroborated the State’s witness’ testimony. Because the jury found the appellant guilty, it either found he was an accomplice and that there was sufficient evidence to corroborate the State’s witness’ testimony or it found that the State’s witness was not an accomplice and no corroboration was necessary. Accordingly, the court affirmed the trial court’s judgment and sentence.


Evidence supported appellant’s convictions for aggravated assault of a minor, and sexual assault on the mother, but the court reformed the judgment of one count to a conviction for indecency with a child by sexual contact, and reversed punishment and remanded for a new punishment hearing
Martinez v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
April 12, 2017
04-16-00468-CR
Sandee Bryan Marion
Published
     The instant was an appeal by the appellant, from his conviction for aggravated sexual assault of a child, habitual. The appellant entered pleas of true to two enhancement counts, and the trial court sentenced appellant to thirty-five years’ confinement on counts one and two of the indictment. The appellate court found that it was within the trial court’s province to determine the credibility of her mother, and the SANE nurse; and to resolve inconsistencies between the witnesses’ testimony. Further, the court concluded a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and the court agreed the evidence was legally insufficient to support the trial court’s verdict on count one of the indictment, which alleged the appellant committed aggravated sexual assault by penetration of mother’s sexual organ. Furthermore, the court concluded the Thornton test was satisfied as to count three of the indictment, which alleged indecency with a child by sexual contact with the mother’s genitals. Moreover, the court concluded the evidence was sufficient to support the appellant’s conviction under count two of the indictment, which alleged the appellant committed aggravated sexual assault by penetration of the mother’s anus. Therefore, the court reversed the trial court’s judgment on count one, reform the judgment to reflect a conviction for indecency with a child by sexual contact under count three, affirm the conviction under count three as modified, reversed the punishment under count one, and remanded the instant case to the trial court to conduct a new punishment hearing on count three. Accordingly, the court affirmed the trial court’s judgments in all other respects.


Absent findings of fact, appellate court could not find abuse of discretion by trial court in classifying and dividing the marital estate and appellant provided no support for her claim third-party defendants in a divorce action were entitled to an attorney’s fee award from the marital estate
Brown v. Wokocha
Appellate: Civil, Damages, Family, Procedure
Texas 1st Court of Appeals
April 11, 2017
01-15-00759-CV
Rebeca Huddle
Published
     The parties married in April 2004. They separated in September 2011, and the appellant husband filed for divorce. The instant appeal concerns the division of property between divorcing spouses. The appellate court found that without findings of fact, it was impossible for the court to determine that the trial court abused its discretion in its division of the community property. Because the court did not know what value the trial court assigned to the community property assets or to the appellee wife's reimbursement claims, or the percentage of the marital estate awarded to each party, the court could not conclude that the trial court abused its discretion in dividing the marital estate. Further, in the absence of such findings, the court presumed the trial court’s findings regarding the magnitude of those assets supported its judgment; that was, that the values of those assets were de minimus and did not materially affect the division of the estate. Thus, the trial court did not reversibly err by classifying those six assets as community property. Furthermore, the appellant conceded that the attorney did not represent either of the divorcing spouses in the trial court. She provided no support, and the court had found none, for her claim that third-party defendants in a divorce action were entitled to an attorney’s fee award as part of the just and right division of the marital estate. Thus, the trial court did not abuse its discretion by refusing to award the attorney a share of the marital estate as attorney’s fees for work done on behalf of the third-party defendants. Accordingly, the court affirmed the judgment of the trial court.


Appellant’s 19-year-old daughter was a victim, rather than a willing participant in the incestuous relationship, and she was not an accomplice to the offense, but imposition of attorney's fees for court-appointed counsel was improper because trial court made no determination appellant could pay
Phelps v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
April 10, 2017
06-16-00116-CR
Bailey C. Moseley
Published
     After a jury heard evidence that the appellant engaged in sexual intercourse with his nineteen-year-old biological daughter, they convicted him of prohibited sexual conduct. In accordance with the jury’s verdict, the trial court sentenced the appellant to twenty years’ imprisonment, ordered him to pay a $10,000.00 fine, and also ordered him to pay $400.00 for his court-appointed counsel. The appellate court found that there must be affirmative proof establishing the complaining witness willingly participated in the act of sexual intercourse upon which the prosecution was based. Further, the court overruled the appellant’ first point of error and the court ruling was also dispositive of the appellant’s second issue, which argued that the trial court erred in failing to submit an instruction which instructed the jury that Ashley was an accomplice as a matter of law and a trial judge had no duty to instruct the jury that a witness was an accomplice witness as a matter of law unless there existed no doubt that the witness was an accomplice. Because the court found that Ashley was not an accomplice, the trial court did not err in denying the appellant’ requested jury instruction. Finally, the instant Court had the power to correct and modify the judgment of the trial court sua sponte for accuracy when the necessary data and information were part of the record. Therefore, the court modify the trial court’s judgment by deleting the assessment of attorney’s fees.


There was sufficient indicia of reliability in the case to provide the officer with reasonable suspicion to initiate a traffic stop based on the anonymous phone caller’s tip that the appellant was driving while intoxicated
Pate v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
April 11, 2017
01-16-00569-CR
Russell Lloyd
Published
     The appellant pleaded no contest to the misdemeanor offense of driving while intoxicated. The trial court assessed her punishment at a $500 fine and 180 days in county jail, with deferred adjudication community supervision for eighteen months. The Texas Court of appeals found that in light of the fact that the caller’s detailed information was based on contemporaneously observed eyewitness knowledge, and the dispatcher conveyed the information that, unlike in Navarette, the caller actually spoke to the driver who essentially admitted to driving under the influence, the court concluded that the call bore adequate indicia of reliability for Officer Salazar to credit the caller’s account. Further, under the totality of the circumstances, the court concluded that there was sufficient indicia of reliability in the instant case to provide the officer with reasonable suspicion that appellant was driving while intoxicated. That made it reasonable under the circumstances for the officer to execute a traffic stop. Finally, the court held that the trial court did not abuse its discretion by denying appellant’s motion to suppress. Accordingly, the court affirmed the trial court’s judgment.