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.


The court in the hearing addressed the factors relevant to motions to transfer under the Juvenile Justice Code, and properly transferred proceedings to district court, where defendant was indicted in 2014 for a 1998 crime as a juvenile for burning his victim, who died in 2011 from skin cancer
Collins v. State
Criminal, Evidence, Juvenile, Procedure
Texas 9th Court of Appeals
March 29, 2017
09-15-00089-CR
Hollis Horton III
Published
     The instant case concerned whether an ex post facto violation of the defendant’s constitutional rights occurred due to the transfer of the defendant’s case from the juvenile court system to a trial court where the defendant was tried as an adult. However, after 1998, the Legislature amended the laws that apply to the transfer of juvenile proceedings to district court, expanding the attained age requirements for such transfers in cases involving children accused of committing murder. The juvenile court in the defendant’s case transferred the defendant’s case from juvenile court based on the 1999 amendments, which lowered the age requirements to include thirteen year olds. The defendant appealed, complaining the juvenile court erred by relying on the amendments the Legislature passed after the date he committed the acts that resulted in the State charging him with murder. The appellate court found that the record showed that the judge of the juvenile court considered the statutory requirements that were in Tex. Fam. Code Ann. section 54.02(j), which included the specific findings that the appellant was challenging in his appeal. Further, the record also reflected that the evidence before the court in the hearing addressed all of the factors relevant to motions to transfer under the Juvenile Justice Code, and that the judge of the juvenile court considered all of the conditions that govern motions to transfer that were required under section 54.02(j) of the Juvenile Justice Code. Furthermore, the record also reflected that the evidence before the court in the hearing addressed all of the factors relevant to motions to transfer under the Juvenile Justice Code, and that the judge of the juvenile court considered all of the conditions that govern motions to transfer that were required under section 54.02(j) of the Juvenile Justice Code. Finally, the court held the judge of the juvenile court did not abuse her discretion by granting the State’s motion to transfer the proceedings to a district court. Accordingly, the trial court's judgment was affirmed.


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.


The trial court did not err in granting appellee landlord summary judgment because appellant knew of the driveway’s condition for months before falling on the driveway on loose rocks, and the newly discovered evidence was not so material to produce a different result
Phillips v. Abraham
Appellate: Civil, Damages, Landlord and Tenant, Litigation: Personal Injury, Real Property, Torts
Texas 14th Court of Appeals
April 07, 2017
14-15-00394-CV
Kem Thompson Frost
Published
     The appellant leased real property and the house constructed on it (the Property) from the appellees under a written residential lease. the appellant alleges that while the lease was in effect, he lost his footing and fell while attempting to walk up the driveway. According to the appellant, he lost his footing because the driveway was in disrepair with many loose and broken rocks. the appellant claims he broke his back as a result of the fall. The appellant sued the appellees, asserting a negligence claim and seeking exemplary damages based on the appellees’ alleged gross negligence. The appellees filed a motion for summary judgment. The appellees later filed a supplemental summary-judgment motion. The appellant filed an initial summary-judgment response with no evidence attached. The trial court granted summary judgment. The appellate court found that the summary-judgment evidence established as a matter of law that the appellant knew of the alleged unreasonably dangerous condition on the premises before the occurrence made the basis of the instant suit and that neither the criminal-activity exception nor the necessary-use exception applied. Therefore, the trial court did not err in granting summary judgment on the ground that the appellees had no duty to warn the appellant or to repair the driveway because the appellant knew about the driveway’s condition for at least six months before the occurrence made the basis of the instant suit. Further, because summary judgment was appropriate based on a ground to which the newly discovered evidence did not pertain, the trial court did not abuse its discretion by impliedly finding that the newly discovered evidence was not so material that it probably would produce a different result if a new trial were granted. Therefore, the trial court did not abuse its discretion in denying the motion for new trial. Accordingly, the court affirmed the trial court’s judgment.


Supreme Court announced five rules that address the relationship between contract claims under an insurance policy and tort claims under the Insurance Code, but because the trial court and the parties labored under confusing precedent, the court ordered a new trial in the interests of justice
USAA Texas Lloyds Co. v. Menchaca
Appellate: Civil, Contracts, Damages, Insurance, Litigation: Personal Injury, Torts
The Supreme Court of Texas
April 07, 2017
14-0721
Jeffrey S. Boyd
Published
     The respondent sued the petitioner company for breach of the insurance policy and for unfair settlement practices in violation of the Texas Insurance Code. As damages for both claims, she sought only insurance benefits under the policy, plus court costs and attorney’s fees. Both parties moved for judgment in their favor based on the jury’s verdict. The petitioner argued that because the jury failed to find in its answer to Question 1 that the petitioner failed to comply with the policy’s terms, the respondent could not recover for bad faith or extra-contractual liability as a matter of law. The respondent argued that the court should enter judgment in her favor based on the jury’s answers to Questions 2 and 3, neither of which was conditioned on a Yes answer to Question 1. The trial court disregarded Question 1 and entered final judgment in the respondent's favor based on the jury’s answers to Questions 2 and 3. The appellate court affirmed. The Texas Supreme Court found that Question 1 was material because the respondent sued the petitioner for breach of the insurance policy as well as for statutory violations, and she sought to recover on either claim. The jury’s answers to Questions 2 and 3 did not render its No answer to Question 1 immaterial because that answer was necessary to resolve the respondent's breach-of-contract claim. Thus, the appellate court erred by affirming the trial court’s decision to disregard the jury’s answer to Question 1. Further, after the trial court entered its judgment, the petitioner argued in its motion for new trial that the respondent could not recover in the absence of a finding of breach because she did not seek damages separate and apart from those sought under the breach of contract theory. Lastly, although the court had clarified today that the respondent did not have to prevail on her breach-of-contract claim to recover policy benefits for a statutory violation, the confusing nature of the court's precedent precluded it from faulting the petitioner for the position it had maintained throughout the litigation. Accordingly, the court reversed the appellate court's judgment and remanded the case in the interest of justice for a new trial consistent with the rules the court had clarified.


Petitioner was entitled to dismissal when she furnished conclusive evidence that she was acting within the scope of her employment at the public university; she need not have offered evidence of her motives for making the allegedly defamatory statements
Laverie v. Wetherbe
Appellate: Civil, Education, Employment, Gov't/Administrative, Procedure, Torts
The Supreme Court of Texas
April 07, 2017
15-0217
Jeffery Brown
Published
     The Texas Supreme Court denied the respondent’s motion for rehearing, withdrew the opinion of December 9, 2016, and substituted the following. A Texas Tech professor and associate dean, the respondent, sued a colleague, the petitioner, for defamation after he was passed over for promotion. the petitioner moved for summary judgment, arguing in part that she made the allegedly defamatory statements in the scope of her employment by, a governmental unit, and therefore could not be sued in her individual capacity. The trial court denied that motion and the appellate court affirmed. The Texas Supreme Court found that the petitioner was objectively acting in the scope of her employment as senior associate dean and a member of the dean search committee when she made the allegedly defamatory statements to the provost. Because the statements at issue in the instant appeal were based on conduct within the general scope of the petitioner’s employment and no one disputes the respondent’s claims could have been brought against a governmental unit, the respondent’s claims at issue in the instant appeal were considered to be against the petitioner in her official capacity only. She was therefore entitled to dismissal as to the claims at issue in the instant appeal pursuant to the election-of-remedies provision. Accordingly, the court reversed the appellate court and rendered judgment dismissing the petitioner from the respondent’s suit as to claims arising out of the statements at issue in the instant appeal and remanded.


The existence of damages was not negated by testimony about an unresolved portion of the excise tax claim or by speculation about “virtually assured” future recoveries; appellees did not breach the Purchase Agreement; and the FLSA overtime claim did not meet the deductible
Martin Operating Partnership LP v. QEP Marine Fuel Investment, LLC
Appellate: Civil, Contracts, Corporations, Damages
Texas 14th Court of Appeals
April 06, 2017
14-15-00893-CV
William J. Boyce
Published
     The appellant company bought a company from the appellee companies. the appellant sued for breach of contract in connection with that transaction; it sought indemnification from the appellees for the purchased company’s state excise tax liability, an uncollectible account receivable, and federally mandated overtime pay obligations. The trial court signed a take-nothing summary judgment in favor of the appellees. The appellate court found that in its brief the appellees asserted that “the appellant is virtually assured of successfully resolving the third piece of the Excise Tax claim just as it successfully resolved the first two pieces because it is merely a matter of submitting the proper paper work and obtaining the refund.” That contention did not support the trial court’s summary judgment grant because the burden the appellees assumed under Tex. R. Civ. P. 166a(c) was to negate as a matter of law at least one element of the excise tax claim, the damages. The existence of damages was not negated by testimony about an unresolved portion of the excise tax claim or by speculation about “virtually assured” future recoveries. Further, the court concluded that the appellees did not breach its contractual obligations by obtaining disbursement of the escrow funds after the Claims End Date without joint written instructions. Because the Purchase Agreement expressly stated that escrow funds must be handled “in accordance with” the Escrow Agreement, the circumstance likewise established that the appellees did not breach the Purchase Agreement. Furthermore, because the FLSA overtime claim did not meet the deductible, the appellant was not entitled to recover on that indemnification claim. Accordingly, the judgment was partly affirmed, partly reversed and remanded.


Because the two violations of section 25.072 were the same in law and fact, the trial court correctly concluded that double jeopardy barred the State from prosecuting the appellee on the second indictment
State v. Maldonado
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
April 06, 2017
13-16-00317-CR
Nora L. Longoria
Published
     The State of Texas appealed an order granting the appellee’s pretrial petition for a writ of habeas corpus and dismissing the indictment against him as barred by double jeopardy. The appellate court held that the allowable unit of prosecution for TEX. PENAL CODE ANN. section 25.072 was a series of two or more violations of section 25.07 in a period of twelve months or less which violated the same setting of a bond or court order. The court concluded that the violation of section 25.072 alleged in the second indictment in the case was not a distinct unit of prosecution from the violation alleged in the first indictment. The two offenses were therefore factually the same for purposes of double jeopardy. Because the two violations of section 25.072 were the same in law and fact, the trial court correctly concluded that double jeopardy barred the State from prosecuting the appellee on the second indictment. Accordingly, the judgment was affirmed.


Family exclusion in the auto policy was valid and enforceable at the time of the accident; second appellant son asserted no claims against first appellant father and did not seek a declaration or summary judgment as to first appellant’s liability
Johnson v. State Farm Mutual Automobile Insurance Co.
Appellate: Civil, Contracts, Damages, Insurance, Torts
Texas 3rd Court of Appeals
April 06, 2017
03-16-00086-CV
Melissa Goodwin
Published
     The instant appeal arose from a suit brought by the first appellant seeking declarations construing the terms of two insurance policies following an automobile accident in which the first appellant’s son, the second appellant, a minor at the time, was injured while the first appellant was driving. The first appellant sued the first appellee insurance company, which had issued the first appellant an auto policy, and the second appellee company, which had issued the first appellant an umbrella policy (jointly the appellees). The trial court granted in part and denied in part the motions of the first appellant and the appellees and denied the second appellant’s motion. The appellate court found that the first appellant’s complaints concerning the unavailability of policies that did not contain the family member exclusion lay with the legislature and the Texas Board of Insurance, not with the appellees. And, the first appellant did not assert that the appellees were a state actor, and on those facts, the court concluded that it was not. Thus, the first appellant’s equal protection and due process claims could not be maintained against the appellees. Further, informed by the Supreme Court’s decisions in National County Mutual Fire Insurance Company v. Johnson, 879 S.W.2d 1 (Tex. 1993), Liberty Mut. Fire Ins. Co. v. Sanford, 879 S.W.2d 9, 10 (Tex. 1994), and Fortis Benefits v. Cantu, 234 S.W.3d 642, 650 n.53 (Tex. 2007), the court could not conclude that the family member exclusion was unconscionable. And, based on the plain language of the family member exclusion and guided by the Texas Supreme Court’s decisions in Johnson and Sandford, the first appellant’s interpretation regarding the sixth issue was unreasonable. And also the record reflected that in its motion for summary judgment, the appellees referred to “Texas Personal Auto Policy Amendatory Endorsement,” quoted its language, and attached a copy as an exhibit. In any event, because the first appellant did not raise the issue in the trial court, the court may not consider it on appeal. Furthermore, the court concluded that under the plain language of the UIM provision, the first appellant’s UIM coverage was not available to pay for damages to the second appellant caused by the first appellant. Lastly, there was no basis in the record for the trial court’s purported determination that the first appellant “is legally liable” and became legally liable on the date of the judgment. Accordingly, the court affirmed in part and reversed and rendered in part the trial court’s judgment.


Appellant did not plead or prove that it had a constitutionally protected property interest in obtaining double-occupancy room licenses for its memory care facility, and trial court should have granted the agency’s plea to the jurisdiction on appellant’s assertions of secret rule making
LMV-AL Ventures, LLC v. Texas Department of Aging and Disability Services
Appellate: Civil, Constitution, Gov't/Administrative, Health Care, Real Property
Texas 3rd Court of Appeals
April 06, 2017
03-16-00222-CV
David Puryear
Published
     The appellant company sued the appellees for declaratory judgment under the Uniform Declaratory Judgments Act (UDJA) and the Administrative Procedures Act (APA). The appellant sought declarations that would compel the appellees to license thirty rooms in the appellant's recently constructed memory-care facility for double-occupancy use. The appellees filed a plea to the jurisdiction, and the appellees and the appellant filed competing motions for summary judgment. The trial court granted summary judgment in favor of the appellees. The appellant appealed from the trial court’s order granting summary judgment for the appellees. The appellees filed a cross-appeal complaining of the trial court’s implied denial of its plea to the jurisdiction. The appellate court found that the trial court should have granted the appellees plea to the jurisdiction as to the appellants assertions of secret rulemaking and its challenges to the appellees interpretation of Rule 92.62 under the APA and UDJA. Thus, the court reversed in part the trial court’s order granting the appellees motion for summary judgment and rendered judgment dismissing those claims for want of jurisdiction. Further, because the appellant did not plead or prove that it had a constitutionally protected property interest in obtaining double-occupancy approval, the court affirmed the trial court’s order granting summary judgment for the appellees on the appellant's remaining claims. Accordingly, the judgment was affirmed as reversed.


Appellant’s 15-year sentence for engaging in an improper relationship between an educator and a student, a second-degree felony did not violate the Eighth Amendment, and appellant failed to show his trial counsel was ineffective in failing to call additional witnesses
Toledo v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
April 06, 2017
01-15-00559-CR
Jane Nenninger Bland
Published
     The State charged the appellant with the offense of engaging in an improper relationship between an educator and a student, a second-degree felony. The appellant entered a guilty plea to the charged offense without an agreed recommendation as to punishment. The trial court assessed the appellant’s punishment at fifteen years’ confinement. The appellant moved for a new trial, which the trial court denied. The appellate court held that Texas Penal Code section 21.12 bears a rational relationship to Texas’s legitimate state interest in ensuring a safe educational environment and preserving the value of educational opportunities for every student in Texas. Thus, it did not offend the Due Process Clause of the Fourteenth Amendment. Further, because the appellant’s equal protection challenge was grounded on an analysis similar to his due process challenge, the court rejected it. Next, the appellant did not point to any authority to support a broader reading of the state constitution’s due course of law provision based on its inclusion of protection against disenfranchisement that would render section 21.12 unconstitutional. Thus, the court rejected his proposed interpretation of that language. Further, the court held that the appellant’s punishment did not violate the Eighth Amendment on the grounds that it was a cruel and unusual punishment. Next, the appellant had not shown that any additional witness would have changed the outcome of the case. Thus, the court held that the appellant had failed to satisfy his burden to demonstrate that trial counsel was ineffective in failing to call additional witnesses. Further, the victim impact statement in the instant case was provided for the PSI, and was thus not objectionable. Finally, the trial court reasonably could have concluded that the appellant did not meet his burden to overcome the presumption that trial counsel’s conduct fell within the range of reasonable professional assistance. Thus, the trial court did not err in denying the appellant’s motion for new trial based on his ineffective assistance of counsel claim. Accordingly, the court affirmed the judgment of the trial court.


The evidence was sufficient to show that appellant acted recklessly in pushing the child off the bed, even if the specific resulting injury was not foreseeable
Kolb v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 06, 2017
14-15-00658-CR
William J. Boyce
Published
     A jury convicted appellant of recklessly causing serious bodily injury to a child. The trial court sentenced appellant to 14 years’ imprisonment. The appellate court held that the evidence was sufficient to show that appellant acted recklessly in pushing the child off the bed, even if the specific resulting injury was not foreseeable, the medical examiner’s testimony was admissible and the State did not withhold evidence or produce evidence in an untimely manner. Therefore, the trial court did not err. Accordingly, the judgment was affirmed. 


The appellee had legitimate, nondiscriminatory reasons for firing the appellant, and appellant failed to offer evidence that those reasons were a pretext for unlawful discrimination
Kaplan v. City of Sugar Land
Appellate: Civil, Civil Rights, Employment, Gov't/Administrative, Torts
Texas 14th Court of Appeals
April 06, 2017
14-15-00381-CV
J Brett Busby
Published
     The appellant sued the appellee City for age discrimination under the Texas Commission on Human Rights Act (TCHRA). The appellee moved for summary judgment on traditional and no-evidence grounds. The trial court granted the motion without specifying the grounds. The appellate court found that the Texas courts had reconciled the McDonnell-Douglas burden-shifting framework with the court's summary judgment procedure by requiring an employer moving for traditional summary judgment to establish as a matter of law a legitimate, nondiscriminatory reason for its adverse employment action, at which point the burden shifts to the employee to raise a fact issue regarding whether the employer’s reason was a pretext for discrimination. In addition, an employer may obtain a no-evidence summary judgment if, for example, there was no evidence of one or more elements of the employee’s prima facie case, or no evidence that the employer’s reason was a pretext for discrimination. Further, after carefully reviewing all of the summary judgment evidence in the light most favorable to the appellant, the court concluded that the appellee had legitimate, nondiscriminatory reasons for firing the appellant, and he failed to offer evidence that those reasons were a pretext for unlawful discrimination. Thus, the court held that the trial court properly granted summary judgment for the appellee. Accordingly, the court affirmed the trial court’s final judgment. 


Trial court's rendering an acquittal based on the absence of evidence for the aggravating element to Driving While Intoxicated Class A Misdemeanor would not justify the conclusion that the appellant should also be acquitted of the Class B Misdemeanor, for which there was sufficient evidence
Ex parte Navarro
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 06, 2017
14-16-00606-CR
Tracy Christopher
Published
     The instant was an appeal from the denial of an application for writ of habeas corpus. The appellate court found that the trial court may have erroneously upgraded the conviction to a Class A misdemeanor, but the court's judgment rendering an acquittal based on the absence of evidence for the aggravating element would not justify the conclusion that the appellant should also be acquitted of the Class B misdemeanor, for which there was sufficient evidence. Further, the appellant argued that Granger was distinguishable because the State in that case contested whether capital murder and murder were the same offense for jeopardy purposes, whereas the State in the instant case conceded that the Class A misdemeanor and the Class B misdemeanor were the same offense for jeopardy purposes. Furthermore, the court did not understand how that difference would operate to make Granger inapplicable. The law remained the same, even if the arguments were not. Lastly, the court concluded that Granger controls the outcome of the case, which means that the appellant’s jeopardy challenge must fail. Thus, the trial court’s order denying the application for writ of habeas corpus was affirmed.


The court held the evidence was legally and factually sufficient to support the trial court’s finding that termination of the parent-child relationship was in the daughter’s best interest
In re J.M.T.
Appellate: Civil, Family, Procedure
Texas 1st Court of Appeals
April 06, 2017
01-16-00940-CV
Laura Carter Higley
Published
     Following a bench trial, the trial court signed a judgment terminating the parent-child relationship between the appellant father and his one-year-old daughter. The appellate court found that the disputed evidence that a reasonable factfinder could not have credited in favor of the finding was so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence was factually insufficient. The court gave due deference to the fact finder’s findings, and could not substitute their own judgment for that of the fact finder. Further, the disputed evidence that a reasonable fact finder could not have credited in favor of the termination finding under Tex. Fam. Code Ann. section 161.001(b)(1) subsection (O) was not so significant that a fact finder could not reasonably have formed a firm belief or conviction as to the truth of the termination finding under that subsection. The court held that the evidence was legally and factually sufficient to support the trial court’s predicate finding under Subsection (O). Finally, the court held the evidence was legally and factually sufficient to support the trial court’s finding that termination of the parent-child relationship was in the daughter’s best interest. Accordingly, the judgment was affirmed.


Since appellant’s counsel did not ask the venire about panel members’ relationships with specific investigators, the jurors did not withhold information, and the relationships were immaterial; appellant was not harmed by the omission of a unanimous jury vote in the charging instructions
Ashton v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
April 06, 2017
01-16-00004-CR
Russell Lloyd
Published
     A jury found the appellant guilty of two charges of aggravated sexual assault of a child younger than fourteen years of age, and the jury assessed his punishment in both cases at thirty-eight years’ incarceration, with sentences to run concurrently. The appellate court found that after reviewing the record, the defense counsel did not ask questions that were calculated to uncover the jurors’ non-familial relationships with the detective. Thus, the trial court did not err by denying the appellant’s motion for mistrial because the appellant’s counsel did not make a further inquiry in her questioning of the venire, and, therefore, Jurors Nos. 1 and 6 did not withhold information during voir dire. Further, even if appellant’s counsel had asked questions designed to illicit the information that appellant argued was withheld in the case, the trial court would not have erred by denying appellant’s motion for mistrial because the information was not material. Furthermore, only one of the four factors—the entirety of the charge weighs in favor of a finding of egregious harm. One factor weighs against a finding of egregious harm, and two factors were neutral. In light of the court's analysis of those four factors, and after reviewing the appellate record in its entirety, the court could not say that the appellant was actually harmed by the charge errors because the instructions did not affect the basis of the appellant’s case or his defensive theories, or deprive the appellant of a valuable right. Thus, the court held that the appellant was not egregiously harmed by the erroneous instructions. Accordingly, the court affirmed the trial court’s judgment.


District court within the same county could exchange benches for appellant’s preliminary hearing; appellant’s juvenile conviction was not used to impose an unlawful sentence; and appellant’s district court fee imposed was not a facially unconstitutional tax
Davis v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
April 06, 2017
01-16-00079-CR
Jane Bland
Published
     The State charged appellant with aggravated assault. He pleaded guilty to the charge and true to one enhancement paragraph without a recommendation as to punishment. After a hearing and a pre-sentencing investigation (PSI), the trial court assessed the appellant’s punishment at 17 years’ confinement. The appellate court found that a facial constitutional challenge attacks the statute itself as opposed to a particular application of the statute. To prevail in a facial challenge, the defendant must establish that no set of circumstances existed under which the statute would be constitutional. Further, the statutes assessing court costs must provide that that the costs be allocated for legitimate criminal justice purposes lest they violated the separation-of-powers clause by functioning as a tax. Thus, to successfully mount a facial challenge to a statutory court fee, the defendant must show that the statute actually authorized or prohibited conduct in violation of the Constitution. Furthermore, it held that, absent an as-applied challenge, when analyzing statutes imposing fees, courts should consider only those purposes actually contemplated by the statute. Thus, a challenge could not demonstrate the statute was facially unconstitutional based on how the revenues might be spent in practice and the court held that the fee imposed by Article 102.005 was not a facially unconstitutional tax. Accordingly, the court affirmed the judgment of the trial court.


Arbitrator was not unable to serve and the agreement contemplated that the parties would choose a substitute arbitrator only if the arbitrator was unable to serve; thus, trial court abused its discretion by removing the arbitrator and appointing the second arbitrator
In re M.W.M.
ADR, Appellate: Civil, Contracts, Family, Procedure
Texas 5th Court of Appeals
April 05, 2017
05-16-00797-CV
David Schenck
Published
     The instant proceeding was a Suit Affecting the Parent Child Relationship (SAPCR) relating to the parties’ only child, a son. Father was relator. The parents divorced in 2010. Before the instant court was the relator’s petition for writ of mandamus in which he complains of orders removing the parties’ contractually-stipulated arbitrator and ordering arbitration to proceed before a substitute arbitrator appointed by the trial court. The appellate court found that the arbitration agreement appoints the arbitrator as the chosen arbitrator and provides that the trial court shall appoint a substitute arbitrator if the arbitrator was unable to serve as arbitrator and the parties could not agree on a substitute arbitrator. the arbitrator was not unable to serve and, unlike the agreements in Erving v. Virginia Squires Basketball Club, 468 F.2d 1064 (2d Cir. 1972) and Third Nat’l Bank in Nashville v. WEDGE Group Inc., 749 F. Supp. 851 (M.D. Tenn. 1990), the agreement contemplates that the parties would choose a substitute arbitrator if the arbitrator was unable to serve. Thus, the trial court abused its discretion by removing the arbitrator and appointing the second arbitrator. Accordingly, the court conditionally granted the writ.


Record indicated the appellant and State contemplated a punishment applicable to a second-degree felony, and because that portion of the plea agreement resulted in an illegal sentence and was unenforceable, the agreement was set aside
Thomas v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
April 05, 2017
PD-0295-16
Elsa Alcala
Published
     The appellant, agreed to enter an open plea of guilty to state-jail felony theft as a lesser-included offense of the charged offense of third-degree felony engaging in organized criminal activity. Because the State sought to enhance the state-jail felony theft charge with two prior convictions, the parties believed that the appellant was subject to a punishment range for a second-degree felony. The trial judge sentenced the appellant to twenty years’ imprisonment. The appellate court remanded the case for a new punishment hearing. The Texas Court of Criminal Appeals found that the record indicated that the appellant and the State contemplated a punishment within the range applicable to a second-degree felony. Thus, the applicable range of punishment constituted a material element of the plea agreement and, therefore, because that portion of the plea agreement resulted in an illegal sentence and was unenforceable, the proper remedy was to set aside the agreement. Accordingly, the judgment was reversed and remanded.


Appellant's payment to the asbestos trust fund to pay personal-injury claims in pending and future asbestos-product-liability lawsuits was not a cost of quality control under the Texas Tax Code section 171.1012
Owens-Corning v. Hegar
Appellate: Civil, Damages, Tax
Texas 4th Court of Appeals
April 05, 2017
04-16-00211-CV
Patricia O. Alvarez
Published
     The issue presented on appeal was whether the trial court erred in concluding the appellant's payment for product liability damages was not within the scope of the costs of quality control as that term was used in section 171.1012(d)(9) of the Texas Tax Code. The appellant and the State filed competing motions for summary judgment based primarily on stipulated facts. In the State’s motion for summary judgment, it included a list of facts to which the parties stipulated for purposes of the motion. The appellate court found that the court must examine the three examples the legislature provided to assist in the court’s understanding of its use of the term costs of quality control knowing the legislature viewed the term as a subset of cost of goods sold and as a cost that was in relation to the taxable entity’s goods. Further, the cost of inspection directly allocable to the production of the goods involved money spent during production to improve the quality of the product or good itself and the cost of repair and maintenance of goods was money spent on repairing or maintaining the product or good itself to improve its quality. Furthermore, the court held the appellant's payment to the asbestos trust fund to pay personal-injury claims in pending and future asbestos-product-liability lawsuits was not a cost of quality control under section 171.1012. Finally, having construed tax code section 171.1012 as a whole rather than in isolation, the court held that the legislature did not intend for costs of quality control to include the appellant’s payment to the asbestos trust fund to pay for personal-injury claims. Because there were no genuine issues of material fact and the State was entitled to judgment as a matter of law, the court concluded the trial court did not err, and its order was affirmed.


Trial court lacked authority, and appellate court conditionally granted mandamus relief and directed county court at law to rescind its order permitting defense counsel to provide the real party in interest a copy of the discovery materials provided by the State under Article 39.14
In re Powell
Appellate: Civil, Constitution, Courts, Criminal, Discovery, Gov't/Administrative, Procedure
Texas Court of Criminal Appeals
April 05, 2017
WR-85,177-01
Kevin P. Yeary
Published
     In the instant original mandamus proceeding, the relator, who was the District Attorney of Lubbock County, would have the instant Court compel the respondent, a county court at law judge, to rule in a certain way in a discovery dispute arising from a misdemeanor prosecution for driving while intoxicated (DWI). The question was whether the appellate court had concurrent jurisdiction such that the relator should have filed his application for writ of mandamus in that court under Padilla. The Texas Court of Criminal Appeals found that the court agreed with the Texarkana Court of Appeals that the appellate court in Texas did not have jurisdiction to issue writs of mandamus against statutory county courts. Further, in re Meyer, 482 S.W.3d at 714. the relator properly filed his application for writ of mandamus in the instant Court and the court therefore proceed to address the merits of his claim. Further, the trial courts did not typically have possession of discovery materials in order to make copies for the defendants. Moreover, the attorney for the real party in interest in the instant case did not ask the judge to make copies for her client. Furthermore, the Legislature, in its concern to balance the defendant’s interest in facilitating his own representation against the threat of intimidation against potential witnesses, had drawn an absolute line in Subsection (f), allowing the defendant unfettered access to view redacted discovery materials, but denying him copies. Moreover, the trial court in the instant case lacked authority to enter an order that effectively abrogated the instant unqualified legislative judgment and the court conditionally granted mandamus relief and directed the county court at law to rescind its order permitting defense counsel to provide the real party in interest in the instant case a copy of the discovery materials that were provided by the State under Article 39.14 and the writ of mandamus would issue only in the event the county court at law failed to comply with the instant opinion.


Appellant's slander claim was not subject to dismissal solely based on her failure to request a correction, clarification, or retraction of appellee's statements pursuant to the Defamation Mitigation Act, and trial court erred by granting appellees' no-evidence motions for summary judgment
Hardy v. Communication Workers of America Local 6215 AFL-CIO
Appellate: Civil, Constitution, Damages, Litigation: Personal Injury, Torts
Texas 5th Court of Appeals
March 31, 2017
05-16-00829-CV
Robert M. Fillmore
Published
     The appellant sued the appellees, the individual and the company, alleging she had been slandered by statements made by the appellee individual that were reported by a local television station. The appellees moved for summary judgment on the ground there was no evidence the appellant requested a correction, clarification, or retraction of the appellee individual statements as required by the Defamation Mitigation Act (DMA). The trial court granted the no-evidence motions for summary judgment and dismissed the appellant's claims with prejudice. The appellate court found that reading the DMA in its entirety, giving effect to all its provisions, and considering the purpose of the statute, the court concluded a plaintiff who fails to make a timely and sufficient request for correction, clarification, or retraction may not maintain or continue her suit in the face of a timely-filed motion to abate. The plaintiff’s claim, however, was not subject to dismissal solely based on the plaintiff’s failure to timely and sufficiently request a correction, clarification, or retraction. Further, the appellees were not entitled to prevail on a no-evidence motion for summary judgment on a ground that was not an essential element of the appellant's claim. Furthermore, because the appellant's slander claim was not subject to dismissal solely based on her failure to request a correction, clarification, or retraction of the appellee individual's statements, the trial court erred by granting the appellees no-evidence motions for summary judgment. Accordingly, the court reversed the trial court’s judgment and remanded the case for further proceedings.


Appellant was entitled to a jury trial for his de novo appeal of the order directing animal control to humanely destroy dogs, and county court at law abused its discretion in striking the timely filed jury request and proceeding with a bench trial
Hayes v. State
Appellate: Civil, Constitution, Courts, Gov't/Administrative, Procedure
Texas 12th Court of Appeals
March 31, 2017
12-15-00194-CV
Greg Neeley
Published
     The appellant appealed an order directing the animal control officer with the County Sheriff’s Office to humanely destroy three dogs pursuant to Chapter 822 of the Texas Health and Safety Code. The appellant claimed the trial court committed reversible error by denying him a jury trial. The appellate court found that because subchapter A contained no express language denying or restricting the right to appeal an order to have a dog destroyed, and Tex. Civ. Prac. & Rem. Code Ann. section 51.001 provided a right to appeal a justice court’s ruling when the judgment or amount in controversy exceeds $250, the appellant was entitled to appeal the justice court’s order to the county court at law. Further, the appellant’s right to a jury trial upon appeal to the county court at law was guaranteed under Article I, section 15, of the Texas Constitution. Thus, the appellant was entitled to a jury trial for his de novo appeal, and the county court at law abused its discretion in striking the timely filed jury request and proceeding with a bench trial. Because the county court at law’s order involved determination of material facts required to justify the entry of an order to humanely destroy the appellant’s dogs, the wrongful denial of a jury trial was harmful. Accordingly, the court reversed the trial court’s order and remanded.


Trial court erred to the extent that it rendered judgment against appellant purchasers for costs, payment of the earnest money deposit, attorney’s fees, and specific performance in their unsuccessful home purchase contract
Ifiesimama v. Haile
Appellate: Civil, Contracts, Damages, Real Property
Texas 1st Court of Appeals
March 30, 2017
01-15-00829-CV
Evelyn Keyes
Published
     After their attempt to purchase a home was unsuccessful, appellees sued the appellants, for specific performance and breach of contract. The trial court held a bench trial and ultimately ruled in favor of the appellees, ordering that they recover costs, their earnest money deposit, and attorney’s fees from both the appellants, although only the appellant signed the sales contract. The appellate court found that the sales contract allowed the appellees to seek specific performance or to terminate the contract and recover their earnest money deposit, but it did not allow them to obtain specific performance of the contract and recover their earnest money deposit. Further, the court held that the trial court erred by awarding the appellees their $1,000 earnest money deposit after determining that they were entitled to specific performance, and the court modified the trial court’s judgment to delete the award of $1,000 in earnest money. The court held that the trial court erred to the extent that it rendered judgment against the first appellant for costs, payment of the earnest money deposit, attorney’s fees, and specific performance. Finally, the court therefore modified the judgment of the trial court to delete the award of costs, earnest money, attorney’s fees, and specific performance against the appellant. Accordingly, the court affirmed the judgment as modified.


Trial court did not err in granting appellee traditional summary judgment as to premises liability, because, even assuming injured appellant independent contract was appellee's employee, the appellee general contractor had no duty to warn or protect him from an open and obvious danger
Gomez v. Saratoga Homes
Appellate: Civil, Contracts, Employment, Litigation: Personal Injury, Torts
Texas 8th Court of Appeals
March 29, 2017
08-14-00320-CV
Ann Crawford McClure
Published
     Appellant sued after falling and suffering injuries while painting a home that was under construction. The appellee owned the home and was acting as the general contractor in its construction. The appellee moved for summary judgment on the appellant's negligence and premise liability claims. After exhausting the administrative remedies, the trial court entered a written order granting the appellee's motion for traditional summary judgment, but denying its no-evidence motion. The appellate court found that the appellant's summary judgment evidence established, at best, that the appellee retained the right to give general instructions to contract workers with respect to safety issues, authorized its employees to conduct safety inspections and authorized them to take corrective action to address known safety issues. That evidence established only the possibility of control and was insufficient to raise a fact issue as to actual control so as to impose a duty on the appellee concerning the appellant's injuries. Further, the trial court did not err in granting the appellee's motion for traditional summary judgment as to the premises liability claim, because, even assuming the appellant was the appellee's employee, the appellee had no duty to warn or protect him from an open and obvious danger. Furthermore, in any event, because the trial court did not expressly stated which of the objections it sustained, the appellant was required to challenge both possible grounds for the trial court’s ruling. The appellant failed to address the form objections in his brief, and the court therefore concluded that his failure to do so waives any error in the trial court’s ruling. Accordingly, the court affirmed the summary judgment.


Because the court did not have jurisdiction to issue a writ of mandamus against the respondent judge of the county court, relator's request for mandamus relief was dismissed
In re Bayview Loan Servicing, LLC
Appellate: Civil, Courts, Gov't/Administrative, Procedure
Texas 6th Court of Appeals
March 31, 2017
06-17-00040-CV
Ralph Burgess
Published
     The instant was an original proceeding brought by the relator company, seeking issuance of a writ of mandamus requiring the respondent, whom the relator identified as the County Court at Law Number 1, Hopkins, County, to sign an order requiring the County Clerk of Hopkins County to issue a writ of possession. the relator stated that a judgment in its forcible detainer action was signed on January 5, 2017, that the real party in interest had appealed that judgment but has not filed a supersedeas bond, and that the County Clerk of Hopkins County refused to issue a writ of possession to the relator. The relator complains that although it filed a motion with the respondent requesting it to issue an order requiring the county clerk to issue the writ of possession, the respondent had failed to act on the motion. The appellate court found that the use of the term statutory county court but not county court in Tex. Gov’t Code Ann. Section 22.002(a), combined with the use of the term county court but not statutory county court in Section 22.221(b), suggested that the absence of the term statutory county court in Section 22.221(b) was not an oversight, but part of a specific allocation of mandamus duties between the Texas Supreme Court and the courts of appeals. While the Texas Supreme Court had mandamus jurisdiction over judges of county courts at law, the court have only been granted jurisdiction to issue writs of mandamus against judges of constitutional county courts and of district courts, except when enforcing the jurisdiction. Thus, the court lacked jurisdiction to issue a writ of mandamus against the judge of the County Court at Law of Hopkins County. Accordingly, the court dismissed the relator’s petition for writ of mandamus.


Evidence was legally and factually sufficient to support gross negligence finding and damages awards against appellants for their failure to acknowledge the vicious propensities of their dog that escaped and attacked appellee
Turner v. Duggin
Appellate: Civil, Damages, Litigation: Personal Injury, Torts
Texas 6th Court of Appeals
March 31, 2017
06-16-00046-CV
Bailey C. Moseley
Published
     The canine was an eleven-year-old blue heeler mix canine owned by the appellants. While the appellants were away on vacation, the canine escaped their yard through a gate inadvertently left open by the appellant’s teenaged daughter, and bit passerby the appellee, causing her significant and irreparable injury. The appellee brought suit wherein she alleged that the appellants were negligent in the supervision and confinement of the dog, in exercising ordinary care by allowing the dog to escape the appellants’ property, and in training the dog to be vicious and to attack people. They alleged that the appellants knew or should have known of the vicious propensities of the dog and were guilty of such gross negligence that they were strictly liable for the damages occasioned to the appellee by the attack. After hearing evidence that the canine had bitten several other people and regularly escaped the appellants' yard, the jury found by clear and convincing evidence that the appellants had been grossly negligent. The jury awarded a total of $570,000.00 in compensatory damages, $75,000.00 in exemplary damages against the second appellant, and $50,000.00 in exemplary damages against the appellant. After overruling the appellants’ motion for new trial and motion for remittitur, the trial court entered a final judgment in accord with the jury’s verdict. The appellate court found that the use of two different methodologies lead to the conclusion that the jury’s award was supported by the evidence. The evidence was legally and factually sufficient to support a $350,000.00 joint award for future physical pain and mental anguish. Thus, the court found that the jury’s award of $350,000.00 was supported by the evidence. Further, the court found that it enabled a reasonable and fair-minded jury to find, by clear and convincing evidence, that the appellants were grossly negligent. Therefore, the evidence was legally and factually sufficient to support the gross negligence finding. Finally, the court could not conclude that the jury’s award of exemplary damages was so against the great weight and preponderance of the evidence as to be manifestly unjust. Accordingly, the court affirmed the trial court’s judgment.


Jury’s rejection of appellant’s insanity defense was not manifestly unjust; the trial court did not err in denying the motion to suppress statements and did not abuse discretion in denying the appellant’s request for a mistrial
Routh v. State
Constitution, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
March 31, 2017
11-15-00036-CR
Jim R. Wright
Unpublished
     The jury rejected the appellant’s insanity defense and convicted him of capital murder for the murders of two victims. The State did not seek the death penalty. Therefore, the trial court assessed the appellant’s punishment at confinement for life without parole and sentenced him accordingly. The appellate court found that “If the accused knows that his conduct is ‘illegal’ by societal standards, then he understands that his conduct is wrong, even if, due to a mental disease or defect, he thinks his conduct is morally justified.” In the instant case, the appellant and the State presented thorough, detailed, and competing evidence on the issue of insanity. Therefore, the court could not say, based on the record, that the jury’s rejection of the appellant’s insanity defense was so against the great weight and preponderance of the evidence as to be manifestly unjust. Further, the court could not say that the trial court abused its discretion when it found that, based on the totality of the circumstances, the appellant understood his rights and voluntarily waived his rights. Therefore, the trial court did not err when it denied the appellant’s motion for new trial. Furthermore, in the instant case there was no indication in the record that the jury disobeyed or refused to follow the trial court’s instruction to disregard. The prosecutor and the chemist explained the mistake to the jury; the vial was withdrawn from evidence; and the trial court instructed the jury to disregard any testimony regarding the vial being used in conjunction with a syringe. Therefore, the court could not conclude that the trial court abused its discretion when it denied the appellant’s request for a mistrial. Accordingly, the judgment was affirmed.


While appellant employee may have raised an inference that her use of vulgarities was not a sufficient reason for her termination, she had not proven causation, and appellant’s infliction of emotional distress claim was not specified as intentional or negligent but both grounds failed
Bates v. Pecos County
Appellate: Civil, Constitution, Employment, Gov't/Administrative, Procedure, Torts
Texas 8th Court of Appeals
March 29, 2017
08-15-00100-CV
Ann Crawford McClure
Published
     The appellant sued the appellee county for wrongful termination under three common law theories, and the Texas Whistleblower statute. The case came to the court after the trial court granted the appellee's motion for summary judgment, or alternative plea to the jurisdiction. The appellate court found that the appellant presented some evidence that others who used vulgarities were not terminated, but she made that claim in the context of claiming sex or national origin discrimination. While she may have raised an inference that her use of vulgarities was not a sufficient reason for her termination, that claim standing alone raised no more than a scintilla of evidence as to the discriminatory motive that she was required to prove. Thus, the trial court did not err in granting summary judgment based on the appellant's failure to present evidence of causation. Further, the appellant's infliction of emotion distress claim did not specify whether it alleged negligent or intentional infliction of emotional distress. If the claim was for negligent infliction of emotional distress, it suffers the same problem as her general negligence claim. If she was alleging an intentional tort, the Texas Tort Claims Act (TTCA) specifically did not apply to a claim arising out of assault, battery, false imprisonment, or any other intentional tort. Intentional infliction claims did not fall within the TTCA waivers, and were accordingly barred. Furthermore, the summary judgment rule did not affix a time for a reply brief. A reply was just that, and the time limits did not govern when it might be filed. So long as no additional ground was raised in a reply, or additional proofs offered, there was no error in the trial court receiving such a reply. Accordingly, the judgment was affirmed.


Evidence supported trial court’s finding that termination of appellant’s parental rights for endangerment was in children’s best interest, where after mother had returned to Mexico for psychiatric treatment, appellant father’s reunification plan was terminated after he test positive for drugs
In re S.C.F.
Appellate: Civil, Civil Rights, Family, Juvenile
Texas 1st Court of Appeals
March 30, 2017
01-16-00788-CV
Jane Nenninger Bland
Published
     The instant was an accelerated appeal from the trial court’s judgment terminating the parental rights of the appellant father of two children. The appellate court found that there was some evidence of endangerment on which a reasonable factfinder could have formed a firm belief or conviction of endangerment. Further, while the Department proffered evidence that the children’s circumstances had substantially improved in their current placement and they were doing well, the appellant did not controvert that evidence or provide the trial court with evidence of his ability to care for children who had never lived with him, nor did he testify that he had ever provided for their social or emotional well-being during the time they lived with their mother or were in the custody of the Department. Thus, the court held that the evidence was legally and factually sufficient to support the trial court’s finding that termination of the appellant’s parental rights was in the children’s best interest. Accordingly, the court affirmed the judgment of the trial court.


The court had no information on why the appellant entered an open plea of guilt rather than risk trial, and did not know what advice was actually given to the appellant about his defenses or his chances at trial, and appellant had not overcome the presumption of competence of his counsel
Reyes v. State
Constitution, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
March 29, 2017
08-15-00311-CR
Ann Crawford McClure
Published
     The instant was an appeal from a guilty plea where there was no plea bargain, but only a recommendation from the State’s attorney. The trial court accepted the guilty plea, and after hearing testimony about the crime, assessed a sentence well in excess of the recommendation. The appellate court found that the appellant failed to convince that the sentence fell at that narrow end of the spectrum. It simply did not present one of those “exceedingly rare” and “extreme” cases for which gross disproportionality should apply. And, the court found no Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) harm even if his counsel misunderstood the import of dropping the deadly weapon language from the indictment. Further, the court could not discount that allowing hearsay was part of a trial strategy, and the record did not show otherwise, thus the appellant failed to meet the first Strickland element. The court had no information on why the appellant entered an open plea of guilt rather than risk trial. The court did not know what advice was actually given to the appellant about his defenses or his chances at trial. And not knowing the answers to the basic questions, and perhaps others, left little room but to apply the rationale from Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.Crim.App. 2003) that the appellant had not overcome the presumption of competence. Because it would have been implausible for the appellant’s original counsel to have prepared and filed the extra-record type of evidence for an ineffective assistance claim as urged by the new trial deadline, the court also declined to find any prejudice in the failure to file a motion for new trial. Furthermore, the court found the issues raised were either not errors, or if they were, their cumulative effect still failed to require reversal. Lastly, because the appellant failed to overcome the presumption that his trial counsel was still actively representing his interests until new counsel was appointed, however, he had not made the predicate showing necessary to require a remand. Accordingly, the judgment was affirmed.


There was simply no indication that appellant had any role in the assertion of the objections or withholding of documents and the taxing of expenses to him as a discovery sanction could not stand, where the written order was unclear as to whether appellant or his attorneys drove the dispute
Clark v. Clark
Appellate: Civil, Damages, Discovery, Family
Texas 8th Court of Appeals
March 29, 2017
08-15-00293-CV
Ann Crawford McClure
Published
     The instant was an appeal from the award of costs related to a discovery motion. The appellee and the appellant were divorced on November 26, 2011. The appellant and two of his attorneys brought the instant appeal. The first issue complained the trial court abused its discretion in ordering the sanction because there was no evidence, or insufficient evidence, that the motion to compel was necessary. The issue also contended the resulting sanction was unjust. The second issue maintained that there was no basis to award the sanction against the appellant, as opposed to his counsel. The third issue challenged the form of the order, and in particular which of the several attorneys were liable. The appellate court found that nonetheless, there was simply no indication here that the appellant had any role in the assertion of the objections or withholding of documents and the taxing of expenses to him on that record could not stand. Further, the written order said the same, but used the singular attorney in a circumstance when at least three attorneys had appeared on the appellant’s behalf and nor did the court favor the use of and/or which had been often criticized as creating inherent ambiguities. Furthermore, to do so here, however, would required the court to speculate as to whether the appellant or his attorneys drove the dispute, or if only the attorneys, the court must speculate as to which attorney was responsible. Finally, the court declined the appellee's invitation, and instead vacated the trial court’s order of August 14, 2015, and remanded the case. Finally, the trial court had continuing jurisdiction over post-judgment discovery and to the extent appropriate, the trial court may entertain issuing an order consistent with the instant opinion. Accordingly, the trial court's judgment was affirmed and vacated.


Trial court erred in granting judgment notwithstanding the verdict, where appellee’s email name or address in the "from" field satisfied the definition of a signature and email satisfied the Statute of Frauds, and the evidence established existence of a contract between the parties
Khoury v. Tomlinson
Appellate: Civil, Contracts, Damages, Securities, Torts
Texas 1st Court of Appeals
March 30, 2017
01-16-00006-CV
Laura Carter Higley
Published
     The appellate court granted the motion for rehearing filed on December 22, 2016, withdrew its prior opinion and judgment, and issued the instant opinion and a new judgment in their place and denied the motion for en banc reconsideration as moot. The appellant sued the appellee alleging securities violations under the Texas Blue Sky Laws, common-law fraud, and breach of contract. The jury found in favor of the appellant on all three claims. In response to the appellee’s motion for judgment notwithstanding the verdict, the trial court disregarded the jury’s findings of liability on the appellant’s securities violations and breach of contract claims. In prior case the appellate court reversed and rendered the judgment. In the instant case the appellate court found that the evidence showed that the appellee agreed to pay the appellant at 7.5% interest over a period of four or five years. Further, the appellee did not establish that the appellant’s breach-of-contract claim failed as a matter of law or was legally insufficient. Furthermore, if any attorney’s fees related solely to a claim for which such fees were unrecoverable, a claimant must segregate recoverable from unrecoverable fees. To preserve the instant issue, however, the complaining party must object to the charge’s failure to segregate. Also, the charge question on attorneys’ fees did not ask the jury to segregate attorneys’ fees. Lastly, the appellant's primary attorney testified at trial that the facts underlying all of his claims were intertwined. He did not testify, however, that all of his legal services were intertwined. Thus, he did not present sufficient information to support his claim that none of the attorneys’ fees needed to be segregated. The appellee pointed to no evidence showing that the appellant disposed of the security before trial. That could not be the correct measure for damages, then. Thus, it could not be a ground to support the trial court’s judgment notwithstanding the verdict. Accordingly, the court reversed the trial court’s grant of the appellees judgment notwithstanding the verdict for the appellant's breach of contract and Texas Securities Act claims and remanded for a new trial on attorneys’ fees.


Because the orders adopting the first two master’s reports were not void, the trial court did not clearly abuse its discretion in denying relators’ motion to set those orders aside; therefore the relators failed to establish their entitlement to mandamus relief
Jennifer Mitchell And Tcsm LLC v. Turbine Resources Unlimited Inc.
Appellate: Civil, Civil Rights, Constitution, Courts, Creditor/Debtor, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
March 30, 2017
14-15-00417-CV
J Brett Busby
Published
     In the instant consolidated appeal and petition for writ of mandamus, the appellant relators challenged four trial court orders signed in a post-judgment receivership proceeding. The first challenged order, signed on September 24, 2014, authorized the receiver to sell assets that the appellants contended belonged to the appellant company and two vehicles that the appellant individual claimed she owned. Following an evidentiary hearing, in which the appellant individual testified, the trial court signed two additional orders: the April 14, 2015 order denying the appellant individual’s fourth motion to modify the court orders authorizing sale, and the June 2, 2015 order approving the sale of property that appellants contend belonged to the appellant company. Appellants later filed a motion to set aside the master’s reports as void, which the trial court denied. The appellate court concluded that the turnover statute authorized the trial court’s actions because the orders issued before the appellant individual injected herself into the proceedings directed only to turn over the property and did not bind the appellant company or the appellant individual. The appellants then chose to intervene to claim an interest in the property, so they could not complain that the trial court thereafter ruled on their claims. Further, the court concluded that given the appellants’ intervention in the turnover proceeding, due process did not require appellants to be served. Furthermore, signing a void order was a clear abuse of discretion, and a relator was entitled to mandamus relief from such an order without establishing the lack of an adequate appellate remedy. The court concluded, that the trial court orders adopting the master’s reports were not void. The turnover orders and the first two master’s reports—which led to the September 24, 2014 order of sale “subject to third parties’ rights”—did not bind third parties the appellant individual or the appellant company. Only after they intervened and asserted claims to property did the trial court rule on their claims, which it had jurisdiction to do. Accordingly, the court affirmed the orders of April 14 and June 2, 2015, and denied the petition for writ of mandamus.


Because of the nature of the crime against the first individual, and the appellant's criminal history, the court had a fair assurance that any error in admitting the second individual's testimony had little or no effect on the punishment assessed by the jury
Paroline v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
March 30, 2017
06-16-00101-CR
Bailey C. Moseley
Published
     The appellant was indicted for exploitation of a disabled individual. A county jury found the appellant guilty, and after punishment was enhanced for two prior felony convictions, the jury assessed her punishment at fifty-five years’ imprisonment. The appellate court found that since the trial court allowed the appellant to advise the jury that the evidence would show that she and the first individual were friends and had a relationship, and since there was no evidence later produced at trial of any sexual relationship between them, the court could not say that the trial court’s limitation on her opening statement was an abuse of discretion. Further, the court believed that the vagueness of the appellant's objection violated the requirement that it be of sufficient specificity to make the trial court aware of the complaint. Thus, the appellant had not preserved the complaint for appeal. Furthermore, a reasonable jury could infer, based on the evidence, that because of the individual's mental defect, he was substantially unable to protect himself from harm or to provide his own food, shelter or medical care. Therefore, the evidence was sufficient to support the jury’s finding that the individual was a disabled individual. Finally, the sentence received by the appellant was in the mid-range of the punishment available to be assessed by the jury. Because of the nature of the crime against the individual, and the appellant's criminal history, the court had a fair assurance that any error in admitting the second individual's testimony had little or no effect on the punishment assessed by the jury. Accordingly, the court affirmed the judgment of the trial court.


The appellants, former employees of the school district, failed to allege a facially valid challenge to any constitutional right as a consequence of their termination, and their claims were barred by governmental immunity
Caleb v. Carranza
Appellate: Civil, Constitution, Education, Employment, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
March 30, 2017
01-15-00285-CV
Michael C. Massengale
Published
     The appellants were former employees of the school district, who sought injunctive and declaratory relief stemming from an investigation that culminated in a recommendation to terminate their employment. The Superintendent filed a plea to the jurisdiction. The trial court granted the plea and dismissed the claims against the superintendent with prejudice. The appellate court found that the appellants’ petition failed to plead a facially valid equal-protection claim by alleging that the first appellant, alone, suffered an adverse employment consequence as compared to other employees. Further, the speech that the appellants alleged as the basis for their employer’s retaliation was made pursuant to their official duties. It was therefore outside the ambit of free-speech protection, and they had failed to allege a facially valid constitutional claim. Furthermore, the appellants’ petition affirmatively negated an element of their due-course-of-law claim. The appellants all alleged that they requested and received a name-clearing hearing. In addition, the second appellant alleged that she was hired by another school district after her resignation, demonstrating that any charges leveled against her were not so stigmatizing as to prevent her from obtaining employment elsewhere. Thus, each appellant failed to allege a facially valid due-course-of-law claim. Accordingly, the court affirmed the judgment of the trial court.  


Appellant explicitly stated to the Officer that he understood his translated Miranda rights, and the trial court did not err in denying the appellant’s request for an article 38.23 jury instruction regarding his confession, and in allowing the jury to correct the verdict form
Hernandez v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
March 30, 2017
13-14-00245-CR
Leticia Hinojosa
Unpublished
     Appellant appealed his convictions for continuous sexual abuse of a child and two counts of aggravated sexual assault of a child, all first-degree felonies. The appellate court found that in the instant case, the warnings provided that “anything that you say may be used as evidence against you in a court of justice.” The court concluded that the warning could be reasonably understood to include the term “trial.” The court also noted that the phrasing used in the instant case was almost identical to the language in Sosa v. State, 769 S.W.2d 909, 914 (Tex. Crim. App. 1989) which the court determined was in substantial compliance with TEX. CODE CRIM. PROC. ANN. article 38.22. Therefore, the court held that the warnings provided to the appellant convey the “fully effective equivalent” of the warnings contained in article 38.22. In reviewing the totality of the circumstances, the court concluded the State met its burden in showing that appellant knowingly, intelligently, and voluntarily waived his Miranda v. Arizona, 384 U.S. 436, 441 (1966) rights. Further, the court found that the appellant did not raise an affirmatively contested fact concerning the admissibility of his confession. Therefore, the trial court did not err in denying appellant’s request for an article 38.23 jury instruction. Furthermore, in the instant case the jury foreman informed the trial court that she had signed the wrong form. The trial court allowed the jury to correct the verdict form, before polling each juror individually to confirm that the revised verdict form was true and correct. Under those circumstances, the trial court’s decision to allow the jury to correct the verdict form was not error. Accordingly, the court affirmed the trial court’s judgment.


Trial court did not have subject-matter jurisdiction over the suit and registered employee’s counter-claim and erred in denying the appellee agencies’ plea to the jurisdiction
Mosley v. Texas Health And Human Services Commission
Appellate: Civil, Elder Law, Employment, Gov't/Administrative, Health Care, Procedure
Texas 3rd Court of Appeals
March 30, 2017
03-16-00358-CV
David Puryear
Published
     DADS maintains a central registry of employees of facilities licensed by DADS who have been found to have committed acts constituting reportable conduct. That registry was called the Employee Misconduct Registry (EMR). The appellee department had the statutory authority to investigate the abuse, neglect, or exploitation of an elderly person or person with a disability. If, after conducting an investigation, the appellee department concludes that an employee committed reportable conduct, it must provide written notice to the employee. In early 2014, the appellee department investigated an incident involving the appellant’s care of a resident of the group home at which the appellant was working. the appellee department found that the appellant had committed reportable conduct and recommended that she be placed on the EMR. The appellant timely requested an administrative appeal hearing, which the appellee department delegated to the appellee commission. the appellee commission sustained the appellee department’s determination, and the appellant then filed a suit for judicial review with the district court, which affirmed the the appellee commission order and denied the appellee commission and the appellee department’s plea to the jurisdiction. The appellate court found that the trial court did not have jurisdiction over the appellant’s suit because she failed to timely file a motion for rehearing and therefore did not reach the merits. Accordingly, the court reversed the judgment of the trial court upholding the appellee commission’s order and rendered judgment granting the appellees’ plea to the jurisdiction, dismissing the appellant’s suit for lack of subject-matter jurisdiction.


Appellant former judge did not demonstrate by a preponderance of the evidence each essential element of a valid defense to the claims for civil conspiracy, and trial court properly denied appellant’s motion to dismiss under the Texas Citizens Participation Act
Walker v. Hartman
Appellate: Civil, Constitution, Courts, Gov't/Administrative, Procedure, Torts
Texas 9th Court of Appeals
March 30, 2017
09-16-00299-CV
Steve McKeithen
Published
     The appellant appealed the trial court’s denial of his motion to dismiss the appellee’s lawsuit against him pursuant to the Texas Citizens’ Participation Act (TCPA). The appellate court found that taking into account the broad purpose of the TCPA, as well as the lack of authority for the proposition that a common nucleus of operative facts makes a subsequent lawsuit filed in a different court tantamount to the lawsuit previously filed, and that the appellant’s TCPA motion to dismiss was timely filed. Further, the court found that the appellant established that a portion of the appellee’s lawsuit related to the appellant’s exercise of his First Amendment rights, which brings the appellee’s lawsuit within the purview of the TCPA, based upon the allegations asserted in the appellee’s original petition and affidavits, as well as in response to the appellant’s motion. Next, the same reasons explained in Rauhauser v. McGibney, No. 02-14-00215-CV, 2014 WL 6996819 (Tex. App.—Fort Worth Dec. 11, 2014, no pet.), the court found that the appellant’s motion to dismiss under the TCPA survived the appellee’s nonsuiting of certain causes of action. Furthermore, the appellee made a prima facie case by marshaling clear and specific evidence of each essential element of his claims for malicious prosecution and civil conspiracy, the court overruled the issue. Finally, given the posture of the case, the court could not conclude that the trial court erred by signing an order denying the appellant’s TCPA motion to dismiss. Accordingly, the court affirmed the trial court’s judgment.


Because the analyst independently analyzed the raw DNA data and offered his own opinion, and he testified, was subjected to cross-examination, the admission of his testimony and his lab report, even in the absence of other analysts testimony, did not violate the Confrontation Clause
Garrett v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 30, 2017
01-16-00162-CR
Evelyn Keyes
Published
      A jury convicted the appellant of the first-degree felony offense of murder and assessed his punishment at thirty years’ confinement. The appellate court found that even if the forensic DNA analyst (the analyst)’s testimony was interpreted as suggesting that he himself completed every step in the DNA analysis process, that did not compel the conclusion that the appellant recommended that the court adopt, namely, that Paredes v. State, 462 S.W.3d 510, 514 (Tex. Crim. App. 2015) was distinguishable and that the facts of this case are instead more analogous to Bullcoming v. New Mexico, 564 U.S. 647, 652, 131 S. Ct. 2705, 2710 (2011) “where a lab director testified about work done by others.” The analyst might have testified about extraction and amplification work performed by others, but he also testified about the analysis and interpretation of the DNA profiles generated, the results of which formed evidence linking appellant to the murder scene. The analyst himself performed the analysis and interpretation, and he testified and was subject to cross-examination. The court agreed with the State that Paredes was controlling, and Bullcoming and Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013) were distinguishable. Further, even if some error on the other analyst’s part led to the inability to develop a DNA profile for the minor contributor to the mixture, that would not affect the finding of DNA consistent with appellant’s known DNA profile on the baseball cap. The court held that the trial court did not err in overruling appellant’s Confrontation Clause objection and in admitting the analyst’s testimony and his lab report. Accordingly, the judgment of the trial court was affirmed.


The trial court did not abuse its discretion by appointing a receiver, but erred to the extent it imposed a receivership over the assets of the third party and the appellant individual's membership interest in the appellant company
Pajooh v. Royal West Investments LLC
Appellate: Civil, Bankruptcy, Creditor/Debtor, Procedure
Texas 1st Court of Appeals
March 30, 2017
01-16-00185-CV
Michael C. Massengale
Published
     Judgment debtors (the appellants) appealed from the trial court’s imposition of a receivership and grant of a turnover order on the request of their judgment creditor (the appellee). The appellate court concluded, based on the plain statutory text, that a charging order was the exclusive remedy by which a judgment creditor of a partner may satisfy a judgment from the judgment debtor’s partnership interest. The court held that the trial court erred by imposing a receivership and turnover order as to the third-party entity (the third-party). And, for the reasons in the discussion of TEX. BUS. ORGS. CODE Section 153.256, the court likewise concluded that a plain reading of Section 101.112(d) supported the appellant individual’s argument. To the extent that the receivership order extended to his membership interest, it was in error. Further, the judgment debtor U.S. Capital Investments had an interest in a limited partnership and an interest in future distributions. A Chapter 31 turnover and receivership order was an appropriate order for monitoring distributions and effectuating the existing charging order in favor of the appellee. The court held that the trial court did not err by granting that relief. Furthermore the appellee’s debt may remain uncollected because insufficient distributions were made to satisfy it. It had no right to “compel a distribution of profits” by the third party. But the trial court could have found a threat that the third party’s assets could dissipate into the hands of the judgment debtors without the knowledge of the appellee or a meaningful opportunity for it to seek to have distributions lawfully remitted to satisfy the debt. Therefore, the trial court did not abuse its discretion by granting a receivership under Chapter 64 over the appellants. Accordingly, the judgment was partly affirmed, partly reversed.


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.


The court in the hearing addressed the factors relevant to motions to transfer under the Juvenile Justice Code, and properly transferred proceedings to district court, where defendant was indicted in 2014 for a 1998 crime as a juvenile for burning his victim, who died in 2011 from skin cancer
Collins v. State
Criminal, Evidence, Juvenile, Procedure
Texas 9th Court of Appeals
March 29, 2017
09-15-00089-CR
Hollis Horton III
Published
     The instant case concerned whether an ex post facto violation of the defendant’s constitutional rights occurred due to the transfer of the defendant’s case from the juvenile court system to a trial court where the defendant was tried as an adult. However, after 1998, the Legislature amended the laws that apply to the transfer of juvenile proceedings to district court, expanding the attained age requirements for such transfers in cases involving children accused of committing murder. The juvenile court in the defendant’s case transferred the defendant’s case from juvenile court based on the 1999 amendments, which lowered the age requirements to include thirteen year olds. The defendant appealed, complaining the juvenile court erred by relying on the amendments the Legislature passed after the date he committed the acts that resulted in the State charging him with murder. The appellate court found that the record showed that the judge of the juvenile court considered the statutory requirements that were in Tex. Fam. Code Ann. section 54.02(j), which included the specific findings that the appellant was challenging in his appeal. Further, the record also reflected that the evidence before the court in the hearing addressed all of the factors relevant to motions to transfer under the Juvenile Justice Code, and that the judge of the juvenile court considered all of the conditions that govern motions to transfer that were required under section 54.02(j) of the Juvenile Justice Code. Furthermore, the record also reflected that the evidence before the court in the hearing addressed all of the factors relevant to motions to transfer under the Juvenile Justice Code, and that the judge of the juvenile court considered all of the conditions that govern motions to transfer that were required under section 54.02(j) of the Juvenile Justice Code. Finally, the court held the judge of the juvenile court did not abuse her discretion by granting the State’s motion to transfer the proceedings to a district court. Accordingly, the trial court's judgment was affirmed.


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. 


Trial court's judgments reformed so that 20 year sentence for appellant’s aggravated-sexual-assault-of-a-child conviction begins after 20 years' for his first conviction of same type has ceased to operate, and reasonable-doubt instruction was not required in the punishment-phase jury charge
Lopez v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
February 16, 2017
14-16-00247-CR
Marc W. Brown
Published
     The appellant was in a dating relationship with the complainant’s mother. The appellant, upset with the complainant’s mother, sexually assaulted the complainant. The jury found appellant guilty in both cases and jurors assessed punishment at 20 years’ confinement in each case. The appellate court found that the court reformed the trial court’s judgments so that the sentence of 20 years’ confinement imposed upon appellant for his aggravated-sexual-assault-of-a-child conviction in Cause No. 1455786, from the 248th Criminal District Court of Harris County, begins when the sentence of 20 years’ confinement for his aggravated-sexual-assault- of-a-child conviction from the 248th Criminal District Court of Harris County in Cause No. 1455787 has ceased to operate. Further, the State re-offered the evidence from the guilt phase of trial for the jury’s consideration and the court affirmed the judgment of the trial court as so reformed. Furthermore, the assault against complainant’s mother and threats to complainant’s family, although separate offenses, imparted to the jury information essential to understanding the context and circumstances of the charged offenses. Finally, the evidence at issue was same-transaction contextual evidence and was not subject to the reasonable-doubt instruction requirement. Accordingly, the court affirmed the judgment of the trial court as so reformed.


Evidence was legally insufficient to sustain appellant’s conviction under subsection 49.09(a), but was sufficient to support appellant’s conviction of a Class B misdemeanor DWI, and case reversed and remanded to reflect a Class B conviction and to hold a new punishment hearing
Oliva v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 28, 2017
14-15-01078-CR
Marc W. Brown
Published
     The appellant appealed his conviction for the Class A misdemeanor offense of driving while intoxicated. The jury convicted appellant of DWI. The jury found that the appellant had a prior DWI conviction and assessed his punishment at 180 days’ confinement. The appellate court found that the State presented evidence of the appellant’s prior DWI conviction during the punishment phase. However, the court may not consider such evidence in a bifurcated jury trial on a plea of not guilty because the jury did not consider it at the time it rendered its verdict. Further, the evidence was legally insufficient to sustain appellant’s conviction under Tex. Penal Code subsection 49.09(a) and having found the evidence legally sufficient to support appellant’s conviction of a Class B misdemeanor DWI, the court overruled the appellant’s second issue. Furthermore, following Thornton, the court reversed the judgment and remanded the case to the trial court with instructions to reform appellant’s judgment to reflect a conviction for Class B misdemeanor DWI and to conduct a new punishment hearing for the Class B misdemeanor DWI conviction. Moreover, the court reversed the judgment of the trial court and remanded to the trial court to reform the judgment as set forth above. Finally, after reforming the judgment to reflect a conviction of a Class B misdemeanor DWI under subsection 49.04(b) of the Texas Penal Code, the trial court should held a new punishment hearing for the Class B misdemeanor DWI conviction.


The respondent’s requiring the relator to vacate the residential premises before the statutory deadline, without setting the amount of the supersedeas bond constituted an abuse of discretion
In re Smitherman
Appellate: Civil, Courts, Creditor/Debtor, Gov't/Administrative, Procedure, Real Property
Texas 14th Court of Appeals
March 15, 2017
14-17-00190-CV
Per Curiam
Published
     The relator filed a petition for writ of mandamus in the instant court. In the petition, the relator asked the instant court to compel the respondent, presiding judge of the County Civil Court at Law No. 4 of Harris County, to hear and rule on relator’s emergency motion to set the amount of the supersedeas bond for the appeal of a final summary judgment that orders relator to vacate his residence before the statutory deadline for posting a supersedeas bond, without the court setting the amount of the supersedeas bond necessary for relator to suspend enforcement of the judgment pending appeal. The appellate court found that the relator was unable to suspend enforcement of the judgment because the supersedeas bond amount had not been set and was not known, and thus relator was without a means to stay enforcement of the judgment. Further, the court concluded that under the circumstances of the instant case, the respondent’s requiring the relator to vacate the residential premises before the statutory deadline, without setting the amount of the supersedeas bond constituted an abuse of discretion. Furthermore, the court therefore conditionally granted the petition for writ of mandamus and directed the trial court to set the amount of the supersedeas bond by 2:00 p.m. on March 17, 2017, or, if the respondent was unable to do so, then transfer the matter to another county court judge to set the amount of the supersedeas bond by that time. Finally, the court was confident the respondent will act in accordance with the instant opinion and the writ of mandamus shall issue only if the respondent failed to do so. Accordingly, the court conditionally granted the petition for writ of mandamus.


The trial court erred to the extent it denied the appellant’s motion either because the appellant failed to expressly deny guilt or because the appellant inartfully argued for post conviction relief in his request for postconviction DNA testing
Pegues v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 28, 2017
01-16-00317-CR
Harvey Brown
Published
     The appellant was convicted of aggravated sexual assault in 1995 and sentenced to 50 years’ confinement. Twenty years later, he moved for post conviction DNA testing of physical evidence held by the State. The trial court denied his pro se motion. The appellate court concluded that the trial court erred to the extent it held that other evidence of guilt prevented the appellant from meeting his burden to obtain postconviction DNA testing. Further, the court found that identity was an issue in the instant sexual-assault case involving a single assailant and physical evidence that has been identified to include the assailant’s semen. Moreover, and contrary to the trial court’s finding, the appellant did challenge his conviction in his TEX. CODE CRIM. PROC. Article 64 motion. In his pro se filings, he stated that “the belief is to be false of DNA confirming the petitioner as the perpetrator” and argued that DNA test results that fail to confirm him as the assailant should result in his immediate release from prison. The court did not agree with the trial court that the phrasing of the appellant’s motion negated identity as an issue. The court concluded that the trial court erred to the extent it denied the appellant’s motion either because the appellant failed to expressly deny guilt or because the appellant inartfully argued for post conviction relief. Accordingly, the judgment was reversed and remanded.


Because defendant's original sentence failed to provide the statutory minimum punishment for a Class B misdemeanor, there was no punishment, and the sentence was void, and there was no violation of double jeopardy in holding a second punishment hearing
Ex parte Rogers
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 28, 2017
01-16-00583-CR
Michael C. Massengale
Published
     In the instant habeas corpus appeal, a jury imposed a sentence of no fine and no jail time for a defendant convicted of misdemeanor drug possession. The State successfully moved for a new punishment hearing, and the defendant filed a habeas corpus petition, arguing that a second punishment hearing would subject him to double jeopardy. The trial court denied relief. The appellate court found that the because the defendant's original sentence failed to provide the statutory minimum punishment for a Class B misdemeanor, a fine of some non-zero amount or confinement the sentence was void and the trial court did not err in denying the application for habeas relief. Further, the defendant argued that a new sentence would violate the prohibition against double jeopardy. But a void sentence that was below the minimum required by law did not violate the prohibition against double jeopardy. The original judgment, which imposed zero time and a zero fine, imposed no punishment at all. Because there was no punishment, there could be no violation of double jeopardy. Thus, the trial court properly denied the application for habeas relief. Accordingly, the court affirmed the trial court’s judgment.


Trial court had jurisdiction to hear Real Party in Interest’s counter-petition to modify the parent-child relationship while appeal of the last final order was pending, where new order can replace the prior order and render it moot
In re Reardon
Appellate: Civil, Damages, Family, Gov't/Administrative, Juvenile, Procedure
Texas 2nd Court of Appeals
March 23, 2017
02-16-00455-CV
Bonnie Sudderth
Published
     The relator father and real party in interest (RPI) mother filed competing motions to modify the parent-child relationship. The trial judge issued a final order in that case, and then she set aside that order and signed a reformed order. Father filed a new petition to modify the parent-child relationship, requesting modification of the order, alleging that the circumstances of the child, a conservator, or other party affected by the order had materially and substantially changed. The relator's petition sought restrictions on the RPI's access to the child and additional periods of possession of the child for himself. The RPI filed a counter-petition wherein she, too, sought modification of the order. In the meantime, the RPI also filed a motion for new trial or to correct, modify, or reform the order. The trial judge granted the RPI's motion to reform the order and signed a second reformed order. After exhausting the administrative remedies, the relator argued that a writ of prohibition should issue because the respondent did not had jurisdiction to hear pending motions to modify in a suit affecting the parent-child relationship (SAPCR) when an appeal was pending in the court from the last final order. The appellate court agreed with its sister courts in Hudson and Blank that in those circumstances a trial court had continuing, exclusive jurisdiction over a petition for modification pending appellate review of a prior final SAPCR order. Further, the court held that the trial court had jurisdiction to hear RPI's counter-petition to modify while the appeal of the July 26, 2016 order was pending. Accordingly, the court denied the relator's petition for writ of prohibition and lifted its stay order issued on December 6, 2016.


Appellees’ sole claim coming within Section 252.061’s waiver was appellee individual’s claim seeking an injunction barring appellants from performing any aspect of the Contract, and all of appellees’ other claims including those asserted by appellee company were barred by governmental immunity
City of Austin v. Utility Associates, Inc.
Appellate: Civil, Contracts, Gov't/Administrative, Procedure, Torts
Texas 3rd Court of Appeals
March 24, 2017
03-16-00565-CV
Bob Pemberton
Published
     After requesting and evaluating proposals through what it represented to be an objective, competitive process, the appellant city awarded and later executed a $12.2 million contract to the company, for the provision of body-worn cameras for use by the Austin Police Department (APD). In their live pleadings, the appellees asserted claims for injunctive relief, declaratory relief under the Uniform Declaratory Judgments Act (UDJA), and the attorney’s fees that the UDJA would authorize with the declaratory claims. The appellees obtained a temporary injunction. The appellants perfected an interlocutory appeal. The trial court granted the appellants’ plea to the extent of dismissing all of the appellees’ claims under the UDJA, for both declarations and attorney’s fees. However, the trial court denied the plea as to the appellees’ claim under Tex. Loc. Gov’t Code section 252.061. The appellants perfected an appeal of the order denying their plea in part, and the appellees cross-appealed the order granting the plea in part and dismissing their UDJA-based claims. The appellate court found that the appellees could establish the trial court’s subject-matter jurisdiction to adjudicate their claims only through reliance on some legislative waiver of immunity. Further, the appellees’ sole claim coming within Section 252.061’s waiver was the appellee individual’s claim seeking an injunction barring the appellants from performing any aspect of the Contract with the company. And as there was no other available applicable waiver, all of the appellees’ other claims including all claims asserted by the appellee company were barred by governmental immunity. Furthermore, it was well established that attorney’s fees could not be recovered through the UDJA. Finally, because the court had held that the trial court lacked jurisdiction over all of the claims that underlie the challenged portions of the temporary injunction, it followed that the court reversed and vacated those portions of the order. Accordingly, the judgment was affirmed, reversed, vacated and dismissed.


Doctor's reliance on a diagnosis of appellant that Diagnostic and Statistical Manual of Mental Disorders did not recognize did not, alone, render the evidence legally and factually insufficient to support jury’s sexually-violent-predator finding under the Sexually Violent Predator Act
In re Commitment of Dever
Appellate: Civil, Civil Rights, Constitution, Criminal, Evidence, Gov't/Administrative, Health Care, Procedure
Texas 2nd Court of Appeals
March 23, 2017
02-16-00276-CV
Bill Meier
Published
     The State of Texas filed a petition to civilly commit appellant as a sexually violent predator. At the time, the appellant was incarcerated, serving concurrent thirteen-year sentences for aggravated sexual assault of a child under age fourteen and for aggravated sexual assault of a child under age seventeen. The appellant denied the State’s allegations, and the case eventually proceeded to trial. A jury found that the appellant was a sexually violent predator, and the trial court signed a final judgment civilly committing the appellant under the SVP Act. The appellate court found that because the SVP Act plainly did not require the State to establish a mental diagnosis to prove that a person suffered from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence, the court failed to see how the doctor's reliance on a diagnosis that the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) did not recognize could have, in and of itself, rendered the evidence legally and factually insufficient to support the jury’s finding. Lastly, the evidence was legally and factually sufficient to support the jury’s sexually-violent-predator finding. Accordingly, the court overruled the appellant's sole issue and affirmed the trial court’s judgment.


The statute of limitations for the putative class members was tolled pending a ruling on the class certification; under the circumstances of the case, the claims for nuisance and trespass were tolled during the pendency of the class action
Asplundh Tree Expert Co. v. Abshire
Appellate: Civil, Damages, Procedure, Torts
Texas 3rd Court of Appeals
March 24, 2017
03-16-00760-CV
David Puryear
Published
     In three separate lawsuits, several hundred individuals (the appellees) sued the appellant company seeking damages stemming from the devastating 2011 Bastrop County Complex Fire. In response, the appellant filed a motion for summary judgment asserting that the suits were untimely because they were filed past the two-year statute of limitations. After convening a hearing on the motion, the district court concluded that the suits were timely because the applicable statute of limitations was tolled, and accordingly, the district court denied the motion for summary judgment. Prior to the district court ruling on the motion, the parties filed a joint request asking the district court to allow them to pursue a permissive interlocutory appeal, and the district court granted that request in its order denying the appellant’s motion for summary judgment. The appellate court found that at least two Texas appellate opinions have analyzed whether claims were timely due to the filing of a class action that was never ultimately certified. In light of the preceding, particularly the controlling precedent issued by the court, it must conclude that the statute of limitations for the putative class members was tolled pending a ruling on the class certification. Further, the court found that the trespass and nuisance claims shared a common factual basis and legal nexus to the class claims against the appellant because they all relied on the same alleged acts and omissions by the appellant, urge that those acts and omissions led to the ignition of the fire, and assert that the fire damaged the properties belonging to the appellees. Therefore, the appellant was on notice of the nature of the claims against it, of the identity and number of the appellees, and of the need to preserve evidence, and the appellant would rely on the same evidence and witnesses in its defense against all of the claims. And having reviewed the cases applying tolling in the class-action context, the court have found nothing to support a separate determination that the tolling doctrine could somehow limit the types of damages and remedies that may be pursued in a cause of action that was tolled during the pendency of a class action. Thus, under the circumstances of the case, the claims for nuisance and trespass were tolled during the pendency of the class action and therefore, that the district court did not err by denying the appellant’s alternative ground for partial summary judgment. Accordingly, the judgment was affirmed.


Section 271.152 waived appellant City's immunity from appellees' breach-of-a-unilateral-contract claim against appellant to recover on-call pay they claimed appellant owed them under appellant’s Policies and Procedures Manual for on-call periods they had worked
City of Denton v. Rushing
Appellate: Civil, Contracts, Employment, Gov't/Administrative, Procedure
Texas 2nd Court of Appeals
March 23, 2017
02-16-00330-CV
Sue S. Walker
Published
     The appellant City perfected this interlocutory appeal from the trial court’s denial of the appellant’s plea to the jurisdiction and alternative motion for traditional summary judgment. The appellees were nonexempt employees of the appellant working in the Utilities Department. The appellees filed a breach-of-a-unilateral-contract suit against the appellant to recover on-call pay they claimed the appellant owed them under Policy No. 106.06 of the appellant’s Policies and Procedures Manual for on-call periods they had worked. The appellate court found that Policy No. 106.06 was properly approved and adopted by the appellant; the court overruled the portion of the appellant’s first issue claiming that Policy No. 106.06 could not be a contract under section 271.151(2) because it was not properly executed. Further, the appellant was prohibited from granting extra compensation, not from granting any compensation for services provided to the appellant and he appellees proved through affidavit evidence that their normal work hours did not include being on call a week at a time for twenty-four hours each day; yet, in addition to their normal work hours, the appellees also worked one-week on-call shifts when assigned to work them by the appellant. Finally, having overruled the appellant's first issue in toto and by addressing the appellant’s first issue having addressed the contention raised by the appellant in each of its three issues that section 271.152 did not waive the appellant's immunity from the appellees’ suit and having held that section 271.152 did waive the appellant’s immunity from the appellees’ breach-of-a-unilateral-contract claim, the court overruled all three of the City’s issues. Accordingly, the court affirmed the trial court’s judgment.


Trial court abused its discretion by compelling arbitration of appellant’s claims against appellees because she had no notice of their binding arbitration policy
Doe v. Columbia North Hills Hospital Subsidiary, L.P.
ADR, Appellate: Civil, Contracts, Employment, Procedure
Texas 2nd Court of Appeals
March 23, 2017
02-16-00275-CV
Bill Meier
Published
     The trial court could not compel arbitration in the absence of a valid arbitration agreement, and a valid arbitration agreement could not exist in the absence of employee notice and acceptance. In the instant appeal from a final judgment confirming an arbitration award in favor of the appellees, the appellant argued in two issues that the trial court abused its discretion by compelling arbitration of her claims against the appellees because she had no notice of, nor did she accept, their binding arbitration policy. The appellate court found that the trial court abused its discretion by compelling arbitration of the appellant’s claims against the appellees because the appellant had no notice of the Arbitration Policy and the court sustained her first issue and having sustained the appellant’s first issue, the court need not reach her second issue. Further, the appellees contend that if the court found reversible error, the court must remanded for the trial court to conduct an evidentiary hearing because there was at least a factual dispute over whether the parties agreed to arbitration. Finally, there was no fact issue to resolve, the instant cause was ripe for summary disposition, albeit the opposite disposition reached by the trial court. Accordingly, the court reversed the trial court’s final judgment in favor of the appellees and remanded the instant cause to the trial court.


Chiropractic Board failed to present summary-judgment evidence supporting its contention that acupuncture needles are nonincisive as a matter of law to defeat Acupuncturist Association’s claims that the Board's administrative rules impermissibly authorized chiropractors to practice acupuncture
Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners
Appellate: Civil, Civil Rights, Constitution, Gov't/Administrative, Health Care, Procedure, Professional Responsibility
Texas 3rd Court of Appeals
February 17, 2017
03-15-00262-CV
Scott K. Field
Published
     The appellate court granted in part the appellant's motion for rehearing, withdrew the court's previous opinion and judgment dated August 18, 2016, and substituted the instant opinion and judgment in their place. The appellant Association sued the appellees, the board and the individual seeking declarations that certain provisions in two of the appellee board’s administrative rules were invalid. Specifically, the appellant asserted that the rule provisions were void because they authorized chiropractors to perform acupuncture and, as a result, impermissibly expanded the scope of practice for chiropractors beyond that permitted by statute. Alternatively, the appellant sought a declaration that the statutory scheme violated the Texas Constitution to the extent it authorized chiropractors to practice acupuncture. On cross-motions for summary judgment, the trial court granted the appellee board’s motion for summary judgment, denied the appellant's motion for summary judgment, and dismissed the appellant's claims. The appellate court found that the trial court did not err in denying the appellant's motion for summary judgment and in granting the appellee board’s motion for summary judgment with respect to the appellant's challenges to Rule 78.13(a)(4) and (b)(2). Further, the trial court did err, in granting summary judgment in favor of the appellee board with respect to the appellant's challenges to the validity of Rule 78.14 and to the validity of Rule 78.13(e)(2)(C). Lastly, because both the appellee board and the appellant had failed to establish entitlement to judgment as a matter of law on those claims, the court reversed that portion of the trial court’s judgment and remanded the cause for further proceedings and affirmed the remainder of the trial court’s judgment in favor of the appellee board on the appellant's claims.


Court of appeals concluded that it lacked jurisdiction for reasons that may represent some new wrinkles in Texas jurisprudence in the appeal of an interlocutory order from a district court that "grants or denies a plea to the jurisdiction by a governmental unit"
Bass v. Waller County Sub-Regional Planning Commission
Appellate: Civil, Gov't/Administrative, Procedure, Transportation, Zoning
Texas 3rd Court of Appeals
February 24, 2017
03-17-00039-CV
Bob Pemberton
Published
     The appellee Commission had sued the appellant, seeking declarations establishing the existence of the aforementioned claimed duty of TxDOT to coordinate with the appellee to the greatest extent feasible and that this duty had been violated. The appellee had further prayed for mandamus and mandatory injunctive relief against the appellant to compel compliance with that duty prospectively. In response, the appellant had answered, interposed a plea to the jurisdiction as to the appellee's claims for declaratory and injunctive relief, and also filed a Rule 91a motion to dismiss the appellee's claims for mandamus relief. The appellee filed a motion for partial summary judgment seeking the declaratory relief for which it had pleaded. The appellant filed a response in which he reurged his jurisdictional challenges regarding the declaratory claims as grounds for denying the motion. After exhausting the administrative remedies, the trial court signed an Order Granting Plaintiff’s Motion for Partial Summary Judgment granting the appellee's motion and awarding it substantially the same declaratory relief it had requested in its pleadings. Subsequent to the hearing, the trial court signed a second order, Order on Defendant’s Plea to Jurisdiction and Rule 91a Motion to Dismiss. The appellant filed a notice of appeal purporting to challenge both orders. The appellate court found that the two orders could both be given effect only by viewing the former as having granted the appellee's motion for partial summary judgment without reaching the jurisdictional grounds the appellant had asserted in opposition. Whatever that might imply about the correctness of the trial court’s summary-judgment ruling, there would be no order subject to interlocutory appeal under Section 51.014(a)(8) of the Civil Practice and Remedies Code. Nor would the interlocutory summary-judgment ruling, in itself, be appealable. Further, both orders, being interlocutory, remained subject to change or modification or being abrogated altogether until merged into a final judgment. And because the Order Granting Plaintiff’s Motion for Partial Summary Judgment preceded the Order on Defendant’s Plea to Jurisdiction and Rule 91a Motion to Dismiss, any implied jurisdictional ruling in the former would have been effectively vacated by the latter’s contrary reservation of jurisdictional issues until trial. Once again, there would be no order subject to appeal under Section 51.014(a)(8). Accordingly, the court granted the appellee's motion and dismissed the appeal.


State’s expert DNA analyst who testified regarding her DNA comparison results instead of presenting all the technicians involved in the DNA testing process did not violate appellant’s confrontation clause rights, and no juror saw or discussed any social media posts about the trial
Whitfield v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 09, 2017
14-15-00820-CR
Marc W. Brown
Published
     The appellant was convicted by a jury of aggravated sexual assault. The appellant elected to have the trial court assess his punishment and pleaded true to the two felony enhancements alleged in his indictment. The trial court sentenced him to confinement for life. The appellant filed a motion for new trial, which the trial court denied. The appellate court found that the Confrontation Clause of the Sixth Amendment guarantees the accused the right to confront the witnesses against him. The expert explained that she personally had been trained on the whole process, had conducted such evidence screening, and was familiar with the cassette test used to detect the presence of blood. Moreover, she had personal knowledge of and provided details about the safety measures in place at the lab. Thus, the court concluded that the admission of the expert's testimony did not violate the appellant’s rights under the Confrontation Clause. Further, during the hearing on the motion for new trial, each of the jurors testified. None of them saw or discussed any social media posts about the trial. All of the jurors stated that the verdict they rendered against the appellant was based on the trial evidence. The trial court considered that testimony and was entitled to be the sole judge of the jurors’ credibility. The appellant had not shown that the trial court abused its discretion in denying his motion for new trial. Accordingly, the court affirmed the trial court’s judgment.


Based on the evidence, a rational juror could have logically inferred appellant continued to draw money out of the victim’s loan for his own personal gain, and was fully aware the development would not be a completed subdivision; written judgment modified to show correct amount of restitution
Martinez v. State
Criminal, Evidence, Procedure
Texas 13th Court of Appeals
March 09, 2017
13-15-00295-CR
Gina M. Benavides
Published
     The appellant appealed his conviction for theft of property in an aggregate amount of $200,000 or more, a first-degree felony. The appellate court found that the jury was well within its right to believe the evidence presented by the State showed the appropriate culpable mental state by the appellant to deprive the individual of her monetary property and constitute theft. Further, since the indictment was within the five–year period after the last theft occurred, the State was within the statute of limitations. The trial court properly denied the appellant's statute of limitations motions to dismiss. Furthermore, the court agreed with the trial court’s ruling that any probative value outweighed the prejudicial effect of the introduction of the mechanic’s lien because both parties asked questions regarding the appellant's involvement in AD&EE. Therefore, the court held that the trial court did not abuse its discretion in admitting the mechanic’s lien into evidence. Lastly, a written judgment was simply the declaration and embodiment of that pronouncement. Therefore, when there was a conflict between the oral pronouncement and the written judgment, the oral pronouncement controls. An appellate court had the authority to reform a judgment as may be necessary to make the record speak the truth. Therefore, the court modified the trial court’s judgment to accurately reflect restitution in the amount of $416,000.00. Accordingly, the court modified the trial court’s judgment as to the restitution amount and affirmed the judgment as modified.


Trial court had sufficient evidence from which to find that there was probable cause by the officer to believe the juvenile appellant had committed, or was committing, the offense of possession of marijuana, thereby justifying this search and seizure of the pill bottle appellant possessed
In re V. G.
Constitution, Criminal, Evidence, Juvenile, Procedure
Texas 8th Court of Appeals
March 08, 2017
08-15-00361-CV
Gina M. Palafox
Published
     The appellant was charged by petition with engaging in delinquent conduct based on possession of less than two ounces of marijuana within 1,000 feet of a school. The appellate court found that the evidence supported the trial court’s implied finding that a reasonably prudent person considering all of the circumstances in the instant case would have been warranted in believing that his safety or that of others was in danger. Further, the court must presume that the trial court evaluated the credibility of the two witnesses, and resolved the dispute in their testimony in the officer’s favor and the court therefore must defer to the trial court’s implied finding on that pivotal issue of whether the appellant consented to the removal of the pill bottle from his pocket. Furthermore, the trial court had sufficient evidence from which to find that there was probable cause to believe that the appellant had committed, or was committing, the offense of possession of marijuana, thereby justifying this search and seizure of the pill bottle. Finally, the trial court did not abuse its discretion in denying the appellant’s motion to suppress the evidence found during the search of the appellant’s person. Accordingly, the appellant’s issue was overruled and the judgment of the trial court was affirmed.


Any error by trial court in refusing to give instructions on self-defense and necessity was harmless given the degree of fault found by the jury, but proper remedial procedure in double jeopardy punishment of appellant was to affirm the conviction on the most serious offense and vacate the other
Rogers v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
March 09, 2017
13-15-00600-CR
Nora L. Longoria
Published
     The appellant challenged his convictions for burglary of a habitation, a first-degree felony, and aggravated assault, a second-degree felony. The appellate court found that the state of the evidence was also against the jury accepting either defense. Further, the sentences imposed by the jury indicated that it considered the appellant to be significantly blameworthy and based on that record, the court concluded that the error in refusing the charges, if any, was harmless. Further, the court concluded that a double jeopardy violation was apparent on the face of the record because punishing appellant under both counts clearly subjected him to multiple punishments for the same offense. Furthermore, when a double jeopardy violation was apparent on the face of the record, no legitimate state interest was served by enforcing the usual rules of procedural default. Finally, when the defendant had been convicted of two offenses which were the same for double jeopardy purposes, the appropriate remedy was to affirm the conviction on the most serious offense and vacate the other. Thus, the appellant received a forty-year sentence on Count 1 and a twenty-year sentence on Count 2 and Count 1 was the most serious offense and should be retained. Accordingly, the court vacated and dismissed Count 2 and affirmed the trial court’s judgment on Count 1.


Appellees made necessary permanent improvements to take oral agreement to buy mobile home out of the statute of frauds, and damages award constituted appellees’ proportionate share of profit and improvements after appellant fraudulently sold the property in disregard of their ownership interest
Burrus v. Reyes
Appellate: Civil, Contracts, Damages, Evidence, Real Property, Torts
Texas 8th Court of Appeals
March 08, 2017
08-14-00265-CV
Yvonne T. Rodriguez
Published
     The appellees thought they were buying a mobile home and a one-half acre lot from the appellant under an oral contract for deed. The jury also found the appellant was liable for statutory fraud, for money had and received, and for liquidated damages under the Texas Property Code. The appellant appealed on multiple grounds, contending the evidence was insufficient to show that the appellees made the necessary permanent improvements to take an oral agreement out of the statute of frauds, to show that there was a meeting of the minds on the essential terms of the agreement, or to show that the parties intended to enter into a contract for deed. The appellate court found that the trial court correctly determined that the parties entered into an enforceable contract despite any failure to agree on these non-essential terms. Further, the factual dispute existed regarding when the appellees could have demanded title from the appellant, and consequently when they should have discovered the appellant’s fraud, and that therefore the record failed to show as a matter of law that the statute of limitations expired before the appellees filed their petition. Furthermore, the Legislature intended to include voidable contracts for deed, such as the contract that the individual entered into with the appellant, when it enacted the liquidated damages provision in question. Finally, the award for money had and received constituted the appellee’s proportionate share of the $83,000 profit they would have received from the sale of the property to Tornillo DTP, while the award for statutory fraud corresponded with the improvements the appellees made to the property, which they were forced to dismantle after the appellant fraudulently sold the property in disregard of their ownership interest. Accordingly, the trial court’s judgment was affirmed.


Because appellant’s drug dealing was intertwined with his sexual assault of the victim, testimony was admissible as same-transaction contextual evidence, and evidence failed to show a causal connection between elicited testimony and a plea agreement, thus, limiting cross-examination was proper
Beltran v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
March 08, 2017
04-15-00410-CR
Patricia O. Alvarez
Published
     Appellant was charged with five counts of sexual assault of a child. The jury found the appellant guilty on all charges and assessed punishment at six years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. The appellate court found that in the instant case, the evidence of the appellant providing cocaine to the victim's mother in exchange for the victim's mother providing the victim to the appellant for sex was evidence that put the appellant’s repeated sexual assault of the victim into context for the jury. Therefore, because the appellant’s drug dealing was so intertwined with his sexual assault of the victim, the court concluded the trial court did not abuse its discretion in allowing the testimony as same-transaction contextual evidence. Moreover, because the evidence was properly admitted as same-transaction contextual evidence, no limiting instruction was required. Further, viewing the evidence in the light most favorable to the jury’s verdict, the court concluded that a rational trier of fact could have found beyond a reasonable doubt that the appellant sexually assaulted the victim on at least four separate occasions. Furthermore, the fact that the victim was on probation and facing pending charges was not relevant for purposes of showing bias or motive absent some plausible connection between the pending charges and her testimony. Because the evidence failed to show a causal connection between the elicited testimony and the existence of a plea agreement, or to show the victim believed a deal existed in exchange for her allegations of the appellant’s sexual assault, the court concluded the trial court did not abuse its discretion in limiting the cross-examination in question. Accordingly, the court affirmed the trial court’s judgment.


Specific identity of the tampered-with evidence was not an element of the offense and appellate court did not address whether trial court could have properly determined that more specificity was required in the indictment in order to provide defendant with adequate notice of the charged conduct
State v. Zuniga
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
March 08, 2017
PD-1317-15
David C. Newell
Published
     The State indicted the appellee on tampering with physical evidence. The trial court further held that the indictment failed to inform the defendant of the acts that the State would rely upon to constitute the crime of tampering. The Texas Court of Criminal Appeals found that the appellate court correctly held that the specific identity of the evidence was, as one might expect, an evidentiary issue. Further, the appellate court properly noted, intermediate courts have upheld convictions for tampering with evidence without requiring the State to definitively prove exactly what evidence was altered, concealed, or destroyed. Furthermore, the appellate court did not conduct an analysis of whether the terms of the statute were sufficiently descriptive of the charged offense and the appellate court did not address whether the language contained in the indictment was of such indeterminate and variable meaning that it failed to provide the appellee with adequate notice of what criminal acts she was accused of committing. Finally, the specific identity of the tampered-with evidence was not an element of the offense and the appellate court did not address whether the trial court could have properly determined that more specificity was required in the indictment in order to provide the defendant with adequate notice of the charged conduct. Accordingly, the court remanded the instant case for the appellate court to fully address that issue.


Trial court abused its discretion in determining appellant’s net resources and in calculating his child support obligation based on appellee’s evidence, where appellee admitted to having to resort to internet searches to get any information regarding appellant’s employment
Reagins v. Walker
Appellate: Civil, Evidence, Family
Texas 14th Court of Appeals
March 07, 2017
14-15-00764-CV
Martha Hill Jamison
Published
     In the instant post-answer default, the appellant appealed from the trial court’s order modifying his parent-child relationship with his minor child. Among other things, the court ordered the appellant to pay child support to the child’s appellee mother, and to provide health insurance for the child. In two issues on appeal, the appellant contended that the trial court abused its discretion in setting the amount of child support because there was insufficient evidence presented to establish the appellant’ net resources and he received ineffective assistance of counsel. The appellate court found that when the evidence was determined on appeal to be legally or factually insufficient to support a post-answer default judgment, the proper disposition was to remand for a new trial. Further, the only evidence offered at trial was the appellee’s testimony and in that brief testimony, the appellee admitted to having to resort to internet searches to get any information regarding the appellant’ employment. Furthermore, the trial court did not have legally or factually sufficient information on which to exercise its discretion and the court sustained the appellant first issue and reversed and remanded the portion of the trial court’s order pertaining to child support. Because the trial court abused its discretion in determining the appellant’ net resources and in calculating his child support obligation based on that determination, the court reversed the portion of the trial court’s judgment pertaining to child support and remand for further proceedings. Because the appellant did not challenge the trial court’s dismissal of his Motion to Modify and his Motion for Enforcement or the trial court’s orders relating to health insurance and expenses, the court affirmed the remainder of the judgment.


Texas Citizens Participation Act applies to alleged communications among the petitioner company employees about the respondent, a terminal technician formerly employed by the petitioner during the investigation about the technician’s termination and alleged false reports
ExxonMobil Pipeline Co. v. Coleman
Appellate: Civil, Civil Rights, Constitution, Employment, Gov't/Administrative, Oil, Gas, & Mineral, Torts
The Supreme Court of Texas
February 24, 2017
15-0407
Per Curiam
Published
     In the instant case, the Texas Supreme Court must determine whether the Texas Citizens Participation Act (TCPA) applies to alleged communications among the petitioner company employees about the respondent, a terminal technician formerly employed by the petitioner. The appellate court held that the petitioner did not meet its burden to show that the TCPA applies to the respondent's suit. The Texas Supreme Court found that the challenged statements constituted speech the Legislature intended to safeguard through the TCPA. The statements between the petitioners, the company and the two individuals investigator were communications under the TCPA because they were either oral, or electronic. Further, the petitioners successfully established the TCPA’s applicability to the respondent's lawsuit under the TCPA’s free-speech prong. Lastly, because the court held that, on the record, the communications were made in the exercise of the right of free speech under the TCPA, the court need not reach the issue. Thus, the court expressed no opinion on whether the challenged communications were made in the exercise of the right of association under the TCPA. Accordingly, the court reversed the judgment of the appellate court and remanded the case to the appellate court for further proceedings.


Trial court did not err by dismissing appellant’s suit because his claims under the employment contract were within the scope of the forum-selection clause
Marullo v. Apollo Associated Services, LLC
Appellate: Civil, Contracts, Employment, Procedure
Texas 14th Court of Appeals
February 16, 2017
14-16-00125-CV
Ken Wise
Published
     The appellant sued the appellee company for breach of a 2004 employment contract and promissory estoppel. The trial court granted the appellee’s motion to dismiss based on a forum-selection clause, which appears in a subsequent contract between the appellant and the appellee’s successor company. The appellate court found that the appellant ’s interpretation would render meaningless the first part of the forum-selection clause, which applied to lawsuits “related to this Agreement,” because “this Agreement” was the only agreement between the parties for which the appellant was employed as a contractor. Giving effect to the word “CONTRACTOR” as the parties intended, the court concluded that the appellant ’s claims against the appellee arose from, relate to, or were otherwise connected with “any aspect of the appellant ’s employment, whatsoever.” The trial court did not err by dismissing the appellant’s suit because his claims under the 2004 contract were within the scope of the forum-selection clause. Accordingly, the court affirmed the trial court’s order dismissing the suit without prejudice.


Appellee was required to administratively pursue its claim of lack of notice with the taxing authority, and was required to plead its special defenses over its general denial of the tax liabilities, or the defenses were barred from being raised at trial
City of El Paso v Mountain Vista Builders, Inc.,
Appellate: Civil, Gov't/Administrative, Real Property, Tax
Texas 8th Court of Appeals
March 08, 2017
08-15-00186-CV
Ann Crawford McClure
Published
     The appellant City (the appellant) filed suit on May 18, 2009, over property taxes allegedly owed on some twenty-six specifically identified tracts of land that were or had been owned by the appellee corporation. The tax liabilities were claimed for various years between 2006 and 2008. The appellee answered the suit, filing a general denial. In the years that followed, the appellant filed various partial non-suits over some of the specific tracts, apparently as the parties resolved the tax liabilities for specific pieces of property. The trial court overruled each of the appellant's objections and eventually entered a take nothing judgment against the appellant. The appellate court found that given that an avenue for challenging notice was available to the appellee, the court concluded any defense built on lack of notice should have been raised with the El Paso Central Appraisal District (CAD) at least within 125 days from when the appellee learned of those particular tax delinquencies. The failure to do so deprived the district court of jurisdiction of a defense premised on that lack of notice. Further, the contention that the appellant sat idly by while the properties were being closed and the title company was asking for final tax bills suggested either a waiver or estoppel defense. The appellant objected to any non-pled defense, and it submitted a letter brief specifically raising the issue with the trial court. The appellant also objected as some of the evidence was admitted. Furthermore, the final judgment also taxed court costs against the appellant. In issue three, the appellant complained that TEX.TAX CODE ANN. Section 33.49 expressly prohibited that taxation of costs. The specific objection was not raised with the trial court below. The court need not address whether the issue was waived, however, because the court reversed the judgment based on the resolution of issues one and two, which necessarily negated the taxation of costs. For that reason, the court sustained issue three. Accordingly, the court reversed the judgment of the trial court and remanded for a new trial.


Section 133.102 was facially unconstitutional to the extent it collects and allocates funds to the comprehensive rehabilitation and abused children’s counseling accounts, and appellant's court costs for conviction of injuring an elderly individual was modified
Salinas v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
March 08, 2017
PD-0170-16
Sharon Keller
Published
     The appellant was convicted of injury to an elderly individual, a felony, and sentenced to five years in prison. On appeal, appellant raised a facial constitutional challenge to the assessment of the consolidated fee on the basis that twelve of the fourteen accounts listed in the statute were not sufficiently related to the trial court system to be valid recipients of money collected as court costs. Appellate court rejected the appellant’s claim, but on his petition to the Court of Criminal Appeals, it reversed and remanded the case for further consideration. On remand, the appellant challenged the consolidated fee on the basis of three of the accounts listed in the statute. On discretionary review, the appellant challenged only two accounts. After exhausting the administrative remedies, concluding that the appellant failed to establish that the consolidated fee statute was facially unconstitutional, the appellate court affirmed the trial court’s judgment. The Texas Court of Criminal Appeals found that Texas Local Government Code Section 133.102 was facially unconstitutional to the extent it collects and allocates funds to the comprehensive rehabilitation and abused children’s counseling accounts. Thus, the court reversed the judgment of the appellate court with respect to the issue of court costs, and the court modified the trial court’s judgment to change the $133 consolidated fee to $119.93.


Appellees were suing its own attorney, and its causes of action against appellant involved legal malpractice and other tortious conduct directly related to his representation of appellees in a Texas suit, thus, trial court properly denied appellant’s special appearance
Nawracaj v. Genesys Software Systems, Inc.
Appellate: Civil, Procedure
Texas 14th Court of Appeals
March 07, 2017
14-15-00602-CV
J Brett Busby
Published
     The appellant was an attorney licensed to practice law in Illinois. He represented the appellees in various matters, including a lawsuit the appellees filed in federal court in Dallas. When local counsel in the federal litigation sued the appellees in state district court in Houston for non-payment of fees, the appellees filed a third-party petition against the appellant, alleging several causes of action regarding the services he provided to the appellees in the federal litigation. The appellant filed a special appearance, which the trial court denied after considering evidence submitted by the parties. The appellate court found that because the appellant failed to negate the appellees' alleged basis for personal jurisdiction, the long-arm statute had been satisfied. Further, the appellees were suing its own attorney, and its causes of action against the appellant involved legal malpractice and other tortious conduct directly related to his representation of the appellees in a Texas suit. Thus, there was a substantial connection between the appellant’s Texas contacts and the operative facts of the litigation. Finally, the court held that the exercise of specific personal jurisdiction over the appellant comports with traditional notions of fair play and substantial justice. Accordingly, the court affirmed the trial court’s order denying the special appearance and remanded.


Having heard multiple version of the home invasion, appellant had not shown any evidence, had the trial court heard the same, how his punishment would have been less than the codefendant’s, and appellant’s presence at the hearing would not have furthered his defense
Hayes v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 07, 2017
01-15-00982-CR
Sherry Radack
Published
     The appellant, pleaded guilty to aggravated robbery of an individual over sixty-five years of age or disabled, and, after a presentence investigation, the trial court found the appellant guilty and assessed punishment at 16 years’ confinement. The appellate court found that there was no evidence, either at the PSI or in the testimony of either the individual or the appellant, that individual was the person who pushed Chandler. Furthermore, the trial court had before it both the individual’s and the appellant’s version of the events of the robbery and the trial court had multiple versions of the events of the robbery through both the defendants’ testimony and their statements in the PSI. Moreover, the appellant pointed to nothing that he could have presented that was not already in evidence, or how, had the trial court heard the same, his punishment would have been less than the individual’s. Finally, the court concluded that the appellant’s presence at the October 7th hearing would not have furthered his defense, thus his presence did not bear a reasonably substantial relationship to his opportunity to defend. Accordingly, the trial court's judgment was affirmed.


Appellant had not shown Texas Citizens Participation Act applied to the counterclaims for breach of the non-disclosure agreement, as based on appellant’s exercise of its First Amendment rights, and court lacked appellate jurisdiction
QTAT BPO Solutions, Inc. v. Lee & Murphy Law Firm, G.P
Appellate: Civil, Constitution, Contracts, Corporations
Texas 14th Court of Appeals
March 07, 2017
14-16-00148-CV
Kem Thompson Frost
Published
     In the instant appeal the appellate court considered the applicability of the Texas Citizens Participation Act to claims for breach of a contract between private parties. A litigation-services entity affiliated with various law firms (the appellees) hired a screening company (the appellant) to vet personal-injury claims related to pharmaceutical-products litigation. Before ending its business relationship with the appellees, the appellant downloaded confidential information from the appellees computer system and gave that information to its own attorney for purposes of bringing a breach-of-contract suit against some of the law firms. After the appellant filed suit, the appellees counterclaimed for breach of a non-disclosure agreement. The appellant, seeking dismissal of the counterclaims under the Texas Citizens Participation Act, took the position that giving the data to its attorney amounted to protected activity. The trial court denied the appellant’s motion to dismiss as to two of the law firms, and the appellant challenged that ruling in the instant interlocutory appeal. The appellate court found that the appellant had not shown that it carried its burden of proving that the appellees’ counterclaims for breach of the non-disclosure agreement were based on, related to, or were in response to the appellant’s exercise of the right of free speech, the right to petition, or the right of association. Therefore, the appellant had not shown that the appellees’ counterclaims implicated the Texas Citizens Participation Act. Those conclusions meant that under the Jardin v Marklund, 431 S.W.3d at 768, 774 & n.9 precedent, the court lacked appellate jurisdiction. Accordingly, obedient to the precedent, the court dismissed the appeal for lack of jurisdiction.


Statutory requirement of 40 years’ time served for capital murder, or 30 years’ for a deadly weapon finding, before parole eligibility did not equate to a sentence of life without parole for juveniles, and was not an unconstitutional sentence or cruel and unusual punishment
Shalouei v. State
Constitution, Criminal, Evidence, Juvenile, Procedure
Texas 14th Court of Appeals
March 07, 2017
14-15-01055-CR
William J. Boyce
Published
     Appellant was convicted of capital murder and automatically sentenced to life in prison with the possibility of parole after 40 years. The issue in the instant appeal was whether certain Texas statutes that mandated a minimum sentence for juveniles convicted of a capital crime were unconstitutional. The appellate court found that the Texas Court of Criminal Appeals previously rejected a constitutional challenge to Penal Code section 12.31(a)(1). The court was bound to follow decisions of the Court of Criminal Appeals. Therefore, the court rejected the appellant’s constitutional challenge to section 12.31(a)(1). The court likewise rejected the appellant’s contention that requiring a juvenile convicted of capital murder to serve 40 years in prison before becoming eligible for parole was unconstitutional as a “de facto life sentence.” In determining that Texas juvenile offenders no longer face life without parole after Penal Code section 12.31(a) was amended, the Court of Criminal Appeals did not specifically discuss the mandatory 40-year minimum time served. But the court’s determination affirming sentences of life with the possibility of parole for juveniles — which also would have been subject to the 40-year mandatory minimum time served under Government Code section 508.145(b) — confirmed that the statutory requirement of 40 years’ time served before parole eligibility did not equate to a sentence of life without parole. The court rejected the appellant’s constitutional challenge to section 508.145(b). Accordingly, the court affirmed the trial court’s judgment.


There was no reason why the court should not read the statute to permit the State to habitualize a sex-offender-registration offender with two prior sex-offender-registration convictions
Crawford v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
February 15, 2017
PD-1283-15
Kevin Patrick Yeary
Published
     The indictment alleged the two previous felony sex-offender-registration offenses in enhancement paragraphs, to bring the appellant within the ambit of Section 12.42(d) of the Penal Code and thereby raise his exposure to a term of life, or not more than 99 years or less than 25 years, in the penitentiary. The appellant objected to the application of Section 12.42(d) to enhance his punishment, but nevertheless plead true to the enhancement paragraph. A jury found them to be true and assessed his punishment at a term of 85 years in the penitentiary. The Texas Court of Criminal Appeals found that no reason why it should not be read to permit the State to habitualize a sex-offender-registration offender with two prior sex-offender-registration convictions. Such a reading harmonizes Article 62.102(c) and Section 12.42 of the Penal Code, and did so in such a way as to maximize the efficacy of both. Accordingly, the court affirmed the judgment of the appellate court.


Survival and wrongful death claims predicated on an unrestrained psychiatric patient’s escape from a hospital bed were not actionable because appellee's injuries and death did not arise from a condition or use of tangible personal or real property of the government
Oakbend Medical Center v. Martinez
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
February 14, 2017
14-16-00199-CV
William J. Boyce
Published
     The appellee filed a petition predicating survival and wrongful death claims on the appellant, the medical center. The appellant filed a traditional motion for summary judgment asserting its entitlement to dismissal because it was immune from suit as a governmental unit and no exception to governmental immunity applied under the Texas Tort Claims Act. Based upon the appellee's medical records, the appellant's summary judgment motion asserted that no exception to immunity applied. After exhausting the administrative remedies, the trial court denied the summary judgment. The appellate court found that the survival and wrongful death claims predicated on an unrestrained psychiatric patient’s escape from a hospital bed were not actionable on the instant record because the appellee's injuries and death did not arise from a condition or use of tangible personal or real property. Because the asserted exceptions to the appellant's governmental immunity from suit did not apply, the court reversed the trial court’s order and rendered judgment dismissing for lack of jurisdiction the claims against the appellant.


Appellant could not reap the benefit of an illegally lenient sentence and then, once he had discharged that sentence, invoke the illegal lenity in an attempt to prohibit the use of that conviction to enhance the sentence for a subsequent offense
Deen v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
February 15, 2017
PD-1484-15
Kevin Yeary
Published
     After being released from the penitentiary earlier than permitted by the statutory minimum sentence for his crime, the appellant was convicted of another crime, and his sentence was enhanced by his prior conviction. The Texas Court of Criminal Appeals found that the estoppel by judgment turns on acceptance of benefits. The appellant there accepted the benefit of the lenity in the judgment he collaterally attacked. The estoppel by judgment barred that kind of collateral attack. Lastly, because the appellant was estopped, he was not entitled to a new punishment hearing. Accordingly, the portion of the appellate court's judgment reversing the trial court’s judgment and remanding the appellant’s cause for a new punishment hearing was reversed and the judgment of the trial court, as otherwise modified by the appellate court was affirmed.


Because the appellant presented evidence that raised manslaughter and negated murder, he was entitled to a jury instruction on the lesser-included offense of manslaughter
Roy v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
February 15, 2017
PD-1455-15
Michael E. Keasler
Published
     The appellant was convicted of murder and sentenced to seventy-five years’ imprisonment. The trial judge denied his request for a jury instruction on the lesser-included offense of manslaughter. The Texas Court of Criminal Appeals found that because the appellant alleged that he consciously disregarded the risk of death and the death could have been caused by the same conduct, the appellant's inability to remember causing the death did not bar him from a manslaughter instruction. A jury could rationally found that the appellant did not intend to harm the individual and that his reckless behavior caused the victim's death. Lastly, because the appellant presented evidence that raised manslaughter and negated murder, he was entitled to a jury instruction on the lesser-included offense of manslaughter. Accordingly, the court reversed the appellate court's judgment and remanded for a harm analysis.


To obtain a conviction for third degree felony offense of delivering less than a gram of methamphetamine in a school zone, the State need not prove that an accused was aware that the transaction occurred within 1,000 feet of a youth center
White v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
February 15, 2017
PD-1596-15
Kevin Patrick Yeary
Published
     The appellant was convicted of the offense of delivery of less than a gram of methamphetamine in a drug free zone, a third degree felony. His punishment was enhanced with a prior felony to a second degree felony, and the trial court assessed his sentence at fifteen years’ confinement in the penitentiary. The appellate court supported conviction. The Texas Court of Criminal Appeals held that, in order to obtain a conviction for the third degree felony offense of delivering less than a gram of a Penalty Group 1 substance under Section 481.134(d) of the Texas Health and Safety Code, the State need not prove that an accused was aware that the transaction occurred within 1,000 feet of a youth center. Accordingly, the judgment of the appellate court was affirmed.


Appellant had no standing to assert any claim for relief on the alleged breach of compromise and Settlement Agreement, where the Agreement, which allowed another Native American inmate access to ceremonial pipe and tobacco, never intended to confer third-party status to others
Walters v. Livingston
Appellate: Civil, Civil Rights, Constitution, Contracts, Gov't/Administrative, Procedure
Texas 7th Court of Appeals
February 15, 2017
07-15-00146-CV
Patrick A. Pirtle
Published
     Appellant, a former inmate proceeding pro se, sued the appellee, individually and in his official capacity as executive director of the appellee department, alleging that the appellees substantially burdened the free exercise of his Native American religion by denying him the right to personally smoke a “sacred ceremonial pipe” during religious ceremonies. Based on those theories, the appellant sought declaratory relief, injunctive relief, damages (including attorney’s fees) and costs of court. The trial court granted a motion for summary judgment filed by the appellees and dismissed the appellant ’s lawsuit with prejudice. The appellate court found that the appellant was not a party to the Compromise and Settlement Agreement and at no point was the agreement made conditional on extension of similar rights and privileges to any inmate other than Native American inmate. Because the appellant was not a third-party beneficiary of that agreement, he had no standing to assert any claim for relief based on an alleged breach thereof. Furthermore, because the appellant was no longer subject to any prospective injury due to his release from incarceration, he lacked standing to assert any claim for prospective injunctive relief based upon an alleged violation of Texas Religious Freedom Restoration Act (TRFRA). Further, in an apparent attempt to overcome problems associated with trying to establish that the appellant’s cause of action accrued on either September 8, 2011 or January 26, 2012, as originally alleged, the appellees claimed, via their appellate briefing, that the appellant’s cause of action was time barred because it arose on April 2, 2012, (the date he was transferred to a non-Native American unit) more than “465 days prior to the July 11, 2013 filing of his suit.” Not only was the argument disingenuous by relying on appellate briefing rather than summary judgment pleadings and associated evidence, it totally failed to comport with any of the allegations made in the appellees’ Amended Motion for Summary Judgment. The court could not affirm summary judgment on grounds not raised below. Therefore, to the extent that the trial court may have granted summary judgment based on the one-year statute of limitations for any cause of action arising under TRFRA or otherwise, it abused its discretion. Accordingly, the court affirmed, in part, and reversed and remanded, in part.


Trial court erred in denying appellant’s petition for bill of review of the probated will, because the estate representative did not notify appellant of the original probate proceeding by service of process, as citation by posting was insufficient
Byerley v. McCulley
Appellate: Civil, Procedure, Wills/Trusts/Probate
Texas 12th Court of Appeals
February 15, 2017
12-16-00124-CV
Brian Hoyle
Published
     The appellant appealed from the denial of his petition for bill of review contesting the trial court’s order admitting to probate the will of the deceased as a muniment of title nineteen years after her death. The appellant filed a petition for statutory bill of review alleging that the court committed substantial error when it admitted the deceased’s will to probate and asking the court to set aside its prior order and deny probate of the will. The appellate court found that the 1999 savings clause accompanying probate code Section 128B had effectively been repealed. Further, the individual appellee also asserted that the deceased had actual knowledge of her application to probate the will through his previous attorney and that attorney testified that the individual appellee’s previous attorney had notified him when the deceased’s will had been located and indicated that he intended to have it probated. Furthermore, the trial court committed substantial error when it concluded otherwise and the trial court abused its discretion in failing to grant the deceased’s petition for bill of review and the court sustained the deceased’s second issue. Accordingly, the court reversed the trial court’s order denying the deceased’s petition for bill of review, render judgment that the bill of review was granted, and remanded the case to the trial court.


Video showed that the appellant was holding the knife by its handle and that just the blade of the knife appeared to be a couple of inches long, and jury could have reasonably inferred the knife was large enough and long enough such that it was capable of causing serious bodily injury or death
Johnson v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
February 15, 2017
PD-0699-16
Barbara Parker Hervey
Published
     The jury found the appellant guilty of aggravated robbery. In accordance with the jury’s verdict, the judge entered a deadly-weapon finding. The appellant was sentenced to 18 years’ confinement and fined $10,000. The appellant appealed his conviction, and the court of appeals reversed, holding that there was insufficient evidence to sustain the deadly-weapon finding. The Court of Criminal Appeals found that the video showed that the appellant was holding the knife by its handle and that just the blade of the knife appeared to be a couple of inches long. Based on that, the jury could have reasonably inferred that the knife was large enough and long enough such that it was capable of causing serious bodily injury or death. A jury could have also reasonably inferred from the appellant ’s threats, his proximity to Amelia, and the brandishing of the knife, that the manner in which he used the knife, or intended to use the knife, rendered it capable of causing serious bodily injury or death. The only remaining question was whether the appellant “used or exhibited” the knife during the criminal transaction to facilitate commission of the crime. The court concluded that he did. The knife could be seen in the video as the appellant pulled it from his pants as he prepared to rob the two cashiers. He then used the knife to threaten the victim and the other while he was stealing money from the cash registers. From that, a factfinder could have rationally concluded that the knife was exhibited and used in commission of the offense. Accordingly, the court reversed the judgment of the court of appeals and remanded.


Trial court did not abuse its discretion by admitting the State’s experts’ medical opinion testimony on abusive head trauma to the child victim, where the experts’ opinions were sufficiently reliable
Wolfe v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
February 15, 2017
PD-0292-15
Elsa Alcala
Published
     Appellant was charged with the offense of first-degree-felony injury to a child. Appellant pleaded not guilty. She waived her right to a jury trial and the case proceeded to a bench trial. The judge found the appellant guilty, and sentenced her to five years’ imprisonment. On appeal, appellant raised a single point of error in which she challenged the trial court’s admission of what she characterized as unreliable medical expert opinion testimony on abusive head trauma. The court of appeals concluded that the trial court had not abused its discretion by admitting the challenged evidence, and it overruled appellant’s sole point of error. The Court Of Criminal Appeals found that with respect to the appellant’s first contention, the court agreed with the court of appeals assessment that the experts’ testimony was sufficiently reliable so as to warrant a conclusion that the trial court did not abuse its discretion by admitting that evidence. Further, with respect to appellant’s second contention that the court of appeals erred by declining to consider the particular complainant’s history in conducting its reliability analysis, the court concluded that the court of appeals analysis reflected that it did consider whether the experts’ opinions were reliable in light of the complainant’s particular injuries. Furthermore, to the extent that the appellant complained that the court of appeals improperly declined to consider the complainant’s medical history of prior bleeding in the brain as a basis for rejecting the reliability of the State’s experts’ testimony, the court concluded that appellant did not rely on the complainant’s history of prior bleeding as a basis for arguing that the experts’ opinions were unreliable, and thus the court of appeals did not err by declining to address that issue. Accordingly, the court affirmed the court of appeals judgment upholding the appellant’s conviction.


Intentional and knowing conduct cited by State satisfied the recklessness element of appellant’s conviction for manslaughter and prosecutor did not negate manslaughter when arguing to jury for murder and disparaging appellant’s argument for lesser included offense
Atkinson v. State
Criminal, Evidence, Procedure
Texas 13th Court of Appeals
March 16, 2017
13-16-00344-CR
Nelda V. Rodriguez
Published
     The appellant appealed his conviction for manslaughter and the appellant was indicted for first-degree murder and a jury found the appellant guilty of the lesser included offense of manslaughter and assessed punishment at twenty years’ confinement. The appellate court found that the jury reviewed all of the evidence, including the deceased's dying declaration that the appellant had stabbed him during an argument, the appellant’s multiple defensive injuries, the appellant’s many inconsistent and implausible statements, the appellant’s direct testimony concerning his state of mind, and the demeanor of the witnesses. Further, the jury found that the instant evidence showed that the appellant consciously disregarded a substantial and unjustifiable risk that his actions with the knife would cause deceased’s death. Furthermore, viewing the evidence in the light most favorable to the verdict, the court concluded that a rational fact finder could have found, beyond a reasonable doubt, the element of recklessness, especially given that proof of intent or knowledge was sufficient to show the mental state of recklessness. Finally, the intentional and knowing conduct cited by the State was fully sufficient to satisfy the recklessness element of the appellant’s conviction for manslaughter and the appellant did not otherwise explain how the State’s jury argument had any impact on the sufficiency of the evidence which was the appellant's lone issue on appeal and the court were not persuaded by his argument. Accordingly, the district court's judgment was affirmed.


Because essential elements of the appellee’s medical malpractice cause of action were not supported by legally sufficient evidence, the trial court erred in entering judgment in favor of the appellee
Kareh v. Windrum
Appellate: Civil, Damages, Health Care, Litigation: Personal Injury, Torts
Texas 1st Court of Appeals
March 16, 2017
01-14-00179-CV
Evelyn V. Keyes
Published
     The appellate court withdrew its April 19, 2016 opinion and judgment and issued the instant opinion and judgment in their stead. In the instant wrongful death case, the appellee, individually, as representative of the estate of the deceased, her husband, and on behalf of her minor children sued the appellant for medical malpractice. After a jury trial, the jury found the appellant 80% negligent and awarded a total of $4,239,464 to the appellee in damages. After applying settlement credits and statutory damages caps, the trial court entered judgment in favor of the appellee, awarding her $1,875,887.62 in damages. The appellate court found that the appellee failed to carry her burden of proving by a preponderance of the evidence the elements of medical negligence required to hold the appellant liable in the instant case. Further, the court held that the doctor’s opinion failed to account for the deceased’s worsening symptoms and test results two months later, which the jury heard evidence about but which the appellant did not have in February when he treated the deceased. Thus, the appellee presented no evidence concerning the standard of care and the appellant’s breach of the standard of care beyond the doctor’s conclusory and unsupported testimony. Thus, the appellee failed to present legally or factually sufficient evidence of an essential element of her cause of action. Finally, the court held that because essential elements of the appellee’s medical malpractice cause of action were not supported by legally sufficient evidence, the trial court erred in entering judgment in favor of the appellee on that claim. Accordingly, the court reversed the judgment of the trial court and rendered.


Trial court did not abuse its discretion in revoking appellant’s community supervision; however, trial court erred by reducing the term of confinement originally assessed to a term of confinement less than the minimum prescribed for the offense, thus imposing an illegal sentence
Lombardo v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 16, 2017
14-15-00406-CR
Kevin Jewell
Published
     The appellant plead guilty to first-degree felony theft. Rather than sentence the appellant based on the ten years’ confinement originally assessed, the trial court reduced the term of confinement to four years’ confinement and sentenced the appellant accordingly. The appellate court found that the former version of the statute applied. The trial court’s decision to lower the appellant’s monthly restitution payments was not a separate restitution order or condition of community supervision. It merely modified the preexisting restitution order. Further, the trial court did not abuse its discretion in revoking the appellant’s probation based on a finding that the appellant failed to pay restitution as a condition of community supervision and that her failure was intentional and willful and not because of an inability to pay. Finally, a sentence that was outside the maximum or minimum range of punishment was unauthorized by law and therefore illegal. Thus, the court held that the trial court’s reduced sentence of four years’ imprisonment was illegal and therefore void. Because the reduced sentence was void, the court reversed the trial court’s reduced sentence, and remanded the case for the trial court. Accordingly, the judgment was affirmed, reversed and remanded.


Appellant guaranteed the two promissory notes, but not the profit-sharing agreements, and trial court did not err by concluding that the summary-judgment evidence conclusively established the amount that the appellant guarantor owed
Chahadeh v. Jacinto Medical Group, P.A.
Appellate: Civil, Bankruptcy, Contracts, Creditor/Debtor, Damages
Texas 1st Court of Appeals
March 14, 2017
01-16-00347-CV
Rebeca Huddle
Published
     The appellant M.D. personally guaranteed loans made by the appellees. Subsequently, the appellees defaulted on the loans and filed for Chapter 11 bankruptcy protection. The appellees sent notice and demanded to the appellant requesting payment under the guaranty agreements, but the appellant did not pay. The appellees sued the appellant for breach of the guaranty agreements and filed a traditional summary-judgment motion, which the trial court granted. The appellate court found that the appellee, the limited partnership's bankruptcy claim showed that the $1,217,979.81 it sought from the appellees was composed of the $797,979.81 in principal owed under the two promissory notes plus $420,000 owed under profit-sharing agreements. The appellant guaranteed the two promissory notes, but not the profit-sharing agreements. Thus, the appellant did not raise a fact issue and the trial court did not err by concluding that the summary-judgment evidence conclusively established the amount that the appellant owed. Accordingly, the judgment was affirmed.


Given the new arguments regarding use that appellee County advanced for the first time on appeal, it had not demonstrated that the appellant failed to show jurisdiction despite having full and fair opportunity to litigate the issue in the trial court
Annab v. Harris County
Appellate: Civil, Employment, Gov't/Administrative, Torts
Texas 14th Court of Appeals
March 14, 2017
14-16-00348-CV
Marc W. Brown
Published
     In the instant interlocutory appeal, the appellant contended the trial court erred in granting the appellee County’s plea to the jurisdiction. In applying for employment with the appellee County, the individual disclosed that he was on medication for mood stabilization due to a chemical imbalance. The appellant’s claims against appellee county arose under the Texas Tort Claims Act (TTCA). The appellant filed a response arguing the trial court had jurisdiction and requesting the plea be denied. Evidence was submitted with the appellee County’s and the appellant’s motions. The appellate court found that the facts alleged by the appellant in her pleading, and the evidence submitted, did not conclusively establish the appellee county’s use of the firearm under Section 101.021(2). Further, the court concluded the pleadings and record did not demonstrate jurisdiction or conclusively negate it. Further, given the new arguments regarding use that Harris County advanced for the first time on appeal, it had not demonstrated that the appellant failed to show jurisdiction despite having full and fair opportunity to litigate the issue in the trial court. Nor had the appellee County established that the appellant would be unable to show the existence of jurisdiction if the instant case were remanded. Finally, the court reversed the trial court’s grant of the appellee County’s plea and remanded the instant case for further proceedings. Accordingly, the trial court’s judgment was affirmed and the court reversed the remainder of the trial court’s judgment and remanded for proceedings.


The appellant failed to raise a fact issue regarding whether he was suspended, terminated, or suffered some other adverse personnel action because he reported a violation of law; the appellant had not preserved his complaint for the review
Barnett v. City of Southside Place
Appellate: Civil, Employment, Gov't/Administrative, Torts
Texas 1st Court of Appeals
March 14, 2017
01-16-00026-CV
Russell Lloyd
Published
     Appellant appealed from the trial court’s order granting the appellee City’s plea to the jurisdiction in his suit brought under the Texas Whistleblower Act. The appellate court found that the Supreme Court’s analysis in Robinson v. Shell Oil Co., 519 U.S. 337, (1997) lent further support to the conclusion that “public employee” under the Whistleblower Act did not apply to former employees. There, the Court noted that Title VII’s definition of “employee” as “an individual employed by an employer” lacked any temporal qualifier. The court concluded that the appellant failed to raise a fact issue regarding whether he was suspended, terminated, or suffered some other adverse personnel action because he reported a violation of law. Further, as a prerequisite to presenting a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion, and that the trial court (1) ruled on the request, objection, or motion, either expressly or implicitly, or (2) refused to rule, and the complaining party objected to that refusal. In the instant case, the appellant did not object to the trial court’s order on his motion for continuance, the hearing date for the appellee’s plea to the jurisdiction, or the trial court’s order on his motion to compel. Having failed to do so, the appellant has not preserved his complaint for the review. Accordingly, the court affirmed the judgment.


There was no abuse of discretion by the trial court in including the appellee sellers, the appellee inspector, and the appellee company in the order dismissing the suit for want of prosecution
Cotten v. Briley
Appellate: Civil, Contracts, Damages, Procedure, Real Property
Texas 6th Court of Appeals
March 14, 2017
06-16-00053-CV
Bailey C. Moseley
Published
     When the appellants newly-purchased retirement home began exhibiting substantial problems of which they were unaware when they purchased it, the appellants filed suit against the persons who sold it to them, the appellee sellers’, appellee real estate agent, the appellee broker under whom the agent worked, and the appellee home inspector who was retained to inspect the house prior to the purchase. The trial court granted a no-evidence summary judgment in favor of the appellee real estate agent and the appellee broker and dismissed the appellants’ claims against all the appellees for want of prosecution. The appellate court found that both in their written motion and at the hearing, the only parties who requested the trial court to dismiss the second amended petition were appellee real estate agent and the appellee broker. Further, the trial court’s order recited that it considered and granted only appellee real estate agent and appellee broker’s motion to strike. Therefore, the record did not support the appellants’ argument that the appellee company was included in the order striking the second amended petition. Since the court found no abuse of discretion by the trial court in including the appellee sellers, the appellee inspector, and the appellee company in the order dismissing the suit for want of prosecution, the court overruled the appellants’ first and second points of error. Furthermore, taking into account the appellants’ desire to have a final, appealable judgment as to all parties, the lack of surprise as to the contents of the motion to strike, and that the trial court could not consider the second amended petition’s allegations against the appellee real estate agent and the appellee broker, the court could not say that the trial court acted arbitrarily or unreasonably in shortening the notice period under TEX. R. CIV. P. 21, or in striking the second amended petition. Accordingly, the judgment was affirmed.


Appellant had failed to prove by a preponderance of the evidence that she would not have pleaded guilty but for her former immigration counsel’s advice
Ex parte Uribe
Appellate: Civil, Constitution, Criminal, Gov't/Administrative, Immigration
Texas 2nd Court of Appeals
March 09, 2017
02-16-00372-CR
Bonnie Sudderth
Published
     The appellant appealed the trial court’s denial of her habeas application. The appellate court found that even though the appellant or her criminal defense counsel consulted outside immigration counsel, which constitutes some evidence that her plea’s immigration consequences were of some concern to the appellant, the court could not conclude on that record that the trial court lacked the authority or a reasonable basis under the facts of the case to make the judgment call that the appellant had failed to prove by a preponderance of the evidence that she would not have pleaded guilty but for her former immigration counsel’s advice. Further, because the trial court’s findings and conclusions were supported by the record, the court must defer to those rulings. Therefore, the court concluded that the trial court did not abuse its discretion by denying the relief requested in the appellant's application for a writ of habeas corpus, and the court overruled her sole issue as it was presented in the trial court. Accordingly, the court affirmed the trial court’s judgment denying the appellant's application for writ of habeas corpus.  


The March 14 Order was not a final judgment because it did not contain any decretal language disposing of the action, thus, the trial court abused its discretion by refusing to consider the merits of the plaintiff’s Motion to Resolve the March 14 Order and Motion to Substitute Counsel
In re Wilmington Trust, National Association
Appellate: Civil, Contracts, Courts, Creditor/Debtor, Procedure
Texas 14th Court of Appeals
March 09, 2017
14-17-00074-CV
Martha Hill Jamison
Published
     The plaintiff sued the defendant for breach of a guarantee for the payment of a loan of $91.6 million dollars for the purchase of a maritime cargo vessel. The defendant filed the individual's Special Appearance and, Subject thereto, Objections to Venue and Motion to Dismiss Based on Improper Venue and Motion to Quash Service (the motions). The plaintiff responded to the motions with a single filing that asked the court to deny all three motions. The plaintiff filed a Motion to Substitute Counsel that requested permission for the withdrawal of the plaintiff’s then lead counsel and designation of new lead counsel. After exhausting the administrative remedies, the trial court denied the plaintiff’s Motion to Substitute Counsel and ordered that the Motion to Resolve was thereby stricken from the record, removed from the docket and any hearings on the motion canceled. The appellate court found that the trial court’s striking of and refusal to consider the merits of the plaintiff’s Motion to Resolve the Order of March 14, 2016 and its denial of the Motion to Substitute Counsel was based on the trial court’s erroneous determination that its March 14 Order was a final judgment and that its plenary jurisdiction to grant the requested relief had therefore expired. Further, the March 14 Order was not a final judgment because it contained no decretal language that dismisses or otherwise finally disposes of the action. The trial court therefore clearly abused its discretion by refusing to consider the merits of the plaintiff’s Motion to Resolve the March 14 Order and the plaintiff’s Motion to Substitute Counsel. Lastly, the plaintiff had no remedy by appeal for the abuse of discretion because the March 14 Order was not appealable. Accordingly, the court conditionally granted the petition for writ of mandamus.


Trial court abused its discretion in denying appellant’s motion for new trial because no reasonable view of the record could support an implied ruling of voluntariness of her plea because her counsel gave her erroneous information regarding admission of the warrantless blood draw
Briggs v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
March 09, 2017
13-15-00147-CR
Nelda V. Rodriguez
Published
     The jury found the appellant guilty of intoxication manslaughter of a public servant, found her vehicle a deadly weapon used or exhibited during the commission of the offense, and sentenced the appellant to forty-five years in the Texas Department of Criminal Justice–Institutional Division. The appellate court having the benefit of Missouri v. McNeely 133 S.Ct. 1552, 1558 (2013) and its progeny, cases that applied retroactively to the appellant, concluded that the appellant's trial counsel misrepresented the law to the appellant as it related to the admissibility of her blood-draw evidence. The appellant’s trial counsel's explanation of the law as he understood it at the time of the accident stopped short of informing the appellant that the transportation code, specifically section 724.012, could not mandate a warrantless blood draw absent exigent circumstances or that the State needed to show exigent circumstances before the trial court would admit the blood evidence from her warrantless blood draw. The erroneous information conveyed to the appellant by her trial counsel resulted in the appellant’s plea of no contest being involuntary. The appellant’s motion for new trial challenged the voluntariness of her plea—whether the appellant ’s counsel misinformed her regarding the admissibility of blood evidence obtained through a warrantless blood draw. That was the issue before the trial court and not the presence of exigent circumstances. The court could not conclude that the trial court could have implicitly found that the appellant’s plea was knowing and voluntary at the time of trial: such a factual finding would be unreasonable and unsupported by the record. Reviewing the trial court’s denial of the appellant’s motion for new trial under an abuse of discretion standard and the voluntariness of the appellant’s plea through that same standard, the court concluded that the trial court abused its discretion in denying the appellant’s motion for new trial because no reasonable view of the record could support an implied ruling of voluntariness. Accordingly, the court reversed and remanded for a new trial.


County court order terminating appellant’s and father’s parental rights to the child was void because the trial court had continuing, exclusive jurisdiction at the time the order was entered
In re J.I.M.
Appellate: Civil, Courts, Family, Juvenile, Procedure
Texas 6th Court of Appeals
March 09, 2017
06-16-00080-CV
Ralph K. Burgess
Published
     The appellant mother appealed a judgment entered by the Court at Law of Gregg County (the CCL) that terminated her parental rights to her child. The 307th Judicial District Court of Gregg County, Texas (District Court), in cause number 2010-2179-DR, entered a judgment that established parentage and determined conservatorship issues with respect to the child. The Texas appellate court found that the affidavit filed in support of the Department’s petition, the Attorney General’s answer, and the fact that the District Court’s 2010 order was admitted as an exhibit at trial all put the CCL on notice that the District Court had continuing, exclusive jurisdiction over the matter involving the child. Because the instant Court was concerned about the effect of the District Court’s 2010 order, the court requested additional briefing from the parties on the question of whether the CCL was without jurisdiction to enter an order terminating parental rights to the child. Finally, the court concluded that the CCL’s order terminating the appellant’s and Father’s parental rights to the child was void because the trial court had continuing, exclusive jurisdiction at the time the order was entered. Accordingly, the court vacated the trial court’s judgment and dismissed the case.


Deed to appellant’s predecessor only granted appellant the right to pass trains over the strip of land, oil that lay beneath the train-tracks was free and clear of appellant's interest and had been properly leased to appellees by a separate deed
BNSF Railway Co. v. Chevron Midcontinent, L.P.
Appellate: Civil, Contracts, Oil, Gas, & Mineral, Real Property, Torts, Transportation
Texas 8th Court of Appeals
March 22, 2017
08-16-00119-CV
Yvonne T. Rodriguez
Published
     The appellant company sued for trespass to try title, arguing that a 1903 deed granted to the appellant's predecessor gave the company not just a right of way easement, but the entire strip of land described in the deed from Heaven to Hell in fee simple absolute. The appellees countered that the 1903 Deed only granted the appellant the right to pass trains over that strip of land, what lay beneath the train-tracks was free and clear of the appellant's interest and had been properly leased to the appellees by a separate deed. On cross-motions for summary judgment, the trial court sided with the appellees. The appellate court found that the trial court correctly found that the deed did not entitle the appellant to claim the fruits of the mineral estate and the only right the appellant possesses by virtue of the 1903 Deed was a surface easement. Accordingly, the judgment of the trial court was affirmed.


In the absence of any evidence that the appellant association’s Amendment, which raised assessments on the appellees, was validly adopted or otherwise binding on the property owners, trial court properly granted summary judgment for the appellees
Western Hills Harbor Owners Association v. Baker
Appellate: Civil, Damages, Gov't/Administrative, Procedure, Real Property, Torts
Texas 8th Court of Appeals
March 22, 2017
08-15-00060-CV
Yvonne T. Rodriguez
Published
     The appellees were property owners in a residential subdivision who claimed the appellant association had been improperly collecting assessments based on an invalid amendment to the subdivision’s original restrictive covenants. The trial court granted summary judgment for the appellees declaring the amendment void and awarding the appellees damages for the improperly-imposed assessments. The appellate court found that the appellant argued that the Declaration had been properly amended in 1996 to allow for the increase. Because the appellant was relying on the 1996 Amendment to avoid summary judgment, it had the burden to come forward with evidence to establish that the amendment was properly and validly made. Further, even when a residential subdivision’s governing documents do not provide a method for amending its original restrictive covenants, the subdivision may utilize the alternative statutory method for doing so as provided in Chapter 209 of the Texas Property Code. Next, the court held that membership in the appellant was mandatory, but that the appellant failed to establish that the 1996 Amendment was properly adopted in accordance with the requirements of Chapter 209. Furthermore, despite the appellant’s discretion to exclude or expel certain property owners from membership, the subdivision was intended to be developed as a mandatory-membership appellant. Finally, in the absence of any evidence that the 1996 Amendment, which raised the assessments on the appellees, was validly adopted or otherwise binding on the property owners, the court concluded that the trial court properly granted summary judgment for the appellees. Accordingly, the court affirmed the trial court’s judgment.


Trial court’s discovery deadline for designating witnesses conflicted with the Chapter 74 discovery stay, and trial court erred in granting summary judgment on the ground that appellant’s deadline for designating expert witnesses had passed
Harvey v. Kindred Healthcare Operating, Inc.
Appellate: Civil, Discovery, Health Care, Procedure, Torts
Texas 14th Court of Appeals
March 23, 2017
14-15-00704-CV
Martha H. Jamison
Published
     The deceased passed away while she was a patient at the appellees. The appellants filed a medical malpractice suit, bringing negligence, gross negligence, survival, and wrongful death claims against the appellees. The trial court issued a docket control order establishing several deadlines for the case, including a March 30, 2015 date for the appellants to designate their expert witnesses. The appellants timely served two expert reports on the appellees. The appellees objected to the reports and moved to dismiss the first and second appellant's claims. On April 6, the trial court sustained the appellees objections, but permitted appellants thirty days, until May 7, to serve amended expert reports. The appellants served an amended expert report on May 7, to which the appellees objected. The trial court had not ruled on the adequacy of the amended expert report. On April 30, the appellees filed its no-evidence motion for summary judgment. After exhausting the administrative remedies, the trial court sustained the appellees objections, granted the appellees motion for summary judgment, and dismissed with prejudice all of the appellants’ claims against the appellees. The appellants filed a motion for new trial, which the trial court also denied. The appellate court found that the adequate expert reports had not been served when the appellees filed its motion for summary judgment. Thus, discovery was stayed under chapter 74. Further, the trial court’s discovery deadline for designating witnesses conflicted with the chapter 74 discovery stay. As a result, the trial court erred in granting summary judgment on the ground that the appellant’s deadline for designating expert witnesses had passed. Thus, the court sustained the appellant’s sole issue on appeal. Accordingly, the court reversed the trial court’s judgment and remanded the cause for further proceedings.


Applicant failed to show falsity regarding analyst’s lab testing of marijuana applicant possessed when first arrested for possession, and had failed to demonstrate those test results would have been material to supervision revocation case for subsequent possession charge
Ex parte Owens
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
March 22, 2017
WR-83, 551-01
David C. Newell
Published
     The applicant was arrested and charged with possession with intent to sell and deliver a controlled substance - marihuana. The applicant's community supervision was revoked and he was sentenced to 180 days in state jail. The applicant filed the instant application alleging that his sentence should be overturned because his plea of guilty was made involuntarily and unknowingly. After a hearing was held, the habeas court filed findings of facts and conclusions of law and recommended that relief be denied. The Texas Court of Criminal Appeals found that the applicant failed to present sufficient evidence to warrant a presumption of falsity regarding the analyst’s lab testing in the instant case. Even if the court assumed a presumption of falsity, the applicant had failed to demonstrate that test results would have been material in the instant case. Thus, the court agreed with the habeas court that the applicant had not met his burden of showing either falsity or materiality. Accordingly, the court denied the relief.


Appellee officers had immunity when sued in their official capacity, and trial court lacked jurisdiction over appellant’s malicious prosecution claims
McFadden v. Olesky
Appellate: Civil, Civil Rights, Gov't/Administrative, Procedure, Torts
Texas 3rd Court of Appeals
March 23, 2017
03-16-00067-CV
Melissa Goodwin
Published
     The appellant appealed from the trial court’s judgment in favor of Austin Police Department (APD) Officers, the appellees following a jury trial. The appellant sued the appellees for malicious prosecution and conspiracy to commit malicious prosecution after she was tried and acquitted of charges of assaulting a peace officer. On appeal, the appellees argued that the trial court lacked jurisdiction pursuant to the election of remedies provision of the Texas Tort Claims Act (TTCA). The appellate court found that having been sued in their official capacities, Officers the appellees were entitled to dismissal of the claims pursuant to Tex. Civ. Prac. & Rem. Code section 101.106(f). Because Officers, the appellees, were immune from suit, the trial court lacked subject matter jurisdiction, completely barring the appellant’s malicious prosecution claims. Further, the open courts provision protects established common law rights, and there was no common law right to sue the government. The court agreed with the analysis of the sister courts and conclude that section 101.106(f) did not violate the open courts provision. Accordingly, the court vacated the judgment of the trial court and dismissed the appellant’s claims for lack of subject matter jurisdiction.


Appellant’s counsel was not ineffective for failing to object to admission of appellant’s videotaped statement, and trial court's error in admitting evidence of the complainant's pretrial identification of appellant was not unduly suggestive
Kelley v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 23, 2017
14-15-00979-CR
Kem Thompson Frost
Published
     The appellant challenged his conviction for robbery. The appellate court found that the appellant did not prevail on his first issue because trial counsel did not provide ineffective assistance by failing to object to the videotape of the appellant’s interview. The appellant did not prevail on his second issue because the trial court did not err in overruling the appellant’s objection to the admission of State’s Exhibit 8, and the appellant did not preserve error as to any of his other complaints under the second issue. Accordingly, the court affirmed the trial court’s judgment.


Evidence was sufficient to support termination, and it was in children’s best interests to terminate mother’s parental rights, where mother failed to find and maintain suitable housing or employment, and refused to apply for Social Security benefits
In re M.L.R-U.
Appellate: Civil, Civil Rights, Family, Gov't/Administrative, Juvenile
Texas 6th Court of Appeals
March 23, 2017
06-16-00088-CV
Ralph K. Burgess
Published
     In a suit brought by the Texas Department of Family and Protective Services (the Department), the trial court terminated the mother’s parental rights to her three children. The appellate court found that the Department gave her multiple chances to find and maintain safe and adequate housing. Regardless, the mother persisted in living in a home where the number of occupants exceeded the allotted space. The home was oftentimes without water or electricity and contained unsanitary and hazardous conditions. In addition, the mother failed to find and maintain suitable employment, and when encouraged to seek financial assistance through Social Security benefits, she adamantly refused. The court found the evidence both legally and factually sufficient to support termination under ground (O). Further, considering the Holley v. Adams, 544 S.W.2d 367, (Tex. 1976) factors, and in light of all the evidence, the court found that the trial court reasonably could have formed a firm belief or conviction that termination of mother’s parental rights was in the best interests of the children. Thus, the court found the evidence was factually and legally sufficient to support the trial court’s finding that it was in the children’s best interests to terminate the mother’s parental rights. Accordingly, the court affirmed the trial court’s judgment.


Judgment was void for lack of jurisdiction when it was entered against the legal representative of the deceased’s estate without issuance and return of service of the writ of scire facias, where appellant’s filing a suggestion of death was not a general appearance
Hegwer v. Edwards
Appellate: Civil, Contracts, Procedure, Wills/Trusts/Probate
Texas 5th Court of Appeals
March 22, 2017
05-15-01464-CV
David Evans
Published
     The appellant trustee and the individual filed a lawsuit against the appellee, the deceased and the four companies. The deceased died on November 29, 2013. The appellee filed a suggestion of death that informed the court of the deceased's death. The trial court called the case to trial. The trial court did not enter the proposed judgment and, instead, set the case for dismissal for want of prosecution. The trial court signed an order of nonsuit in which the individual dismissed his claims without prejudice. After exhausting the administrative remedies, the trial court noted that the record was devoid of any factually or legally sufficient evidence that would support a verdict against the appellee and ordered that the appellant took nothing by way of her claims against the appellee. The trial court also signed an order, which denied the appellant's request for post-appearance judgment nihil dicit. The appellate court found that the judgment was void for lack of jurisdiction when it was entered against the legal representative of the deceased’s estate without issuance and return of service of the writ of scire facias or appearance of the legal representative. Further, the defendant's filing of the suggestion of her husband’s death did no more than tacitly acknowledge that information about the deceased's death must be provided to the trial court, she did not agree to provide additional information, sought additional assistance from the district court, or be subject to orders of the district court. Thus, the court declined to conclude that the defendant's filing of the suggestion of the deceased's death constituted a general appearance. Furthermore, as the court did not conclude that the defendant's filing of the suggestion of death constituted an appearance, the court could not conclude she was prohibited from filing an answer or that her answer was untimely. Thus, the court concluded that the trial court correctly denied the motion for post-appearance judgment nihil dicit. Accordingly, the court affirmed the trial court’s judgment.


Trial court did not err in excluding evidence of an alleged assignment of promissory note, in granting directed verdicts against appellant, and in quieting title to the oil and gas interest in favor of appellee, but attorneys fees were not properly segregated
Great Northern Energy, Inc. v. Circle Ridge Production, Inc.
Appellate: Civil, Contracts, Damages, Oil, Gas, & Mineral, Real Property, Torts
Texas 6th Court of Appeals
March 22, 2017
06-16-00015-CV
Ralph K. Burgess
Published
     The instant case involves a complicated dispute between the appellee company and the individual against the appellant company, arising out of the sale and foreclosure of certain oil and gas interests in County. The appellate court found that because there was no evidence of any actual assignment by the individual to the appellant, the court concluded that the trial court did not abuse its discretion in making its evidentiary rulings. Further, the trial court’s directed verdict on the appellee's breach of contract claim and its damage award, based on the stipulation of the parties, were both proper. Thus, the court overruled the appellant's argument that the trial court erred in directing a verdict on the appellee's breach of contract claim and in assessing damages in accordance with the parties’ stipulation. Furthermore, because the jury was presented with conflicting evidence on whether the appellee acted alone in the foreclosure proceedings and resolved that matter in the appellee's favor, the court concluded that the trial court did not err in overruling the appellant's motion for judgment notwithstanding the verdict. Lastly, legal research and other work completed with respect to those tort claims would not advance the appellee's breach of contract or trespass to try title claims. Thus, the tort claims did not become so intertwined that they were not required to be segregated. Accordingly, the court affirmed the trial court’s judgment in part and reversed in part.


Criminal information tolled the running of limitations in a felony case when the defendant did not waive his right to an indictment
Ex parte Ulloa
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
March 22, 2017
PD-0658-16
Sharon Keller
Published
     The appellant was charged with two counts of tampering with physical evidence. The alleged date of the offenses was December 21, 2009. The offenses were originally charged by complaint and information on February 2, 2011. They were then charged by indictment on May 3, 2011. That indictment was dismissed on April 17, 2012. The offenses were again charged by complaint and information on February 26, 2014. Finally, the offenses were charged in the current indictment on August 20, 2015. The appellant filed a pretrial habeas application alleging that the three-year limitations period for the offenses had run. The trial court denied the habeas application, and appellant appealed. The appellate court affirmed the trial court’s denial of habeas relief. Texas Court of Criminal Appeals suggested that the purpose of Texas Code Criminal Procedure Article 12.05, including subsection (c), was to overturn the common law rule that a charging instrument on which no valid conviction or judgment could be had would not toll the running of limitations. Further, the appellant’s contention that an information was not an appropriate charging instrument for a felony offense was an overstatement because an information was appropriate for a noncapital felony if the defendant waives the right to be accused by indictment. It was true that, in the past, a valid waiver of indictment was necessary before jurisdiction in a felony case would be conferred by information. Furthermore, unlike Ward, those cases involved a filing that was in a court with subject matter jurisdiction over the grade of the offense in question, but like Ward, the document that was filed was a complaint, or at least purported to be one. Lastly, the court need not address whether a complaint would be sufficient to toll limitations in cases other than Class C misdemeanors. The court's holding was simply that an information was sufficient to do so in a felony case. Accordingly, the court affirmed the judgments.


Juvenile defendant could not attack the original proceedings on appeal from the order that adjudicated guilt after a revocation of community supervision
Bell v. State
Criminal, Evidence, Juvenile, Procedure
Texas Court of Criminal Appeals
March 22, 2017
PD-0052-17
Per Curiam
Published
     The juvenile appellant pled guilty without an agreed recommendation and the court deferred guilt and placed him on community supervision for 6 years. The Texas Court of Criminal Appeals found that the juvenile court abused its discretion by waiving jurisdiction without setting forth in its transfer order adequate case-specific findings to support its conclusion. Further, the court vacated the juvenile court’s transfer order and the criminal district court’s judgment, dismissed the criminal district court case, and remanded to the juvenile court to conduct a new transfer hearing. Furthermore, the State had filed a petition for discretionary review challenging the appellant’s ability to attack his transfer order on appeal from the adjudication of his guilt and the State maintained that the defendant could not attack the original proceedings on appeal from the order that adjudicated guilt after a revocation of community supervision. Finally, the appellate courts must review jurisdiction regardless of whether it was raised by the parties and the court agreed that the jurisdictional issue should be fully vetted by the appellate court in the first instance. Accordingly, the court granted ground of the State’s petition, vacated the judgment of the appellate court, and remand the instant case.


Using a canine to sniff for drugs at door of Appellant's apartment remained "close enough to the line of [constitutional] validity" for officer preparing a warrant affidavit to have believed the warrant application was not tainted by unconstitutional conduct
McClintock v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
March 22, 2017
PD-1641-15
Kevin Yeary
Published
     Charged with possession of a felony amount of marijuana, the appellant filed a motion to suppress the contraband. The trial court denied the motion. The appellate court reversed the appellant’s conviction. The Texas Court of Criminal Appeals remanded. On remand, the appellate court found that the trial court erred in failing to suppress the evidence. The Texas Court of Criminal Appeals held that the good-faith exception of Article 38.23(b) would apply when the prior law enforcement conduct that uncovered evidence used in the affidavit for the warrant was close enough to the line of validity that an objectively reasonable officer preparing the affidavit or executing the warrant would believe that the information supporting the warrant was not tainted by unconstitutional conduct. Further, because the language of Article 38.23(b) of the Texas Code of Criminal Procedure accommodates the United States v. Massi, 761 F.3d 512, 528 (5th Cir. 2014) good-faith standard, the court held that the officer’s subsequent search of the apartment was executed in objective good faith reliance on the warrant. The fruit of that search was therefore excepted from Article 38.23(a)’s exclusionary rule. Ultimately, the trial court did not err to overrule the appellant’s motion to suppress. Accordingly, the judgment of the appellate court was reversed and the judgment of the trial court was affirmed.


It was not necessary for complainant to explain how he knew appellant was a gang member, where jury had evidence the attack was a gang-motivated crime, other attackers were identified as gang members, and appellant worked in concert with the other attackers
Villa v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
March 22, 2017
PD-0541-16
Sharon Keller
Published
     Appellant participated with gang members in a gang-related assault. The complainant testified that he was assaulted by gang members and that appellant was one of the people who assaulted him. A jury convicted appellant of engaging in organized criminal activity and sentenced him to fifteen years in prison and a fine of $2,000. The court of appeals held that the evidence was insufficient to show that appellant was himself a member of the gang. The Court of Criminal Appeals found that the court of appeals did not discuss the former member of the gang’s statement that “a lot more Azteca members joined the fight,” some of whom he did not recognize. The statement suggested that all of the member’s attackers were members of the gang, which would include those attackers he recognized. The court of appeals said that the member did not say how he knew appellant was a gang member, but it was not necessary for the member to explain how he knew appellant was a gang member for a rational jury to believe that he did in fact know it. Moreover, the jury had evidence that the attack on the member was a gang-motivated crime, that other attackers were identified as gang members, and that appellant worked in concert with these other attackers. Those facts added further support for the jury’s conclusion that appellant was himself a gang member. Further, the court need not address the court of appeals’ analysis of the Detective’s expert testimony or of the existence of a gang rule requiring gang members to join in an attack. Even if the court of appeals’ analysis were correct on those points, the evidence would still be sufficient, on the basis of the complainant’s testimony alone, to support the conclusion that appellant was a gang member. Accordingly, the court reversed the judgment of the court of appeals and affirmed the judgment of the trial court.


Summary-judgment evidence proved as a matter of law appellees’ legitimate, nondiscriminatory reasons for discharging the appellant, and did not raise a fact issue as to pretext
Okpere v. National Oilwell Varco, L.P.
Appellate: Civil, Civil Rights, Employment, Procedure
Texas 14th Court of Appeals
March 20, 2017
14-15-00694-CV
Kem Thompson Frost
Published
     In the instant appeal the appellant challenged the trial court’s dismissal of his disability-discrimination suit against the appellees. The trial court granted the employers’ summary-judgment motion, implicitly granting judgment on the ground that the appellant based his claim solely on specific evidence that constituted inadmissible hearsay. The appellate court found that the trial court correctly found the evidence to be inadmissible hearsay, but the trial court erred to the extent it granted summary judgment on that ground because the appellant did not base his disability-discrimination claim solely on that evidence. Nonetheless, the summary-judgment evidence proved as a matter of law the appellees’ legitimate, nondiscriminatory reasons for discharging the appellant and did not raise a fact issue as to whether the appellees’ reasons were a pretext for discrimination. Accordingly, the judgment was affirmed.


Sovereign immunity implicated a court’s subject-matter jurisdiction, but their contours were not coextensive; that long-final judgment between the parties could not be upended via collateral attack
Engelman Irrigation District v. Shields Brothers, Inc.
Appellate: Civil, Constitution, Courts, Gov't/Administrative, Procedure
The Supreme Court of Texas
March 17, 2017
15-0188
Don R. Willett
Published
     In 1992, the respondent sued the petitioner, a governmental entity, alleging the petitioner had breached a contract to deliver water to the respondent. The petitioner contended the trial court lacked subject-matter jurisdiction because the petitioner had governmental immunity. The trial court denied the petitioner’s immunity defense, and the case proceeded to trial. The jury found damages for lost profits. In 1995, the trial court rendered judgment for the respondent in the amount of $271,138.80, along with interest and attorney fees. The petitioner appealed that judgment (the prior case judgment), and in 1997 the appellate court affirmed. The Texas Supreme Court denied review of prior case in 1998, and the judgment became final. But the petitioner did not pay the prior case judgment. Beginning in 1999, the petitioner sought authorization to file for bankruptcy under provisions of the Water Code. The authorization was denied by the Texas Commission on Environmental Quality and later by the trial court. In 2008, TCEQ’s administrative decision was affirmed by the appellate court (second prior case). In 2010, the petitioner brought the pending suit, third prior case, in the trial court. The trial court severed the counterclaim and rendered judgment denying the petitioner’s claim for declaratory relief. The petitioner appealed this judgment, the third prior case judgment. The appellate court affirmed. The Texas Supreme Court found that for any rational and workable judicial system, at some point litigation must come to an end, so that parties could go on with their lives and the system could move on to other disputes. Thus, the court have recognized the fundamental rule that it was the purpose of the law to put an end to litigation and expedite the administration of justice. Further, the foundational principle of res judicata, by allowing the petitioner to reopen a final judgment that would otherwise operate as claim preclusion. The court declined to allow the result. Such a result was not compelled by the precedent, and goes against the trend in the State and elsewhere of limiting the vulnerability of final judgments to attack on grounds that the trial court lacked subject-matter jurisdiction. Furthermore, the court found deciding the retroactive effect of one of own decisions, on a prior final judgment rendered by a Texas court, was a matter properly left to the judicial branch under Constitution. Finally, the court held that a doctrine of constitutional dimension and one based on the need to allow governments to perform their necessary functions. But the doctrine had always submitted to exceptions and waivers. Accordingly, the court affirmed the judgment of the appellate court.


Respondent fiduciary and law firm’s owner agreed to cover up the theft and try to replace the money, and victim was entitled to equitable remedies for unjust enrichment, but aiding and abetting, joint venture and civil conspiracy claims were not shown
First United Pentecostal Church of Beaumont v. Parker
Appellate: Civil, Contracts, Damages, Ethics, Procedure, Professional Responsibility, Torts
The Supreme Court of Texas
March 17, 2017
15-0708
Phil Johnson
Published
     The instant case involved the loss of over a million dollars that a church entrusted for safekeeping to the law firm. The firm deposited the money into its trust account. Less than two weeks later, $750,000 was transferred from the trust account to a new account opened and only accessible by the firm’s owner. That transfer was just the beginning, and in shortly over a year the church’s money was gone. When the respondent, one of the firm attorneys representing the church, told the church that its money had been spent, the church sued the firm, owner, and the respondent. The trial court granted summary judgment to the respondent. The Texas Supreme Court found that the appellate court erred by determining that summary judgment for the respondent was proper on the church’s claim that it was entitled to equitable relief because the respondent breached his fiduciary duty to the church. Further, in the response to the PSI report, the owner explained that when the firm received the church’s money he immediately transferred most of the money to a special account to which the respondent did not have access. Thus, the owner statements were not evidence that the respondent was party to an agreement to steal the church’s money or had a specific intent to do so. Nor was there other evidence in the record to support an inference that the respondent was part of a plan or scheme to steal the church’s money. Furthermore, the evidence that the respondent conspired with owner to cover up the fact that the money was missing and attempt to replace it was evidence that the respondent tried to mitigate the church’s loss, not that he conspired to cause it. Finally, the damage to the church had already been done when the respondent and owner agreed to cover up the theft and try to replace the money. The court affirmed the appellate court’s judgment regarding the civil conspiracy claim and aiding and abetting, and joint venture. The court reversed and remand to the trial court the church’s claim that it was entitled to equitable remedies as to the respondent for breach of fiduciary duties he owed to the church.


Reasonable person could construe petitioner’s article to accuse respondent of welfare fraud and respondent presented sufficient evidence of defamation to survive early dismissal, but petitioner entitled to be heard on attorneys’ fees for the dismissed claims
D Magazine Partners, L.P. v. Rosenthal
Appellate: Civil, Constitution, Damages, Procedure, Torts
The Supreme Court of Texas
March 17, 2017
15-0790
Debra Lehrmann
Published
     The respondent—a private citizen who was the subject of a magazine article about her receipt of food stamps—sued the petitioner, asserting defamation and other claims stemming from allegations that the article falsely accused her of committing welfare fraud. When the petitioner moved to dismiss the suit under the Texas Citizens Participation Act (TCPA), the trial court denied the motion as to the defamation claim, granted it as to the other claims asserted, and denied the petitioner’s request for attorney’s fees. The appellate court affirmed. The Texas Supreme Court agreed with the petitioner that the appellate court’s reliance on Wikipedia led to an unduly narrow interpretation of the article’s title that, in turn, impacted the court’s analysis of the respondent’s defamation claim. Further, the court held that a reasonable person could construe the article as a whole to accuse the respondent of fraudulently obtaining public benefits and that the respondent presented sufficient evidence in support of the defamation elements to survive the petitioner’s motion for early dismissal. Finally, on the ancillary issue of attorney’s fees, the court disagreed with the appellate court’s conclusion that it lacked jurisdiction to consider the petitioner’s appeal of the trial court’s denial of its request for attorney’s fees in connection with the partially granted motion to dismiss, and the trial court erred in awarding no fees. Accordingly, the court affirmed the appellate court’s judgment in part, reversed it in part, and remanded.


The evidence was sufficient to sustain the appellant's conviction for stealing the ATV, but the trial court reversibly erred in admitting an unauthenticated video from retail store without foundation into evidence, which linked appellant to the stolen ATV
Fowler v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
March 17, 2017
06-16-00038-CR
Bailey C. Moseley
Published
     The appellant was convicted of theft of a Kawasaki mule all terrain vehicle (ATV) valued at $1,500.00 or more, but less than $20,000.00. The appellate court found that there was no evidence that the surveillance system was working properly on the date in question, that its on-screen clock was correctly set and functioning properly, or that the original accurately portrayed the events that purportedly occurred at the time and on the date shown in the video recording. Without such proof, there was no showing that the store’s video recording was made on the same day as the receipt or that it accurately portrayed what the State alleged that it portrayed. Because the Family Dollar’s original surveillance recording was not properly authenticated, the trial court abused its discretion in admitting the video recording into evidence. Absent such proof, there was no showing that the store’s video recording was made on the same day as the receipt or that it accurately portrayed what the State alleged that it portrayed. In the instant case, the error undoubtedly affected the appellant ’s substantial rights and was, therefore, harmful. The Family Dollar video recording was the evidence linking the appellant to the stolen ATV. Further, the court found that the Family Dollar video depicted a person making the transaction that was linked to the ATV whom the jury could have easily determined was the appellant. That evidence was legally sufficient to support the appellant’s conviction. Accordingly, the court reversed the trial court’s judgment and remanded the case for a new trial.


Issues of title and wrongful foreclosure were not before the county court in the forcible detainer action, where appellants possessing the property did not move for summary judgment and trial court was without jurisdiction to review those counterclaims
Tehuti v. The Bank of New York Mellon Trust Co.
Appellate: Civil, Procedure, Real Property, Torts
Texas 6th Court of Appeals
March 17, 2017
06-16-00047-CV
Ralph Burgess
Published
     The appellees foreclosed on the property after the appellant individual defaulted under the terms of a security agreement. The appellees, which purchased the property at the foreclosure sale, sent a notice to vacate to the appellants. Because the appellants failed to timely vacate the premises, the appellees filed a suit to evict him. The justice court rendered judgment for the appellees, and a trial de novo following the appellant’s appeal of the justice court’s decision to the county court at law yielded the same result. The appellate court found that because the issues of title and wrongful foreclosure were not before the county court at law in the forcible detainer action, the court could not address the appellant’s arguments challenging the order allowing foreclosure. Further, the record demonstrated that the appellants did not move for summary judgment and that the trial court correctly determined that it was without jurisdiction to review those counterclaims. In a forcible detainer action, claims including questions of title, validity of a foreclosure, counterclaims, and suits against third parties were not permitted. Instead, except for claims for damages incurred during the pendency of the appeal in county court, counterclaims must be brought in separate suits. Thus, because the counterclaims were not properly before the county court at law in the forcible detainer action, the court could not address them. Accordingly, the court affirmed the trial court’s judgment.


The trial court erred in determining that appellant lacked standing to assert her breach of contract claims, and did not err in granting appellees’ no-evidence motion for summary judgment on the negligent misrepresentation claim
Guerrero-Mcdonald v. Nassour
Appellate: Civil, Contracts, Corporations, Damages, Procedure, Torts
Texas 11th Court of Appeals
March 16, 2017
11-14-00085-CV
John M. Bailey
Published
     The instant appeal concerned the standing of a limited partner to sue both the general partner and another limited partner after a failed real estate project. It also involved an application of the economic loss doctrine to preclude a recovery for negligent misrepresentation. The appellate court found that the appellant alleged in paragraph 18(f) that the appellees breached the partnership agreement by failing to pay her under the consulting agreement or loan her the money under the note she executed. Under In re Fisher, 433 S.W.3d 523, 527 (Tex. 2014), those claims were unique to the appellant because she was the only limited partner that had a consulting agreement or loan agreement with the partnership. Therefore, the trial court erred in determining that the appellant lacked standing to assert her breach of contract claims set out in paragraph 18(f) of her fourth amended petition. Therefore the court overruled the appellant’s second issue to the extent that it challenged the trial court’s determination that she lacked standing to assert the breach of contract claims alleged in paragraphs 18(a), (b), (c), (d), (e), (g), and (h) of her fourth amended petition, sustained with respect to her breach of contract claims that were set out in paragraph 18(f) of her fourth amended petition. Further, the appellant asserted in paragraph 19(b) that the appellees breached a fiduciary duty owed to her by failing to either make or obtain additional capital contributions. The court have determined that the appellant lacked standing to assert the claim because it related to her lost investment in the project. That was a claim that did not diminish the value of her interest in the limited partnership exclusively because the other limited partners lost their investment in the project as well. Therefore, the court overruled the appellant ’s first issue to the extent that it challenged the trial court’s determination that she lacked standing to assert the breach of fiduciary duty claim alleged in paragraph 19(b), sustained with respect to her breach of fiduciary duty claim set out in paragraph 19(a) of her fourth amended petition. And, in the absence of a sufficient response under TEX. R. CIV. P. 166a(i), the trial court was not required to search the summary judgment evidence to find a fact issue to defeat a no-evidence motion for summary judgment. The trial court did not err in granting the appellees’ no-evidence motion for summary judgment on the appellant’s negligent misrepresentation claim. Furthermore, the court concluded that the trial court did not abuse its direction in deeming the request for admission to be admitted because of the appellant’s evasive and incomplete answer. Moreover, the deemed request for admission addressed the appellant’s damages, a matter that the jury did not reach. Lastly, while the alleged breaches of contract and breaches of fiduciary duty likely involve many of the same facts that were litigated in the fraud action, they were different theories of liability with their own distinct elements. A reversal on only one those theories did not require a reversal and remand of the fraud judgment. Accordingly, the judgment was affirmed in part and reversed in part.


Summary judgment evidence did not show the nunc pro tunc divorce decree corrected a clerical error, and appellee did not prove the nunc pro tunc divorce decree was precluded from a collateral attack by the appellant or that the nunc pro tunc decree was valid
Molina v. Molina
Appellate: Civil, Contracts, Courts, Family, Procedure
Texas 4th Court of Appeals
March 22, 2017
04-15-00754-CV
Marialyn Price Barnard
Published
     The appellant challenged the trial court’s summary judgment dismissing his declaratory judgment action against the appellee and affirming a previously rendered nunc pro tunc divorce decree. The appellate court found that by failing to establish an oral rendition of judgment as a matter of law, the summary judgment evidence also did not establish that the nunc pro tunc divorce decree corrected a clerical error as a matter of law. As a result, the appellee did not conclusively prove the nunc pro tunc divorce decree was precluded from a collateral attack or that the nunc pro tunc decree was valid. Thus, the court held that the trial court erred in granting summary judgment in favor of the appellee. Accordingly, the court reversed the trial court’s order granting summary judgment in favor of the appellee and remanded the cause for further proceedings.


Doctor’s opinion that appellant suffered from sadism, pedophilia and anti-social personality disorder constituted probative evidence whether appellant suffered from a behavioral abnormality, would reoffend, and should be committed under the Sexually Violent Predator Act
In re Commitment of Mares
Appellate: Civil, Civil Rights, Criminal, Evidence, Gov't/Administrative, Health Care
Texas 4th Court of Appeals
March 22, 2017
04-16-00328-CV
Rebeca C. Martinez
Published
     The appellant appealed the trial court’s judgment finding him to be a “sexually violent predator” and ordering him to be civilly committed pursuant to Texas Health and Safety Code section 841.081. The appellant also asserted there was insufficient evidence to support the jury’s finding that he suffered from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The Appellate court found that the trial court did not abuse its discretion in permitting the Doctor to testify about the factual details of the appellant’s past sexual assaults contained in the records he reviewed in relation to the second prong of The Sexually Violent Predator Act (“SVP Act”) evaluation. Further, the doctor’s opinion that the appellant suffered from unspecified paraphilia (sexual deviance) with features of sadism, pedophilia and anti-social personality disorder constituted probative evidence on the issue of whether the appellant suffered from a behavioral abnormality as defined in the SVP Act. Furthermore, it was the jury’s role as factfinder to evaluate the experts’ credibility and weigh their conflicting opinions about whether the appellant had a behavioral abnormality that predisposed him to sexually reoffend; the evidence was legally sufficient to support the jury’s verdict based on the appellant’s opinion. Moreover, the doctor’s testimony and opinion were not so weak that it was unreasonable for the jury to consider it in reaching its verdict; therefore, the evidence was factually sufficient to support the jury’s verdict. Finally, the appellant had already testified on those matters and denied any sexual misconduct during those time frames and reading the response to the requests for admission would have been merely cumulative; therefore, any error was harmless. Accordingly, the court overruled all of the appellant’s issues on appeal and affirmed the trial court’s judgment.


Following a bench trial, trial court violated appellant’s constitutional rights by convicting and sentencing him "by the clearer greater weight and degree of credible testimony,” and without finding him guilty beyond a reasonable doubt of the charged offense
Freeman v. State
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
March 22, 2017
03-16-00130-CR
Scott K. Field
Published
     Appellant was charged by indictment with assault on a family member by impeding the normal breathing or circulation of the blood, a third-degree felony. Following a bench trial, the trial court signed a judgment convicting the appellant and sentencing him to 15 years’ imprisonment. The appellate court found that the United States Supreme Court has held that “a constitutionally deficient reasonable-doubt jury instruction” was structural error. The court concluded that a similar structural error occurred when a trial judge failed to find a defendant guilty beyond a reasonable doubt in a bench trial. Requiring a harmless-error analysis under those circumstances would result in a situation in which, as a Justice wrote for the Court in Sullivan v. Louisiana, 508 U.S. 275, 278 (1993), a “reviewing court can only engage in pure speculation—its view of what a reasonable jury would have done. And when it did that, the wrong entity judges the defendant guilty.” By applying the incorrect standard, the trial court denied the appellant his right to a conviction based on proof beyond a reasonable doubt. Accordingly, the court reversed the appellant’s conviction without performing a harm analysis and remanded to the trial court.


Court of appeals had exclusive plenary jurisdiction over appeal of the Board of Professional Engineer’s Amended Final Order suspending appellant for violations for improper use of an engineering seal, and Board lacked jurisdiction to modify its order and, as a result, its amended order was void
Dass P.E. v. Texas Board of Professional Engineers
Appellate: Civil, Gov't/Administrative, Procedure, Professional Responsibility
Texas 3rd Court of Appeals
March 15, 2017
03-14-00552-CV
Jeff Rose
Published
     The appellant appealed from the trial court’s summary judgment affirming the Texas Board of Professional Engineers’s Amended Final order suspending the appellant’s license for violations of the Texas Engineering Practice Act, for two years for violations of the Board's rules governing use of an engineering seal. The appellant filed suit for judicial review of the Board’s original order in Travis County District Court. After dismissal of his appeal from Board’s original order, the appellant filed a separate suit for judicial review of the Board’s amended order, the case at issue in the instant appeal. The appellate court found that the record conclusively established that the Board issued its amended order while the appellant’s appeal from the trial court was pending before the instant Court and, thus, while the instant Court had exclusive plenary jurisdiction over the matter and the Board, at that time, lacked jurisdiction to modify its order and, as a result, its amended order was void. Moreover, not only may an issue of subject-matter jurisdiction be raised for the first time on appeal by the parties or by the court, a court was obliged to ascertain that subject-matter jurisdiction existed regardless of whether the parties have questioned it. Furthermore, having held that the Board’s amended order was void because the Board lacked jurisdiction to modify its original order while that order was on appeal, and thus, that the trial court and the instant Court lacked jurisdiction to review the merits of the amended order, the court vacated both the Board’s order and the trial court’s summary judgment and dismissed the case. 


The evidence was legally sufficient to support the jury’s conclusion that the appellant individual, not the individual, was negligent
Oney v. Crist
Appellate: Civil, Damages, Litigation: Personal Injury, Torts
Texas 12th Court of Appeals
March 15, 2017
12-16-00045-CV
Neeley
Published
     The appellees sued both the appellants, the individual and the company for injuries sustained as a result of the accident. The jury found that the appellees were each entitled to $300,000 in exemplary damages. The appellate court found that the evidence was legally sufficient to support the jury’s conclusion that the appellant individual, not the individual, was negligent. The jury’s finding was not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Further, viewing the evidence in the light most favorable to the verdict, the court concluded that reasonable and fair-minded people could not reach the conclusion that the appellant company negligently entrusted the spooling truck to the appellant individual on the day of the collision. Furthermore, because the court had already concluded that the appellant company's sole basis for liability was vicarious, the court need not determine whether the trial court abused its discretion by excluding the appellant company from the proportionate responsibility question in the jury charge. Lastly, viewing the evidence in the light most favorable to the verdict, the court concluded that the evidence was legally sufficient to support the jury’s awards of future medical damages. The awards were not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Accordingly, the judgment was affirmed in part and reversed and rendered in part.


Evidence established appellant was convicted of committing burglary with intent to commit sexual assault, was a “repeat sexually violent offender” as defined by chapter 841, and right to jury trial did not preclude trial court from granting a directed verdict on his undisputed offender status
In re Commitment of Black
Appellate: Civil, Civil Rights, Criminal, Evidence, Gov't/Administrative, Health Care, Procedure
Texas 4th Court of Appeals
March 15, 2017
04-16-00423-CV
Luz Elena D Chapa
Published
     The appellant appealed from a judgment civilly committing him as a sexually violent predator. He argues the trial court erred by granting the State a partial directed verdict finding he “is a repeat sexually violent offender” under section 841.003 of the Texas Health & Safety Code. The appellate court found that the plain language of chapter 841 provided a person was a “repeat sexually violent offender” if the person “is convicted of more than one sexually violent offense.” Even if there was evidence at the appellant’s civil commitment proceeding showing he did not actually intend to commit a sexual assault when he committed burglary, it was undisputed that he was convicted of committing burglary with the intent to commit sexual assault. The defendant in a civil commitment proceeding under chapter 841 “cannot collaterally attack the criminal conviction in the commitment proceeding.” The court held the appellant’s testimony was not probative evidence of the material fact of whether he was “convicted” of burglary with the intent to commit sexual assault. Further, the court found that a directed verdict did not violate the right to a trial by jury because it was a procedure that depended on a trial court’s conclusion that there were no issues of fact to be determined. The court therefore held chapter 841 did not preclude the trial court from granting a directed verdict on the undisputed issue of whether he was a “repeat sexually violent offender.” Accordingly, the court affirmed the trial court’s judgment.


While circumstantial evidence showing a cut fence, bolt cutters, a stolen ATV and ATV tracks, and defendant’s cell phone found during second burglary may lead to a strong suspicion appellee was guilty of first burglary, no rational jury could find the facts proved guilt beyond a reasonable doubt
State v. Fowler
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
March 14, 2017
06-16-00032-CR
Ralph K. Burgess
Published
     After the appellee was found guilty of burglary of a building by a Hunt County jury, the trial court granted the appellee’s motion for new trial, then entered a judgment of acquittal. The appellee's appeal of the theft conviction in the ATV case was still pending in the instant Court. The Appellate court found that the testimony merely established that an appellee was connected to the cell phone number, not the appellee. Yet, even if the evidence were sufficient to establish that the cell phone belonged to the appellee, there was no evidence establishing that the phone was related to the first burglary, for which he was tried. Further, only if one assumed that the appellee owned the cell phone found after the second burglary and then assumed that such fact demonstrated that he committed the first burglary as well, do the ATV tracks establish that the individual's ATV made those tracks, and not some other ATV. Furthermore, while that evidence may lead to a strong suspicion that the appellee was guilty of the December 14, 2014, burglary of the individual's property, no rational jury could find that those facts proved the appellee’s guilt beyond a reasonable doubt. Consequently, the trial court did not abuse its discretion in granting the new trial. Because jeopardy had attached, an acquittal was the only possible result. Accordingly, the court affirmed the trial court’s judgment of acquittal.


Inclusion of voluntary intoxication was not a defense instruction at the punishment phase was a correct statement of law, appellant was not entitled to a lesser included offense to robbery instruction, and prosecutor’s comments on appellant’s demeanor during capital murder trial were harmless
Smith v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
March 09, 2017
14-15-00502-CR
Kem Thompson Frost
Published
     The appellant challenged his conviction and punishment for aggravated robbery with a deadly weapon. The jury assessed punishment at confinement for life. The appellate court found that an instruction was meant for the guilt/innocence phase of trial rather than the punishment phase did not mean it was error per se to include it in the punishment-phase charge. When the challenged instruction could not mislead the jury, its inclusion was not cognizable error. Further, the record revealed that the appellant did not know the complainant and there was no evidence of any motive to assault the complainant other than to take the complainant’s property. The evidence presented to the jury was subject to only one interpretation the appellant sought to rob the complainant. Thus, the trial court did not err in failing to charge the jury on the lesser-included offense of aggravated assault. Next, the prosecutor’s commentary about the appellant’s lack of remorse was brief and was not stressed during the closing argument. Finally, it was beyond a reasonable doubt that the presumed error did not contribute to the appellant’s conviction or punishment. Accordingly, the court affirmed the trial court’s judgment.


Court reporter’s failure to record requested hearing directly impeded relator’s ability to establish preservation of error on direct appeal, relator lacked an adequate remedy, and mandamus was conditionally granted directing trial court to prepare transcripts for all requested proceedings
In re Larkin
Appellate: Civil, Courts, Gov't/Administrative, Procedure, Real Property
Texas 1st Court of Appeals
January 26, 2017
01-17-00055-CV
Laura Carter Higley
Published
     The instant original proceeding for writ of mandamus arose from a suit concerning encroachment of a neighboring condominium owner. The suit was filed by relator, against real parties in interest. The relator also filed an emergency motion for temporary relief, asking that the court stay all proceedings pending resolution of the mandamus. The appellate court found that the relator specifically requested that the trial court reporter record all pretrial and trial proceedings. Once the request was made, the trial court had no discretion to deny it. Further, the court held the trial court abused its discretion by denying the relator’s request that the pretrial and trial proceedings be properly recorded. Because failure to record a requested hearing could directly impede a party’s ability to establish preservation of error on direct appeal, the court held that the relator lacked an adequate remedy by appeal for the error. Further, the court conditionally granted the mandamus petition and directed the trial court to have a transcript prepared for all requested proceedings and the court writ would issue only if the trial court did not comply with the instant opinion. Accordingly, the court conditionally granted the petition.


The first appellee well operator did not owe appellant contractor a duty to make the rig handrail safe or warn him of the condition, thus, the trial court did not err in granting summary judgment as to the appellee
Lopez v. Ensign U.S. Southern Drilling, LLC
Appellate: Civil, Contracts, Damages, Litigation: Personal Injury, Oil, Gas, & Mineral, Real Property, Torts
Texas 14th Court of Appeals
March 21, 2017
14-15-00872-CV
Kevin Jewell
Published
     The appellant sought damages from the first appellee company doing business as the Company, and the second appellee company for personal injuries sustained when he fell down a stairway on a drilling rig. Both the appellees filed motions for summary judgment, which the trial court granted. The appellate court found that the first appellee did not owe the appellant a duty to make the handrail safe or warn him of the condition. Thus, the trial court did not err in granting summary judgment as to the appellee. Further, construing the evidence in favor of the appellant, the court concluded that the necessary-use exception did not apply and the second appellee had no duty to warn the appellant of the open and obvious condition of the stairway of which he was aware. Lastly, as the trial court could have found the second appellee did not owe a duty to the appellant under a premises liability theory, the court did not address the remaining grounds asserted by the second appellee in its motion and held the trial court did not err in granting the appellee's motion for summary judgment. Accordingly, the court affirmed the trial court’s judgments.


It was just to require appellant to pay appellee the full amount of appellate attorney’s fees requested in appellee’s brief and supported by her attorney’s affidavit, where appellant’s only discernible purpose to bring second appeal ten years after judgment was to cause vexatious litigation
Glassman v. Goodfriend
Appellate: Civil, Courts, Damages, Procedure, Torts
Texas 14th Court of Appeals
March 21, 2017
14-16-00327-CV
Tracy Christopher
Published
     The instant was the appellant’s second untimely attempt to appeal the judgment rendered against her for breach of fiduciary duty. Five years after the trial court rendered the final judgment at issue, the appellant collaterally attacked the judgment on the ground that the trial court lacked jurisdiction to render it, and thus, the judgment was void. In an en banc decision, the appellate court held that the record established that the trial court did have jurisdiction, and sanctioned her for bringing a frivolous appeal. The court denied her motion for rehearing, and the Texas Supreme Court denied both her petition for review and her motion for rehearing of her petition for review. Another five years has passed, and the appellant again came before the court, arguing that the earlier decision was wrong. Appellee asked to sanction the appellant for bringing a frivolous appeal and to reverse the trial court’s denial of the appellee’s motion to declare the appellant a vexatious litigant. The appellate court found that the appellant’s bad faith could not be seriously disputed. As a result of Glassman I, she knew when she filed the instant appeal that (a) the time for a direct appeal of the 2006 judgment had expired; (b) a collateral attack could not succeed because the face of the record did not reveal a jurisdictional defect; and (c) the Texas Supreme Court declined to review the court's decision in Glassman I, and thus, the decision in Glassman I was no longer subject to reversal. Because there accordingly was no possibility that Glassman II would be decided differently than Glassman I, the appellant’s only discernible purpose in bringing the instant appeal has been to cause the appellee to needlessly incur additional attorney’s fees. Considering the totality of the circumstances, the court concluded that it was just to require the appellant to pay the appellee the full amount of appellate attorney’s fees requested in the appellee’s brief and supported by her attorney’s affidavit. Accordingly, the court affirmed the trial court’s judgment and granted the request for sanctions.


Record reflected that appellant’s newspaper article about appellee doctor was substantially true, and appellee failed in establishing his prima facie case of defamation, and the Texas Citizen Participation Act required that his action be dismissed
Cox Media Group, LLC v. Joselevitz
Appellate: Civil, Civil Rights, Constitution, Damages, Entertainment, Torts
Texas 14th Court of Appeals
March 21, 2017
14-16-00333-CV
Kevin Jewell
Published
     After a newspaper published an article in which he was featured, the appellee doctor sued the appellant corporation, the newspaper’s ultimate parent company, for defamation. The appellant filed a motion to dismiss under the Texas Citizens Participation Act (TCPA), and the trial court timely conducted a hearing on the motion. The trial court failed to rule on the motion, resulting in its denial by operation of law. The appellant filed the instant interlocutory appeal challenging the denial of the motion to dismiss and asserting a claim for attorney’s fees and other costs and expenses. The appellate court found that the article communicated matters of public concern. Because the appellee’s suit was based on, related to, or was in response to the appellant’s exercise of free speech rights, the TCPA applied. Further, the court concluded that the record reflected that the American-Statesman article was substantially true. Therefore, the appellee failed in establishing his prima facie case and the TCPA required that his action be dismissed. Further, the court remanded to the trial court to award the amount of reasonable attorney’s fees, costs, or expenses that justice and equity may require, and impose sanctions, if any, sufficient to deter future similar conduct. Furthermore, the appellant established that the TCPA applied to the appellee’s defamation claim and the appellee did not establish by clear and specific evidence that the Austin American-Statesman article was not substantially true. Thus, he failed to carry his burden under the TCPA to establish a prima facie case for each essential element of his claim, and the trial court should have granted the appellant’s motion to dismiss. Finally, the court therefore reversed the trial court’s denial of the appellant’s motion to dismiss and remand for proceedings.


Jury apportioned 70 percent responsibility to the plaintiff for the assault by the casino security officers, and Civil Practices and Remedies Code Chapter 33 applied to appellant’s tort claim of assault, precluding recovery for damages because his comparative responsibility exceeded 50 percent
Arceneaux v. Pinnacle Entertainment, Inc.
Appellate: Civil, Damages, Procedure, Torts
Texas 14th Court of Appeals
February 23, 2017
14-15-00894-CV
Marc W. Brown
Published
     The jury found that the appellee corporation committed an assault against the appellant; The appellant contributed to the occurrence or injuries; the appellant was 70 percent responsible and the appellee corporation was 30 percent responsible; and that a total of $40,000 would fairly and reasonably compensate the appellant for his injuries. The appellate court found that the jury was asked a separate question regarding whether the appellant’s actions or omissions caused or contributed to causing the alleged occurrence or injuries, and it answered Yes and the instant finding was the basis upon which the jury assigned a percentage of responsibility to the appellant. Further, the court concluded that chapter 33 applied to the appellant’s tort claim of assault, and because the jury found that his comparative responsibility exceeded 50 percent, he may not recover damages on his claim. Finally, the trial court did not err by rendering its final take-nothing judgment in favor of the appellee. Accordingly, the judgment was affirmed.


Father offered no evidence of an emergency to protect the child because the Mother had subjected or threatened child with mistreatment or abuse, and Mother moving child from India to Texas without Father's knowledge was not sufficient for trial court to exercise emergency jurisdiction
In re S. J.
Appellate: Civil, Family, International, Juvenile, Procedure, Torts
Texas 14th Court of Appeals
February 23, 2017
14-17-00054-CV
John Donovan
Published
     The subject of the instant mandamus proceeding was an Emergency Jurisdiction Order pertaining to the six year-old child of the relator and real party-in-interest (the RPI). The presiding judge of the trial court, after an evidentiary hearing, signed an Emergency Jurisdiction Order that, among other things, orders the relator to return the child to Chennai, India by January 23, 2017 and enjoins the parties from removing the child from Chennai, India subject to further orders of the Principal Family Court of Chennai, India. The Emergency Jurisdiction Order states that the court had jurisdiction under section 152.204 of the Texas Family Code because the child was present in Texas and it was necessary in an emergency to protect the child because the child was subjected to or threatened with mistreatment or abuse. The relator filed a petition for writ of mandamus asking the instant court to compel the trial court to vacate its Emergency Jurisdiction Order. The appellate court found that because the RPI offered no evidence of an emergency in which it was necessary to protect the child because the relator had subjected the child to or threatened the child with mistreatment or abuse, and the trial court had no jurisdiction under section 152.204 and that the Emergency Jurisdiction Order was therefore void. That the relator moved with the child from India to Texas without the RPI’s knowledge or consent was not sufficient, by itself, to warrant the exercise of emergency jurisdiction under section 152.204(a). Accordingly, the court conditionally grant the petition for writ of mandamus and direct the trial court to vacate its Emergency Jurisdiction Order.


Turnover order required plaintiff to turn over membership interest in appellee company but did not mandate plaintiff receive a dollar credit equal to his judgment for his interest, and without evidence such non-exempt assets exist; charging order was not exclusive remedy for appellee company
Gillet v. Zupt, LLC
ADR, Appellate: Civil, Contracts, Corporations, Creditor/Debtor, Damages, Procedure
Texas 14th Court of Appeals
February 23, 2017
14-15-01033-CV
William J. Boyce
Published
     The appellant sued the appellee company of which the appellant was a part-owner seeking to force a buyout of his interest in the appellee. In a counterclaim, the appellee contended that the appellant disclosed the appellee's trade secrets to a competitor that employed the appellant. An arbitrator awarded each party damages but declined to offset the damages in the award. The trial court confirmed the award, and the appellee sought a turnover order and appointment of a receiver to collect the judgment. The appellate court found that because there was evidence that the appellant had non-exempt property subject to turnover in the form of his award in the final judgment and his ownership interest in the appellee, the court concluded that the trial court did not abuse its discretion by ordering turnover of those property rights. Further, a charging order was not the exclusive remedy available to the appellee, and the trial court did not abuse its discretion by ordering turnover of the appellant's 45 percent interest in the appellee. Furthermore, because the turnover order as currently written did not explicitly require that the appellant receive a dollar credit equal to his judgment against the appellee in exchange for his membership interest, the court concluded that the turnover order was inconsistent with the final judgment. Accordingly, the court reversed the trial court’s turnover order and remanded to the trial court for proceedings.


There was no paragraph in self-defense portion of jury charge to indicate self-defense also applied to lesser-included-offense of aggravated assault, and because self-defense was contested on conflicting evidence, and appellant was acquitted of murder, failure to charge was egregious error
Mendez v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
February 23, 2017
01-15-00187-CR
Sherry Radack
Published
     A jury acquitted the appellant of murder, but found him guilty of the lesser-included offense of aggravated assault and assessed his punishment at 7 years’ confinement. The appellate court found that based on all of the evidence presented at trial, viewed in the light most favorable to the verdict, the court held that a rational jury could have found the essential elements of aggravated assault beyond a reasonable doubt and also could have found against the appellant on the self-defense issue beyond a reasonable doubt by disbelieving his evidence. Further, while self-defense was not the only defensive issue in the case, it was a vital defensive issue. Finally, the evidence on that vital defensive issue was hotly contested. Thus, after considering the factors set forth in Almanza, the court held that the charge error caused the appellant egregious harm, by vitally affecting his defensive theory. Accordingly, the court reversed the trial court’s judgment and remanded for further proceedings.


Dept of Public Safety was not served with licensee’s petition until same day trial court set the hearing, it was was never given notice of hearing date, and district attorney was not the proper party for notice; thus, trial court abused its discretion by denying Department's motion for new trial
Texas Department of Public Safety v. Smith
Appellate: Civil, Civil Rights, Gov't/Administrative, Procedure, Transportation
Texas 13th Court of Appeals
February 23, 2017
13-16-00082-CV
Dori Contreras Garza
Published
     The appellant department, challenged the county court’s reversal of an administrative decision to uphold the 180-day suspension of the appellee’s driver’s license. The appellate court found that because the appellant did not appear at the hearing, it had waived any complaint it may have that the county court failed to base its decision on the official administrative record. Thus, the county court had subject-matter jurisdiction over the appellee’s appeal. Further, the record reflected that the appellant was not served with the appellee’s petition until October 22, which was the same day the trial court set the hearing. Moreover, though the appellant timely filed an answer to the appellee’s petition, it was undisputed that it was never notified of the hearing. And, as noted, the court made clear to the assistant district attorney at the hearing that he was not representing the appellant at that time. The trial court abused its discretion by denying the appellant’s motion for new trial because it was not provided with notice of the final hearing. Accordingly, the judgment was reversed and remanded.


Juvenile defendant’s guilty plea to the theft charge did not preclude expunction of records related to the aggravated assault charge for which she was acquitted, where the admitted-to offense did not arise from the same criminal episode as the acquitted-to offense
State v. T. S. N.
Criminal, Juvenile, Procedure
Texas 5th Court of Appeals
February 22, 2017
05-15-01488-CV
David Schenck
Published
     The State appealed the trial court’s order granting the appellee’s petition for expunction of criminal records related to her arrest and subsequent acquittal for aggravated assault with a deadly weapon. The appellate court found that an admission of guilt to an offense that did not arise from the same criminal episode as an offense for which the accused was acquitted and for which the accused was charged prior to being arrested did not bar an expunction of records concerning the acquitted offense, viewing the language of the expunction statute, and considering the statute’s plain language linking an arrest to an offense. The construction of article 55.01(a)(1) of the Texas Code of Criminal Procedure to allow expunction under the facts of the instant case—in which it was apparent that the acquitted and pleaded to charges did not relate to a single instance of criminal conduct did not lead to absurd results, as the State warns; it avoids them. Accordingly, the court affirmed the trial court’s order of expunction.


Termination of appellant’s parental rights was in the child’s best interest, where appellant failed to appear at the termination hearing, she had continued to live with the individual with violent behavior and drug use, and the son had bonded with his foster mom who desired to adopt him
In re M.T.
Appellate: Civil, Family, Juvenile
Texas 4th Court of Appeals
February 22, 2017
04-16-00547-CV
Karen Angelini
Published
     The appellant appealed the trial court’s order terminating her parental rights to her son. The appellate court found the evidence at trial showed that the appellant had continued to maintain her relationship with the individual notwithstanding violent behavior, drug use, unstable living arrangements, and unemployment. Further, there was evidence that the son had lived with his foster mom since the beginning of the instant case and that he has bonded with her. His foster mom has also voiced a desire to adopt him. Finally, whether the court looked at all the evidence in the light most favorable to the trial court’s finding, or whether the court looked at all the evidence, including disputed or conflicting evidence, the trial court’s best interest finding was supported by sufficient evidence. Accordingly, the judgment was affirmed.


Trial court erred in impliedly finding appellant city had timely received either formal or actual notice of the appellee's claim that he suffered damages for personal injuries in the accident in the city automobile, and trial court’s order denying city’s plea to the jurisdiction was reversed
City of San Antonio v. Cervantes
Appellate: Civil, Employment, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 4th Court of Appeals
February 22, 2017
04-16-00569-CV
Luz Elena D Chapa
Published
     The appellant city appealed the trial court’s order denying its plea to the jurisdiction in a suit for personal injuries arising from an accident involving a City automobile. The appellate court found that it was evident from the record the trial court’s order was not rendered by consent. The court declined to unnecessarily elevate form over substance based on the inclusion or omission of magic words. The appellant did not consent to the order and did not waive its right to appeal it. Further, the appellant specifically denied that it had actual notice of the appellee's claims that he sustained damages for personal injuries in the accident in question. And two months before the plea to the jurisdiction was filed, the appellant served amended disclosures, stating its contention that immunity had not been waived because the appellee failed to give notice of his personal injury claim and the appellant did not have actual notice of his claim that he suffered damages for personal injuries in the accident. Furthermore, the trial court held a nonevidentiary hearing and considered the arguments and the evidence submitted in the appellant's plea to the jurisdiction and the appellee's response. By denying the plea, the trial court impliedly found the appellant had timely received either formal or actual notice of the appellee's claim. Lastly, the court concluded that the appellant did not receive formal notice or have actual notice of the appellee's claim, and the trial court erred by denying the appellant's plea to the jurisdiction. The court therefore reversed the trial court’s order denying the plea and rendered judgment dismissing the appellee's suit for lack of subject matter jurisdiction.


By agreeing to reduce its lien, hospital did not simultaneously write off the difference between the portion of the debt that was originally secured by the lien and the portion that remained secured after the reduction; the debt was simply undersecured, and collectable
Ahmed v. Sosa
Appellate: Civil, Creditor/Debtor, Health Care
Texas 2nd Court of Appeals
February 16, 2017
02-15-00368-CV
Bill Meier
Published
     The appellee was hospitalized for approximately six days in late 2011 after being struck by a taxicab that the appellant was driving. The jury ultimately found that both the appellant and the appellee were negligent, apportioned 55% of the negligence to the appellant and 45% to the appellee, and awarded the appellee damages in the total amount of $93,169.01, which included $61,169.01 for past medical expenses. The appellate court found that by agreeing to reduce its lien, the hospital did not simultaneously write off the difference between the portion of the debt that was originally secured by the lien and the portion that remained secured after the reduction; the $61,169.01 debt was simply undersecured. Further, sustaining the appellant’s requested relief would require us to engage in a procedure that the supreme court had already rejected as constitutionally unsound. Finally, the trial court did not err by denying the appellant’s requests to reduce the appellee’s damages for past medical expenses. Accordingly, the court overruled his only issue and affirmed the trial court’s judgment.


Civil Practice and Remedies Code 74.153, which provided a willful and wanton standard for liability, did not apply to the emergency medical care the mother and child received in an obstetrical unit, since patient was not in an emergency department immediately prior to receiving emergency care
D.A. v. Texas Health Presbyterian Hospital of Denton
Appellate: Civil, Health Care, Procedure, Torts
Texas 2nd Court of Appeals
February 16, 2017
02-16-00148-CV
Bonnie Sudderth
Published
     The appellants’ child, suffered a brachial plexus injury during labor and delivery when the infant’s shoulder became lodged against the appellant’s pubic symphysis bone, resulting in a condition known as shoulder dystocia. Both sides agreed that the appellants' child’s shoulder dystocia presented an emergent situation that placed both the appellant and the appellants' child at risk for injury or death if the infant could not be quickly extricated from that position. Challenging the ordinary negligence claims filed against them in the medical malpractice lawsuit that ensued, the appellees sought summary judgment. The appellants brought the instant interlocutory appeal challenging the trial court’s grant of summary judgment in favor of the appellees. The appellate court held that civil practice and remedies code section 74.153, which provided a willful and wanton standard for liability, did not apply to emergency medical care provided in an obstetrical unit when the patient was not evaluated or treated in a hospital emergency department immediately prior to receiving the emergency medical care. Accordingly, the court reverse the trial court’s summary judgment and remanded.


Trial court’s judgment was sufficiently supported by jury’s findings that Asset Purchase Agreement existed, that appellant and individual appellant breached the contract, and that second appellee suffered $1,004,000 in contract damages, without a need for any ratification finding
Duradril, L.L.C. v. Dynomax Drilling Tools, Inc.
Appellate: Civil, Contracts, Corporations, Damages, Torts
Texas 14th Court of Appeals
February 16, 2017
14-14-00945-CV
Marc W. Brown
Published
     The appellant corporation and the first appellee corporation (First appellee) entered into a distribution agreement whereby the appellant would be the exclusive distributor in the United States of drilling motors and related parts manufactured by the first appellee. The individual appellant executed the distribution agreement for the appellant, and the individual appellee executed it for the first appellee. The trial court issued final judgment in favor of the second appellee corporation and ordered that second appellee recover damages from the appellant and the individual appellant jointly and severally. The appellate court found that according to testimony by the individual appellee and various documents, the first appellee was supposed to, and did, as of July 1, 2013, credit the appellant for $3.6 million of its outstanding debt for the appellant’s transferred assets and accounts receivable in the jointly identified respective amounts of just under $2.9 million and $701,000. Further, there was evidence that the first appellee incorporated DUSA in mid-June and that, as of July 1, 2013, the second appellee began transacting business involving transferred assets; collecting on transferred accounts receivable; and employing former appellant employees, including the individual appellant. Finally, the trial court’s judgment was sufficiently supported by the jury’s findings that the APA existed, that the appellant and the individual appellant breached the contract, and that second appellee suffered $1,004,000 in contract damages, without a need for any ratification finding. Accordingly, the judgment was affirmed.


Appellant did not establish egregious harm from trial court’s failure to read entire charge to jury, nor did he establish reasonable probability that, but for counsel’s failure to object or to suppress officer’s testimony of photos on appellant’s cellphone, the results would have been different
Straight v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
February 16, 2017
14-15-00801-CR
Martha Hill Jamison
Published
     The jury found the appellant guilty of evading arrest, with a prior evading arrest conviction. The jury sentenced the appellant to five years, six months of incarceration. The appellate court found that the jury did not receive a constitutionally deficient reasonable doubt instruction. Thus, the appellant was required to show that he was egregiously harmed by the trial court’s failure to read the entire charge to the jury. Further, the appellant had not established that he was egregiously harmed by the trial court’s failure to read the entire charge to the jury. Next, the appellant had not established that a motion to suppress filed under the circumstances would have been meritorious or an objection would have been granted. Also, the appellant had not shown that there was a disputed fact issue that would have entitled him to an Tex. Code Crim. Proc. art.article 38.23 instruction. Further, given the officers’ identification of the appellant based on these distinctive features, the appellant did not establish a reasonable probability that but for his counsel’s failure to object to or move to suppress the officer’s testimony regarding the photos on the appellant’s cellphone, the result of the proceeding would have been different. Finally, the court rejected the remaining issues. Accordingly, the judgment was affirmed.


There was no evidence that appellant had notice of a dangerous condition of the sign after it had been repaired, or that the sign had failed until after deceased’s accident and therefore it had no opportunity to remedy or warn of the sign blown onto the roadway
Texas Department of Transportation v. Jackson
Appellate: Civil, Damages, Gov't/Administrative, Torts, Transportation
Texas 8th Court of Appeals
February 15, 2017
08-15-00045-CV
Ann Crawford McClure
Published
     At just past midnight on a windy evening in El Paso, the deceased was riding his motorcycle on U.S. Highway 54. As he took an exit ramp, he struck the appellant department sign that had blown onto the roadway. Sadly, the deceased was killed. The jury found that the appellant was negligent and awarded substantial damages that the trial court reduced to $250,000 which was the statutory maximum that could be assessed against the appellant. The trial court overruled the appellant’s motion for directed verdict, and post-trial motion for judgment in its favor. The appellate court found that the appellees did not claim that the appellant violated any law or ordinance governing the emergency repair of signs, nor did they claim the appellant acted with conscious indifference. Further, the court agreed that the appellees presented some evidence that the appellant’s visual inspection method may have been flawed, but they presented no evidence of what a proper inspection would have shown. Because CMH Homes, Inc. v. Daenen, 15 S.W.3d 97 (Tex. 2000), required that showing, the court agreed that there was no evidence that the appellant had notice after March 30, 2009 of a dangerous condition of the sign. Also, the court agreed that the appellant had no notice that the sign had failed on April 9, 2009 until after the deceased’s accident and therefore it had no opportunity to remedy or warn of the situation. Accordingly, the court reversed and rendered judgment in favor of the appellant.


There was no abuse of discretion in trial court’s appointment of a receiver to preserve the status quo of contested estate assets pending final resolution of the will contests between appellant and appellee, where appellee had a probable right or interest that was in danger or being lost
In re Estate of Price
Appellate: Civil, Courts, Creditor/Debtor, Procedure, Real Property, Wills/Trusts/Probate
Texas 6th Court of Appeals
February 15, 2017
06-16-00062-CV
Ralph K. Burgess
Published
     The deceased, a renowned country music singer and songwriter, died on December 16, 2013. He was survived by his wife, the appellant, and his biological son, the appellee. the appellant and the appellee have filed competing motions to probate wills purportedly executed by the appellant, as well as competing will contests which were currently pending. In the instant interlocutory appeal, the appellant argued that the trial court erred in appointing a receiver to take possession of property subject to the will contests. The appellate court found that the trial court heard evidence that the appellant had disposed of, and believed she could dispose of, assets subject to the will contests and the appellee’s petition to set aside the December 9 documents. In light of the pleadings and evidence presented in the instant case, the court would not disturb the trial court’s finding that property the appellee had a probable right or interest in was in danger of being lost, removed, or materially injured. Accordingly, the court affirmed the trial court’s judgment.


Since statutory offenses of loitering for prostitution and prostitution do not have common element of being committed in a “public place”, under same-elements test, the offenses were different, and cumulative punishment would not violate appellant’s double-jeopardy rights
Ex parte Rodriguez
Constitution, Criminal, Employment, Procedure
Texas 4th Court of Appeals
February 15, 2017
04-16-00337-CR
Karen Angelini
Published
     In the underlying cause the appellant was charged by information with the offense of prostitution. She filed a pretrial application for writ of habeas corpus, arguing that the charge violated her right to be free from double jeopardy under the federal and Texas Constitutions. The trial court considered the merits of her application, but denied relief. The appellate court found that under Blockburger v. United States, 284 U.S. 299, 304 (1932)’s same-elements test, the San Antonio ordinance and the prostitution statute at issue in the instant case each required proof of a fact that the other did not. Therefore, the judicial presumption was that the offenses were different for double-jeopardy purposes and that cumulative punishment may be imposed. The presumption could be rebutted by a showing, through various factors, that the legislature clearly intended only one punishment. In the instant case, however, the appellant had failed to make a showing rebutting the presumption. Therefore, the court held that the appellant’s double-jeopardy rights had not been violated. Accordingly, the trial court’s order denying habeas relief was affirmed.


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


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


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


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


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


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


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


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


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


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


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


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


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

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


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


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


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


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

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


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

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


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

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


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


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


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


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


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