The appellate court concluded that DOHSA did not apply to the plaintiffs’ claims and that, while the plaintiffs may not recover non-pecuniary damages under federal maritime law, they may recover damages for the decedent’s pre-death pain and suffering.
Andrews v. John Crane, Inc.
Admiralty & Maritime, Appellate: Civil, Contracts, Corporations, Damages, Evidence, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
June 18, 2020
14-18-00573-CV
Jerry Zimmerer
Published
The plaintiffs appealed the judgment of the trial court which granted partial summary judgment on the question of the damages recoverable by the plaintiffs in a products liability action based on the decedent’s contracting pleural mesothelioma. On appeal, the plaintiffs challenged the trial court’s take-nothing judgment. The appellate court noted that the plaintiffs had not shown they were prejudiced by the addition of maritime law to the case, and the trial court did not err when it concluded that federal maritime law preempted state law on the plaintiffs’ claims. The appellate court found that because the Jones Act permitted recovery for the losses suffered during a decedent’s lifetime in a survival action, including pre-death pain and suffering, the estate may recover for his pre-death pain and suffering under general maritime law. The appellate court concluded that DOHSA did not apply to the plaintiffs’ claims and that, while the plaintiffs may not recover non-pecuniary damages under federal maritime law, they may recover damages for the decedent’s pre-death pain and suffering. Accordingly, the judgment of the trial court was affirmed in part, reversed and remanded in part.

The trial court did not abuse its discretion in overruling the defendant’s objections to the deputy’s testimony authenticating the jailhouse call recordings.
Bahena v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
June 23, 2020
14-18-00760-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated robbery. On appeal, the defendant challenged the trial court’s assessment of the defendant’s punishment at twenty-five years’ confinement. The appellate court noted that although the defendant had not specifically challenged the element of intent, criminal intent may be inferred from an accused’s acts, words, or conduct, as well as the surrounding circumstances of the acts. The appellate court found that the record evidence sufficed to establish the element of the defendant’s intent, and because the record contained no other evidence directly germane to the lesser-included robbery-without-a-firearm offense for the finder of fact to have considered, an instruction on the lesser-included offense of robbery was not warranted. The appellate court concluded that the trial court did not abuse its discretion in overruling the defendant’s objections to the deputy’s testimony authenticating the jailhouse call recordings. Accordingly, the judgment of the trial court was affirmed.

The record showed that the petitioner attempted to advance the divorce with reasonable diligence, and thus, the trial court abused its discretion by dismissing the divorce case for want of prosecution.
Gamboa v. Alecio
Appellate: Civil, Family, Procedure
Texas 14th Court of Appeals
June 18, 2020
14-19-00056-CV
Ken Wise
Published
The petitioner appealed the judgment of the trial court which dismissed the divorce case due to lack of service on the petitioner’s wife and his failure to appear at the dismissal hearing. On appeal, the petitioner filed a proposed final decree, and, concluding that he was not entitled to a bench warrant, he asked the trial court to allow him to appear by an attached affidavit. The appellate court noted that by not acting on the petitioner’s request to appear by affidavit, or otherwise providing the petitioner a means to appear, and then dismissing the petitioner’s divorce case for failure to appear, the trial court essentially closed the trial court’s doors to him. The appellate court found that the trial court abused its discretion to dismiss the case for the petitioner’s failure to appear at the hearing. The appellate court concluded that the record showed that the petitioner attempted to advance the divorce with reasonable diligence, and thus, the trial court abused its discretion by dismissing the divorce case for want of prosecution. Accordingly, the judgment of the trial court was reversed and remanded.  

The trial court erred in rendering judgment for the plaintiff on his DTPA claim because no legally sufficient evidence supported the damage award.
Earth Power A/C & Heat, Inc. v. Page
Appellate: Civil, Business, Consumer, Contracts, Damages, Procedure, Torts
Texas 14th Court of Appeals
June 23, 2020
14-18-01072-CV
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which ruled in favor of the plaintiff, finding that both parties failed to comply with the contract, the defendant breached first, the plaintiff’s subsequent breach was not excused, and the defendant violated the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA). On appeal, the defendant challenged the trial court’s denial of recovery on its contract claim. The appellate court found that the trial court erred in rendering judgment against the defendant on its contract claim because, although the defendant breached the contract first, the plaintiff failed to secure a finding that the defendant’s prior breach was material, and the evidence did not establish conclusively that the defendant’s first breach was material. The appellate court concluded that the trial court erred in rendering judgment for the plaintiff on his DTPA claim because no legally sufficient evidence supported the damage award. Accordingly, the judgment of the trial court was reversed.  

Unless and until the original transfer order was declared invalid, the trial court retained jurisdiction in the regular murder case, which meant that the juvenile court lacked jurisdiction and its second transfer order was void.
In re D.T.
Criminal, Evidence, Juvenile, Procedure
Texas 14th Court of Appeals
June 23, 2020
14-20-00079-CV
Tracy Christopher
Published
The defendant appealed the judgment of the juvenile court, challenging his capital murder conviction. On appeal, the defendant contended that the juvenile court’s transfer order did not sufficiently state the reasons for its waiver of jurisdiction. The appellate court was asked to review two separate orders that transferred an alleged juvenile offender from juvenile court to criminal district court. The appellate court found that this issue invoked the holding in Moon v. State, which was decided after the juvenile court had already rendered its transfer order. The appellate court concluded that unless and until the original transfer order was declared invalid, the trial court retained jurisdiction in the regular murder case, which meant that the juvenile court lacked jurisdiction and its second transfer order was void. Accordingly, the judgment of the juvenile court was affirmed in part and reversed in part.  

The State properly established that the report fell within the business records exception to the hearsay rule and that the Confrontation Clause was not implicated by the admission of the report.
Johnson v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
June 18, 2020
01-18-00970-CR
Richard Hightower
Published
The defendant appealed the judgment of the trial court which convicted him of two counts of aggravated sexual assault of a child and assessed his punishment at 84 years’ confinement for both counts. On appeal, the defendant challenged the trial court’s conviction and sentence. The appellate court concluded that the State properly established that the report fell within the business records exception to the hearsay rule and that the Confrontation Clause was not implicated by the admission of the report. Accordingly, the judgment of the trial court was affirmed.  

Nothing in the record suggested that the phlebotomist could not perform the requirements of her job or that the blood draw procedure she used did not comply with standard medical procedure or the accepted standard of care.
Sweat v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
June 18, 2020
01-18-00390-CR
Julie Countiss
Published
The defendant appealed the judgment of the trial court which convicted him of the felony offense of driving while intoxicated (DWI), third offense. On appeal, the defendant challenged the trial court’s assessment of the defendant’s punishment at confinement for three years. The appellate court noted that viewing all of the evidence in the light most favorable to the jury’s verdict, the evidence was sufficient for a rational fact finder to have found beyond a reasonable doubt that the defendant was the same person identified as having been convicted of the offense of DWI on two previous occasions. The appellate court found that the evidence was legally sufficient to support the defendant’s conviction, and the deputy's testimony showed that the blood draw was conducted in a reasonable manner. The appellate court concluded that nothing in the record suggested that the phlebotomist could not perform the requirements of her job or that the blood draw procedure she used did not comply with standard medical procedure or the accepted standard of care. Accordingly, the judgment of the trial court was affirmed.   

The defendant did not point to any right or presumption that was foreclosed because his express plea of not guilty did not appear in the record on appeal.
Harvey v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
June 18, 2020
01-19-00032-CR
Richard Hightower
Published
The defendant appealed the judgment of the trial court which convicted him of three counts of assault, two counts of assault by strangulation against a family member, and one count of aggravated sexual assault. On appeal, the defendant challenged the trial court’s sentence of eight years imprisonment to run concurrently with any sentence imposed for the aggravated sexual assault charge. The appellate court noted that the trial court’s judgment of conviction for the aggravated sexual assault reflected that the defendant pleaded not guilty, and it further reflected that the trial court found him guilty of the offense and assessed his punishment at confinement for 15 years, to run concurrently with his agreed sentences in the other two assault offenses. The appellate court found that the application of the presumptions left the defendant with all the benefits of having a plea of not guilty entered in the case. The appellate court concluded that the defendant did not point to any right or presumption that was foreclosed because his express plea of not guilty did not appear in the record on appeal. Accordingly, the judgment of the trial court was affirmed.        

The trial court properly denied the defendants’ plea to the jurisdiction and admitting the plaintiff’s corporate representative's affidavits.
Hlavinka v. HSC Pipeline P'ship, LLC
Appellate: Civil, Contracts, Procedure, Real Property
Texas 1st Court of Appeals
June 18, 2020
01-19-00092-CV
Russell Lloyd
Published
The defendants appealed the judgment of the trial court, filing a plea to the jurisdiction challenging the plaintiff’s eminent domain power in a suit arising from a condemnation proceeding. On appeal, the defendants challenged the plaintiff’s request, seeking to obtain the right to a pipeline easement across the property of the defendants. The appellate court noted that that the defendants’ valuation testimony was relevant because he used comparable sales to support his opinions regarding the fair market value of the easement based on its value as a separate economic unit, his analysis was based on the pre-existing ten-foot-wide units, not the easement itself, and, although his methodology included per rod figures, he adjusted the values based on other relevant factors. The appellate court found that the trial court abused its discretion by excluding the defendants’ testimony. The appellate court concluded that the trial court properly denied the defendants’ plea to the jurisdiction and admitting the plaintiff’s corporate representative's affidavits. Accordingly, the judgment of the trial court was affirmed in part, reversed in part and remanded for further proceedings.  

The record showed that the petitioner attempted to advance the divorce with reasonable diligence, and thus, the trial court abused its discretion by dismissing the divorce case for want of prosecution.
Gamboa v. Alecio
Appellate: Civil, Family, Procedure
Texas 14th Court of Appeals
June 18, 2020
14-19-00056-CV
Ken Wise
Published
The petitioner appealed the judgment of the trial court which dismissed the divorce case due to lack of service on the petitioner’s wife and his failure to appear at the dismissal hearing. On appeal, the petitioner filed a proposed final decree, and, concluding that he was not entitled to a bench warrant, he asked the trial court to allow him to appear by an attached affidavit. The appellate court noted that by not acting on the petitioner’s request to appear by affidavit, or otherwise providing the petitioner a means to appear, and then dismissing the petitioner’s divorce case for failure to appear, the trial court essentially closed the trial court’s doors to him. The appellate court found that the trial court abused its discretion to dismiss the case for the petitioner’s failure to appear at the hearing. The appellate court concluded that the record showed that the petitioner attempted to advance the divorce with reasonable diligence, and thus, the trial court abused its discretion by dismissing the divorce case for want of prosecution. Accordingly, the judgment of the trial court was reversed and remanded.  

The appellate court concluded that the State was not required to establish, and the court need not determine, whether the officers also had alternate grounds for that stop.
Reyes v. State
Constitution, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
June 18, 2020
08-18-00145-CR
Gina M. Palafox
Published
The defendant appealed the judgment of the trial court which convicted him of driving while intoxicated. The appellate court noted that a violation of either the requirement to maintain a single lane or the independent prohibition against changing lanes when conditions were not safe to do so constituted separately actionable offenses, and the two officers testified that they saw the defendant’s car straddling two lanes of the roadway. The appellate court found that the testimony was sufficient to establish reasonable suspicion that the defendant violated Section 545.060(a)(1), and it was therefore sufficient to support the trial court’s denial of the defendant’s motion to suppress. The appellate court concluded that the State was not required to establish, and the court need not determine, whether the officers also had alternate grounds for that stop. Accordingly, the judgment of the trial court was affirmed.      

The trial court’s notice was akin to warning someone that it was unlawful to commit an offense, and such a notice did not constitute an invocation of section 46.04(b) against the defendant sufficient to confer standing to present a facial constitutional challenge.
Boas v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
June 16, 2020
14-19-00205-CR
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which convicted him of assault, a class A misdemeanor. On appeal, the defendant challenged the trial court’s conviction and finding that the assault offense involved family violence. The appellate court noted that the complaint was based on the definitions contained in the Family Code and those were not elements of the charged assault offense and were not matters for the jury to decide. The appellate court found that the jury charge properly defined the offense based on the statutory elements and was not erroneous, and thus, the trial court did not err in allowing a conviction based on a “reckless” or “knowing” culpable mental state. The appellate court further determined that the defendant failed to show that he had been charged with an offense under Texas Penal Code section 46.04(b). The appellate court concluded that the trial court’s notice was akin to warning someone that it was unlawful to commit an offense, and such a notice did not constitute an invocation of section 46.04(b) against the defendant sufficient to confer standing to present a facial constitutional challenge. Accordingly, the judgment of the trial court was affirmed.                      

The trial court abused its discretion by removing that issue from the arbitrator and denying the defendant’s plea in abatement and motion to compel arbitration.
Berry Y&V Fabricators LLC V. Bambace
ADR, Appellate: Civil, Employment, Procedure
Texas 14th Court of Appeals
June 16, 2020
14-19-00258-CV
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which denied its motion to compel arbitration of the plaintiff’s employment-related claims. On appeal, the defendant challenged the trial court’s denial of the motion to compel on the ground that the parties’ arbitration agreement was void and unenforceable. The appellate court found that because the parties clearly and unmistakably delegated to the arbitrator all questions concerning whether the plaintiff’s claims were subject to arbitration, including enforceability questions, the plaintiff’s public policy argument must be decided by the arbitrator. The appellate court concluded that the trial court abused its discretion by removing that issue from the arbitrator and denying the defendant’s plea in abatement and motion to compel arbitration. Accordingly, the judgment of the trial court was reversed and remanded.    

The merger doctrine barred the insurer’s breach-of-contract claim, as the grantee would be unable to recover based on the limited scope of the special warranty deed’s protection.
Chicago Title Ins. Co. v. Cochran Investments, Inc.
Appellate: Civil, Contracts, Insurance, Procedure, Real Property, Torts
The Supreme Court of Texas
June 19, 2020
18-0676
Debra Lehrmann
Published
The insured appealed the judgment of the appellate court which reversed the trial court’s ruling in favor of the insured in a suit for breach of the implied covenant of seisin and breach of the sales contract. On appeal, the insured challenged the appellate court’s reversal, holding that the special warranty deed did not imply the covenant of seisin, the grantor thus had not breached the covenant, and the merger doctrine barred the breach-of-contract claim because the deed included no covenant regarding the ability to convey property. The Supreme Court agreed that the deed barred the insurer’s recovery there, though for different reasons. The Supreme Court found that regardless of whether it implied the covenant of seisin, the deed limited the grantor’s liability for failures of title to claims asserted by individuals “by, through and under” the grantor. The Supreme Court concluded that the merger doctrine barred the insurer’s breach-of-contract claim, as the grantee would be unable to recover based on the limited scope of the special warranty deed’s protection. Accordingly, the judgment of the appellate court was affirmed.  

The company that purchased the petitioners’ assets and promissory note did not prove it was entitled to judgment as a matter of law on its counterclaim for the petitioners’ failure to pay a deficiency balance on the note.
Pike v. Texas EMC Mgmt., LLC
Appellate: Civil, Contracts, Corporations, Damages, Procedure, Technology, Torts
The Supreme Court of Texas
June 19, 2020
17-0557
J. Brett Busby
Published
The petitioners appealed the judgment of the trial court which rendered judgment in favor of the petitioners on its claims of conspiracy, breach of contract, and tortious interference with a contract. The Supreme Court noted that the petitioners failed to present legally sufficient evidence of damages and reversed the portion of the judgment awarding damages, after addressing a challenge to the limited partner’s standing. The Supreme Court found that the technology-supplying partner was not entitled to a permanent injunction for misappropriation of trade secrets and reversed that portion of the judgment. The Supreme Court concluded that the company that purchased the petitioners’ assets and promissory note did not prove it was entitled to judgment as a matter of law on its counterclaim for the petitioners’ failure to pay a deficiency balance on the note. Accordingly, the judgment of the trial court was affirmed.  

The relator did not have standing to challenge the respondent’s eligibility to appear on the ballot for the general election as a candidate for the trial court.
In re Kherkher
Appellate: Civil, Constitution, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
June 23, 2020
14-20-00310-CV
Jerry Zimmerer
Published
The relator appealed the judgment of the trial court, filing a petition for writ of mandamus. In response, the respondent filed a motion and amended motion to dismiss for lack of jurisdiction in the trial court, asserting that the relator did not have standing to challenge her eligibility to be a candidate for judge. The appellate court noted that the relator cited no authority supporting his position that financial contributions provided him with an injury distinct from that of the general public to confer standing to challenge the respondent’s eligibility to be on the ballot for the general election. The appellate court found that the relator did not have standing based on his status as a voter to maintain his challenge to the respondent’s eligibility as a candidate for judge. The appellate court concluded that the relator did not have standing to challenge the respondent’s eligibility to appear on the ballot for the general election as a candidate for the trial court. Accordingly, the relator’s petition for writ of mandamus was dismissed for lack of jurisdiction.  

The petitioner’s evidence did not raise a fact issue under the intentional-injury exception, and thus, her claims were barred by the exclusive-remedy provision of the Act.
Mo-Vac Serv. Co., Inc. v. Escobedo
Appellate: Civil, Business, Constitution, Corporations, Damages, Employment, Evidence, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
The Supreme Court of Texas
June 12, 2020
18-0852
Nathan L. Hecht
Published
The petitioner appealed the judgment of the appeal court which reversed the trial court’s grant of the petitioner’s no-evidence motion for summary judgment. On appeal, the plaintiff contended that the respondent fell asleep at the wheel due to fatigue from being forced to work grueling hours. The Supreme Court noted that the fundamental difference between negligent injury, or even grossly negligent injury, and intentional injury was the specific intent to inflict injury. The Supreme Court found that the petitioner’s evidence merely showed the petitioner’s awareness of the commonsense notion that fatigued drivers were more likely to be involved in a crash than well-rested drivers. The Supreme Court further determined that the petitioner failed to raise a fact issue on the applicability of the intentional-injury exception to the exclusive-remedy provision of the Texas Workers’ Compensation Act. The Supreme Court concluded that the petitioner’s evidence did not raise a fact issue under the intentional-injury exception, and thus, her claims were barred by the exclusive-remedy provision of the Act. Accordingly, the judgment of the appellate court was reversed.

The Supreme Court concluded that although the court did not agree with all of the appellate court's reasoning, the respondent was entitled to judgment on the jury’s findings of liability and damages.
W&T Offshore, Inc. v. Fredieu
Appellate: Civil, Contracts, Damages, Employment, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
The Supreme Court of Texas
June 05, 2020
18-1134
James D Blacklock
Published
The petitioner appealed the judgment of the appellate court which reinstated the jury’s verdict in the respondent's favor. On appeal, the petitioner challenged the trial court’s finding that the respondent was not the petitioner's employee. The Supreme Court noted that the borrowed-employee status was a legal question to be answered by the courts, subject to any subsidiary fact-findings that may be necessary. The Supreme Court found that based on the disputed evidence and the absence of fact-findings in the petitioner's favor, the petitioner failed to prove its borrowed-employee defense. The Supreme Court concluded that although the court did not agree with all of the appellate court's reasoning, the respondent was entitled to judgment on the jury’s findings of liability and damages. Accordingly, the judgment of the appellate court was affirmed.  

The Farm Animal Act could reasonably be interpreted to fulfill its historical and stated intent fully and completely without adding legal injury to physical injury for one small class of ranch hands.
Waak v. Rodriguez
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
June 12, 2020
19-0167
Nathan L. Hecht
Published
The petitioners appealed the judgment of the trial court which granted summary judgment for the respondents after concluding that the Farm Animal Activity Act barred the claims. Thereafter, the appellate court reversed, holding that the individual was not a participant in a farm animal activity for whose injuries and death the Act limited liability. On appeal, the petitioners argued that the Farm Animal Act applied by its plain terms to ranching— working farm animals for a living or for profit. The Supreme Court noted that the Legislature amended the Motor Vehicle Code to require the use of seat belts and impose criminal penalties for non-use, while adding that use or non-use of a safety belt was not admissible evidence in a civil trial. The Supreme Court found that the Legislature would absolve seat belt manufacturers from products liability claims in a subsection of a traffic statute was simply too much to believe, and thus, the Farm Animal Act did not apply to ranchers and ranch hands acting as such. The Supreme Court concluded that the Farm Animal Act could reasonably be interpreted to fulfill its historical and stated intent fully and completely without adding legal injury to physical injury for one small class of ranch hands. Accordingly, the judgment of the trial court was affirmed.  

The appellate court erred in construing the two agreements as a single, unified instrument and by applying the transaction-participant enforcement theory.
Rieder v. Woods
Appellate: Civil, Business, Contracts, Corporations, Procedure
The Supreme Court of Texas
June 12, 2020
19-0077
Eva M. Guzman
Published
The defendants appealed the judgment of the appellate court which held that all defendants were amenable to suit in Texas regardless of status as a contract signatory.  On appeal, the defendants challenged the appellate court’s determination that the contract which included the forum-selection clause must be construed in tandem with a contract that did not because the two instruments were part of the “same transaction.” The Supreme Court noted that forum-selection clauses were creatures of contract, the terms of which were fundamental to the Court’s analysis. The Supreme Court found that the appellate court erred in construing the two agreements as a single, unified instrument and by applying the transaction-participant enforcement theory. The Supreme Court concluded that the separately executed instruments were not part of a single, unified instrument and must therefore be construed separately and the transaction participant enforcement theory was inapplicable, applying common principles of contract and agency law and the parties’ chosen language as the fulcrum of the court's inquiry. Accordingly, the judgment of the appellate court was reversed and remanded.  

The appellate court concluded that since they were not elements of the offense, the State was not required to allege them in the indictment and the trial court erred by granting the defendant’s motion to quash.
State v. Torres
Constitution, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
June 15, 2020
08-18-00092-CR
Gina M. Palafox
Published
The State appealed the judgment of the trial court which granted the defendant’s motion to quash an indictment alleging that he committed a violation of section 1956.040 of the Texas Occupations Code. The appellate court noted that as a general rule, an indictment that tracked the language of the applicable statute satisfied constitutional and statutory requirements, but a motion to quash may be granted if a defendant claimed that the indictment gave him inadequate notice to present a defense and the facts he sought were essential to give notice. The appellate court found that the State was not, however, required to plead evidentiary matters. The appellate court concluded that since they were not elements of the offense, the State was not required to allege them in the indictment and the trial court erred by granting the defendant’s motion to quash. Accordingly, the judgment of the trial court was affirmed.  

While the trial court had the discretion to interview the child on its own motion, the court rejected the mother’s contention that the trial court had a duty to do so because of the content of the mother’s testimony.
In re A.M.
Appellate: Civil, Family, Juvenile, Procedure
Texas 7th Court of Appeals
June 08, 2020
07-19-00114-CV
Judy C. Parker
Published
The mother appealed the judgment of the trial court which appointed the parties as joint managing conservators, and the mother was given the exclusive right to establish the residence of the child without regard to geographic location. The appellate court noted that the evidence established stability and strong familial ties to Odessa, and the evidence suggested that allowing the child to remain in Beeville would negatively impact the child since he had a close relationship with his paternal uncle and his maternal grandfather. The appellate court found that considering all of the circumstances, including the uncertainties and lack of specifics in the mother’s plan, and deferring to the trial judge’s resolution of conflicts and determination of credibility, the trial court did not abuse its discretion in imposing a geographical restriction. The appellate court further determined that the trial court had sufficient information upon which to exercise its discretion. The appellate court concluded that while the trial court had the discretion to interview the child on its own motion, the court rejected the mother’s contention that the trial court had a duty to do so because of the content of the mother’s testimony. Accordingly, the judgment of the trial court was affirmed.              

There was no contention that the allegations as to the convictions for engaging in organized criminal activity and forgery by possession were inaccurate or untrue.
State v. Kahookele
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
June 09, 2020
03-18-00399-CR
Jeff Rose
Published
The State appealed the judgment of the trial court which granted the defendant’s motion after he was charged with two counts of possession of less than one gram of a controlled substance, enhanced by prior felony convictions. The appellate court noted that the defendant lack of knowledge about the possibility that his punishment for a future crime could be enhanced in a subsequent prosecution involved a collateral, not direct, consequence of his plea of guilt. The appellate court found that the 3g-enhancement paragraph in the defendant’s indictment did not present a due-process or due-course-of-law violation under the United States or Texas Constitution given his plea bargain as to the murder offense. The appellate court further determined that the defendant did not challenge the habitual-offender enhancement paragraphs themselves, only the State’s use of them in combination with the 3g-enhancement paragraph. The appellate court concluded that there was no contention that the allegations as to the convictions for engaging in organized criminal activity and forgery by possession were inaccurate or untrue. Accordingly, the judgment of the trial court was reversed and remanded.

The evidence established that the respondent was fired based on conduct unrelated to her protected activity, and no evidence demonstrated that activity was a “but-for” cause of the termination of her employment.
Office of the Att'y Gen. of Tex. v. Rodriguez
Appellate: Civil, Employment, Family, Juvenile, Procedure
The Supreme Court of Texas
June 12, 2020
17-0970
Jane N. Bland
Published
The respondent appealed the judgment of the trial court which ruled in favor of the petitioner. The Supreme Court noted that the trial court instructed the jury that the respondent must prove that without the good faith report of violation of law, her termination would not have occurred when it did. The Supreme Court found that the appellate court erred in disregarding the county regional manager’s lack of retaliatory motive for proposing the respondent’s termination and determining that the regional manager’s lack of knowledge did not attenuate any retaliatory motive. The Supreme Court further determined that because the respondent and her successor did not have the same supervisor that recommended disciplinary action, and the respondent’s supervisor did not know of the individual report when she recommended that the agency fire the respondent, the comparison with the respondent’s successor did not raise an inference of retaliatory motive. The Supreme Court concluded that the evidence established that the respondent was fired based on conduct unrelated to her protected activity, and no evidence demonstrated that activity was a “but-for” cause of the termination of her employment. Accordingly, the judgment of the trial court was reversed.    

Since the plaintiff necessarily must override the substance of the Commission’s underlying decisions in order to impose derivative liability on the defendants, the defendants were entitled to immunity from the theories of conspiracy and of aiding and abetting alleged.
Nettles v. GTECH Corp.
Constitution, Contracts, Gov't/Administrative, Torts
The Supreme Court of Texas
June 12, 2020
17-1010
J. Brett Busby
Published
The plaintiff appealed the judgment of the trial court which granted the defendants’ pleas to the jurisdiction, asserting it was entitled to the same immunity held by the Lottery Commission. On appeal, the plaintiff alleged that the instructions on a scratch-off lottery ticket were misleading, causing them to believe they had winning tickets when they did not. The Supreme Court noted that the defendant was not entitled to derivative immunity from the plaintiff’s fraud claims. The Supreme Court found that because the plaintiff necessarily must override the substance of the Commission’s underlying decisions in order to impose derivative liability on the defendants, the defendants were entitled to immunity from the theories of conspiracy and of aiding and abetting alleged. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded.  

The decision to apply to vote by mail based on a disability was the voter’s right, subject to a correct understanding of the statutory definition of “disability, and it was confident that the Clerks and all election officials would comply with the law in good faith.
In re State
Appellate: Civil, Constitution, Election, Gov't/Administrative, Health Care, Procedure
The Supreme Court of Texas
May 27, 2020
20-0394
Nathan L. Hecht
Published
The petitioners appealed the judgment of the trial court, seeking a writ of mandamus. On appeal, the Supreme Court was asked to determine whether a voter’s lack of immunity from the disease and concern about contracting it at a polling place was a disability within the meaning of the statute. The Supreme Court agreed with the petitioner that a voter’s lack of immunity to COVID-19, without more, was not a disability as defined by the Election Code, but the petitioner acknowledged that election officials had no responsibility to question or investigate a ballot application that was valid on its face. The Supreme Court found that under the Texas Election Code, qualified voters were eligible to vote by mail only in five specific circumstances, and one was if the voter had a disability as defined by statute. The Supreme Court concluded that the decision to apply to vote by mail based on a disability was the voter’s right, subject to a correct understanding of the statutory definition of “disability, and it was confident that the Clerks and all election officials would comply with the law in good faith. Accordingly, the petitioner’s petition for writ of mandamus was denied.  

The appellate court concluded that the trial court’s order granting the temporary injunction must be reversed and the plaintiffs’ request for temporary injunction denied.
Suarez v. Silvas
Appellate: Civil, Gov't/Administrative, Procedure, Torts
Texas 4th Court of Appeals
May 20, 2020
04-19-00836-CV
Patricia O. Alvarez
Published
The defendants appealed the judgment of the trial court which denied their plea to the jurisdiction and granted a temporary injunction in favor of the plaintiff. On appeal, the defendants challenged the plaintiff’s allegations to the lawfulness of the Charter’s forfeiture provision, finding injunctive relief was not available in the instant case. The appellate court noted that the portions of the trial court’s order denying the defendants’ plea to the jurisdiction, as it related to all declaratory relief claims, and denying the remaining plea as it related to all declaratory relief claims other than the plaintiff’s ultra vires claims must be reversed. The appellate court found that the portion of the trial court’s order denying the defendants’ plea as it related to the plaintiff’s ultra vires claims against all the defendants other than the City must be affirmed. The appellate court concluded that the trial court’s order granting the temporary injunction must be reversed and the plaintiffs’ request for temporary injunction denied. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.    

The trial court had subject matter jurisdiction and did not abuse its discretion in entering the Final Decree of Divorce.
Derbez v. Derbez
Appellate: Civil, Family, Procedure
Texas 7th Court of Appeals
May 21, 2020
07-19-00018-CV
Patrick A. Pirtle
Published
The appellant appealed the judgment of the trial court, challenging the court’s jurisdiction to issue a Final Decree of Divorce in Texas after his marriage to the appellee had been previously dissolved by a court in Mexico. The appellate court noted that based on the information and evidence before the trial court at the time of the hearing, it found it had jurisdiction over the parties and the subject matter and ruled that the marriage be dissolved. The appellate court found that the trial court must comply with all requirements of the rule and make an independent determination whether to recognize or enforce the foreign judgment even if no party opposed enforcement of that judgment. The appellate court concluded that the trial court had subject matter jurisdiction and did not abuse its discretion in entering the Final Decree of Divorce. Accordingly, the judgment of the trial court was affirmed.  

The jury’s rejection of the plaintiff’s breach of contract claim was not so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust.
Title Source, Inc. v. HouseCanary, Inc.
Appellate: Civil, Business, Contracts, Corporations, Damages, Procedure, Torts
Texas 4th Court of Appeals
June 03, 2020
04-19-00044-CV
Beth Watkins
Published
The plaintiff appealed the judgment of the trial court which ruled in favor of the defendant on the plaintiff’s breach of contract and fraud action. On appeal, the plaintiff challenged the trial court’s award of compensatory and punitive damages in the defendant’s favor. The appellate court noted that the objections the plaintiff raised in the trial court that the alleged items that were claimed to be trade secrets were not clearly identified specifically for the jury that the terms used were vague, nebulous, misleading, and it’s impossible to determine what they mean. The appellate court found that because the jury answered a single broad-form question on all of the defendant’s fraud allegations, the court could not affirm its finding without ignoring the Legislature’s directive that TUTSA wholly displaces conflicting tort law. The appellate court concluded that the jury’s rejection of the plaintiff’s breach of contract claim was not so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust. Accordingly, the judgment of the trial court was affirmed, reversed and remanded.  

There was nothing in the record to show the trial court failed to consider the full punishment range or any mitigating evidence or had a predetermined sentence in mind when it chose to impose consecutive 30-year sentences on the counts, in addition to the required consecutive sentence.
Tovar v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
June 03, 2020
04-18-00631-CR
Liza A. Rodriguez
Published
The defendant appealed the judgment of the trial court which convicted him of three counts of sexual assault of a child and one count of delivery of a controlled substance to a child causing serious bodily injury. The appellate court noted that because the defendant did not challenge the sufficiency of the evidence to prove he delivered methamphetamine to the child on other days, and admitted that he was one of the three people who supplied the methamphetamine he, the child, and her mother smoked, the evidence was undisputed that the defendant committed the offense of delivery of a controlled substance to a child. The appellate court found that there was nothing in the record to show the trial court failed to consider the full punishment range or any mitigating evidence or had a predetermined sentence in mind when it chose to impose consecutive 30-year sentences on the counts, in addition to the required consecutive sentence. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded.    

The appellate court concluded that with respect to attorney’s fees, the plaintiff asked that the court reverse the trial court’s failure to award attorney’s fees only if it sustained the issues.
Casa Palmira, LP v. Taylor Child Care, LP
Appellate: Civil, Contracts, Litigation: Commercial, Procedure, Real Property, Torts
Texas 8th Court of Appeals
May 22, 2020
08-18-00009-CV
Yvonne T. Rodriguez
Published
The plaintiff appealed the judgment of the trial court which ruled in favor of the defendant on the plaintiff’s for breach of contract, quantum meruit, and unjust enrichment, in relation to a commercial lease. On appeal, the plaintiff sought monetary damages for unpaid rental fees plus attorney’s fees and expenses and costs. The appellate court noted that because the court agreed with the defendant that the evidence sufficiently supported the trial court’s findings and conclusions that the plaintiff fraudulently induced the defendant into the lease and the defendant did not ratify the lease induced by fraud, any alleged breach by appellees was excused. The appellate court found that it was not necessary for the court to reach the plaintiff’s arguments regarding the alleged breach or alleged damages attributed to it. The appellate court concluded that with respect to attorney’s fees, the plaintiff asked that the court reverse the trial court’s failure to award attorney’s fees only if it sustained the issues. Accordingly, the judgment of the trial court was affirmed.      

The appellate court concluded that the court's legislature wrote and selected particular words to place within it, and that application of its own words may lead down a route deviating from its purported intent did not relieve the court from having to abide by those words.
Whitaker v. R2M Eng'g, LLC
Appellate: Civil, Gov't/Administrative, Procedure
Texas 7th Court of Appeals
May 28, 2020
07-20-00068-CV
Brian Quinn
Published
The plaintiffs appealed the judgment of the trial court which dismissed their suit against the defendant to perform the renovations, asserting other causes for negligence relating to the purported “special” defect in the roadway. The appellate court noted that the trial court did not misapply the law, act unreasonably, or ignore guiding rules and principles when granting the motion to dismiss under Section 150.002(e) of the Civil Practice and Remedies Code. The appellate court found that Section 150.002(a) and (e) were harsh or that the legislative history suggested a different interpretation of the statute. The appellate court concluded that the court's legislature wrote and selected particular words to place within it, and that application of its own words may lead down a route deviating from its purported intent did not relieve the court from having to abide by those words. Accordingly, the judgment of the trial court was affirmed.    

The trial court correctly ruled that when the State relied on subsection 15.03(c)(1) to contend that it was “no defense” for the defendant that the victim was not criminally responsible for the felony solicited, the State’s contention wrongly presupposed that a felony was solicited.
State v. Hunter
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
May 28, 2020
03-18-00424-CR
Jeff Rose
Published
The State appealed the judgment of the trial court which dismissed the complaint charging the defendant with the first-degree felony offense of solicitation to commit capital murder based on text messages sent to his girlfriend the victim requesting that she obtain an abortion. On appeal, the State challenged the defendant’s motion to quash contending that the indictment failed to allege an offense and violates his constitutional rights. The appellate court noted that a defendant may move to quash an indictment on the ground that it did not allege an offense, and he may seek construction of the statute under which the prosecution was brought. The appellate court found that under Tex. Penal Code subsection 19.06(1), the conduct solicited from the victim as to her unborn child would not have been a criminal homicide offense because the Penal Code chapter defining homicide offenses specifically excluded application to her conduct. The appellate court concluded that the trial court correctly ruled that when the State relied on subsection 15.03(c)(1) to contend that it was “no defense” for the defendant that the victim was not criminally responsible for the felony solicited, the State’s contention wrongly presupposed that a felony was solicited. Accordingly, the judgment of the trial court was affirmed.  

It would be neither just nor sound public policy to allow that doctrine to override the defendant’s constitutional right to be free from double jeopardy, particularly absent any evidence that defense counsel’s conduct in the murder trial benefited the defendant or gave him an “unfair advantage”
State v. Heredia
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
May 28, 2020
03-19-00633-CR
Gisela D. Triana
Published
The State appealed the judgment of the trial court which acquitted the defendant of murder but convicted him of the lesser-included offense of manslaughter and assessed punishment at 20 years’ imprisonment. On appeal, the State challenged the trial court’s order granting the defendant’s pretrial application for writ of habeas corpus. The appellate court noted that the trial court did not err in granting the defendant’s application for writ of habeas corpus. The State further asserted that the defendant “prevailed” in the trial court by persuading the jury to acquit him of murder and convict him of the lesser-included offense of manslaughter, but nothing in the record suggested that the jury’s decision was influenced by the defendant’s arguments regarding the tampering charges. The appellate court found that the defendant received the maximum sentence for manslaughter, despite defense counsel’s arguments to the jury, so it did not appear that the defendant benefited in any way by arguing to the jury that he could be convicted later for tampering. The appellate court concluded that it would be neither just nor sound public policy to allow that doctrine to override the defendant’s constitutional right to be free from double jeopardy, particularly absent any evidence that defense counsel’s conduct in the murder trial benefited the defendant or gave him an “unfair advantage” over the State. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that since only one predicate finding was necessary to support the trial court’s judgment, it would modify the judgment to delete the finding under subsection 161.001(b)(1)(E).
J. O. v. Tex. Dep't of Family & Protective Services
Appellate: Civil, Family, Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
June 01, 2020
03-19-00895-CV
Edward Smith
Published
The father appealed the judgment of the trial court which terminated his parental rights to four children. On appeal, the father challenged the trial court’s finding by clear and convincing evidence that the father committed three predicate statutory grounds for termination and that termination was in the best interest of the children. The appellate court noted that the record contained no information concerning the father’s life in Mexico following the deportation except for a permanency report from the Department to the trial court. The father further contended under the issue that there was no evidence that he was aware of the service plan or that failure to complete it would result in termination of his rights. The appellate court found that the father informed the caseworker that financial barriers prevented him from completing the service plan. The appellate court concluded that since only one predicate finding was necessary to support the trial court’s judgment, it would modify the judgment to delete the finding under subsection 161.001(b)(1)(E). Accordingly, the judgment of the trial court was affirmed as modified.

The appellate court concluded that having been provided no objective evidence of evolving standards of decency required to analyze whether the punishment was unconstitutional, the defendant’s sentences were not unconstitutionally cruel and unusual punishments.
Avalos v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
June 03, 2020
04-19-00192-CR
Luz Elena D Chapa
Published
The defendant appealed the judgment of the trial court which convicted him of two charges of capital murder following his guilty plea. On appeal, the defendant challenged the trial court’s denial of his motions challenging the constitutionality of his automatic life sentences without parole. The appellate court found that the Supreme Court’s decisions in Atkins, Roper, Graham, and Miller did not compel the conclusion that Texas Penal Code section 12.31(a)(2) was unconstitutional as applied to intellectually disabled persons. The appellate court concluded that having been provided no objective evidence of evolving standards of decency required to analyze whether the punishment was unconstitutional, the defendant’s sentences were not unconstitutionally cruel and unusual punishments. Accordingly, the judgment of the trial court was affirmed.   

The record reflected that the bank was negligent in failing to file the requisite form with the Secretary of State changing its designee for receipt of service to registered agent, and thus, the evidence supported the trial court’s denial of the bill of review.
U.S Bank Nat'l Ass'n v. Moss
Appellate: Civil, Banking and Finance, Procedure, Real Property
Texas 5th Court of Appeals
May 21, 2020
05-19-00223-CV
Bill Whitehill
Published
The bank appealed the judgment of the trial court, seeking to vacate a default judgment in an underlying suit involving title to real property through a bill of review based on allegedly improper service under the Texas Estates Code. On appeal, the appellate court was asked to consider whether the Civil Practice and Remedies Code provision for serving financial institutions conflicted with the Estates Code provision for service on a foreign corporate fiduciary and whether the latter statute applied only in “estate proceedings.” The appellate court noted that the service provisions in the Estates Code were reconcilable with the Civil Practice and Remedies Code provisions for serving financial institutions. The appellate court found that service on a foreign corporate fiduciary under the Estates Code was valid service under Civil Practice and Remedies Code Section 17.028. The appellate court concluded that the record reflected that the bank was negligent in failing to file the requisite form with the Secretary of State changing its designee for receipt of service to registered agent, and thus, the evidence supported the trial court’s denial of the bill of review. Accordingly, the judgment of the trial court was affirmed.  

Although the trial court erred in refusing to provide the defendant’s requested jury instruction regarding a non-unanimous “no” verdict under Texas Civil Rule of Procedure 292(a), the record did not show that the jury was unfairly influenced by the omission.
In re Lares
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
May 13, 2020
04-19-00240-CV
Patricia O. Alvarez
Published
The defendant appealed the judgment of the trial court which convicted him of sexual assaults and sentenced him to twenty-five and thirty years in prison, respectively, with the sentences to be served concurrently. On appeal, the defendant challenged the judgment of the trial court which ordered commitment following a jury’s finding that the defendant was a sexually violent predator (SVP). The appellate court noted that the evidence was sufficient to support the jury’s SVP finding, and as for the inclusion of testimony relating to the SVP screening process, the record did not reflect that the trial court abused its discretion. The appellate court found that the trial court did not abuse its discretion by allowing testifying psychologist to refer to the second psychologist’s opinion as a basis for his opinion, particularly because the trial court included the defendant’s requested limiting instruction. The appellate court concluded that although the trial court erred in refusing to provide the defendant’s requested jury instruction regarding a non-unanimous “no” verdict under Texas Civil Rule of Procedure 292(a), the record did not show that the jury was unfairly influenced by the omission. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that Hughes tolling stopped when the Supreme Court denied the plaintiff’s petition for review in the underlying case.
Zive v. Sandberg
Appellate: Civil, Ethics, Procedure, Professional Responsibility
Texas 5th Court of Appeals
May 22, 2020
05-19-00162-CV
Bill Whitehill
Published
The plaintiff appealed the judgment of the district court which rendered a take-nothing summary judgment against the plaintiff in a suit against his lawyer for legal malpractice. On appeal, the plaintiff challenged the defendants’ assertions that the plaintiff’s claims were barred by limitations and the plaintiff’s fiduciary breach claim was also barred by the anti-fracturing rule. The Fifth Circuit noted that because a party who did not appeal generally did not benefit from a reversal favoring some other party, another party’s appeal generally would not affect the viability of the non-appealing party’s legal malpractice claim. The Fifth Circuit found that the second Hughes policy generally did not justify extending Hughes tolling through appeals pursued by other parties after the client stopped appealing the underlying case. The Fifth Circuit concluded that Hughes tolling stopped when the Supreme Court denied the plaintiff’s petition for review in the underlying case. Accordingly, the judgment of the district court was affirmed.

Since the appellant did not establish the requirements for mandamus relief, her petition for writ of mandamus was denied.
In re Benavides
Appellate: Civil, Constitution, Evidence, Family, Procedure, Real Property
Texas 4th Court of Appeals
May 20, 2020
04-19-00741-CV
Luz Elena D Chapa
Published
The appellant appealed the judgment of the trial court which denied her motion to vacate part of a final judgment the trial court rendered in a guardianship proceeding. On appeal, the appellant challenged the trial court’s grant of the motion in limine. The appellate court noted that the appellant’s motion to vacate was an untimely direct attack on the final judgment and the trial court lacked authority to grant the relief she was requesting. The appellate court found that because a trial court did not abuse its discretion by refusing to vacate a judgment after its plenary power expired, the appellant could not show the trial court clearly abused its discretion. The appellate court concluded that since the appellant did not establish the requirements for mandamus relief, her petition for writ of mandamus was denied. Accordingly, the petition for writ of mandamus was denied.

The trial court’s failure to submit the requested instructions probably caused the rendition of an improper judgment.
Enbridge Pipelines L.P. v. Sullivan
Appellate: Civil, Damages, Evidence, Procedure, Torts
Texas 12th Court of Appeals
May 29, 2020
12-19-00147-CV
James T. Worthen
Published
The appellants appealed the judgment of the trial court awarding the appellee damages as a result of a motor vehicle collision. The appellate court noted that the instructions that the appellants requested would have assisted the jury in considering the evidence relevant to the issues in the case. The appellate court found that the trial court abused its discretion in refusing to instruct the jury to disregard the appellants’ conduct as the appellants requested. The appellate court concluded that, after a review of the entire record, and given the relatively weak evidence supporting the jury’s findings regarding liability and damages, and the inherent prejudicial nature of the evidence and arguments the appellee made about the appellants’ conduct in the discovery process, the trial court’s failure to submit the requested instructions probably caused the rendition of an improper judgment. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.  

The defendant pleaded that he was entitled to recover attorney’s fees pursuant to the contract and filed a post-judgment motion in which he requested an award of attorney’s fees.
Nelson v. McCall Motors, Inc.
Appellate: Civil, Contracts, Damages, Procedure, Real Property, Torts
Texas 11th Court of Appeals
May 29, 2020
11-17-00307-CV
John M. Bailey
Published
The defendant appealed the judgment of the trial court which awarded the plaintiff out-of-pocket damages and lost profits. On appeal, the defendant challenged the trial court’s grant of the plaintiff’s motion to disregard the jury’s findings as to lost profits and found that the plaintiff had conclusively established lost profits. The appellate court noted that there were sufficient red flags that the lower portion of the property that the plaintiff was purchasing was subject to a surface lease to negate, as a matter of law, the plaintiff’s justifiable reliance on the statement “none at time of closing.” The appellate court found that the defendant pleaded that he was entitled to recover attorney’s fees pursuant to the contract and filed a post-judgment motion in which he requested an award of attorney’s fees. The appellate court concluded that it must remand the issue of the defendant’s request for attorney’s fees to the trial court. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.  

The Department’s failure to show error on the face of the record did not deprive the appellate court of jurisdiction over the restricted appeal.
Ex parte E.H.
Criminal, Evidence, Procedure
The Supreme Court of Texas
May 15, 2020
18-0932
Jeffrey S. Boyd
Published
The Texas Department of Public Safety (the Department) appealed the judgment of the trial court which granted the accused's petition for expunction of arrest records under Article 55.01 of the Code of Criminal Procedure. The appellate court agreed with the trial court and dismissed the Department’s appeal, holding that the lack of any error on the face of the record deprived the court of jurisdiction. The Supreme Court noted that there was no court-ordered community supervision under Chapter 42A for the offense in the accused case because the court order placing him on community supervision was void from its inception. The Supreme Court found that because the Department did not challenge the accused petition for expunction on any other ground, the trial court correctly held that he was entitled to have records and files relating to the arrest expunged. The Supreme Court concluded that the Department’s failure to show error on the face of the record did not deprive the appellate court of jurisdiction over the restricted appeal. Accordingly, the judgment of the trial court was reversed.

Under the Family Code, a parent may seek to set aside a termination order secured by a voluntary relinquishment affidavit only on the grounds that the affidavit was procured by fraud, duress, or coercion.
In re D.S.
Appellate: Civil, Family, Procedure
The Supreme Court of Texas
May 08, 2020
18-0908
Eva M. Guzman
Published
The father appealed the judgment of the trial court which rendered a final order of termination. On appeal, the father asserted that a final order could be challenged on an additional ground a trial court’s erroneous determination that Texas was the child’s home state. The Supreme Court noted that when parental rights were terminated based on an affidavit voluntarily relinquishing those rights, section 161.211(c) of the Texas Family Code limited collateral attacks on the termination order to specific grounds: fraud, duress, or coercion in the execution of the affidavit. The Supreme Court found that a parent’s right to the companionship, care, custody, and management of his or her children was an interest far more precious than any property right. The Supreme Court concluded that under the Family Code, a parent may seek to set aside a termination order secured by a voluntary relinquishment affidavit only on the grounds that the affidavit was procured by fraud, duress, or coercion. Accordingly, the judgment of the trial court was reversed.  

The Supreme Court concluded that the appellate court erred in reversing the trial court’s order terminating the father’s parental rights.
In re Z.N.
Constitution, Criminal, Evidence, Gov't/Administrative, Juvenile, Procedure
The Supreme Court of Texas
May 15, 2020
19-0590
Per Curiam
Published
The father appealed the judgment of the trial court which terminated his parental rights after he was convicted of all three counts of indecency with a child and sentenced him to ten years for each conviction, to be served concurrently. The appellate court noted that under section 161.001 of the Texas Family Code, a trial court may terminate a parent’s rights to a child if the court found by clear and convincing evidence that termination was in the child’s best interest and that one or more statutory predicate grounds had been satisfied. The Supreme Court noted that the appellate court found that the evidence was legally insufficient to allow the factfinder to form a firm belief or conviction that the father caused at least one of his victims to suffer serious injury as required by section 161.001(b)(1)(L). The Supreme Court found that the record showed that the father was convicted of indecency with a child with three children ages four, ten, and eleven, and because a reasonable trier of fact could have formed a firm belief or conviction that its finding was true, the court held that the evidence was legally sufficient to support the trial court’s finding as to ground (L). The Supreme Court concluded that the appellate court erred in reversing the trial court’s order terminating the father’s parental rights. Accordingly, the judgment of the appellate court was reversed in part and remanded.    

The Supreme Court concluded that the Comptroller’s duty under the Act was purely ministerial and it directed the Comptroller to compensate the petitioner under the terms of the Tim Cole Act.
In re Lester
Constitution, Criminal, Evidence, Procedure
The Supreme Court of Texas
May 15, 2020
18-1041
John P. Devine
Published
The petitioner appealed the judgment of the trial court which convicted him of attempted online solicitation of a minor under Section 33.021(b), a third-degree felony. On appeal, the petitioner applied for compensation under the Tim Cole Act and an application to cure. The Supreme Court noted that actual innocence under the Tim Cole Act encompassed Herrera v. Collins claims, and that narrow class of cases in which the petitioner’s actions were not criminal at the time the acts were committed. The Supreme Court found that the petitioner was actually innocent because his wrongful conviction was based on conduct that was not a crime. The Supreme Court concluded that the Comptroller’s duty under the Act was purely ministerial and it directed the Comptroller to compensate the petitioner under the terms of the Tim Cole Act. Accordingly, the petition for writ of mandamus was conditionally granted.              

Section 545.420 of the Texas Transportation Code imposed an indirect burden on the defendant’s ability to travel, and such a minor restriction did not impair any fundamental right to travel.
Sanchez-Vasquez v. State
Constitution, Criminal, Evidence, Procedure, Transportation
Texas 4th Court of Appeals
May 13, 2020
04-19-00518-CR
Beth Watkins
Published
The defendant appealed the judgment of the trial court which denied his pretrial motion to quash the indictment after he entered a plea of nolo contendere. On appeal, the defendant challenged the trial court’s deferred finding of guilt, placing him on deferred adjudication community supervision for ten years, and assessing a fine and court costs against him. The appellate court noted that the racing statute criminalized that behavior and it also conveyed sufficient definite warning as to the defendant’s proscribed conduct when measured by common understanding and practices. The appellate court found that because the defendant had not established that the racing statute was unconstitutional as applied to him, he could not succeed on a facial challenge, arguing that the statute was unconstitutional in all applications. The appellate court concluded that section 545.420 of the Texas Transportation Code imposed an indirect burden on the defendant’s ability to travel, and such a minor restriction did not impair any fundamental right to travel. Accordingly, the judgment of the trial court was affirmed.   

Although the trial court erred in refusing to provide the defendant’s requested jury instruction regarding a non-unanimous “no” verdict under Texas Civil Rule of Procedure 292(a), the record did not show that the jury was unfairly influenced by the omission.
In re Lares
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
May 06, 2020
04-19-00240-CV
Patricia O. Alvarez
Published
The defendant appealed the judgment of the trial court which convicted him of several counts of rape, sexual assault and sentenced him to twenty-five and thirty years in prison, respectively, with the sentences to be served concurrently. On appeal, the defendant challenged the trial court’s order of commitment following a jury’s finding that the defendant was a sexually violent predator (SVP). The appellate court noted that having reviewed the entire record, the evidence was sufficient to support the jury’s SVP finding. The appellate court found that the trial court did not abuse its discretion by allowing testifying the first psychologist to refer to the second psychologist's opinion as a basis for his opinion, particularly because the trial court included the defendant’s requested limiting instruction. The appellate court concluded that although the trial court erred in refusing to provide the defendant’s requested jury instruction regarding a non-unanimous “no” verdict under Texas Civil Rule of Procedure 292(a), the record did not show that the jury was unfairly influenced by the omission. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the trial court did not abuse its discretion in awarding sanctions absent evidence of the plaintiff’s income.
Pisharodi v. Columbia Valley Healthcare Sys., L.P.
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure
Texas 13th Court of Appeals
May 07, 2020
13-18-00364-CV
Gregory T. Perkes
Published
The plaintiff appealed the judgment of the trial court which dismissed the suit pursuant to the Texas Citizens Participation Act (TCPA), alleging breach of contract and malicious civil prosecution. On appeal, the plaintiff argued that the defendant breached its contract with him by violating the confidentiality clause of the bylaws, citing two provisions in the hospital’s medical staff bylaws in his petition. The appellate court noted that any statements made during the peer review process constituted protected free speech because the provision of medical services by a health care professional constituted a matter of public concern. The appellate court found that because the defendant successfully demonstrated the applicability of the Act, the court would consider whether the plaintiff met the prima facie burden the Act required. The appellate court concluded that the trial court did not abuse its discretion in awarding sanctions absent evidence of the plaintiff’s income. Accordingly, judgment of the trial court was affirmed in part, reversed in part, and remanded.

The appellate court concluded that the trial court did not abuse its discretion in admitting the diagram over the defendant’s hearsay objection.
Boudreaux v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 07, 2020
14-18-00891-CR
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which convicted him of felony murder and assessed punishment at 80 years in prison. On appeal, the defendant challenged the trial court’s conviction and sentence. The appellate court noted that because the defendant did not object to the witness testimony about the first two accidents under Rules 401, 403 or 404(b), the defendant failed to preserve the issue for appellate review. The appellate court found that reviewing the record as a whole, the court did not harbor grave doubts that the error affected the outcome of the trial and the police officer was at the scene and took all the measurements required to create the diagram. The appellate court further determined that the police officer adopted the diagram as his own based on his direct knowledge of the accident scene. The appellate court concluded that the trial court did not abuse its discretion in admitting the diagram over the defendant’s hearsay objection. Accordingly, the judgment of the trial court was affirmed.    

The former version of article 102.0185 of the Code of Criminal Procedure was facially unconstitutional because neither the statute nor its attendant statutes explicitly directed that the court’s cost collected be used for a criminal-justice purpose.
Richardson v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 07, 2020
01-18-00945-CR
Peter Kelly
Published
The defendant appealed the judgment of the trial court which convicted him of driving while intoxicated. On appeal, the defendant challenged the trial court’s conviction as a violation of his due process rights. The appellate court noted that the record did not clearly demonstrate bias or a violation of the defendant’s due process rights, and the defendant had not met his burden to prove that his counsel’s performance was deficient or that he was prejudiced by his counsel’s performance. The appellate court found that the defendant failed to show that he was prejudiced by his attorney’s failure to file a written motion. The appellate court concluded that the former version of article 102.0185 of the Code of Criminal Procedure was facially unconstitutional because neither the statute nor its attendant statutes explicitly directed that the court’s cost collected be used for a criminal-justice purpose. Accordingly, the judgment of the trial court was affirmed.  

The appellate court erred in holding that reliance on the statutory good-faith exception was automatically precluded based on an illegible magistrate’s signature in violation of Code of Criminal Procedure Article 18.04(5).
State v. Arellano
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
May 06, 2020
PD-0287-19
Michelle Slaughter
Published
The State appealed the judgment of the appellate court which granted the defendant’s motion to suppress all evidence stemming from the blood draw. On appeal, the defendant argued that the search warrant to obtain the blood specimen was facially invalid because the magistrate’s signature was illegible in violation of the requirements of Code of Criminal Procedure Article 18.04(5). The criminal appellate court noted that the case fell within the reasoning of Dunn v. State and held that a warrant containing an illegible magistrate’s signature in violation of Article 18.04(5) did not automatically preclude application of the statutory good-faith exception in Article 38.23(b). The criminal appellate court found that although the court had sometimes addressed matters in the first instance on discretionary review where their resolution was straightforward, some of the issues presented raised novel arguments which would be more appropriately addressed first by the appellate court. The criminal appellate court concluded that the appellate court erred in holding that reliance on the statutory good-faith exception was automatically precluded based on an illegible magistrate’s signature in violation of Code of Criminal Procedure Article 18.04(5). Accordingly, the judgment of the appellate court was vacated and remanded.  

The record did not demonstrate the existence of a fact issue precluding summary judgment on that claim, and thus, the trial court’s order granting the defendant’s motion for summary judgment was proper.
Herrera v. Resignato
Appellate: Civil, Employment, Evidence, Procedure
Texas 8th Court of Appeals
May 06, 2020
08-17-00254-CV
Gina M. Palafox
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment dismissing the plaintiff’s claim for wrongful termination. On appeal, the plaintiff challenged the trial court’s grant of summary judgment against it. The appellate court found that the evidence in the case concerning two essential elements of the plaintiff’s Sabine Pilot claim—that the first defendant instructed her to perform an illegal act and that she refused to perform an illegal act—did not rise to a level that would enable reasonable and fair-minded people to differ in their conclusions. The appellate court concluded that the record did not demonstrate the existence of a fact issue precluding summary judgment on that claim, and thus, the trial court’s order granting the defendant’s motion for summary judgment was proper. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that no probable cause existed to tow the plaintiffs’ vehicle for violating the Towing and Booting Act’s 10-day notice requirement.
Yeater v. H-Town Towing LLC
Appellate: Civil, Damages, Gov't/Administrative, Procedure, Torts
Texas 1st Court of Appeals
May 05, 2020
01-18-00981-CV
Sarah Beth Landau
Published
The plaintiffs appealed the judgment of the trial court which ruled against them in a suit alleging improper towing. The appellate court noted that the parking and towing addendum was void and may not be enforced because the plain language of section 2308.253(e) required at least 10 days written notice before the vehicle was towed. The appellate court found that because the defendant towed the plaintiffs’ vehicle before the required notice period had elapsed, the trial court erroneously concluded that probable cause existed to tow the plaintiffs’ vehicle. The appellate court concluded that no probable cause existed to tow the plaintiffs’ vehicle for violating the Towing and Booting Act’s 10-day notice requirement. Accordingly, the judgment of the trial court was reversed and remanded for additional proceedings.              

The appellate court concluded that the trial court’s error was harmful given that the child support obligation imposed on the appellant clearly factored into the equation the retained earnings of the Subchapter S corporation.
In re Tuttle
Appellate: Civil, Family, Procedure, Real Property
Texas 7th Court of Appeals
May 04, 2020
07-19-00016-CV
Brian Quinn
Published
The appellant appealed the judgment of the trial court which issued a final divorce decree and ordered the appellant to pay child support. The appellate court noted that coupling that with the other bits of evidence itemized above provided the trial court with basis to form a firm conviction and belief not only that he had the requisite intent to make a gift but also that he delivered and she accepted the gift. The appellate court found that upon construing the evidence in a light most favorable to the trial court’s finding of a gift, the trial court’s decision was not an instance of abused discretion. The appellate court further determined that the trial court abused its discretion by giving inadequate information before it upon which to exercise that discretion. The appellate court concluded that the trial court’s error was harmful given that the child support obligation imposed on the appellant clearly factored into the equation the retained earnings of the Subchapter S corporation. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.

The Supreme Court concluded that the trial court considered such evidence and correctly determined that it conclusively showed collusive fraud.
Loya In. Co. v. Avalos
Appellate: Civil, Consumer, Contracts, Damages, Gov't/Administrative, Insurance, Procedure, Torts
The Supreme Court of Texas
May 01, 2020
18-0837
J. Brett Busby
Published
The petitioner appealed the judgment of the trial court which granted the respondents’ motion for summary judgment, awarding the respondents a monetary award in a suit, seeking coverage from the petitioner claiming damages resulting from the negligent operation of her vehicle. On appeal, the petitioner filed counterclaims for breach of contract, fraud, and a declaratory judgment that it owed no coverage and had no duty to defend because the respondent's husband, an excluded driver, was driving at the time of the accident. The Supreme Court found that in determining the petitioner's duty to defend, a court may consider extrinsic evidence regarding whether the insured and a third party suing the insured colluded to make false representations of fact in that suit for the purpose of securing a defense and coverage where they would not otherwise exist. The Supreme Court concluded that the trial court considered such evidence and correctly determined that it conclusively showed collusive fraud. Accordingly, the judgment of the trial court was reversed.

The petitioner could not agree to permit an arbitrator to decide questions of governmental immunity and chapter 271 waived the petitioner’s immunity from suit for the respondent’s breach-of-contract claim.
San Antonio River Auth. v. Austin Bridge & Rd., L.P.
ADR, Appellate: Civil, Contracts, Gov't/Administrative, Procedure
The Supreme Court of Texas
May 01, 2020
17-0905
Jane N. Bland
Published
The petitioner appealed the judgment of the trial court which denied its motion for summary judgment on the basis of immunity. On appeal, the petitioner contended that it lacked any authority to agree to the contract’s arbitration provisions, finding that the arbitration provisions in the construction contract were enforceable. The Supreme Court noted that Local Government Code Chapter 271 authorized the petitioner to agree to arbitrate disputes arising from its construction contract with the respondent. The Supreme Court found that a court must decide a local government’s immunity from suit and liability, notwithstanding a contractual agreement to the contrary. The Supreme Court concluded that the petitioner could not agree to permit an arbitrator to decide questions of governmental immunity and chapter 271 waived the petitioner’s immunity from suit for the respondent’s breach-of-contract claim. Accordingly, the judgment of the trial court was affirmed.  

Since the defendant did not object in the trial court to the amendment of the indictments based on Code of Criminal Procedure article 28.10, lack of notice, or on any other basis, the defendant waived her complaints on appeal regarding the trial court’s granting of the motion to amend.
Vasquez v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 07, 2020
01-19-00351-CR
Richard Hightower
Published
The defendant appealed the judgment of the trial court which convicted her of first-degree felony offenses of possession with intent to deliver methamphetamine weighing more than 4 grams and less than 200 grams and possession with intent to deliver cocaine weighing more than 4 grams and less than 200 grams. On appeal, the defendant challenged the trial court’s sentence to 10 years in prison for each offense with the sentences to run concurrently. The appellate court noted that the record showed that the defendant offered mitigating evidence to support her request for deferred adjudication community supervision. The appellate court found that the defendant did not make a record to show what additional mitigating statements or pleas for leniency she would have made to the trial court had she addressed the court. The appellate court concluded that since the defendant did not object in the trial court to the amendment of the indictments based on Code of Criminal Procedure article 28.10, lack of notice, or on any other basis, the defendant waived her complaints on appeal regarding the trial court’s granting of the motion to amend. Accordingly, the judgment of the trial court was affirmed.

The Supreme Court concluded that the receipts from the sales of the aircraft were not properly sourced to Texas under either party’s interpretation of the apportionment statute.
Lockheed Martin Corp. v. Hegar
Appellate: Civil, Gov't/Administrative, Tax
The Supreme Court of Texas
May 01, 2020
18-0566
Justice Lehrmann
Published
The petitioner appealed the judgment of the trial court in a franchise tax dispute action after the U.S. government contracted with the petitioner. On appeal, the Supreme Court was asked to consider whether the petitioner’s receipts from the sales of those jets were properly sourced to Texas for purposes of calculating its Texas franchise tax. The Supreme Court noted that the Comptroller contended that the place of delivery was the petitioner’s manufacturing facility, where title to the F-16s was transferred to the U.S. government. The Supreme Court found that because the foreign governments were the buyers for franchise-tax purposes, even under the Comptroller’s interpretation, the sales were properly sourced to Texas only if the aircraft were delivered to the foreign governments in Texas. The Supreme Court concluded that the receipts from the sales of the aircraft were not properly sourced to Texas under either party’s interpretation of the apportionment statute. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.    

Since the mother made her own request for a change of the child’s first name, the court remanded the matter to the trial court to consider that request in light of the court's opinion.
In re I.D.Z.
Appellate: Civil, Family, Procedure
Texas 8th Court of Appeals
April 30, 2020
08-18-00202-CV
Jeff Alley
Published
The mother appealed the judgment of the trial court which granted the father’s request to change the child’s name. On appeal, the mother contended that the father did not meet his burden of demonstrating that it was in the child’s best interest, or that good cause existed to change his first and middle names. The appellate court noted that because the court agreed that the father did not meet his burden, the court reversed the trial court’s order changing the child’s name. The appellate court found that the children were not named in a piecemeal fashion. The appellate court concluded that since the mother made her own request for a change of the child’s first name, the court remanded the matter to the trial court to consider that request in light of the court's opinion. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.  

The appellate court concluded that the jury’s adverse finding on the defendant’s liability was supported by legally sufficient evidence.
Collins v. Vivanco
Appellate: Civil, Health Care, Procedure, Torts
Texas 8th Court of Appeals
April 30, 2020
08-17-00213-CV
Gina M. Palafox
Published
The plaintiffs appealed the judgment of the trial court which rendered a take-nothing judgment in a medical malpractice suit against the defendant-doctor. On appeal, the plaintiffs asserted that the evidence was legally insufficient to support the jury’s failure to find that the defendant’s negligence proximately caused his injury. The plaintiffs further argued that the evidence established as a matter of law that the defendant breached a nondelegable duty. The appellate court noted that it involved a two-step inquiry, whereby the court first examined the record to determine whether there was any evidence supporting the finding, disregarding all evidence to the contrary. The appellate court found that the plaintiffs’ assertion that the defendant was vicariously liable under a nondelegable duty theory was overruled. The appellate court further determined that there was evidence in the record from which the jury could reasonably have concluded that the defendant did not breach the standard of care. The appellate court concluded that the jury’s adverse finding on the defendant’s liability was supported by legally sufficient evidence. Accordingly, the judgment of the trial court was affirmed.

Since the trial commenced before expiration of the trial court’s jurisdiction, the court overruled the parents’ jurisdictional challenge terminating the parents’ parental rights.
In re Z.S.
Appellate: Civil, Family, Procedure
Texas 14th Court of Appeals
April 28, 2020
14-19-00891-CV
Kevin Jewell
Published
The parents appealed the judgment of the trial court which issued a final order terminating their parental rights to four children. On appeal, the mother challenged the portion of the order terminating her parental rights to the fifth child. The appellate court noted that the legislature, however, was free to address the concern and could have done so in recent amendments by stating for example that a trial court’s jurisdiction expired on a date certain unless the court signed a final order by that date. The appellate court found that Tex. Fam. Code Section 263.401 required only that trial on the merits commenced by the deadline, and there trial commenced before that deadline and before the trial court lost jurisdiction. The appellate court concluded that since the trial commenced before expiration of the trial court’s jurisdiction, the court overruled the parents’ jurisdictional challenge terminating the parents’ parental rights. Accordingly, the judgment of the trial court was affirmed.   

Since the trial court did not consider the merits of the defendant’s counterclaims in the first instance, the court would remand for further consideration.
Reeves v. Harbor Am. Cent., Inc.
Appellate: Civil, Contracts, Damages, Employment, Procedure, Torts
Texas 14th Court of Appeals
April 28, 2020
14-18-00594-CV
Ken Wise
Published
The plaintiff appealed the judgment of the trial court which ruled in favor of the defendant in the plaintiff’s suit for breach of contract, alleging that the defendant failed to pay the plaintiff commissions. On appeal, the plaintiff challenged the denial of the motion to dismiss the defendant’s counterclaims under the Texas Citizens Participation Act (TCPA), arguing that the defendant’s legal action was in response to the plaintiff’s exercise of the right of association. The appellate court noted that the trial court did not actually consider the plaintiff’s motion as it pertained to the merits of the defendant’s claims. The appellate court found that the order denying the plaintiff’s motion maintained that having ruled that the TCPA did not apply, there was no second step analysis where the burden was shifted to the defendant to make a prima facie case on the elements of its claims. The appellate court concluded that since the trial court did not consider the merits of the defendant’s counterclaims in the first instance, the court would remand for further consideration. Accordingly, the judgment of the trial court was reversed and remanded.  

The trial court erred in awarding the taxpayer a refund for the additional tax resulting from the amount by which the State’s apportionment factors exceeded the taxpayer’s apportionment factors, and the taxpayer was not entitled to a partial refund.
Hegar v. Sirius XM Radio, Inc.
Appellate: Civil, Business, Contracts, Corporations, Gov't/Administrative, Procedure, Real Property, Tax
Texas 3rd Court of Appeals
May 01, 2020
03-18-00573-CV
Chari L. Kelly
Published
The State appealed the judgment of the trial court which ruled that the State’s adjustment to the taxpayer’s apportionment factor was incorrect and that the taxpayer was entitled to a refund. On appeal, the State challenged the trial court’s order that the State issue a refund to the taxpayer. The appellate court noted that because the evidence did not establish that the taxpayer sold “goods,” the trial court did not err in concluding that its Revenue Share and Hardware Subsidies expenses were not includable in its cost-of-goods-sold deduction. The appellate court found that the trial court erred in concluding that the apportionment factors reported by the taxpayer accurately reflected the fair value of services performed in Texas during the tax years. The appellate court concluded that the trial court erred in awarding the taxpayer a refund for the additional tax resulting from the amount by which the State’s apportionment factors exceeded the taxpayer’s apportionment factors, and the taxpayer was not entitled to a partial refund. Accordingly, the judgment of the trial court was reversed.

The personal representative had not demonstrated error in the trial court’s summary judgment rulings or by its award of attorney’s fees to the corporation.
McGehee v. Endeavor Acquisitions, LLC
Appellate: Civil, Contracts, Procedure, Wills/Trusts/Probate
Texas 8th Court of Appeals
April 29, 2020
08-18-00166-CV
Gina M. Palafox
Published
The personal representative of the Estate of the deceased appealed the judgment of the trial court which rendered a take-nothing judgment in favor of the corporation. The appellate court noted that the summary judgment record conclusively established that the corporation did not breach the Purchase and Sale Agreement by stopping payment on the second set of tendered checks, and the trial court did not err by granting summary judgment that the personal representative take nothing on their claim for breach of contract. The appellate court found that the summary judgment record conclusively established that the corporation did not breach the Agreement by stopping payment on the second set of tendered checks. The appellate court further determined that the trial court did not err by granting summary judgment that the personal representative take nothing on their claim for breach of contract. The appellate court concluded that the personal representative had not demonstrated error in the trial court’s summary judgment rulings or by its award of attorney’s fees to the corporation. Accordingly, the judgment of the trial court was affirmed.      

The defendant was required to prove by clear and convincing evidence that the defendant’s expert witness testimony was relevant to helping the jury reach accurate results and he failed to meet the standard.
Buford v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
April 30, 2020
01-18-01134-CR
Richard Hightower
Published
The defendant appealed the judgment of the trial court which convicted him of murder and assessed his punishment at 30 years’ imprisonment. The appellate court noted that the instruction, as given, properly allowed the jury to consider all the circumstances facing the defendant in determining the reasonableness of his belief that the use of deadly force was necessary under the circumstances he faced, including his apparent danger from the complainant’s alleged conduct. The appellate court found that the trial court did not err in refusing to submit the defendant’s additional charge language in the jury charge. The appellate court concluded that the defendant was required to prove by clear and convincing evidence that the defendant’s expert witness testimony was relevant to helping the jury reach accurate results and he failed to meet the standard. Accordingly, the judgment of the trial court was affirmed.  

The record did not conclusively establish all elements required to demonstrate that Chapter 95 was applicable to the claims asserted.
Wallace v. Energen Res. Corp.
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
April 24, 2020
08-17-00248-CV
Gina M. Palafox
Published
The plaintiffs appealed the judgment of the trial court which granted a take-nothing summary judgment on their negligence claims against the defendant. On appeal, the plaintiffs challenged the trial court’s order on the basis that the defendant was liable under Chapter 95 of the Texas Civil Practice and Remedies Code because the defendant exercised or retained control over the work performed by the plaintiffs as a matter of law. The appellate court found that the defendant had not conclusively established that the claims asserted by the plaintiffs arose from a condition or use of the Water Well where the plaintiffs constructed, repaired, renovated, or modified the Water Well as required by Chapter 95’s applicability provision. The appellate court concluded that the record did not conclusively establish all elements required to demonstrate that Chapter 95 was applicable to the claims asserted. Accordingly, the judgment of the trial court was reversed and remanded.  

The appellate court concluded that there were fact issues on the plaintiffs’ affirmative promissory estoppel claim and unjust enrichment claim, requiring reversal of the trial court’s summary judgment on those claims.
Walker v. Walker
Appellate: Civil, Contracts, Damages, Procedure, Real Property
Texas 14th Court of Appeals
April 23, 2020
14-18-00569-CV
Frances Bourliot
Published
The plaintiffs appealed the judgment of the trial court which granted summary judgment in a suit regarding ownership of a beach house. On appeal, the plaintiffs asserted claims for monetary damages based on promissory estoppel and unjust enrichment and filed a notice of lis pendens against the property. The appellate court agreed that the trial court erred in rendering summary judgment on the affirmative claim of promissory estoppel. The plaintiffs further alleged that they had an interest in the property even though it was never legally transferred to them. The appellate court found that the plaintiffs did not have an opportunity to amend their petition in response to the motion to expunge to seek any other damages available for unjust enrichment because the brothers did not raise the issue. The appellate court concluded that there were fact issues on the plaintiffs’ affirmative promissory estoppel claim and unjust enrichment claim, requiring reversal of the trial court’s summary judgment on those claims. Accordingly, the judgment of the trial court was reversed and remanded.        

The defendant failed to carry his burden to prove by a preponderance of the evidence that he had a constitutional right to counsel for the protective order proceeding.
Ex parte Garza
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
April 23, 2020
13-18-00502-CV
Dori Contreras
Published
The defendant appealed the judgment of the trial court which dismissed his petition for writ of habeas corpus. On appeal, the defendant argued that the trial court erred when it dismissed his petition. The State asserted that no constitutional rights were implicated in the protective order proceeding. The appellate court noted that for the constitutional right to appointed counsel to apply, an individual must face the threat of actual imprisonment rather than a mere future threat of imprisonment. The appellate court found that in cases regarding protective orders, Texas appellate courts had concluded that such a defendant was not constitutionally entitled to counsel. The appellate court concluded that the defendant failed to carry his burden to prove by a preponderance of the evidence that he had a constitutional right to counsel for the protective order proceeding. Accordingly, the judgment of the trial court was affirmed.      

Since the online impersonation statute was applied to conduct that was not entitled to constitutional protection, the defendant’s overbreadth challenge must fail.
Dupuy v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 23, 2020
14-19-00119-CR
Tracy Christopher
Published
The defendant appealed the judgment of the trial court which convicted him of online impersonation. On appeal, the defendant argued that the evidence was legally insufficient, the trial court abused its discretion by denying a motion for mistrial and by admitting certain evidence, and the statute defining the offense was unconstitutional. The appellate court noted that the point had not been preserved for appellate review because it was never presented to the trial court, and the defendant’s bare objection on the basis of constitutionality was not sufficiently specific to apprise the trial court that he was lodging a complaint under the Confrontation Clause. The appellate court found that the trial court’s interjection to the defense’s characterization of Backpage.com as a criminal enterprise further supported the conclusion. The appellate court concluded that since the online impersonation statute was applied to conduct that was not entitled to constitutional protection, the defendant’s overbreadth challenge must fail. Accordingly, the judgment of the trial court was affirmed.  

The mother’s counsel informed the trial court that the mother disputed some portions of the father’s proposed final order, but the mother did not bring to the trial court’s attention the specific disputes she raised in the case.
In re M.E.H.
Appellate: Civil, Family, Juvenile, Procedure
Texas 14th Court of Appeals
April 23, 2020
14-18-00281-CV
Kevin Jewell
Published
The mother appealed the judgment of the trial court which entered a final order based on a mediated settlement agreement (MSA) in a child custody dispute. On appeal, the mother contended that the MSA and the trial court’s order incorporating its terms contained provisions conditioning her rights of possession and access on payment of child support in violation of public policy. The appellate court found that the mother failed to show that the provisions she challenged were not severable and therefore the MSA was void. The appellate court concluded that the mother’s counsel informed the trial court that the mother disputed some portions of the father’s proposed final order, but the mother did not bring to the trial court’s attention the specific disputes she raised in the case. Accordingly, the judgment of the trial court was affirmed.   

The rational jury could have found based on the cumulative effect of all the evidence, not just the use of a finger gun, that the defendant committed retaliation by threatening to assault the second officer.
Barnes v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 28, 2020
14-18-00689-CR
Frances Bourliot
Published
The defendant appealed the judgment of the trial court which convicted him of retaliation by threatening to assault second officer. On appeal, the defendant challenged the legal sufficiency of the evidence in support of the jury’s finding that he committed retaliation by threatening to assault a police officer. The appellate court noted that the defendant’s First Amendment challenge was an “as applied” challenge to the constitutionality of the retaliation statute. The appellate court found that the State was not required to show an imminent threat to harm the second officer to establish retaliation by threat of assault, the State needed to show only that the defendant intentionally or knowingly threatened to harm the second officer with bodily injury. The appellate court concluded that the rational jury could have found based on the cumulative effect of all the evidence, not just the use of a finger gun, that the defendant committed retaliation by threatening to assault the second officer. Accordingly, the judgment of the trial court was affirmed.              

The appellate court concluded that the law required the defendant to preserve error in the trial court as to his third issue, and by failing to do so, the defendant waived the complaint.
Richardson v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 28, 2020
14-18-00433-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of a child and sentenced him to sixty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. The appellate court noted that the defendant preserved his speedy-trial complaint in the trial court, and the reason for delay factor weighed in favor of finding that the State violated the defendant’s right to a speedy trial, although not heavily. The appellate court found that the weight of the four factors, balanced together, went against finding a violation of the defendant’s right to a speedy trial. The appellate court concluded that the law required the defendant to preserve error in the trial court as to his third issue, and by failing to do so, the defendant waived the complaint. Accordingly, the judgment of the trial court was affirmed.      

The appellate court concluded that the law permitted the appellee's no-evidence ground challenging the essential element of duty as to the negligence claim.
Purvis v. Stoney Creek Cmty. Ass'n, Inc.
Appellate: Civil, Contracts, Damages, Evidence, Procedure, Real Property, Torts
Texas 14th Court of Appeals
April 28, 2020
14-18-00436-CV
Kem Thompson Frost
Published
The homeowner appealed the judgment of the trial court which granted the appellee's no-evidence motion for summary judgment, alleging that by failing to maintain the drainage pipe the appellee breached its contractual obligations under a declaration of covenants and restrictions and that the homeowner’s property suffered damage as a result. On appeal, the homeowner asserted claims for breach of contract and negligence. The appellate court noted that the summary-judgment evidence raised genuine fact issues as to whether the appellee had a duty to maintain the Drainage Pipe under article X, Section 2 because the Drainage Pipe fells within the Declaration’s definition of “Common Facilities” and whether the appellee failed to maintain the Drainage Pipe. The appellate court found that the trial court erred in granting summary judgment as to the contract claim on the ground of no evidence of breach of contract. The appellate court concluded that the law permitted the appellee's no-evidence ground challenging the essential element of duty as to the negligence claim. Accordingly, the judgment of the trial court was reversed and remanded.    

Even if a conspiracy claim against the defendant were available under New York law, the plaintiff made no persuasive argument that the legal barriers to an award of rescissory damages would not apply with equal force to the claim.
Credit Suisse AG v. Claymore Holdings, LLC
Appellate: Civil, Contracts, Creditor/Debtor, Damages, Procedure, Securities, Torts
The Supreme Court of Texas
April 24, 2020
18-0403
James D Blacklock
Published
The defendant appealed the judgment of the trial court which ruled in favor of the plaintiff, seeking recovery of the plaintiff’s investment losses under various legal theories. The Supreme Court noted that the trial court’s award for fraud followed none of the well-established approaches to damages; instead, it substituted an amount that was five times the jury’s verdict and bore no relationship to properly measured fraud damages. The Supreme Court found that even if a conspiracy claim against the defendant were available under New York law, the plaintiff made no persuasive argument that the legal barriers to an award of rescissory damages would not apply with equal force to the claim. The Supreme Court concluded that rescissory damages under other theories of liability were not available. Accordingly, the judgment of the trial court was partly affirmed and partly reversed and remanded.

Under Texas law, a lender who discharged a prior, valid lien on the borrower’s homestead property was entitled to subrogation, even if the lender failed to correct a curable defect in the loan documents under section 50 of the Texas Constitution.
Fed. Home Loan Mortgage Corp. v. Zepeda
Appellate: Civil, Banking and Finance, Constitution, Contracts, Procedure, Real Property
The Supreme Court of Texas
April 24, 2020
19-0712
Nathan L. Hecht
Published
The petitioner appealed the judgment of the trial court which ruled in favor of the respondent in a suit to quiet title on a theory that because the petitioner failed to cure the constitutional defect in the loan documents within 60 days of notification, the petitioner did not possess a valid lien on her property. On appeal, the petitioner claimed that it was subrogated to the company’s lien because its predecessor paid off the balance of the company’s loan to the respondent. The Supreme Court concluded that under Texas law, a lender who discharged a prior, valid lien on the borrower’s homestead property was entitled to subrogation, even if the lender failed to correct a curable defect in the loan documents under section 50 of the Texas Constitution. Accordingly, the court answered the certified question affirmatively.  

Even if a threat of prosecution could give a judge standing to challenge a substantive legal standard, the alleged threat of criminal prosecution in the case did not give the judges standing to seek the invalidation of GA-13.
In re Abbott
Appellate: Civil, Constitution, Criminal, Gov't/Administrative, Procedure
The Supreme Court of Texas
April 23, 2020
20-0291
Per Curiam
Published
The State appealed the judgment of the trial court, seeking a mandamus petition for review of the issued temporary restraining order (TRO) for the State’s Executive Order GA-13. On appeal, the State challenged the TRO on the ground that the Executive Order could suspend certain statutes authorizing trial judges to release jail inmates with violent histories during the current state of disaster. In response, the plaintiffs maintained that GA-13 was unconstitutional and exceeded the governor’s statutory emergency powers. The Supreme Court noted that the judges’ alleged that they faced a threat of criminal prosecution if they did not follow the executive order, and any threat to prosecute a judge for his or her judicial decisions raised grave separation-of-powers concerns. The Supreme Court found that the judges, however, did not explain why well-established principles of judicial immunity were insufficient to counter such threats. The Supreme Court concluded that even if a threat of prosecution could give a judge standing to challenge a substantive legal standard, the alleged threat of criminal prosecution in the case did not give the judges standing to seek the invalidation of GA-13. Accordingly, the State’s petition was conditionally granted.

The Credit Union failed to satisfy its burden of proving by a preponderance of the evidence the claims asserted by the plaintiff were based on, related to, or in response to its exercise of the right of free speech.
Sec. Serv. Fed. Credit Union v. Rodriguez
Appellate: Civil, Civil Rights, Employment, Procedure
Texas 8th Court of Appeals
April 24, 2020
08-19-00154-CV
Yvonne T. Rodriguez
Published
The Security Service Federal Credit Union (the Credit Union) appealed the judgment of the trial court which denied, by operation of law, its motion to dismiss pursuant to the Texas Citizens Participation Act. On appeal, the plaintiff alleged that the Credit Union wrongfully terminated the plaintiff based on age discrimination. The appellate court noted that even if the Credit Union had been robbed while the vault was unsecured, logically it may have subjected the Credit Union to a greater financial loss, but the court could not reasonably surmise the sole fact of the unsecured vault alone would have increased the risk of violence to employees or customers. The appellate court found that there were no communications regarding a recurrent breach of protocol by the plaintiff that would imply a continued threat to the security or communications suggesting the security policies were not sound. The appellate court concluded that the Credit Union failed to satisfy its burden of proving by a preponderance of the evidence the claims asserted by the plaintiff were based on, related to, or in response to its exercise of the right of free speech. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that having determined that the TCPA did not apply to the plaintiff’s action, the trial court properly denied the defendants’ motion to be dismissed.
Ridge Petroleum, Inc. v. Energy OPS, LLC
Appellate: Civil, Contracts, Gov't/Administrative, Procedure
Texas 8th Court of Appeals
April 24, 2020
08-19-00078-CV
Yvonne T. Rodriguez
Published
The defendants appealed the judgment of the trial court which denied its motion to dismiss filed pursuant to the Texas Citizens Participation Act (TCPA). On appeal, the defendants challenged the plaintiff’s efforts in seeking payment of alleged unpaid and underpaid royalties as well as termination of its obligations under an existing agreement. The appellate court noted that it believed the allegations in the plaintiff’s petition demonstrated only that any communications made by the defendants in the form of statements, checks, and division orders relate only to absent or incorrect mathematical calculations of royalties owed to a private party pursuant to the Disposal Agreement. The appellate court found that any statements, checks and division orders referenced in the plaintiff’s petition were not a matter of public concern as that phrase was defined in the TCPA. The appellate court concluded that having determined that the TCPA did not apply to the plaintiff’s action, the trial court properly denied the defendants’ motion to be dismissed. Accordingly, the judgment of the trial court was affirmed.     

The Supreme Court concluded that the trial court’s legal error was harmless, and the appellate court erred in reversing and remanding for a new trial.
In re Jones
Appellate: Civil, Criminal, Evidence, Procedure
The Supreme Court of Texas
April 24, 2020
19-0260
Per Curiam
Published
The defendant appealed the judgment of the trial court which convicted him of several attempted sexual-assault offenses. On appeal, the defendant challenged the civil suit against him to commit him as a sexually violent predator (SVP) under Texas Health and Safety Code chapter 841. The Supreme Court was further asked to decide whether a final verdict for the defendant declining to find that the defendant was a sexually violent predator must likewise be unanimous. The Supreme Court noted that the appellate court held that the trial court committed harmful error when it declined to submit an instruction explaining that a verdict for the defendant required only ten votes. The Supreme Court found that because it was apparent from the face of the record that the trial court’s failure to submit the requested 10–2 instruction did not probably cause the rendition of an improper judgment. The Supreme Court concluded that the trial court’s legal error was harmless, and the appellate court erred in reversing and remanding for a new trial. Accordingly, the judgment of the trial court was reversed.  

The trial court did not abuse its discretion by overruling the defendant’s objections to the admission of the test results showing his blood–alcohol concentration.
Jacobson v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
April 23, 2020
02-19-00307-CR
Dabney Bassel
Published
The defendant appealed the judgment of the trial court which convicted him of driving while intoxicated and assessed his punishment at ninety days’ confinement in the county jail and a fine. On appeal, the defendant challenged the trial court’s imposition of a community supervision for a period of sixteen months. The appellate court noted that the Fourth Amendment did not require the State to obtain a second warrant to test a blood sample that was seized based on probable cause that a person was driving while intoxicated, and the State provided the justification and had been given the means of obtaining the blood to use as evidence against the defendant. The appellate court found that a de novo review of the legal issue raised by the defendant was without merit. The appellate court concluded that the trial court did not abuse its discretion by overruling the defendant’s objections to the admission of the test results showing his blood–alcohol concentration. Accordingly, the judgment of the trial court was affirmed.

The petitioner's dismissive attitude and intermittent obstinance at the sanctions hearing undoubtedly taxed the trial court’s patience and was relevant to what sanctions should be imposed but did not itself justify the imposition of sanctions.
Brewer v. Lennox Hearth Products, LLC
Appellate: Civil, Ethics, Gov't/Administrative, Procedure
The Supreme Court of Texas
April 24, 2020
18-0426
Eva M. Guzman
Published
The petitioner appealed the judgment of the trial court which sanctioned the petitioner for commissioning a pretrial survey that commenced in the county of suit shortly before trial, in the underlying products-liability and wrongful-death suit. The Supreme Court noted that there was no rule, statute, or applicable court order categorically prohibiting or specifically constraining the use of a pretrial survey in the case or otherwise. The Supreme Court found that the survey the petitioner commissioned was not a model of perfection, and its execution was not flawless. The Supreme Court concluded that the petitioner's dismissive attitude and intermittent obstinance at the sanctions hearing undoubtedly taxed the trial court’s patience and was relevant to what sanctions should be imposed but did not itself justify the imposition of sanctions. Accordingly, the judgment of the trial court was reversed and vacated.  

The Supreme Court concluded that there were factual disputes to be resolved regarding whether the bayou was a navigable stream within the scope of the statutory conveyance.
Bush v. Lone Oak Club, LLC
Appellate: Civil, Environmental, Gov't/Administrative, Procedure, Real Property
The Supreme Court of Texas
April 24, 2020
18-0264
J. Brett Busby
Published
The State appealed the judgment of the trial court in a title dispute between the State and the respondent (private landowner) over portions of the submerged bed of the bayou, a navigable body of water located near the Gulf of Mexico. On appeal, the State contended that the statute did not validate the respondent’s title to the bayou’s bed because the term “navigable stream” referred only to portions of the stream not subject to the ebb and flow of the tide, and the tide entered the bayou. The Supreme Court found that because the plain and settled meaning of the statutory term “navigable stream” under both the civil and the common law included portions of the stream below the tide line, the beds underlying those portions were properly conveyed. The Supreme Court concluded that there were factual disputes to be resolved regarding whether the bayou was a navigable stream within the scope of the statutory conveyance. Accordingly, the judgment of the trial court was reversed and remanded.  

Since there was no authority that suggested the respondent had the discretion to order the State to pay attorney fees or other monetary sanctions to counsel for RPI and given that the State had no adequate remedy by appeal, the court conditionally granted the petition.
In re Texas
Constitution, Damages, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
April 23, 2020
01-19-00688-CR
Russell Lloyd
Published
The State appealed the judgment of the trial court, seeking mandamus relief from the trial court’s order that it pay $500 in attorney fees to defense counsel as a sanction following a discovery dispute. The appellate court noted that the real party in interest (RPI) asserted the award of monetary sanctions was a discretionary act that was supported by the State’s record of discovery abuse, and the respondent had inherent authority to impose the sanctions. The appellate court found that the State had no adequate remedy by appeal as to the imposition of the monetary sanction and its only remedy was to seek a writ of mandamus. The appellate court concluded that because there was no authority that suggested the respondent had the discretion to order the State to pay attorney fees or other monetary sanctions to counsel for RPI and given that the State had no adequate remedy by appeal, the court conditionally granted the petition. Accordingly, the judgment of the trial court was vacated.  

Since the record showed that there was no final judgment in the case and the plaintiff was seeking to appeal a non-appealable interlocutory order, the court lacked jurisdiction over the appeal.
Frausto v. RC Indus. LLC
Appellate: Civil, Damages, Employment, Procedure, Workers' Compensation
Texas 4th Court of Appeals
April 22, 2020
04-19-00166-CV
Luz Elena D Chapa
Published
The plaintiff appealed the judgment of the trial court, alleging that the defendant took an adverse employment action against him because he sought worker’s compensation benefits. On appeal, the plaintiff contended that the adverse employment action was that the defendant terminated his employment. The plaintiff further asserted that he was unable to go to work as a result of the defendant’s refusal to provide him with transportation to work as promised. The appellate court found that because the order granting the summary judgment motion was not a final judgment, the court need not address whether the plaintiff’s amended pleading presented a separate cause of action for the trial court’s consideration, and whether the order granting the defendant’s motion actually disposed of that other cause of action. The appellate court concluded that since the record showed that there was no final judgment in the case and the plaintiff was seeking to appeal a non-appealable interlocutory order, the court lacked jurisdiction over the appeal. Accordingly, the judgment of the trial court was affirmed.  

The trial court did not abuse its discretion by finding that the plaintiff failed to carry his burden under TEX. R. CIV. P. Rule 145 and was therefore not unable to afford payment of court costs.
Emerson v. Holly Lake Ranch Ass'n
Appellate: Civil, Banking and Finance, Contracts, Employment, Evidence, Procedure, Real Property, Securities
Texas 6th Court of Appeals
April 20, 2020
06-20-00020-CV
Scott E. Stevens
Published
The plaintiff appealed the judgment of the trial court which denied the plaintiff’s claim of inability to afford payment of court costs. On appeal, the plaintiff challenged the trial court’s decision to sustain the contest and issue an order denying the plaintiff’s claim of inability to afford payment of court costs. The appellate court noted that the plaintiff relied on the fact that his bank statement reflected a balance, significant deposits and steady withdrawals. The appellate court found that the evidence indicated that the plaintiff had an accounting degree, had worked as a flood claims adjuster at which he earned significant money, and attended law school, and thus, he was able to afford certain expenses that could perhaps be viewed as discretionary. The appellate court concluded that the trial court did not abuse its discretion by finding that the plaintiff failed to carry his burden under TEX. R. CIV. P. Rule 145 and was therefore not unable to afford payment of court costs. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the portion of the trial court’s order denying the movants’ joint motion for leave to designate responsible third parties constituted an abuse of discretion.
In re Bertrand
Appellate: Civil, Constitution, Procedure
Texas 2nd Court of Appeals
April 16, 2020
02-20-00028-CV
Mike Wallach
Published
The movants appealed the judgment of the trial court, filing a writ of mandamus for leave to designate responsible third parties. On appeal, the plaintiffs objected to the motion, contending that the movants had not complied with their obligation to timely disclose the two doctors named in the motion as responsible third parties under Rule 194.2(l) of the Texas Rules of Civil Procedure, as required by Section 33.004(d). The appellate court found that the movants’ conduct, in failing to respond and seasonably supplement disclosure responses regarding potential responsible third parties after the plaintiffs’ limitations had expired against the potential responsible third parties, was immaterial to whether the movants failed to timely disclose potential responsible third parties for purposes of Tex. Civ. Prac. & Rem. Code Ann. Section 33.004(d). The appellate court concluded that the portion of the trial court’s order denying the movants’ joint motion for leave to designate responsible third parties constituted an abuse of discretion. Accordingly, the court conditionally granted the writ of mandamus.