The Texas Rules of Civil Procedure did not authorize this procedure for discovery from a non-party witness.
In re Berry
Appellate: Civil, Constitution, Discovery, Procedure
Texas 13th Court of Appeals
April 16, 2019
13-19-00100-CV
Gregory T. Perkes
Published
The relators appealed the judgment of the trial court, filing a petition for writ of mandamus seeking to compel the trial court to vacate the order granting the plaintiffs’ motion for substituted service. In its petition, the relators contended that Rule 106 only applied to service of citation at the inception of a lawsuit and provided no authority for serving a deposition notice or subpoena on a non-party by simply attaching it to the non-party’s front door or leaving it at a residence. The relators further asserted that the plaintiff had not produced evidence that the address at which he attempted to serve was, in fact, his residence. The appellate court noted that a trial court abused its discretion if it reached a decision that was so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly failed to correctly analyze or apply the law. The appellate court found that mandamus was proper because the order was not permitted by the Texas Rules of Civil Procedure and because any discovery undertaken pursuant to the order could not be undone. The appellate court concluded that the Texas Rules of Civil Procedure did not authorize this procedure for discovery from a non-party witness. Accordingly, the relators’ petition for writ of mandamus was conditionally granted.


A party could not seek the dismissal of a Texas Citizens Participation Act motion to dismiss by filing a responsive or countermotion to dismiss under the Act.
Deepwell Energy Serv., LLC v. Aveda Transp. & Energy Serv.
Appellate: Civil, Gov't/Administrative, Procedure
Texas 11th Court of Appeals
April 18, 2019
11-18-00265-CV
John Bailey
Published
The plaintiff appealed the judgment of the trial court which denied its responsive Texas Citizens Participation Act (TCPA) motion to dismiss, alleging that the TCPA motion to dismiss violated the same act. On appeal, the appellate court was asked to consider whether a TCPA motion to dismiss was subject to dismissal by a responsive or countermotion to dismiss brought under the Act. The appellate court noted that the TCPA allowed a defendant to obtain expedited dismissal of certain legal actions for which the party bringing the action did not establish prima facie support. The plaintiff further asserted that the defendants’ TCPA motion to dismiss was a legal action that was based on, related to, or in response to the plaintiff’s exercise of its right to petition. The appellate court found that a TCPA motion to dismiss was not included as a “legal action” under the phrase “or any other judicial pleading or filing that requests legal or equitable relief” because it was not a procedural vehicle for the vindication of a legal claim like a “lawsuit,” “cause of action,” “petition,” “complaint,” “cross-claim,” or “counterclaim.” The appellate court concluded that a party could not seek the dismissal of a TCPA motion to dismiss by filing a responsive or countermotion to dismiss under the Act. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the appellant was the owner of the grain, and thus estopped from entering a contrary agreement under § 1.111(e).
Sebastian Cotton & Grain, Ltd. v. Willacy Cnty. Appraisal Dist.
Appellate: Civil, Gov't/Administrative, Procedure, Tax
Texas 13th Court of Appeals
April 18, 2019
13-14-00574-CV
Gregory T. Perkes
Published
The appellant appealed the judgment of the trial court which upheld the Appraisal Review Board’s (the Board) decision, alleging that the Appraisal District was prohibited by statute from changing the appraisal roll because it increased the tax liability, or the phone conversation was a final, nonreviewable agreement under § 1.111(e) of the Property Tax Code. On appeal, the appellate court was asked to consider whether the appellant was the owner of the subject property, and if so, whether the appellant was quasi-estopped from entering an agreement pursuant to tax code § 1.111(e) with the Appraisal District. The appellate court noted that a buyer would be the owner upon execution of a purchase contract, with all the attendant rights and obligations of ownership, yet legal title would not pass until shipment or delivery—if either occurred at all. The appellate court found that the only reasonable interpretation of Rule 6 was that it delineated the point at which ownership transferred from the seller to the buyer. The appellate court concluded that the appellant was the owner of the grain, and thus estopped from entering a contrary agreement under § 1.111(e). Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the trooper’s reasonable mistake about the timing of “sunset” did not invalidate the statute or render it unconstitutionally vague.
Babel v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 18, 2019
14-17-00762-CR
Margaret Poissant
Published
The defendant appealed the judgment of the trial court which convicted her of driving while intoxicated and denied her motion to suppress evidence on grounds that the trooper conducting the traffic stop had reasonable suspicion of criminal activity. On appeal, the defendant contended that the trial court abused its discretion in denying the defendant’s motion to suppress and motion to find Sections 541.401(5) and 547.302(a)(1) of the Transportation Code unconstitutional. The State conceded the entire thirty-minute time period had not actually expired at the time the trooper initiated the stop, however, the State argued that the trooper had a reasonable, albeit mistaken, suspicion that the defendant was committing the crime of failing to display her lights. The appellate court found that the defendant, or a reasonably intelligent person in the defendant’s shoes, was given a reasonable opportunity to know what the term “sunset” meant. The appellate court concluded that the trooper’s reasonable mistake about the timing of “sunset” did not invalidate the statute or render it unconstitutionally vague. Accordingly, the judgment of the trial court was affirmed.


The record failed to affirmatively show strict compliance with the rules of civil procedure governing issuance, service, and return of citation, and therefore, error was apparent on the face of the record, and the attempted service of process was invalid and of no effect.
Propel Fin. Serv., LLC v. Conquer Land Utilities, LLC
Appellate: Civil, Damages, Procedure
Texas 13th Court of Appeals
April 18, 2019
13-18-00280-CV
Leticia Hinojosa
Published
The defendant appealed the judgment of the trial court which rendered a no-answer default judgment in favor of the plaintiff, awarding damages, and post-judgment orders granting turnover relief and appointing a receiver. On appeal, the defendant argued that the default judgment should be set aside by restricted appeal because error appeared on the face of the record, and the trial court abused its discretion in ordering turnover relief and appointing a receiver. The appellate court noted that a restricted appeal was available for the limited purpose of providing a party who did not participate at trial with the opportunity to correct an erroneous judgment. The defendant further alleged that the plaintiff’s return of service did not strictly comply with Texas Rule of Civil Procedure 107. The appellate court found that the trial court’s authority to grant a Rule 118 amendment extended only as far as its plenary power over the judgment. The appellate court concluded that the record failed to affirmatively show strict compliance with the rules of civil procedure governing issuance, service, and return of citation, and therefore, error was apparent on the face of the record, and the attempted service of process was invalid and of no effect. Accordingly, the judgment of the trial court was reversed and remanded.


The appellate court concluded that there existed no appealable order for the appellate court to review under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code.
San Jacinto River Auth. v. Lewis
Appellate: Civil, Constitution, Gov't/Administrative, Procedure, Real Property
Texas 14th Court of Appeals
April 16, 2019
14-19-00137-CV
Per Curiam
Published
The defendant appealed the judgment of the trial court, complaining of its “effective” denial of its motion filed pursuant to Texas Rule of Civil Procedure 91a. This appeal stemmed from the plaintiff’s suit against the defendant alleging actions taken by the defendant in the immediate aftermath of Hurricane Harvey amounted to a taking of his property. On appeal, the defendant argued that the trial court’s failure to rule on the defendant’s motion to dismiss within forty-five days was effectively a denial of its motion to dismiss. The appellate court noted that automatic denial of a motion filed under the Texas Citizens Participation Act (TCPA) followed when the trial court missed the deadline. The appellate court found that because the trial court did not rule on the plea to the jurisdiction and motion to dismiss under Rule 91a, no ruling existed over which this court could exercise its interlocutory appellate jurisdiction. The appellate court concluded that there existed no appealable order for the appellate court to review under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code. Accordingly, the judgment of the trial court was affirmed.


There was no conflict with the master service agreement because the parties’ license agreement provided additional methods to terminate the relationship that were not contained in the master service agreement.
Polaris Guidance Sys., LLC v. EOG Res., Inc.
Appellate: Civil, Contracts, Procedure, Torts
Texas 14th Court of Appeals
April 16, 2019
14-17-00717-CV
Jerry Zimmerer
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment in an action alleging breach of contract and promissory estoppel. On appeal, the plaintiff contended that the trial court erred in its construction of the three writings underlying the software transaction between the parties. The appellate court noted that a contract was unambiguous if it could be given one certain or definite legal interpretation, and in construing an unambiguous contract, an appellate court’s primary goal was to ascertain the true intentions of the parties as expressed in the instrument. The appellate court found that parol evidence could not be used to create a latent ambiguity, and because the documents at issue in this dispute could be given a certain or definite meaning, they were not ambiguous. The plaintiff further asserted that the agreement superseded the master service agreement as a result of a merger clause. The appellate court concluded that there was no conflict with the master service agreement because the parties’ license agreement provided additional methods to terminate the relationship that were not contained in the master service agreement. Accordingly, the judgment of the trial court was affirmed.


The defendant failed to satisfy the first prong of Strickland because it could not assume a lack of sound trial strategy where the record was silent regarding trial counsel’s strategy.
Jones v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 16, 2019
14-17-00536-CR
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which convicted him of family violence assault enhanced with a prior conviction for family violence assault and assessed the defendant’s punishment at thirty years in prison. On appeal, the defendant argued that the trial court abused its discretion when it admitted records from the State documenting his prior felony convictions into evidence. The defendant further asserted that he received ineffective assistance of counsel during the punishment phase of his trial because his trial counsel offered no mitigating evidence. The appellate court noted that Rule 902 allowed for self-authentication of copies of an official record–or a copy of a document that was recorded or filed in a public office as authorized by law if the copy was certified as correct by the custodian or another person authorized to make the certification. The appellate court found that there was a strong presumption that trial counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy. The appellate court concluded that the defendant failed to satisfy the first prong of Strickland because it could not assume a lack of sound trial strategy where the record was silent regarding trial counsel’s strategy. Accordingly, the judgment of the trial court was affirmed.


The defendants were not entitled to recover attorney’s fees from the plaintiff under section 3 deed restrictions and no other basis was identified to support the award of attorney’s fees.
Dealer Computer Serv., Inc. v. DCT Hollister RD, LLC
Appellate: Civil, Contracts, Damages, Real Property
Texas 14th Court of Appeals
April 16, 2019
14-17-00480-CV
Charles Spain
Published
The plaintiff appealed the judgment of the trial court which granted the defendants’ motions for summary judgment and awards of attorney’s fees. On appeal, the plaintiff argued that the trial court erred by deciding the following issues in favor of the defendants on summary judgment: standing, amendment, duty, nuisance, limitations, laches, waiver, and estoppel, and settlement and release. Specifically, the plaintiff contended that it had standing to enforce the restrictions because the property was operated under a common scheme or plan. The appellate court noted that a restrictive covenant, such as a deed restriction, was a contractual agreement between the seller and purchaser of real property. The appellate court found that under Texas law, a property owner could subdivide property into lots and create a subdivision in which all property owners agreed to the same or similar restrictive covenants designed to further the owner’s general plan or scheme of development. The appellate court concluded that the defendants were not entitled to recover attorney’s fees from the plaintiff under section 3 deed restrictions and no other basis was identified to support the award of attorney’s fees. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.


The appellate court found that legally sufficient evidence supported the jury's findings that the employee engaged in a protected activity and that the employer retaliated against her for making a complaint.
Apache Corp. v. Davis
Appellate: Civil, Civil Rights, Damages, Employment, Procedure, Torts
Texas 14th Court of Appeals
April 23, 2019
14-17-00306-CV
Ken Wise
Published
The employer appealed the judgment of the trial court which ruled in favor of its former employee on her retaliation claim under Chapter 21 of the Texas Labor Code, finding that the employee filed a complaint of age or gender discrimination and was discharged the employee because she filed the complaint. On appeal, the employer challenged the trial court's judgment, arguing there was legally insufficient evidence that the employee engaged in protected activity, but-for causation was lacking, the jury charge was erroneous, and the attorneys' fees awarded by the trial court are unreasonable and unsupported by sufficient evidence. The appellate court found that legally sufficient evidence supported the jury's findings that the employee engaged in a protected activity and that the employer retaliated against her for making a complaint. The appellate court concluded that there was no Casteel error and there was sufficient evidence to support the award of attorney fees with the exception of a portion of the fees awarded for time. Accordingly, the judgment of the trial court was affirmed and modified in part.


The appellate court concluded that a person, whose conduct violated sections 42.07(a)(1) and (b)(3), was not engaging in a legitimate communication of ideas, opinions, or information, but had only the intent to inflict emotional distress for its own sake.
Ex parte Nuncio
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
April 10, 2019
04-18-00127-CR
Beth Watkins
Published
The defendant appealed the judgment of the trial court, seeking a pretrial application for writ of habeas corpus in which he contended sections 42.07(a)(1) and (b)(3) of the harassment statute were unconstitutionally overbroad and vague. On appeal, the defendant contended that the trial court erred in denying his application. Specifically, the defendant challenged the facial constitutionality of sections 42.07(a)(1) and (b)(3) of the Texas Penal Code. The appellate court noted that section 42.07(a) provided that a person committed the offense of harassment if with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person initiated communication and in the course of the communication made a comment, request, suggestion, or proposal that was obscene. The defendant further alleged that the provisions were overbroad because they invaded the area of protected speech and were vague in that they deprived a person of adequate notice of the prohibited activity. The appellate court concluded that a person, whose conduct violated sections 42.07(a)(1) and (b)(3), was not engaging in a legitimate communication of ideas, opinions, or information, but had only the intent to inflict emotional distress for its own sake. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the mother received ineffective assistance of counsel during the motion for new trial stage.
In re I.L.
Constitution, Family, Gov't/Administrative, Procedure
Texas 4th Court of Appeals
April 10, 2019
04-18-00742-CV
Luz Elena D Chapa
Published
The mother appealed the judgment of the trial court which terminated her parent’s rights in a suit affecting the parent-child relationship filed by the Department of Family and Protective Services (the Department). On appeal, the mother argued that her counsel rendered ineffective assistance. The appellate court noted that to sustain the mother’s ineffective assistance of counsel claim, it must find that she had a right to effective assistance of counsel, counsel performed deficiently, and counsel's deficient performance was prejudicial. The appellate court found that the mother had the right to effective assistance of counsel. The mother further alleged that her counsel performed deficiently after trial. The appellate court concluded that the mother received ineffective assistance of counsel during the motion for new trial stage. Accordingly, the judgment of the trial court was reversed and remanded in part and affirmed in part.


Since the only difference between continuous trafficking of persons and trafficking of persons was the time period of more than thirty days, the defendant was entitled to an instruction on the lesser-included offense of trafficking of persons.
Williams v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
April 10, 2019
04-17-00815-CR
Liza A. Rodriguez
Published
The defendant appealed the judgment of the trial court which convicted him of continuous trafficking of persons and sentenced him to fifty years of imprisonment. On appeal, the defendant argued that there was affirmative evidence from which a rational jury could find him guilty of only trafficking of persons. The State counterargued that the fact that the defendant’s name only appeared on some of the ads did not negate other evidence establishing that he encouraged the victim to engage in prostitution. The appellate court noted that there was more than a scintilla of evidence from which a rational jury could find the defendant was guilty of only trafficking of persons and not continuous trafficking of persons. The appellate court found that since the only difference between continuous trafficking of persons and trafficking of persons was the time period of more than thirty days, the defendant was entitled to an instruction on the lesser-included offense of trafficking of persons. The appellate court concluded that the trial court erred in denying his request for a lesser-included instruction on human trafficking of persons. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.


The evidence was legally and factually sufficient to support the predicate termination finding under subsection E of the Texas Family Code.
In re L.M.
Family, Gov't/Administrative, Juvenile, Procedure
Texas 14th Court of Appeals
April 09, 2019
14-18-01047-CV
Kevin Jewell
Published
The father appealed the judgment of the trial court which terminated the parental rights to his child and appointed the Department of Family and Protective Services (the Department) as the child's sole managing conservator. On appeal, the father challenged the legal and factual sufficiency of the evidence to support the trial court's findings on the predicate grounds and that termination was in the child's best interest. The appellate court noted that due to the severity and permanency of terminating the parental relationship, Texas required clear and convincing evidence to support such an order. The father further asserted that the trial court should not have admitted the removal affidavit over his hearsay objection. The appellate court found that the evidence contained within the police report was otherwise admitted through witness testimony and thus any error in admitting the report was harmless. The appellate court concluded that the evidence was legally and factually sufficient to support the predicate termination finding under subsection E of the Texas Family Code. Accordingly, the judgment of the trial court was affirmed.


Since the defendant did not object or otherwise bring his complaint to the attention of the trial court, the defendant’s appellate issue was not preserved for review.
Fenner v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
March 13, 2019
10-18-00229-CR
Tom Gray
Published
The defendant appealed the judgment of the trial court which convicted him of indecency with a child by contact and deferred an adjudication of guilt and placed him on community supervision for 10 years. On appeal, the defendant contended that the trial court abused its discretion in finding the defendant violated the conditions of his community supervision as alleged in the State's motion to proceed to an adjudication of guilt. The appellate court noted that one of the conditions upon which the State sought to revoke the defendant’s community supervision required him to work faithfully and satisfactorily participate in Community Service Projects by completing 320 hours of Community Service. The defendant further alleged that the trial court erred in assessing only 694 days as credit toward his 20-year sentence. The appellate court found that because the trial court erred in its assessment of attorney's fees, the trial court's judgment must be modified to delete those fees from the court costs assessed. The appellate court concluded that since the defendant did not object or otherwise bring his complaint to the attention of the trial court, the defendant’s appellate issue was not preserved for review. Accordingly, the judgment of the trial court was affirmed.


Because a constitutional challenge to section 12.42(c)(2) and (g)(1) was not cognizable in a pretrial writ of habeas corpus, and the defendant did not establish his plea was involuntary.
Ex parte Powell
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
February 20, 2019
10-18-00142-CR
Tom Gray
Published
The defendant appealed the judgment of the trial court which convicted him of sexual assault and placed him on deferred adjudication community supervision for seven years. Thereafter, the defendant filed a writ of habeas corpus contending that section 12.42(c)(2) and (g)(1) was unconstitutional on its face and as applied and that his plea of guilty was involuntary, which the trial court denied. On appeal, the defendant alleged that his plea was involuntary because he was not admonished that a sentence of deferred adjudication would constitute a final conviction under certain circumstances. The defendant further complained that he should have been admonished of the collateral consequences of his plea if he committed another sexual assault. The appellate court noted that the defendant provided no statutory or case authority that would suggest the trial court was required to admonish him beyond what was required in article 26.13 of the Texas Code of Criminal Procedure. The appellate court found that the defendant’s challenge to the constitutionality of section 12.42(c)(2) and (g)(1) was not cognizable by way of a pretrial writ of habeas corpus. The appellate court concluded that because a constitutional challenge to section 12.42(c)(2) and (g)(1) was not cognizable in a pretrial writ of habeas corpus, and the defendant did not establish his plea was involuntary. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that it must dismiss the defendant’s appeal of the recommitment order for lack of jurisdiction because those cases that were moot were normally not justiciable.
Truong v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
February 28, 2019
01-16-00390-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which found him not guilty by reason of insanity of second-degree felony offense of manslaughter, but which renewed the order for inpatient commitment for each of the followed six years. On appeal, the defendant argued that the State failed to prove by clear and convincing evidence that further inpatient treatment was necessary. The appellate court noted that an appeal from a recommitment order presenting only the issue of insufficiency of the evidence to support recommitment did not fall within the capable of repetition, yet evading review exception to the mootness doctrine. The appellate court found that under the circumstances of this case, considering the merits of the defendant’s sufficiency challenge to the recommitment order would have no practical effect. The appellate court concluded that it must dismiss the defendant’s appeal of the recommitment order for lack of jurisdiction because those cases that were moot were normally not justiciable. Accordingly, the judgment of the trial court was affirmed.


The State adduced sufficient evidence to show beyond a reasonable doubt that the defendant, knowing that an investigation was in progress, tampered with the evidence.
Tolliver v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
February 20, 2019
10-18-00070-CR
Thomas W. Gray
Published
The defendant appealed the judgment of the trial court which convicted him of tampering with physical evidence and two revocations of his community supervision. On appeal, the defendant complained that the evidence was insufficient and that he was egregiously harmed by the omission of an instruction on legal impossibility in the jury charge during the guilt-innocence phase of the trial. The defendant further contended that the evidence was insufficient to support the orders for him to pay his court-appointed attorney's fees in each of the two proceedings. The appellate court noted that three elements defined the offense of tampering with physical evidence: (1) knowing that an investigation or official proceeding was pending or in progress, (2) a person altered, destroyed, or concealed any record, document, or thing, (3) with the intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding. The appellate court found that there was no reversible error in the conviction for tampering with physical evidence, and the award of attorney's fees was erroneously included in those judgments in part. The appellate court concluded that the State adduced sufficient evidence to show beyond a reasonable doubt that the defendant, knowing that an investigation was in progress, tampered with the evidence. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the trial court properly granted the appellee’s petition for expunction but erred in failing to modify the order's scope.
Tex. Educ. Agency v. H.C.V.
Criminal, Evidence, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
February 28, 2019
01-17-00210-CV
Richard Hightower
Published
The Texas Education Agency (the Agency) appealed the judgment of the trial court which granted the expunction order and its scope of all records of the appellee’s arrest. On appeal, the Agency contended that the trial court erred in granting the petition for expunction because the appellee was placed on community supervision, which negated her entitlement to expunction. The Agency further maintained that, even if the appellee were entitled to expunction, the trial court's order was overly broad because it included information that was not subject to being expunged. The appellate court found that the portions of the proposal for decision that described the appellee’s underlying conduct were not subject to expunction because they were not records and files relating to the arrest. The appellate court concluded that the trial court properly granted the appellee’s petition for expunction but erred in failing to modify the order's scope. Accordingly, the judgment of the trial court was affirmed in part and modified in part.


The trial court properly instructed the jury that it could find the defendant guilty of a class A misdemeanor if it found his blood alcohol concentration was .15 or more.
Taylor v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 09, 2019
14-17-00303-CR
Frances Bourliot
Published
The defendant appealed the judgment of the trial court which convicted him of driving while intoxicated (DWI). On appeal, the defendant challenged the sufficiency of the evidence to support his conviction under the corpus delecti rule, the trial court's admission of evidence involving a fatality accident at the scene, and the enhancement of his conviction to a class A misdemeanor without a prior DWI conviction. The appellate court noted that the jury found that the defendant drove with an alcohol concentration of more than .15. The appellate court found that the defendant’s conviction was supported by legally sufficient evidence, and the defendant did not preserve error on his evidentiary challenge. The appellate court concluded that the trial court properly instructed the jury that it could find the defendant guilty of a class A misdemeanor if it found his blood alcohol concentration was .15 or more. Accordingly, the judgment of the trial court was affirmed.


The trial court could have formed a firm belief or conviction that an adequate regimen of outpatient or community-based treatment was not available to the defendant and, therefore, that inpatient treatment or residential care was necessary to protect the safety of others.
Truong v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
February 28, 2019
01-18-00454-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which found him guilty by reason of insanity for the second-degree felony offense of manslaughter and committed him for inpatient treatment. On appeal, the defendant challenged the trial court's recommitment order, contending that the State presented insufficient evidence to support the order renewing appellant's commitment for inpatient treatment. Specifically, the defendant maintained that the State failed to prove that treatment and supervision for his mental illness could not be safely and effectively provided as outpatient treatment and that, as a result, inpatient treatment was necessary to protect the safety of others. The appellate court noted that the State presented evidence that the defendant had been diagnosed with schizoaffective disorder-bipolar type, as well as alcohol and cocaine abuse. The appellate court found that although there was evidence that the defendant would, if released from inpatient treatment, be under the care of a psychiatrist, there was no evidence presented that he would reside in an appropriate assisted living facility that would provide supervision and monitoring of his medication. The appellate court concluded that the trial court could have formed a firm belief or conviction that an adequate regimen of outpatient or community-based treatment was not available to the defendant and, therefore, that inpatient treatment or residential care was necessary to protect the safety of others. Accordingly, the judgment of the trial court was affirmed.


Because the relator adduced some evidence that the designated responsible third party was potentially responsible for the alleged injuries, the trial court clearly abused its discretion by striking the designation.
In re Molina
Appellate: Civil, Employment, Litigation: Personal Injury, Procedure, Torts
Texas 5th Court of Appeals
March 29, 2019
05-19-00147-CV
Bill Whitehill
Published
The relator appealed the judgment of the trial court, seeking a petition for writ of mandamus asserting that the trial court abused its discretion by striking the designation. This appeal stemmed from the plaintiff’s allegations that he was injured in a multi-vehicle collision. On appeal, the relator argued that the motion to strike argued only that there was no evidence that a breach of duty of care had occurred and thus did not attack proximate cause. The appellate court noted that to obtain mandamus relief, a relator must show that the trial court clearly abused its discretion and that relator had no adequate appellate remedy. The appellate court found that if there was more than a scintilla of evidence of causation, the trial court erred and abused its discretion. The appellate court concluded that because the relator adduced some evidence that the designated responsible third party was potentially responsible for the alleged injuries, the trial court clearly abused its discretion by striking the designation. Accordingly, the relator’s writ was granted.


The parol evidence rule did not preclude enforcement of the agreement through which the plaintiff claimed to have satisfied his debt to the defendant, and thus, the plaintiff met his current burden to establish a prima facie case for the falsity of the defendant’s liens.
West v. Quintanilla
Appellate: Civil, Contracts, Creditor/Debtor, Procedure, Real Property, Tax
The Supreme Court of Texas
April 05, 2019
17-0454
Jeffrey S. Boyd
Published
The plaintiff appealed the judgment of the appellate court which ruled that the parol evidence rule barred evidence and enforcement of the agreement through which to have satisfied the debt. On appeal, the Supreme Court was asked to consider whether the defendant’s assertion that the plaintiff still owed the defendant under the Trading Agreement was false. The Supreme Court noted that to avoid dismissal under the TCPA, the plaintiff bore the burden to establish by clear and specific evidence a prima facie case for each essential element of his slander-of-title and fraudulent-lien claims. The Supreme Court found that under the parol evidence rule, the written, integrated Purchase Agreement precluded enforcement of any prior or contemporaneous agreement that addressed the same subject matter and was inconsistent with its terms. The Supreme Court concluded that the parol evidence rule did not preclude enforcement of the agreement through which the plaintiff claimed to have satisfied his debt to the defendant, and thus, the plaintiff met his current burden to establish a prima facie case for the falsity of the defendant’s liens. Accordingly, the judgment of the appellate court was reversed and remanded.


The appellate court concluded that the trial court abused its discretion in awarding the paternal grandmother possession of and access to the younger child.
In re Nelke
Family, Juvenile, Procedure
Texas 5th Court of Appeals
April 05, 2019
05-19-00050-CV
David Schenck
Published
The relator appealed the judgment of the trial court, seeking relief from the trial court's temporary orders in this suit affecting the parent-child relationship. On appeal, the relator challenged the paternal grandmother's standing to file a petition to intervene in the relator’s pending original SAPCR regarding the younger child. The relator further alleged that the trial court abused its discretion in awarding the paternal grandmother possession of and access to the younger child. The appellate court found that the trial court did not err in concluding that the paternal grandmother had standing to intervene, although that standing to be supported under section 102.004(b). The appellate court concluded that the trial court abused its discretion in awarding the paternal grandmother possession of and access to the younger child. Accordingly, the relator’s writ was conditionally granted in part and denied in part.


The Texas Citizens Participation Act applied to the Commission's disciplinary proceeding against the respondent, however the Commission met its burden of establishing by clear and specific evidence a prima facie case for each element of its claim against the respondent.
Comm’n for Lawyer Discipline v. Rosales
Appellate: Civil, Civil Rights, Constitution, Ethics, Gov't/Administrative, Procedure, Professional Responsibility
Texas 3rd Court of Appeals
April 03, 2019
03-18-00147-CV
Jeff Rose
Published
The Commission for Lawyer Discipline (the Commission) appealed the judgment of the trial court which dismissed the Commission's disciplinary action against the respondent (attorney) under the Texas Citizens Participation Act (TCPA). On appeal, the Commission contended that the TCPA did not apply to its lawyer-discipline actions because those proceedings were exempt under the TCPA's exemption for government enforcement actions, because the Commission was protected by immunity, and because of its decision in Sullivan v. Texas Ethics Commission. The appellate court found that the plain language of the exemption did not encompass Commission disciplinary proceedings brought by the State Bar's Chief Disciplinary Counsel. The appellate court concluded that the TCPA applied to the Commission's disciplinary proceeding against the respondent, however the Commission met its burden of establishing by clear and specific evidence a prima facie case for each element of its claim against the respondent. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The appellee’s expert report provided a fair summary of the expert's opinions regarding the applicable standards of care, and a statement identifying the manner in which the care rendered failed to meet the standards.
Naderi v. Ratnarajah
Appellate: Civil, Damages, Evidence, Health Care, Litigation: Personal Injury, Procedure
Texas 14th Court of Appeals
April 02, 2019
14-18-00480-CV
Ken Wise
Published
The appellants appealed the judgment of the trial court which denied their Chapter 74 motion to dismiss based on alleged deficiencies in the appellee’s expert report. On appeal, the appellants contended that the appellee’s expert report failed to provide a sufficient opinion of the applicable standard of care and breach of that standard. The appellants further asserted that the appellee’s expert report failed to adequately set forth a causal chain linking any alleged harm actually suffered to a specific breach of an applicable standard of care. The appellate court noted that the Texas Medical Liability Act required that plaintiffs alleging a health care liability claim must serve each defendant with an adequate expert report or face dismissal of their claim. The appellate court found that the appellee’s expert report was sufficient as to the standards of care identified and the breaches of those standards. The appellate court concluded that since the appellee’s expert report provided a fair summary of the expert's opinions regarding the applicable standards of care, a statement identifying the manner in which the care rendered failed to meet the standards, the trial court did not abuse its discretion in denying the appellants' motion to dismiss. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that because the defendants did not show any injury that this Court could redress, the defendants lacked standing to bring this appeal.
Nephrology Leaders & Assoc. v. Am. Renal Assoc. LLC
Appellate: Civil, Discovery, Procedure
Texas 1st Court of Appeals
April 02, 2019
01-18-00242-CV
Laura Carter Higley
Published
The defendants appealed the judgment of the trial court which temporarily sealed certain documents that the third party sought to protect from the defendants’ subpoena. On appeal, the defendants argued that the trial court abused its discretion by setting the motion for a hearing sua sponte and that the evidence was insufficient to support the order. The third party counterargued that the defendant lacked standing to bring this appeal. The appellate court noted that in determining whether an appellant had standing, a party’s status in the trial court was not controlling. The defendants further alleged that whether it suffered an injury was immaterial, because it had statutory standing to appeal without showing it was injured under Texas Rule of Civil Procedure 76a(8). The appellate court concluded that because the defendants did not show any injury that this Court could redress, the defendants lacked standing to bring this appeal. Accordingly, the judgment of the trial court was affirmed.


Based on the totality of the circumstances, a reasonable person in the defendant’s position would have believed that the seizure was sufficiently intrusive as to be an arrest.
Scott v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 02, 2019
14-17-00493-CR
Kem Frost
Published
The defendant appealed the judgment of the trial court which convicted him of driving while intoxicated (DWI). On appeal, the defendant asserted that the officers lacked probable cause to support a warrantless arrest and unduly prolonged his detention, making it illegal. The State counterargued that the officer had probable cause to arrest the defendant after witnessing him commit two traffic offenses for which an officer may properly make an arrest. The appellate court found that based on the totality of the circumstances, a reasonable person in the defendant’s position would have believed that the seizure was sufficiently intrusive as to be an arrest. The defendant further alleged that the police unduly prolonged his detention, making it illegal. The appellate court concluded that if, at the moment the officer made an arrest, the facts and circumstances within the officer's knowledge and of which the officer had reasonably trustworthy information suffice to warrant a prudent person in believing that the person arrested had committed or was committing a traffic violation for which a person properly may be arrested, a court was to deem the arrest valid and legal. Accordingly, the judgment of the trial court was affirmed.


A presentence report could not be inspected by the judge nor could its contents be disclosed unless the defendant pled guilty or nolo contendere or was convicted of the offense, or the defendant authorized in writing the judge to inspect the report.
Townes v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 02, 2019
14-18-00233-CR
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which imposed two sentences for felony robbery and aggravated robbery with a deadly weapon. On appeal, the defendant asserted that the presentence investigation report was biased, and that the lack of objection did not preclude the appellate court’s review because his asserted right to an unbiased presentence report was a "category-two" Marin right. The defendant further alleged that his trial counsel was ineffective by failing to object. The appellate court noted that the record did not support the violation alleged even assuming preservation of the defendant’s issues. The appellate court found that a presentence report could not be inspected by the judge nor could its contents be disclosed unless the defendant pled guilty or nolo contendere or was convicted of the offense, or the defendant authorized in writing the judge to inspect the report. The appellate court concluded that a presentence report was as likely to contain information adverse to the punishment position of the state as of the defense, and this one did. Accordingly, the judgment of the trial court was affirmed.


The trial court's implied finding that the parties agreed that the plaintiff would repay the loans in installments over a period of up to seven years was supported by legally sufficient evidence.
Smith v. Barnhart
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 1st Court of Appeals
April 02, 2019
01-18-00111-CV
Laura Carter Higley
Published
The defendant appealed the judgment of the trial court which rendered judgment for the plaintiff, finding that the plaintiff made a series of zero-interest loans to the defendant, and the defendant breached the agreement by refusing to continue making payments. On appeal, the defendant contended that there was legally insufficient evidence that the contract had clear and definite terms and was supported by adequate consideration. The appellate court noted that to prevail on a claim for breach of contract, a plaintiff must show the existence of a valid contract, performance or tendered performance by the plaintiff, breach of the contract by the defendant, and damages sustained as a result of the breach. The appellate court found that viewing the evidence in the light most favorable to the trial court's implied finding that the parties agreed that the plaintiff would repay the loans in installments over a period of up to seven years, and indulging every reasonable inference that supported that finding, the finding was supported by legally sufficient evidence. Accordingly, the judgment of the trial court was affirmed.


The appellate court noted that a court could disregard the jury's negative finding and substitute its own affirmative finding only if the evidence conclusively established the affirmative finding.
C&C Rd. Constr., Inc. v. Saab Site Contractors, L.P.
Appellate: Civil, Contracts, Damages, Procedure, Torts, Transportation
Texas 8th Court of Appeals
March 29, 2019
08-17-00056-CV
Gina M. Palafox
Published
The general contractor appealed the judgment of the trial court which found that it failed to pay its subcontractor the full amount due under two contracts for road work on two rural highways. On appeal,  the general contractor challenged the charge submitted to the jury. The subcontractor cross-appealed and complained of the jury's reduction of its damage claim and the zero-dollar answer for attorney's fees for appeals. The appellate court noted that a court could disregard the jury's negative finding and substitute its own affirmative finding only if the evidence conclusively established the affirmative finding. The appellate court found that the general contractor's requested issues were properly refused, and that the subcontractor did not prove the amount of its claimed damages as a matter of law, and thus the jury's finding on damages should stand. The appellate court concluded that the jury's zero finding of appellate attorney's fees was improper. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.


The disputed evidence was not so significant as to prevent the trial court from forming a firm belief or conviction that termination was justified under Section 161.001(b)(1)(D).
In re O.E.R.
Family, Gov't/Administrative, Juvenile, Procedure
Texas 8th Court of Appeals
March 29, 2019
08-18-00176-CV
Ann Crawford McClure
Published
The mother appealed the judgment of the trial court which terminated her parental rights of the children. On appeal, the mother challenged the legal and factual sufficiency of the evidence supporting the trial court's findings on the predicate termination grounds under Section 161.001(b)(1)(D), (E), and (O) and the best interest finding made under Section 161.001(b)(2). The appellate court noted that a parent's rights could be terminated if there was clear and convincing evidence that the parent had knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child. The appellate court found that the disputed evidence was not so significant as to prevent the trial court from forming a firm belief or conviction that termination was justified under Section 161.001(b)(1)(D). The appellate court concluded that the trial court could have reached a firm conviction that termination of the mother’s parental rights. Accordingly, the judgment of the trial court was affirmed.


The instruction found support in the evidence and might be of some assistance to the jury in answering the accompanying question, and therefore, the trial court did not abuse its discretion in submitting the instruction on partnership property.
Etheridge v. Opitz
Appellate: Civil, Family, Procedure, Real Property
Texas 12th Court of Appeals
March 29, 2019
12-18-00088-CV
James T. Worthen
Published
The plaintiff appealed the judgment of the trial court which ruled in favor of the defendant in her suit for post-divorce division of property and her suit for partition. On appeal, the plaintiff alleged that the evidence was insufficient to support the jury findings, and the trial court erred in allowing the case to be tried on an unpled theory, admitting certain expert testimony, submitting a jury instruction regarding partnership property, and including in the judgment a recitation that it served as a muniment of title. The appellate court noted that Texas Rule of Civil Procedure 93 required that a pleading asserting that a plaintiff was not entitled to recover in the capacity in which she sued or that the defendant was not liable in the capacity in which he was sued must be verified by affidavit. The appellate court found that even assuming the trial court erred in admitting the testimony, it was cumulative of previously admitted evidence showing that the partnership paid for the land, and thus, its admission was harmless. The appellate court concluded that the instruction found support in the evidence and might be of some assistance to the jury in answering the accompanying question, and therefore, the trial court did not abuse its discretion in submitting the instruction on partnership property. Accordingly, the judgment of the trial court was reversed in part and affirmed in part.


The appellate court concluded that the recognized cause of action for negligent entrustment was an adequate protection for the risk that the subrogee sought to protect.
Amwins Specialty Auto, Inc. v. Cabral
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 11th Court of Appeals
March 29, 2019
11-17-00239-CV
John M. Bailey
Published
The subrogee appealed the judgment of the trial court which granted summary judgment in favor of the plaintiff in his suit for negligence, negligent entrustment, and "aiding and abetting." On appeal, the subrogee contended that the trial court erred in the entry of summary judgment in favor of the plaintiff because it produced more than a scintilla of evidence on all three of its causes of action. The subrogee further maintained that the supplemental no-evidence motion for summary judgment failed to specify the elements of the aiding-and-abetting claim for which the plaintiff asserted there was no evidence. The appellate court noted that the suborgee’s evidence was no more than a scintilla of evidence to prove that the plaintiff was the driver. The appellate court found that the subrogee’s allegation that the plaintiff refused to tender information was irrelevant to whether the driver was an incompetent or reckless driver, and therefore, there was no evidence to support the subroge’s negligent entrustment claim. The appellate court concluded that the recognized cause of action for negligent entrustment was an adequate protection for the risk that the subrogee sought to protect. Accordingly, the judgment of the trial court was affirmed.


The jury's verdict that the defendant was competent to stand trial was so against the great weight and preponderance of the evidence as to be manifestly unjust.
Perez v State
Constitution, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
March 29, 2019
08-13-00208-CR
Yvonne T. Rodriguez
Published
The defendant appealed the judgment of the trial court which convicted her of indecency with a child and sentenced to six years' imprisonment. On appeal, the defendant asserted that the jury's finding she was competent to stand trial was against the great weight and preponderance of the evidence. The appellate court noted that the defendant’s burden was to prove by a preponderance that she was incompetent because she did not have sufficient present ability to consult with her lawyer with a reasonable degree of rational understanding, or a rational as well as factual understanding of the proceedings against the person. The appellate court concluded that the jury's verdict that the defendant was competent to stand trial was so against the great weight and preponderance of the evidence as to be manifestly unjust. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The use of the phrase "COGS deduction" in the trial court's conclusion of law demonstrated the use of a heightened burden of proof, and there was no other evidence in the record that the court applied an incorrect burden of proof.
U.S. Concrete, Inc. v. Hegar
Appellate: Civil, Consumer, Gov't/Administrative, Procedure, Tax
Texas 3rd Court of Appeals
March 28, 2019
03-17-00315-CV
Gisela D. Triana
Published
The petitioner appealed the judgment of the trial court which ruled in favor of the Comptroller of Public Accounts in a franchise tax protest action. On appeal, the petitioner asserted that the trial court erred in upholding the Comptroller's decision to disallow 70% of the petitioner’s mixer-truck costs and 41% of its truck-operator labor costs on the ground that these costs did not qualify. The petitioner further alleged that the trial court erred in imposing a higher burden of proof on the petitioner because the statute was unambiguous. The appellate court found that the trial court correctly concluded that, under the statute and corresponding administrative rule, only those driver labor costs allocable to acquisition or production of ready-mixed concrete could be included as cost of goods sold (COGS). The appellate court concluded that the use of the phrase "COGS deduction" in the trial court's conclusion of law demonstrated the use of a heightened burden of proof, and there was no other evidence in the record that the court applied an incorrect burden of proof. Accordingly, the judgment of the trial court was affirmed.


Because the ineffective-assistance claim was non-cognizable, the pretrial habeas proceeding was misused and the defendant’s ineffective-assistance claim was not cognizable in a pretrial habeas corpus proceeding.
Ex parte Estrada
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 28, 2019
01-18-00792-CR
Laura Carter Higley
Published
The defendant appealed the judgment of the trial court which denied his application for a pretrial writ of habeas corpus, filed under article 11.08 of the Texas Code of Criminal Procedure. On appeal, the defendant contended that he was entitled to immediate release from custody based on a violation of the Fifth Amendment Double Jeopardy Clause, a Sixth Amendment violation for ineffective assistance of counsel, a violation of the Fifth Amendment Due Process Clause, vindictive prosecution, and a Sixth Amendment violation of the Speedy Trial Clause. The appellate court found that a vindictive-prosecution claim was not among the claims for which pretrial habeas corpus relief lay, and its proper use required a prior conviction that was reversed on appeal or vacated upon granting a new trial or the deprivation of a protected legal right. The appellate court concluded that because the ineffective-assistance claim was non-cognizable, the pretrial habeas proceeding was misused and the defendant’s ineffective-assistance claim was not cognizable in a pretrial habeas corpus proceeding. Accordingly, the judgment of the trial court was affirmed.


The trial evidence stood factually sufficient to support both the jury's findings that the cyclist's negligence proximately caused the occurrence and the jury's comparative-responsibility findings.
In re Cambell
Appellate: Civil, Constitution, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
March 28, 2019
14-18-01016-CV
Kem Thompson Frost
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus ordering the respondent to vacate his order granting a new trial. In his petition, the relator contended that the trial court abused its discretion in signing the new-trial order because the jury's findings of 83% responsibility for the cyclist and 17% responsibility for the relator did not go against the great weight and preponderance of the evidence. Specifically, the relator asserted that the trial court in its order incorrectly adopted the cyclist's view of the evidence as uncontroverted facts. The appellate court noted that in order to obtain mandamus relief, a relator generally must show both that the trial court clearly abused its discretion and that the relator lacked an adequate remedy at law, such as an appeal. The appellate court found that while federal cases provided analysis and legal rules for consideration in this area, the federal context differed materially from the state context. The appellate court concluded that the trial evidence stood factually sufficient to support both the jury's findings that the cyclist's negligence proximately caused the occurrence and the jury's comparative-responsibility findings. Accordingly, the relator’s writ was conditionally granted.


The trial court could have reasonably concluded that the expert report constituted an objective, good-faith effort to provide a fair summary of his opinions with respect to the causal relationship between the defendants’ alleged breaches and the plaintiff’s injury.
New Medical Horizons, II, Ltd. v. Milner
Appellate: Civil, Evidence, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
March 28, 2019
01-17-00827-CV
Richard Hightower
Published
The defendants appealed the judgment of the trial court which ruled in favor of the plaintiff in her medical negligence action, which resulted in amputation of her toe. On appeal, the defendants argued that the trial court abused its discretion by denying their motion to dismiss because the causation opinions were conclusory, by finding the expert report sufficient and denying its motion to dismiss because the report failed to provide the necessary fair summary of the standard of care applicable to the nursing staff. The appellate court noted that section 74.351 of the Texas Medical Liability Act (TMLA) provided that no medical negligence cause of action could proceed until the plaintiff made a good-faith effort to demonstrate that a qualified medical expert believed that a defendant's conduct breached the applicable standard of care and caused the claimed injury. The appellate court found that the report on the standard of care and its breach gave the trial court a sufficient basis to reasonably conclude that the plaintiff’s claims had merit. The appellate court concluded that the trial court could have reasonably concluded that the expert report constituted an objective, good-faith effort to provide a fair summary of his opinions with respect to the causal relationship between the defendants’ alleged breaches and the plaintiff’s injury. Accordingly, the judgment of the trial court was affirmed.


The relator established it was the representative within the scope of Rule 503(a)(2)(B), and therefore, the dissemination of the withheld documents did not waive the attorney-client privilege.
In re Stephens, Inc.
Constitution, Discovery, Evidence, Procedure, Professional Responsibility
Texas 4th Court of Appeals
March 27, 2019
04-18-00216-CV
Irene Rios
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus and arguing the trial court abused its discretion by compelling the relator to produce the documents. This appeal stemmed from the trial court granting the real parties in interest's motion to compel discovery of 140 documents that the relator contended were all protected under the attorney-client privilege. On appeal, the relator argued that because the relator and its attorneys were "representatives,” the communications remained privileged under Rule 503. The plaintiffs contended that there was no presumption in favor of privilege because a fact question on whether the documents were privileged existed and the trial court's determination that the privilege did not apply was conclusive. The appellate court found that the relator did not establish a prima facie case for privilege under subsection (a)(2)(A) because relator did not produce the minimum quantum of evidence necessary to support a rational inference that the allegation of fact was true. The appellate court concluded that the relator established it was the representative within the scope of Rule 503(a)(2)(B), and therefore, the dissemination of the withheld documents did not waive the attorney-client privilege. Accordingly, the relator’s petition was conditionally granted.


The evidence was insufficient to support a determination that the defendant used a vehicle as a deadly weapon during the commission of the offense of evading arrest or detention with a motor vehicle.
Clark v. State
Constitution, Criminal, Evidence, Procedure
Texas 9th Court of Appeals
March 27, 2019
09-17-00401-CR
Charles A. Kreger
Published
The defendant appealed the judgment of the trial court which convicted him of evading arrest or detention with a motor vehicle, and  using a motor vehicle as a deadly weapon and sentenced him to ten years confinement in the Institutional Division. On appeal, the defendant argued that the evidence was insufficient to support the trial court’s affirmative finding that he used a motor vehicle as a deadly weapon since no person was placed in actual danger by his motor vehicle during the commission of the charged offense. The appellate court noted that while the danger to motorists must be actual and not merely hypothetical, it did not require pursuing officers or other motorists to be in a zone of danger. The appellate court found that the State failed to present evidence from which a reasonable trier of fact could conclude beyond a reasonable doubt that people were placed in actual danger by the defendant’s operation of the vehicle during the offense for which he was charged. The appellate court concluded that the evidence was insufficient to support a determination that the defendant used a vehicle as a deadly weapon during the commission of the offense of evading arrest or detention with a motor vehicle. Accordingly, the judgment of the trial court was affirmed in part and modified in part.


While the jury could have rationally found that a reasonable and necessary fee was less than the amount sought, an award of no fees was improper in the absence of evidence affirmatively showing that no attorney's fees were needed or that any services provided were of no value.
State v. Buchanan
Appellate: Civil, Damages, Gov't/Administrative, Procedure, Tax
Texas 3rd Court of Appeals
March 27, 2019
03-18-00120-CV
Thomas J. Baker
Published
The State appealed the judgment of the trial court which found that it was entitled  to prevail on its state, municipal, and transit-authority sales-tax claims against the respondent, but did not award the State any attorney's fees. On appeal, the State argued that an award was mandatory. The appellate court noted that any proceeding under the chapter or other law in which the State sought to collect or recover a delinquent obligation or damages, the attorney general could recover reasonable attorney fees, investigative costs, and court costs incurred on behalf of the state in the proceeding in the same manner as provided by general law for a private litigant. The appellate court agreed with the State that the portion of the trial court's judgment awarding the State no attorney's fees was improper. The appellate court concluded that while the jury could have rationally found that a reasonable and necessary fee was less than the amount sought, an award of no fees was improper in the absence of evidence affirmatively showing that no attorney's fees were needed or that any services provided were of no value. Accordingly, the judgment of the trial court was remanded on the issue of attorney's fees for a new trial.


Because the prejudice could be remedied by granting the defendant a new trial and suppressing the billing records and all evidence derived on remand, the defendant’s request to dismiss the indictment was improper.
Morrison v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
March 27, 2019
06-17-00159-CR
Ralph Burgess
Published
The defendant appealed the judgment of the trial court which convicted her of murder and sentenced her to thirty years’ imprisonment. On appeal, the defendant argued that the State violated her Sixth Amendment rights when it obtained, reviewed, and then used information from her attorney’s billing records against her. The State counterargued that it did not purposefully intrude into the defendant’s attorney-client relationship because the billing records were filed as public records, and therefore, it was entitled to review those records. The appellate court noted that the defendant’s Sixth Amendment right to counsel and right to be free from State intrusion into the attorney-client relationship were violated. The appellate court found that since the State acquired and used useful information from those records, the defendant was prejudiced by the State’s intrusion and defense counsel’s deficient performance. The appellate court concluded that because this prejudice could be remedied by granting the defendant a new trial and suppressing the billing records and all evidence derived on remand, the defendant’s request to dismiss the indictment was improper. Accordingly, the judgment of the trial court was reversed and remanded.


Since the record established that the defendant failed to appear in court at the scheduled time and that he was aware of the hearing date and his obligation to appeal, the evidence was legally sufficient to establish that he knowingly or intentionally failed to appear.
Figueredo v. State
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
March 26, 2019
07-17-00334-CR
Patrick A. Pirtle
Published
The defendant appealed the judgment of the trial court which convicted him of two counts of the third-degree felony offense of bail jumping and assessed his punishment at three years confinement. On appeal, the defendant contended that the evidence was insufficient to establish his guilt beyond a reasonable doubt, his trial counsel was ineffective for stipulating that he received notice of the court date at issue, and prosecution for more than one offense of bail jumping, for the failure to appear at a single time and place to answer a single indictment violated his protections against double jeopardy. The appellate court noted that for purposes of a double jeopardy analysis, an accused was subject to multiple punishments in violation of the Double Jeopardy Clause when he was convicted of more offenses than the legislature intended under a given set of facts. The appellate court found that an allowable unit of prosecution was an offense defined by a distinguishable discrete act that was a separate violation of the penal statute in question. The appellate court concluded that since the record established that the defendant failed to appear in court at the scheduled time and that he was aware of the hearing date and his obligation to appeal, the evidence was legally sufficient to establish that he knowingly or intentionally failed to appear. Accordingly, the judgment of the trial court was affirmed.


The trial court did not abuse its discretion in admitting the testimony of the complainant's stepsister because the defendant did not offer them into evidence and obtain a timely ruling.
Castillo v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 26, 2019
01-18-00284-CR
Gordon Goodman
Published
The defendant appealed the judgment of the trial court which convicted him of the offense of aggravated sexual assault of a child. On appeal, the defendant contended that the trial court's application of mandatory-minimum and parole-ineligibility statutes violated his constitutional guarantees against conviction for ex post facto crimes, and the admission into evidence of a recording of the complainant's forensic interview and the testimony of the complainant's stepsister that he also sexually abused her was an abuse of discretion. The defendant further alleged that the trial court erred in the exclusion from evidence of letters written to him by the complainant's stepsister after she reported that he had sexually abused her was an abuse of discretion.  The State asserted that some or all of the interview was admissible under either the hearsay exclusion for prior consistent statements offered to rebut a charge of recent fabrication or the rule of optional completeness. The appellate court agreed with the State that the trial court did not abuse its discretion in admitting the complainant's recorded interview. The appellate court concluded that the trial court did not abuse its discretion in admitting the testimony of the complainant's stepsister because the defendant did not offer them into evidence and obtain a timely ruling. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that legally insufficient proof supported the defendant's conviction under count three of the indictment for aggravated sexual assault by penetration.
Prestiano v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 26, 2019
01-17-00763-CR
Gordon Goodman
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of a child younger than six years old. On appeal, the defendant argued that the evidence was legally insufficient to sustain his conviction, in which the State alleged that he penetrated the child's mouth, the trial court erred in overruling his hearsay objection to a picture of sex toys drawn by the child during therapy, and his trial lawyer rendered ineffective assistance by not lodging a hearsay objection to the therapist's testimony. The appellate court noted that the statute criminalizing aggravated sexual assault of a child set forth several distinct offenses. The appellate court found that the evidence was legally insufficient to prove beyond a reasonable doubt that the defendant penetrated the child's mouth, but the evidence was sufficient to sustain a conviction for the lesser-included offense of aggravated sexual assault by contact. The appellate court concluded that legally insufficient proof supported the defendant's conviction under count three of the indictment for aggravated sexual assault by penetration. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded for a new punishment hearing.


A fair assurance existed that any error in admitting the video recording of the forensic interview did not influence the jury or had but a slight effect, and thus, the admission did not constitute reversible error.
Prince v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 26, 2019
01-18-00208-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which convicted him of the first-degree felony offense of continuous sexual abuse of a child and assessed his punishment at twenty-five years' confinement. On appeal, the defendant contended that the trial court erred by admitting a video recording of the complainant's forensic interview under the rule of optional completeness. Specifically, the defendant asserted that the forensic interview constituted inadmissible hearsay and that it was not necessary to admit the recording to clear up a false impression. The appellate court noted that hearsay was an out-of-court statement offered to prove the truth of the matter asserted in the statement, and generally, hearsay was not admissible unless a statute or rule provided otherwise. The appellate court found that erroneous admission of evidence became harmless error if other evidence proving the same fact was properly admitted elsewhere, or the evidence came in elsewhere without objection. The appellate court concluded that a fair assurance existed that any error in admitting the video recording of the forensic interview did not influence the jury or had but a slight effect, and thus, the admission did not constitute reversible error. Accordingly, the judgment of the trial court was affirmed.


Because the relators failed to meet their burden to establish that the trial court clearly abused its discretion, they also failed to show that they were entitled to mandamus relief.
In re W. Dairy Transp., L.L.C.
Appellate: Civil, Contracts, Discovery, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
March 22, 2019
08-18-00030-CV
Gina M. Palafox
Published
The relators appealed the judgment of the trial court, filing a mandamus petition against the trial court judge, seeking mandamus relief from his order granting motions to compel discovery. On appeal, the relators contended that the trial court abused its discretion in ordering them to respond to certain discovery before the court ruled on their motion to dismiss based on a forum-selection clause. Specifically, the relators asserted that the trial court's order required them to answer discovery that was not allowed at this juncture. The relators further alleged that the burden fell on the plaintiffs to make a showing of necessity for limited discovery before the discovery sought could be compelled by the court. The appellate court noted that forum-selection clauses were contractual provisions whereby parties agreed in advance to submit their disputes for resolution within a particular jurisdiction. The appellate court found that the statutory provision of the Texas Arbitration Act did not require a limitation on pre-arbitration discovery at this juncture of the proceedings. The appellate court conclude that because the relators failed to meet their burden to establish that the trial court clearly abused its discretion, they also failed to show that they were entitled to mandamus relief. Accordingly, the relators’ petition was denied.


An objectively reasonable officer preparing the affidavit and executing the warrant would have believed that the warrant was not tainted by an element that would ultimately be declared to be unconstitutional.
Siller v. State
Constitution, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
March 21, 2019
11-15-00016-CR
John M. Bailey
Published
The defendant appealed the judgment of the trial court which convicted him of possession of methamphetamine, and denied his motion to suppress evidence seized pursuant to a search and arrest warrant. On appeal, the defendant asserted that the trial court erred when it denied his motion to suppress because the Penal Code section that served as the basis for the issuance of the search and arrest warrant was later declared unconstitutional. The appellate court noted that the officer not rely upon a predicate search for the information supplied in the affidavit for the search and arrest warrant. The appellate court found that the offense of improper photography or visual recording as set out in the former version of Section 21.15(b)(1) had not been declared unconstitutional until after the search and arrest warrant in this case had been obtained and executed. The appellate court concluded that an objectively reasonable officer preparing the affidavit and executing the warrant would have believed that the warrant was not tainted by an element that would ultimately be declared to be unconstitutional. Accordingly, the judgment of the trial court was affirmed.


The trial court improperly awarded the amount of damages to the appellants for the reasonable rental value of the property during the holdover period and the denial of attorney's fees to the appellants.
Raland Tuttle & 1st Jaray, Ltd. v. Eduardo Builes & B&A Laboratories, Inc.
Appellate: Civil, Contracts, Damages, Landlord and Tenant, Procedure, Real Property, Tax
Texas 11th Court of Appeals
March 21, 2019
11-17-00096-CV
Keith Stretcher
Published
The appellants challenged the judgment of the trial court which rendered final judgment in favor of the appellants, awarding them damages based upon the reasonable rental value of the property during the holdover period. On appeal, the appellants challenged the trial court's conclusion that the appellees became tenants at sufferance after the lease expired. The appellants further opposed the method the trial court used for calculating damages, challenging the admissibility and sufficiency of the evidence to support the trial court's award of damages. The appellate court noted that commercial lease agreements often provided that, in the event the tenant held over after the expiration of the lease, the tenancy would automatically convert to a month-to-month tenancy. The appellate court found that the parties' conduct showed that the appellants did not consent to the continued possession of the property. The appellate court concluded that the trial court improperly awarded the amount of damages to the appellants for the reasonable rental value of the property during the holdover period and the denial of attorney's fees to the appellants. Accordingly, the judgment of the trial court was affirmed in part, reversed and remanded in part.


Because the good-faith exception does not apply to render the seized evidence admissible, the exclusionary rule requires that any evidence seized pursuant to the issued search warrant be suppressed
Wheeler v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
March 21, 2019
02-18-00197-CR
Lee Gabriel
Published
The appellant was charged by information with the class B misdemeanor of driving while intoxicated. After pleading guilty under a plea-bargain agreement, the appellant appeals the trial court’s denial of his pretrial motion to suppress. The Texas Court of Appeals concluded that the police officer’s affidavit was unsworn, rendering the evidence collected based on the executed search warrant subject to exclusion under the exclusionary rule. And although the good-faith exception applies even to an infirmity under the Texas Constitution, the court could not apply it under the singular and unusual facts of the case. The officer was taught and had knowledge of the oath requirement yet repeatedly relied on his subjective but invalid belief that the police department’s procedures allowed for unsworn search-warrant affidavits. The officer was not acting in objective good faith reliance on the issued warrant. Because the good-faith exception does not apply to render the seized evidence admissible, the exclusionary rule requires that any evidence seized pursuant to the issued search warrant be suppressed. The trial court’s denial of the appellant’s motion to suppress was in error, and the court could not conclude beyond a reasonable doubt that it did not play a role in the appellant ’s decision to plead guilty. Accordingly, the judgment was reversed and remanded.


Since the evidence was legally insufficient to prove by clear and convincing evidence that termination of the mother’s parental rights was in the oldest child's best interest, the order terminating her parental rights to that child was reversed.
In re F.M.E.A.F.
Family, Juvenile
Texas 14th Court of Appeals
March 21, 2019
14-18-00865-CV
Ken Wise
Published
The appellants, the mother of three children and the father of two of the children, appealed from the trial court’s termination of their parental rights, challenging the sufficiency of the evidence. The appellate court found that the evidence was legally insufficient to prove by clear and convincing evidence that termination of the mother’s parental rights was in the oldest child's best interest. Thus, the court reversed the portions of the final order terminating the mother’s parental rights to the oldest child. Accordingly, the court affirmed in part and reversed in part.


The trial court lacked subject-matter jurisdiction over a property owner’s suit seeking review of a tax appraisal because the property owner failed to pay minimum undisputed amount of levied tax by delinquency date.
Grimes Cnty. Appraisal Dist. v. Harvey
Gov't/Administrative, Real Property, Tax
Texas 1st Court of Appeals
March 21, 2019
01-18-00305-CV
Sarah Beth Landau
Published
The appellee property owner owned 91 acres in Grimes County. In the 2015 tax year, his property was taxed at the reduced rate for lands used for agricultural purposes. His levied taxes equaled $138.13. The appellant district initiated a reapplication process because it appeared that the appellee’s land was no longer being used for agricultural purposes. The appellee filed an application to continue at the reduced agricultural-use rate, and the appellant denied his application. The appellee’s 2016 levied taxes were $8,855.16. The appellee filed a protest with Grimes County Appraisal Review Board (ARB), but it was dismissed because the appellee never made a tax payment. The appellee filed suit in district court, seeking review of the agricultural exemption denial. The appellant filed a plea to the jurisdiction, which was denied, and the appellant appealed. The appellate court found that the appellee failed to meet the minimum payment requirement and, as such, forfeited his right to seek review of his tax appraisal. The appellee’s failure to pay the minimum undisputed amount of levied tax by the delinquency date forfeited subject-matter jurisdiction over the appellee’s suit in the trial court. Furthermore, because the appellee was afforded an opportunity to protest his tax appraisal, the court concluded he was not denied due process. Lastly, there was no pleading defect; rather, there was a failure to exhaust administrative remedies to confer jurisdiction. Thus, there was no basis for remand. A judgment of dismissal was appropriate. Accordingly, the court reversed and rendered the judgment.


The county was ordered to continue paying death benefits to the surviving spouse of a deceased employee because the spouse did not make a recovery from a third-party, so her continued receipt of death benefits from the county did not amount to a double recovery.
Fort Bend Cnty. v. Norsworthy
Employment, Workers' Compensation
Texas 14th Court of Appeals
March 21, 2019
14-17-00520-CV
Margaret Poissant
Published
The appellant county, a self-insured governmental entity, appealed the interlocutory judgment in a worker’s compensation case and order of severance in favor of the appellee, the surviving spouse of a deceased county employee. The appellant filed a petition in intervention in the corporation lawsuit seeking subrogation recovery for the worker’s compensation benefits it paid to minor son, minor daughter, and the appellee. Thereafter, the appellant and the minor son entered into a Rule 11 Agreement, settling the part of the appellant’s lien applicable to the minor son’s half of the collective third-party recovery from the corporation. The appellate court found that the appellee maintained she made no individual recovery. She neither shared nor participated in her adult children's third-party recovery. The appellee contended that the collective-recovery standard did not apply in the case and the trial court correctly ordered the appellant to continue paying the appellee's death benefits. Because the appellee did not make a recovery from the third-party, her continued receipt of death benefits from the appellant did not amount to a double recovery. The appellant had not provided any applicable authority that allowed the appellant to attribute the third-party recovery of the appellee's adult children to her. Under the facts of the case, the cases applying the collective-recovery standard were distinguishable and, thus, the standard did not operate to suspend the appellee's weekly benefits or future benefits. Accordingly, the trial court's judgment was affirmed.


The trial court’s order appointing the temporary administrator of the estate was not void ab initio, so the trial court’s subsequent order authorizing the administrator to settle the tort claimants’ suits against the estate was not void on that ground
Chabot v. Estate of Sullivan
Torts, Wills/Trusts/Probate
Texas 3rd Court of Appeals
March 20, 2019
03-17-00865-CV
Chari L. Kelly
Published
The appellant, the deceased’s brother, appealed from the trial court’s order authorizing the appellee, temporary administrator of the estate of the deceased (the Estate), to sign final agreed judgments settling two tort claims against the Estate. The appellate court observed that the appellant and the tort claimants filed will contests well within the two-year deadline. No representative of the deceased’s estate existed at the time, and the trial court appointed the appellee as temporary administrator pursuant to its authority under Tex. Estates Code Section 452.051. The appellant had not cited any authority prohibiting the trial court’s actions, and the court were not aware of any. Thus, the court held that the trial court’s order appointing the appellee was not void ab initio and that the trial court’s subsequent order authorizing the appellee to settle the tort claimants’ suits was not void on that ground. Accordingly, the court affirmed the trial court’s order authorizing the appellee to sign final agreed judgments settling the tort claimants’ suits.


A city’s policies and procedures manual did not create an enforceable, written contract sufficient to waive governmental immunity.
City of Denton v. Rushing
Contracts, Employment, Gov't/Administrative
The Supreme Court of Texas
March 15, 2019
17-0336
John P. Devine
Published
The respondents were full-time, hourly-paid employees in the petitioner city’s utilities department. They were all entitled to overtime pay under the Fair Labor Standards Act. After the petitioner notified the respondent that he would not be compensated for on-call shifts worked between 2011 and 2015, he sued the petitioner for breach of contract, alleging that Policy 106.06 constituted a unilateral contract that the petitioner breached. After the respondent filed suit, the petitioner filed a plea to the jurisdiction. The trial court denied the petitioner’s plea, and the petitioner appealed. The appellate court affirmed the trial court’s order denying the jurisdictional plea. The Texas Supreme Court observed that for governmental immunity to be waived under section 271.152 of the Local Government Code, there must first be an enforceable, written contract. Thus, the petitioner’s policies and procedures manual did not create such a contract because the manual effectively disclaims the petitioner’s contractual intent. Accordingly, the court reversed the appellate court’s judgment affirming the denial of the petitioner’s plea to the jurisdiction and render judgment dismissing the case.


The admission of statements made by a witness at the crime scene did not violate the Confrontation Clause because the statements were nontestimonial.
Villanueva v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 14, 2019
01-18-00115-CR
Sherry Radack
Published
A jury convicted appellant of aggravated robbery, found two felony enhancement allegations true, and assessed punishment at 25 years’ confinement. The appellant contends that the trial court erred in admitting out-of-court witness statements. The appellate court concluded that the admission of statements made by a witness at the crime scene did not violate the Confrontation Clause because the statements were nontestimonial. The statements were not solicited by police in response to questioning, but were spontaneously offered by the witness as soon as the police arrived to evaluate crime scene. The statements were made approximately nine minutes after the crime and at the same location as the crime. For that reason, the trial court also did not abuse its discretion in admitting the hearsay testimony under the excited utterance exception. In light of the other evidence, admission of the witness’s statements did not affect appellant’s substantial rights. Accordingly, the judgment was affirmed.


There was legally and factually sufficient evidence of the predicate finding, legally sufficient evidence that termination of the father’s parental rights was in the daughter’s best interest, but factually insufficient evidence that termination was in her best interest.
In re J. G. S.
Family, Juvenile, Procedure
Texas 1st Court of Appeals
March 14, 2019
01-18-00844-CV
Sarah Beth Landau
Published
The father appealed the judgment of the trial court which terminated his parental rights to his daughter. On appeal, the father argued that there was insufficient evidence to support each predicate finding and the best-interest finding. The father further alleged that the trial court erred in granting a trial amendment to add grounds for termination after the evidence closed, granting the adoption, and ordering him to pay attorney's fees for the mother and the amicus attorney. The appellate court found that there was legally and factually sufficient evidence to support termination under one of the predicate findings. The appellate court noted that it generally omitted evaluation of the other predicates on which termination was based. The appellate court concluded that there was legally and factually sufficient evidence of the predicate finding, legally sufficient evidence that termination of the father’s parental rights was in the daughter’s best interest, but factually insufficient evidence that termination was in her best interest. Accordingly, the judgment of the trial court was reversed and remanded.


The pleadings affirmatively established that the conditions of section 271.154 have not been met because the plaintiff did not timely file its grievance and it did not follow the proper adjudication procedures for appealing its untimely grievance.
Mission Consol. Indep. Sch. Dist. v. ERO Int’l, LLP
Appellate: Civil, Contracts, Gov't/Administrative, Procedure
Texas 13th Court of Appeals
March 14, 2019
13-17-00489-CV
Nora L. Longoria
Published
The School District appealed the judgment of the trial court which ruled against it in the plaintiff’s suit to recover the amount it was due under the contract it had with the School District. On appeal, the School District asserted that the trial court erred by denying its plea to the jurisdiction because the plaintiff did not plead facts showing that it complied with the contractual adjudication procedures of the contract. Specifically, the School District contended that its immunity was not waived because the plaintiff failed to comply with the contractual adjudication procedures as outlined in the contract. The plaintiff further alleged that even if it untimely filed its first grievance and did not fully comply with the adjudication procedures and deadlines of the contract, the School District’s immunity was still waived because it entered into a written contract with the plaintiff. The appellate court found that the pleadings affirmatively established that the conditions of section 271.154 have not been met because the plaintiff did not timely file its grievance and it did not follow the proper adjudication procedures for appealing its untimely grievance. The appellate court concluded that immunity had not been waived because the plaintiff did not show a substantial claim that met the Act's conditions. Accordingly, the judgment of the trial court was reversed.


The trial court erroneously instructing the jury that it could convict the defendant of tampering with a witness for an action or actions that did not constitute an offense caused the defendant egregious harm. 
Mitchell v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
March 14, 2019
06-18-00013-CR
Bailey C. Moseley
Published
The defendant appealed the judgment of the trial court which convicted him of tampering with a witness, aggravated assault with a deadly weapon, and family violence assault and was sentenced to fifty years in prison for each offense, with the three sentences to run concurrently. On appeal, the defendant contended that the trial court erred in denying his request for a psychological examination, a defective jury charge caused him egregious harm, and the trial court erred in assessing court costs against him. The appellate court noted that the jury charge was defective because it authorized the jury to convict the defendant for actions which did not constitute tampering with a witness. The appellate court found that the trial court erroneously instructing the jury that it could convict the defendant of tampering with a witness for an action or actions that did not constitute an offense caused the defendant egregious harm. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.


The trial court properly granted summary judgment dismissing the plaintiff’s lawsuit, that it properly denied the plaintiff’s motion for summary judgment, and that it properly awarded attorney's fees to the defendant as the prevailing party.
Cimarex Energy Co. v. Anadarko Petroleum Corp.
Appellate: Civil, Contracts, Landlord and Tenant, Procedure, Real Property
Texas 8th Court of Appeals
March 13, 2019
08-16-00353-CV
Gina M. Palafox
Published
The plaintiff appealed the judgment of the trial court, alleging it failed to account for the plaintiff’s share of the production. On appeal, the plaintiff contended that the defendant breached the settlement agreement when it failed to account monthly for the plaintiff’s share of production. Specifically, the plaintiff asserted that the trial court erred in granting the defendant’s motion for summary judgment and in denying its cross-motion. The appellate court noted that the intent of the lease was in fact to require the plaintiff to take some action to cause production on the subject property in order to keep the lease alive, and that it could not simply rely on a cotenant's production in the absence of any cash consideration paid to the lessors. The appellate court found that, as a matter of law, that there was only one reasonable interpretation of the plaintiff’s lease, and that the lease was therefore unambiguous. The appellate court concluded that the trial court properly granted summary judgment dismissing the plaintiff’s lawsuit, that it properly denied the plaintiff’s motion for summary judgment, and that it properly awarded attorney's fees to the defendant as the prevailing party. Accordingly, the judgment of the trial court was affirmed.


The trial court did not abuse its discretion in determining that the probative value of the extraneous bad act evidence outweighed any unfairly prejudicial effect.
Harris v. State
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
March 13, 2019
03-17-00539-CR
Gisela D. Triana
Published
The defendant appealed the judgment of the trial court which convicted him of the first-degree felony offense of murder and assessed punishment at life imprisonment. On appeal, the defendant contended that the trial court abused its discretion by overruling his challenge for cause against one venire member and declining to grant him an extra peremptory challenge to strike another venire member, overruling his objection to the admission of extraneous bad act evidence and preventing him from introducing evidence that the bad act had been "no-billed" by a grand jury, and overruling his objections to punishment-phase testimony from the complainant of the bad act. The appellate court concluded that the trial court did not abuse its discretion in determining that the probative value of the extraneous bad act evidence outweighed any unfairly prejudicial effect. Accordingly, the judgment of the trial court was affirmed.


The evidence was legally insufficient to support the amount of damages awarded, however, some evidence supported an award of damages in favor of the plaintiff in a conversion suit.
John Deloach Enter., Inc. v. Telhio Credit Union, Inc.
Appellate: Civil, Damages, Evidence, Torts
Texas 4th Court of Appeals
March 13, 2019
04-17-00820-CV
Luz Elena D Chapa
Published
The defendant appealed the judgment of the trial court which ruled in favor of the plaintiff in a suit for conversion. On appeal, the defendant argued that there was no evidence that it exercised dominion over the car in an unlawful and unauthorized manner. The defendant further maintained that the trial court's construction required a vehicle storage facility to presume there was always a lienholder, and effectively meant that reliance on the records was not reasonable. The appellate court found that the evidence was legally sufficient to support the trial court's finding of liability for conversion against the defendant. The appellate court concluded that the evidence was legally insufficient to support the amount of damages awarded, however, some evidence supported an award of damages.  Accordingly, the judgment of the trial court was reversed and remanded.


Any error in the trial court's charge regarding the defendant’s liability as a party was harmless, and the jury charge instructed the jury that it could find the defendant guilty as the primary actor or as a party to the actions.
Sada v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 12, 2019
01-18-00240-CR
Evelyn Keyes
Published
The defendant appealed the judgment of the trial court which convicted her of causing serious bodily injury to her child by omission and assessed her punishment at twenty years' confinement. On appeal, the defendant contended that the evidence was legally insufficient to support her conviction, and the trial court erred in submitting an instruction on the law of parties to the jury. The appellate court found that the legal effect of the fact that the defendant was the mother fell within the province of the trial court's obligation to instruct the jury on the law applicable to the case. The defendant further asserted that the trial court erred in including an instruction allowing the jury to convict her as a party to the actions. The appellate court concluded that any error in the trial court's charge regarding the defendant’s liability as a party was harmless, and the jury charge instructed the jury that it could find the defendant guilty as the primary actor or as a party to the actions. Accordingly, the judgment of the trial court was affirmed.


Since the defendant brought his constitutional challenge prior to trial, there had been no conviction in the municipal court, nor had there been a municipal-court judgment affirmed by the county court, and thus, the appellate court lacked jurisdiction over the appeal.
Ex parte Bowens
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
March 12, 2019
03-18-00853-CR
Gisela D. Triana
Published
The City appealed the judgment of the trial court which charged the defendant of violating the City’s prohibition against camping in public areas, but which denied his pretrial application for writ of habeas corpus, which challenged the constitutionality of the City's ordinance. Thereafter, the State filed a motion to dismiss, arguing that the appellate court did not have jurisdiction over the appeal. The appellate court noted that a criminal defendant had the right to immediately appeal the denial of a pretrial application for writ of habeas corpus. The appellate court found that the County Courts at Law had appellate jurisdiction over the denial of habeas relief in the Municipal Court. The appellate court concluded that since the defendant brought his constitutional challenge prior to trial, there had been no conviction in the municipal court, nor had there been a municipal-court judgment affirmed by the county court, and thus, the appellate court lacked jurisdiction over the appeal. Accordingly, the State’s motion to dismiss was granted.


The defendants failed to carry their burden of establishing the Texas Citizens Participation Act applied to the plaintiffs’ claims, and thus, the trial court's denial of the defendants’ motion to dismiss was proper.
Dyer v. Medoc Health Serv., LLC
Appellate: Civil, Evidence, Procedure, Torts
Texas 5th Court of Appeals
March 08, 2019
05-18-00472-CV
Ken Molberg
Published
The defendants appealed the judgment of the trial court which denied its motion to dismiss pursuant to the Texas Citizens Participation Act (the TCPA) in an action, alleging causes of action for misappropriation of trade secrets, tortious interference, civil conspiracy, and conversion. On appeal, the defendants asserted that the trial court erred by denying the motion to dismiss because the TCPA applied to the plaintiffs’ claims, the plaintiffs failed to produce clear and specific evidence of a prima facie case for each essential element of their causes of action, and the defendants produced evidence of each essential element of a valid defense. The appellate court found that the defendants failed to establish by a preponderance of the evidence that the plaintiffs’ claims were based on, related to, or in response to the defendants’ exercise of a right of association as defined by the TCPA. The appellate court concluded that the defendants failed to carry their burden of establishing the TCPA applied to the plaintiffs’ claims, and thus, the trial court's denial of the defendants’ motion to dismiss was proper. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the State's issue challenging the potential recovery of exemplary damages lied outside the scope of its limited interlocutory appellate jurisdiction. 
State v. Riemer
Appellate: Civil, Gov't/Administrative, Oil, Gas, & Mineral, Procedure
Texas 7th Court of Appeals
March 07, 2019
07-18-00002-CV
James T. Campbell
Published
The State appealed the judgment of the trial court which denied their plea to the jurisdiction in the suit brought by the plaintiffs, who alleged they were the owners of surface and minerals interests in lands. On appeal, the State claimed that the trial court erred by denying its plea to the jurisdiction because, in State v. Riemer, the plaintiffs could proceed against the State with their constitutional takings claims and for trespass to the surface of sections 30 and 31, but otherwise all of their claims alleged against the State and the land commissioner were barred by sovereign immunity. Specifically, the State asserted that the law of the case precluded the plaintiffs from asserting their ultra vires claim against the land commissioner. The appellate court noted that the State and its agencies were generally immune from suit in the absence of an express waiver of its sovereign immunity. The appellate court found that the law of the case doctrine did not foreclose a court's exercise of its subject matter jurisdiction where it otherwise existed. The appellate court concluded that the State's issue challenging the potential recovery of exemplary damages lied outside the scope of its limited interlocutory appellate jurisdiction. Accordingly, the judgment of the trial court was affirmed.


The appellant was not a consumer for purposes of the Texas Deceptive Trade Practices Act (DTPA) with regard to the foreclosure sales
Burton v. Prince
Damages, Real Property
Texas 14th Court of Appeals
March 07, 2019
14-17-00181-CV
Frances Bourliot
Published
Plaintiff filed a wrongful foreclosure case. After a bench trial, the trial court rendered declaratory judgment in favor of the appellant and set aside foreclosures on six condominium units (the Property) that the appellant owned. But the trial court found against the appellant on various other claimed he brought against the appellees. The appellate court found that the appellant failed to establish that the trial court’s findings were not supported by legally sufficient evidence. Further, the appellant had not showed that the trial court’s findings were against the great weight and preponderance of the evidence such that they would not be supported by factually sufficient evidence. As a matter of law that the appellant was not a consumer for purposes of the Texas Deceptive Trade Practices Act (DTPA) with regard to the foreclosure sales. Thus, the appellant’s remaining issues were waived. Accordingly, the court affirmed the judgment of the trial court.


Appellant testified that he did not have intent necessary to commit charged offense, solicitation of capital murder, not that he was mistaken about a fact that negated his culpability for that offense
Flores v. State
Criminal,Evidence,Procedure
Texas 1st Court of Appeals
March 07, 2019
01-18-00260-CR
Gordon Goodman
Published
The jury found the appellant guilty of the solicitation of capital murder. The appellant pleaded not guilty and the charged offense was tried to a jury, which found him guilty and assessed his punishment at 12 years’ confinement and a $10,000 fine. Appellant argued on appeal that the trial court erroneously denied his mistake-of-fact instruction. The appellant court found that the appellant testified that he did not have the intent necessary to commit the charged offense, solicitation of capital murder, not that he was mistaken about a fact that negated his culpability for that offense. The court therefore overruled his contention that the trial court erred by not instructing the jury on mistake of fact. Accordingly, the trial court's judgment was affirmed.


Appellant was not entitled to credit for time served since he was not in custody while his appeal was pending
Ex parte Alvarez
Criminal,Evidence,Procedure
Texas 3rd Court of Appeals
March 07, 2019
03-18-00775-CR
Gisela D. Triana
Published
  Appellant was convicted of driving while intoxicated and sentenced to 120 days’ confinement in county jail. He appealed his conviction and was never in custody while his appeal was pending. After his conviction was affirmed on appeal, he was ordered to begin serving his sentence. The appellant subsequently filed an application for writ of habeas corpus, asserting that he should have been in custody while his appeal was pending and thus entitled to credit for time served. The trial court denied relief. The appellate court observed that prior precedent differed in many respects from the case, including that the appellant was never in custody, he was not out on an appeal bond and thus could not be credited with complying with any bond conditions, and the State’s failure to take the appellant into custody occurred while his appeal was pending rather than after his conviction had become final. Under those circumstances, the appellant was not entitled to the same relief that the Court of Criminal Appeals granted to the applicants in the other cited cases. Because the appellant was never in custody while his appeal was pending, he should not be entitled to credit for time served. The appellant should not be allowed to avoid his sentence simply because a deputy clerk erroneously recalled the trial court’s commitment order. Accordingly, the court affirmed the trial court’s order.


The appellant’s conviction of first-degree injury to a child-serious bodily injury was upheld because the cumulative force of the evidence, both direct and circumstantial, was sufficient to support the jury’s finding that the appellant assumed care, custody, or control of the deceased
Proo v. State
Criminal,Evidence,Procedure
Texas 4th Court of Appeals
March 06, 2019
04-17-00645-CR
Rebeca C. Martinez
Published
The State indicted the appellant with one count of first-degree injury to a child-serious bodily injury, alleging two alternate manner and means: by failing to provide adequate nourishment (Paragraph A), or by failing to obtain and provide proper medical care (Paragraph B). The appellant pleaded not guilty, proceeded to a jury trial, and was convicted. The jury recommended a sentence of 88 years in prison, which was imposed by the trial court along with a $10,000 fine. The appellate court observed that the cumulative force of the evidence, both direct and circumstantial, was sufficient to support the jury’s finding that the appellant assumed care, custody, or control of the deceased under TEX. PENAL CODE ANN. section 22.04(d). Further, there was sufficient evidence in the record from which the jury could have reasonably inferred that the appellant either intentionally or knowingly caused serious bodily injury to the deceased by failing to provide him with sufficient nutrition or medical care. In view of the probative value of the landlords’ testimony on the disputed fact issue of whether the appellant lived or stayed at the house with the deceased, the trial court did not abuse its discretion by admitting the evidence. Furthermore, the attorney’s testimony was not admissible under Rule 702, and the trial court did not abuse its discretion in excluding the evidence. Accordingly, the trial court's judgment was affirmed.


Trial court abused its discretion when it scheduled a hearing on appellee’s motion for partial summary judgment after hearing & ruling on appellant’s amended motion to transfer venue, thus, mandamus was an appropriate avenue in which to correct trial court’s failure to observe Rule 87(1)
In re The Good Shepherd Hosp., Inc.
Appellate: Civil,Procedure
Texas 6th Court of Appeals
March 06, 2019
06-18-00115-CV
Jack Carter
Published
The appellant company and the appellee company entered into a lease agreement wherein the appellant agreed to lease to the appellee hospital space for a long-term acute care hospital. Also, the parties entered into ancillary and support services agreements. The appellee filed an original petition, application for temporary restraining order, and request for temporary and permanent injunctions maintaining that the appellant had breached the lease and ancillary agreements with the appellee by failing to provide the agreed-upon services. The appellant filed a motion to transfer venue. The trial court entered a temporary injunction against the appellant. Following an interlocutory appeal of the original temporary injunction, the entry of a second temporary injunction, and the filing of an amended petition by the appellee, the appellant filed an amended motion to transfer venue. The appellee filed a motion for partial summary judgment. The appellant filed a motion for continuance of the hearing on the appellee’s motion for partial summary judgment. The trial court entered an order granting the appellant’s motion for continuance, continuing the hearing on the appellee’s motion for partial summary judgment after the Court had held a hearing on and signed an order deciding the appellant’s motion to Transfer venue and the appellee had made its witnesses available for deposition. The appellant filed a petition for mandamus. The appellate court conditionally granted the appellant’s petition for writ of mandamus and directed the trial court to set the amended motion to transfer venue for a hearing and rule on its motion within a reasonable time prior to hearing the appellee’s motion for partial summary judgment. When a trial court began or started the process of ruling on substantive matters in a case, such as was required in deciding a dispositive issue in a partial summary judgment motion, it had commenced with the trial on the merits for purposes of Rule 87(1) of the Texas Rules of Civil Procedure. Thus, the trial court abused its discretion when it scheduled a hearing on the appellee’s motion for partial summary judgment immediately after hearing and ruling on the appellant’s amended motion to transfer venue. Accordingly, the court conditionally granted the appellant’s petition for writ of mandamus.


The trial court did not err by determining that the appellant had abandoned the laptop and denying the appellant’s motion to suppress; the appellant did not demonstrate that he had a legitimate expectation of privacy in the laptop
Akins v. State
Criminal,Evidence,Procedure
Texas 9th Court of Appeals
March 06, 2019
09-18-00057-CR
Steve McKeithen
Published
A jury convicted appellant of four charges of aggravated sexual assault of a child, and the trial judge assessed punishment at confinement for life in each case and ordered that the sentences would run consecutively. The appellate court concluded that, viewing the evidence in the light most favorable to the trial court's ruling, the trial court did not err by denying the appellant’s motion to suppress. The court observed that the trial judge heard the individual testify that the appellant said he was “working on” returning to the trailer, but the appellant had not returned to the trailer when the individual helped the second individual clean the trailer. The trial judge heard evidence that the individual took the laptop to the police after discovering the photographs. Thus, viewing the evidence in the light most favorable to the trial court’s ruling, the trial court did not err by determining that the appellant had abandoned the laptop and denying the appellant’s motion to suppress. The appellant did not demonstrate that he had a legitimate expectation of privacy in the laptop. Accordingly, the court affirmed the trial court’s judgments.


Entry of summary judgment as to the child's best interests was not appropriate
In re C. M. J.
Family,Gov't/Administrative,Juvenile,Procedure
Texas 1st Court of Appeals
March 05, 2019
01-18-00885-CV
Richard Hightower
Published
This was an appeal from a decree terminating the appellant mother’s parental rights and appointing the respondent department as sole managing conservator of her child. The appellate court found that because the trial court properly extended the finalization deadline and because there existed no genuine issue of material fact as to whether a factfinder could form a firm belief or conviction on the statutory-predicate ground, the court overruled the appellant's first issue and overruled her second issue in part. Further, because the appellant's summary-judgment evidence required the trial court to weigh the parties’ competing evidence on the child’s best interest, the court sustained in part the appellant's second issue. Accordingly, the judgment was affirmed in part, reversed in part and remanded for further proceedings.


The court had reviewed the record and found nothing to indicate that the appellant’s life sentence was grossly disproportionate to his offense
Guerrero v. State
Criminal,Evidence,Procedure
Texas 6th Court of Appeals
February 20, 2019
06-18-00076-CR
Josh Morriss, III
Published
The appellant inmate was prosecuted for harassment by a person in a correctional facility, a third-degree felony, was afforded a jury trial, was convicted, had his sentence enhanced by prior convictions and informed by an extensive disciplinary record, and was sentenced to life in prison. The appellate court found that the imposition of a life sentence was not cruel and unusual punishment in violation of the Eighth Amendment. The victim was required to submit to multiple blood tests over a period of months for the sole purpose of determining whether the appellant’s actions caused the victim to have any number of health issues. In addition to the pain and inconvenience of submitting to the blood tests, the victim was also subjected to emotional and mental distress each time she awaited her blood-test results. Further, the appellant did not simply assault the victim; he exposed her to the long-term possibility of contracting a debilitating or even fatal disease. The appellant’s enhanced sentence was within the statutory range of punishment, and evidence included his prior criminal history as a repeat offender and his extensive prison disciplinary history. Furthermore, the court had reviewed the record and found nothing to indicate that the appellant’s sentence was grossly disproportionate to his offense. Accordingly, the court affirmed the trial court's judgment.


The trial court did not err in concluding the client’s lack of standing deprived it of jurisdiction since the claims were property of the bankruptcy estate and the Trustee had exclusive standing to bring the claims.
Bustamante v. Miranda & Maldonado, P.C.
Bankruptcy,Procedure
Texas 8th Court of Appeals
February 28, 2019
08-17-00174-CV
Yvonne T. Rodriguez
Published
The appellant client challenged the trial court’s granting of the appellee lawyers’ motion for summary judgment upon their plea to the jurisdiction and traditional motion for summary judgment in a legal malpractice action. The appellate court found that because the claims accrued pre-conversion, the claims were property of the bankruptcy estate and the Trustee had exclusive standing to bring the claims. Because standing was a component of subject matter jurisdiction, the trial court did not err in concluding the appellant’s lack of standing deprived it of jurisdiction. Accordingly, the trial court's judgment was affirmed.


The evidence was both legally and factually sufficient to support the trial court’s finding that termination of the mother’s parental rights was in the best interest of both children
In re A.F.J.
Family
Texas 8th Court of Appeals
March 01, 2019
08-18-00155-CV
Ann Crawford McClure
Published
The appeal was from a judgment terminating the parental rights of the appellant mother to her children. The appellate court observed that the evidence was factually sufficient to support the trial court’s determination that the appellant engaged in course of conduct which endangered the children’s physical and emotional well-being. Further, the evidence was both legally and factually sufficient to support the trial court’s finding that termination of the appellant’s parental rights was in the best interest of both children. Accordingly, the order terminating the appellant’s parental rights to the children was affirmed.


Construing the overlapping contractual provisions based on the language the parties chose, the court held that the petitioner may deduct post-production costs when calculating royalty payments
Burlington Res. Oil & Gas Co. LP v. Texas Crude Energy, LLC
Contracts,OilGas, & Mineral
The Supreme Court of Texas
March 01, 2019
17-0266
James D Blacklock
Published
The respondent company, an affiliate of the second respondent company, owned overriding royalty interests in oil and gas leases operated by the petitioner company. For several years, the petitioner made royalty payments only after charging the royalty holder its proportionate share of the post-production costs expended to bring the products from the wells to the point of sale. The second respondent company sued the petitioner, alleging that the parties’ contracts prohibit the petitioner from charging post-production costs to the royalty holder. Recognizing the existence of “substantial grounds for difference of opinion regarding whether post-production costs were deductible by the petitioner when calculating overriding royalty payments to the respondent company,” the trial court authorized an interlocutory appeal under Tex. Civ. Prac. & Rem. Code section 51.014(d). The appellate court accepted the appeal, and affirmed the trial court’s judgment. The Texas Supreme Court ruled that the petitioner’s construction of the royalty assignments was correct. The assignments permitted the petitioner to charge the second respondent company its proportionate share of post-production expenses when calculating royalty payments. Accordingly, the judgment of the appellate court was reversed and the case was remanded.


The evidence supported the rational inference that the appellants could not pay damages and thus, the court could not say that the trial court abused its discretion in issuing the temporary injunction
Flamingo Permian Oil & Gas, L.L.C. v. Star Exploration, L.L.C
Contracts,Damages,Litigation: Personal Injury,OilGas, & Mineral
Texas 8th Court of Appeals
February 28, 2019
08-18-00027-CV
Yvonne T. Rodriguez
Published
The appellee corporation and appellants were part of a joint operating agreement (JOA) with respect to certain oil and gas leases located in Pecos County. Under the JOA, the appellants served as operator and the appellee was the majority non-operating interest holder. The JOA gave the appellee as the majority non-operating interest holder the ability to call a vote to remove an operator for violating the JOA. The appellee called a meeting to vote on the removal of the appellants as operator. The members voted to remove the appellants as operator and to install the appellee as operator. The appellants sued the appellee and others. The appellee countersued the appellants, then filed an application for injunctive relief. The trial court issued an order granting the appellee’s request for temporary injunctive relief. The appellants filed its notice of appeal of that order. The appellate court found that the appellate record showed that the order had been superseded by a subsequent order. The subsequent order, which appeared in the appellate record and which was issued while the appeal was pending, set a date for trial on the merits and fixed the amount of security to be paid by the appellee. All complained of formal defects have been corrected. Further, the appellee presented evidence at the hearing that the appellants repeatedly failed to pay debts, allowed liens to accrue against the property in violation of the JOA, and did not participate in legal proceedings such that several default judgments had been taken against the appellants. The appellants did not offer any evidence to the contrary, nor did the appellants challenge the trial court’s fact-findings related to those issues. The evidence supported the rational inference that the appellants could not pay damages. Thus, the court could not say that the trial court abused its discretion in issuing the temporary injunction. Accordingly, the trial court's judgment was affirmed.


The appellant had not met his burden to show that article 102.004 could not be used for a legitimate criminal justice purpose in all circumstances, thus, article 102.004(a) was not facially unconstitutional
Alvarez v. State
Criminal,Evidence,Procedure
Texas 2nd Court of Appeals
February 28, 2019
02-18-00193-CR
J. Wade Birdwell
Published
The appellant challenged the trial court’s admission of evidence and imposition of two types of statutory conviction fees in the appeal from his second misdemeanor driving while intoxicated (DWI) conviction. The appellate court found that the evidence did not show that it was impossible for the breath-test operator to have observed the appellant for fifteen minutes before the test; thus, the trial judge did not abuse his discretion by admitting exhibit 6. Further, the court had rejected the appellant’s constitutional challenge to article 102.008(a). Because local government code Section 113.004 provided for the jury fees collected under article 102.004 to be used “for some legitimate criminal justice purposes,” the appellant had not met his burden to show that article 102.004 could not be used for a legitimate criminal justice purpose in all circumstances. Thus, article 102.004(a) was not facially unconstitutional. Accordingly, the court affirmed the trial court’s judgment.


Appellant was improperly punished twice for the same offense and second conviction was reversed
Lozano v. State
Criminal,Evidence,Procedure
Texas 14th Court of Appeals
February 28, 2019
14-17-00026-CR
Tracy Christopher
Published
Appellant pleaded guilty to aggravated assault, discharging a firearm at or in the direction of a vehicle, aggravated assault and unlawful possession of a firearm. The trial court assessed his punishment at eight years’ imprisonment for each of the five offenses, and ordered all of the sentences to run concurrently. The appellate court overruled the first issue without addressing the merits because appellant did not lodge any complaint in the trial court regarding his punishments. Further, based on the Tex. Penal Code Section 22.05(b) as written, the court concluded that the allowable unit of prosecution for the offense of engaging in deadly conduct is each discharge of a firearm that occurs under the proscribed surrounding circumstances. In the case, the State conceded that the evidence showed that appellant discharged his firearm only once in the direction of a vehicle. After reviewing the evidence, the court agreed with the State. The State further conceded that if the legislature only intended for each discharge of the firearm to be the allowable unit of prosecution (rather than each victim), then the court must vacate the second conviction for deadly conduct because only a single discharge was shown. The court agreed. The court modified the judgment by vacating the conviction for deadly conduct. Accordingly, the court affirmed the judgment as modified.


Appointment of counsel to represent relator on a motion for DNA testing is no longer a ministerial act and relator did not make a substantive legal argument in support of his writ
In re Marshall
Constitution,Criminal,Evidence,Procedure
Texas 14th Court of Appeals
February 26, 2019
14-19-00131-CR
Per Curiam
Published
The relator filed a petition for writ of mandamus in the court. In the petition, the relator asked the court to compel the presiding judge of the district court either to grant his motion to appoint counsel to represent relator on a motion for DNA testing or to otherwise rule on his motion. The appellate court found that even if the convicting court determined that a convicted person was indigent, the trial court was not required to appoint counsel if it found there were no reasonable grounds for the motion to be filed. Such a finding was reviewed under an abuse-of-discretion standard, either in a mandamus or as part of the appeal of the denial of DNA testing. Therefore, the appointment of the counsel was no longer a ministerial act. Further, the court could not compel the appointment of counsel for relator with respect to his motion for DNA testing. In addition the relator had not made a substantive legal argument in his petition for a writ of mandamus for his alternative request, which was to order the judge to rule on the relator’s motion to appoint counsel. The relator failed to establish that he was entitled to mandamus relief. Accordingly, the court denied the relator’s petition for writ of mandamus.


The evidence was both legally and factually sufficient to establish a firm conviction in the mind of the trial court that termination of the father's parental rights was in the child’s best interest.
In re U.G.G.
Family, Gov't/Administrative, Juvenile, Procedure
Texas 8th Court of Appeals
February 26, 2019
08-18-00163-CV
Ann Crawford McClure
Published
The mother and father appealed the judgment of the trial court which terminated the parental rights of their son based on a report of negligent supervision. On appeal, the father challenged the legal and factual sufficiency of the evidence supporting the trial court's findings. Specifically, the father argued that the evidence was legally and factually insufficient to support the predicate termination grounds found by the trial court under Section 161.001(b)(1)(D), (E), and (O). The father further challenged the legal and factual sufficiency of the evidence supporting the best interest finding made under Section 161.001(b)(2). The trial court noted that the evidence of illegal drug use by a parent and its effect on a parent's life and his ability to parent could establish an endangering course of conduct under Section 161.001(b)(1)(E). The appellate court found that a reasonable fact finder could have formed a firm belief or conviction that the father engaged in a course of conduct endangering to the son’s physical and emotional well-being under Section 161.001(b)(1)(E). The appellate court concluded that the evidence was both legally and factually sufficient to establish a firm conviction in the mind of the trial court that termination of the father's parental rights was in the child’s best interest. Accordingly, the judgment of the trial court was affirmed.


Since the conduct and actions of the petitioner on which the respondent relied to establish its fraudulent-inducement claim were directly contrary to the unambiguous terms of the contract it signed, the respondent’s reliance was unjustified as a matter of law.
Mercedes-Benz USA, LLC v. Carduco, Inc.
Appellate: Civil, Business, Contracts, Damages, Procedure, Torts
The Supreme Court of Texas
February 22, 2019
16-0644
John P. Devine
Published
The petitioners appealed the judgment of the appellate court which affirmed the award of actual and punitive damages. On appeal, the Supreme Court was asked to consider whether the respondent’s belief that the petitioner had promised the area to it was justified in light of the parties' written agreement. The Supreme Court noted that to prevail on a fraud claim, the plaintiff must prove that it actually and justifiably relied on a factual misrepresentation to its detriment. The Supreme Court found that because that agreement approved and identified only one geographical area as the respondent’s dealership location, provided that the respondent could not move, relocate, or change any dealership facilities without the petitioner’s prior written consent, provided that the respondent’s right to sell cars in any specific geographic area was nonexclusive, the parties' written agreement directly contradicted the respondent’s alleged belief. The Supreme Court concluded that since the conduct and actions of the petitioner on which the respondent relied to establish its fraudulent-inducement claim were directly contrary to the unambiguous terms of the contract it signed, the respondent’s reliance was unjustified as a matter of law. Accordingly, the judgment of the appellate court was affirmed in part and reversed in part.