Opinion Alerts

The trial court did not err in denying the appellants’ motion to transfer venue of the appellees claims.
UPS Ground Freight, Inc. v. Trotter
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 12th Court of Appeals
November 27, 2019
12-19-00135-CV
Brian Hoyle
Published
The appellants appealed the judgment of the trial court which denied their motion to transfer venue of claims brought against them by the appellees. On appeal, the appellants contended that the appellees failed to comply with the applicable venue statutes. The appellate court noted that because the appellants did not specifically deny that the independent administrator of the deceased victim was a resident of Rusk County, the venue fact was taken as true. The appellate court found that the appellants did not base their motion to transfer on grounds that an impartial trial could not be had in the county or on an established ground of mandatory venue. The appellate court concluded that the trial court did not err in denying the appellants’ motion to transfer venue of the appellees claims. Accordingly, the judgment of the trial court was affirmed.

The plaintiff neither pleaded, nor presented evidence that the defendant himself exercised any dominion or control over the plaintiff’s property.
El Pescador Church, Inc. v. Ferrero
Appellate: Civil, Damages, Procedure, Torts
Texas 8th Court of Appeals
November 25, 2019
08-18-00029-CV
Ann Crawford McClure
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in favor of the defendants. On appeal, the appellate court was asked to review several dispositive motions granted in favor of the defendants, who were alleged to have breached one or more duties to the plaintiff that established the church. The appellate court noted that any complaint that the trial court improperly granted summary judgment on the pleadings without an opportunity to amend had been waived. The appellate court found that the plaintiff’s pleading was broad enough to encompass exclusion from the premises, which would necessarily include its furnishings. The appellate court concluded that the plaintiff neither pleaded, nor presented evidence that the defendant himself exercised any dominion or control over the plaintiff’s property. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.

The appellate court concluded that the fact of the contingent nature of the case was first used to jump the normal hourly fee, and then was used again to justify the gap between a time and hour fee and the 25 percent contingency.
Tex. Mut. Ins. Co. v. Dejaynes
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Insurance, Workers' Compensation
Texas 8th Court of Appeals
November 25, 2019
08-18-00147-CV
Ann Crawford McClure
Published
The appellant appealed the judgment of the trial court which ordered payment of a commuted lump sum fee equal to a 25 percent contingency adjusted for interest and discounting. On appeal, the appellant challenged the attorney’s fee award. The appellate court noted that the appellant had a sufficient relationship to the issue of attorney’s fee issue to give it standing. The appellate court found that the appellees’ attorney sought a fee based on a 25 percent contingency. The appellate court concluded that the fact of the contingent nature of the case was first used to jump the normal hourly fee, and then was used again to justify the gap between a time and hour fee and the 25 percent contingency. Accordingly, the judgment of the trial court was reversed and remanded.

The appellate court concluded that the record contained no evidence that the complainant and the defendant were family members or that they lived together.
Simmons v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
November 27, 2019
10-18-00269-CR
John E. Neill
Published
The defendant appealed the judgment of the trial court which convicted him of assault family violence with a prior conviction for assault family violence. On appeal, the defendant challenged the trial court’s conviction. The appellate court noted that the complainant did not deny making the recorded statements and admitted to the content of the statements, to the extent that it can be argued that the recorded statements should have been admitted for impeachment purposes. The appellate court found that the recorded statements were not admissible under Texas Rule of Evidence 613(a)(4). The appellate court concluded that the record contained no evidence that the complainant and the defendant were family members or that they lived together. Accordingly, the judgment of the trial court was affirmed.

The trial court did not abuse its discretion in denying the defendant’s motion to suppress his statements.
Dorch v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
November 27, 2019
04-18-00360-CR
Liza A. Rodriguez
Published
The defendant appealed the judgment of the trial court which convicted him of injury to a child by omission and abandoning a child in two related cases. On appeal, the defendant challenged the trial court’s conviction. The appellate court noted that based on the medical testimony about the victim’s physical conditions, the photographs and testimony documenting the circumstances in which they were found, the neighbors’ testimony of children crying in the backyard day and night for the last two weeks, and the defendant’s own admissions about when he last saw the victims, the jury could have reasonably inferred that the defendant had the requisite mental state for the two offenses of conviction. The appellate court found that the evidence was sufficient to establish that they suffered serious bodily injury, not merely the lesser bodily injury. The appellate court concluded that the trial court did not abuse its discretion in denying the defendant’s motion to suppress his statements. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the trial court erred by denying the defendants’ motion to dismiss the claims.
Steinhaus v. Beachside Env’t, LLC
Appellate: Civil, Constitution, Contracts, Procedure, Torts
Texas 14th Court of Appeals
November 26, 2019
14-18-01048-CV
Ken Wise
Published
The defendants appealed the judgment of the trial court which denied their motion to dismiss the suit for defamation per se, tortious interference with contractual relations, and tortious interference with prospective contractual relations. On appeal, the defendants challenged the trial court’s denial. The appellate court noted that because the defendants established by a preponderance of the evidence that the qualified privilege applied, and the plaintiff had not shown abuse of the privilege, the trial court erred by denying the motion to dismiss the plaintiff’s defamation claim. The appellate court found that the plaintiff had not pointed to any evidence, either in the trial court or on appeal, to support a prima facie case for any element of its tortious interference claims. The appellate court concluded that the trial court erred by denying the defendants’ motion to dismiss the claims. Accordingly, the judgment of the trial court was reversed.

The trial court did not abuse its discretion when it determined that the plaintiff’s motion to dismiss was frivolous.
Caliber Oil & Gas, LLC v. Midland Visions 2000
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Torts
Texas 11th Court of Appeals
November 27, 2019
11-19-00099-CV
Keith Stretcher
Published
The plaintiff appealed the judgment of the trial court, seeking to quiet title to the property and to recover a proportionate share of the ad valorem taxes on the property that the plaintiff paid. On appeal, the plaintiff challenged the trial court’s ruling. The appellate court noted that the plaintiff failed to establish by a preponderance of the evidence that the defendant’s tortious interference counterclaims were based on, related to, or in response to the plaintiff’s exercise of the right of association. The appellate court found that the trial court properly denied the plaintiff’s motion to dismiss. The appellate court concluded that the trial court did not abuse its discretion when it determined that the plaintiff’s motion to dismiss was frivolous. Accordingly, the judgment of the trial court was affirmed.

Since the defendant had not demonstrated that the provision was narrowly tailored to serve a compelling state interest, the provision violated the Texas Constitution’s guarantee to due course of law.
Zaatari v. Austin
Appellate: Civil, Constitution, Gov't/Administrative, Procedure, Real Property
Texas 3rd Court of Appeals
November 27, 2019
03-17-00812-CV
Jeff Rose
Published
The plaintiffs appealed the judgment of the trial court which granted the defendant’s no-evidence motion for summary judgment. On appeal, the plaintiffs asserted that certain provisions in the ordinance were unconstitutional. The plaintiffs further challenged the ordinance provision that banned short-term rentals of non-homestead properties, and the ordinance provision that controls conduct and types of assembly at short-term rental properties. The appellate court noted that the ordinance provision banning non-homestead short-term rentals significantly affected the plaintiffs’ substantial interests in well-recognized property rights while, on the record before the court, serving a minimal, if any, public interest. The appellate court found that the provision was unconstitutionally retroactive, and the court reversed the trial court’s judgment on the issue and rendered judgment declaring the provision void. The appellate court concluded that since the defendant had not demonstrated that the provision was narrowly tailored to serve a compelling state interest, the provision violated the Texas Constitution’s guarantee to due course of law. Accordingly, the judgment of the trial court was reversed in part, affirmed in part, and remanded.

The record did not indicate that the defendant suffered serious prejudice beyond that which ensued from the ordinary and inevitable delay.
Ussery v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
November 26, 2019
01-18-00540-CR
Richard Hightower
Published

The defendant appealed the judgment of the trial court which convicted him of the felony offense of aggravated sexual assault of a child younger than six years old, and it assessed his punishment at thirty-five years’ confinement. On appeal, the defendant challenged the trial court’s conviction. The appellate court noted that there was no indication that the trial court was made aware of the defendant’s speedy-trial request until counsel filed the motion to dismiss and set the case for a hearing, which was after the trial court had made several sua sponte resetting of the trial date. The appellate court found that the record demonstrated that while the aggravated assault case was pending, the defendant was charged with two additional crimes forgery and possession of a controlled substance and that he violated the terms of his bond by committing those new offenses and failing a drug test. The appellate court concluded that the record did not indicate that the defendant suffered serious prejudice beyond that which ensued from the ordinary and inevitable delay. Accordingly, the judgment of the trial court was affirmed.

Since the pleadings affirmatively negated the trial court’s jurisdiction, the trial court properly granted the plea to the jurisdiction without allowing the respondent an opportunity to amend.
Crampton v. Farris
Appellate: Civil, Civil Rights, Ethics, Gov't/Administrative, Procedure, Professional Responsibility, Torts
Texas 1st Court of Appeals
November 26, 2019
01-18-00432-CV
Richard Hightower
Published
The Texas Commission for Lawyer Discipline (the Commission) brought a disciplinary action against the respondent (attorney). While the Commission’s case against her was pending, the respondent filed a “Third-Party Petition” against the Commission attorney assigned to the disciplinary case, in her individual capacity, asserting claims for intentional infliction of emotional distress and violations of 42 U.S.C. section 1983, among others. Thereafter, the trial court granted the appellee’s plea, dismissing all of the appellant’s claims with prejudice. The appellate court found that the respondent failed to plead any actions undertaken by the appellee outside the general scope of the appellee’s duties with the Commission. The appellate court concluded that since the pleadings affirmatively negated the trial court’s jurisdiction, the trial court properly granted the plea to the jurisdiction without allowing the respondent an opportunity to amend. Accordingly, the judgment of the trial court was affirmed.

The payment was made to the appellee, the appellee accepted the payment, and it had the use of the money from the time of the tender.
Certain Underwriters at Lloyd’s, London v. Prime Natural Res., Inc.
Appellate: Civil, Contracts, Gov't/Administrative, Insurance, Procedure
Texas 1st Court of Appeals
November 26, 2019
01-17-00881-CV
Richard Hightower
Published
The appellant appealed the judgment of the trial court which ruled in favor of the appellee in an oil and gas dispute, finding that the appellant failed to comply with the policy and that the appellee was entitled to unpaid policy benefits. On appeal, the appellant challenged the trial court’s award. The appellate court noted that there was no evidence that the partial tender was not unconditional at the time it was tendered. The appellate court found that the appellant provided conclusive proof that the tender was unconditional. The appellate court concluded that the payment was made to the appellee, the appellee accepted the payment, and it had the use of the money from the time of the tender. Accordingly, the judgment of the trial court was affirmed and remanded.

The jury did not believe the defendant struck the fatal blow before the victim went down for the second and final time, and therefore, the absence of the requested self-defense instruction was harmless.
Hocko v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
November 26, 2019
14-16-00959-CR
Meagan Hassan
Published
The defendant appealed the judgment of the trial court which convicted him of criminally negligent homicide and found that the defendant’s hand was a deadly weapon. On appeal, the defendant challenged the trial court’s sentence to 15 years imprisonment. The appellate court noted that viewing the evidence in the light most favorable to the trial court’s ruling, the trial court did not abuse its discretion because the manager and bartender’s trial testimony compared to the excerpted portions of her 911 call did not necessarily give the jury a false impression. The appellate court found that the manager and bartender’s trial testimony and 911 call both described an argument in the parking lot that escalated to a physical altercation. The appellate court concluded that the jury did not believe the defendant struck the fatal blow before the victim went down for the second and final time, and therefore, the absence of the requested self-defense instruction was harmless. Accordingly, the judgment was affirmed.

There was no variance between the allegation in the indictment and the proof in the case, and the evidence was sufficient.
Stredic v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
November 26, 2019
14-18-00162-CR
Ken Wise
Published
The defendant appealed the judgment of the trial court which convicted him of murder, found two punishment enhancements true, and assessed punishment at thirty years’ confinement. On appeal, the defendant challenged the trial court’s conviction and sentence. The appellate court noted that after reviewing the record as a whole and were fairly assured that any error from providing the jury with written transcripts rather than reading the transcripts aloud did not influence the jury or had but a slight effect and that the defendant’s substantial rights were not affected. The appellate court found that the alleged error was not harmful. The appellate court concluded that there was no variance between the allegation in the indictment and the proof in the case, and the evidence was sufficient. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that since section 3.03(a) did not apply to the order of deferred adjudication, the trial court did not abuse its discretion.
Privette v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
November 26, 2019
06-19-00162-CR
Scott E. Stevens
Published
The defendant appealed the judgment of the trial court which convicted him of two counts of aggravated assault with a deadly weapon. On appeal, the defendant challenged the trial court’s sentence to two years’ imprisonment. The appellate court noted that since the trial court deferred the adjudication of the defendant’s guilt in the case, it made no finding of guilt on the second offense. The appellate court found that the defendant had not been found guilty of more than one offense arising out of the same criminal episode. The appellate court concluded that since section 3.03(a) did not apply to the order of deferred adjudication, the trial court did not abuse its discretion. Accordingly, the judgment of the trial court was affirmed.

The trial court did not err by refusing to grant the defendant’s request to issue a writ of attachment for the absent venire member.
Guzman v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
November 26, 2019
01-18-00442-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 young child and assessed his punishment at thirty years’ confinement. On appeal, the defendant challenged the trial court’s conviction and sentence. The appellate court noted that because the complainant, the declarant of the out-of-court outcry statement, testified at trial and was subject to cross-examination by the defendant, admission of her outcry statement through the defendant’s wife did not violate his rights under the Confrontation Clause. The appellate court found that because the conversation with the wife occurred prior to the defendant’s arrest and his being read his Miranda warnings, his silence during the conversation did not implicate, and was not protected by, the Fifth Amendment’s right against compelled self-incrimination. The appellate court concluded that the trial court did not err by refusing to grant the defendant’s request to issue a writ of attachment for the absent venire member. Accordingly, the judgment of the trial court was affirmed.

Since no such allegations appeared in the defendant’s motion for new trial, it failed to establish a prima facie meritorious defense.
Reverse Mortgage Funding, LLC v. Robertson
Appellate: Civil, Contracts, Procedure, Real Property, Wills/Trusts/Probate
Texas 6th Court of Appeals
November 25, 2019
06-19-00063-CV
Ralph Burgess
Published
The defendant appealed the judgment of the trial court which entered default judgment against it in a suit to quiet title to the property. On appeal, the plaintiff alleged that the deceased wife's life estate in the property terminated when she died and that because the deceased wife only owned a life estate in the property, she lacked authority to enter into the reverse mortgage loan agreement. The appellate court found that to claim the status of a bona fide mortgagee, the defendant was bound to support the conclusory statement with verified allegations of fact. The appellate court concluded that since no such allegations appeared in the defendant’s motion for new trial, it failed to establish a prima facie meritorious defense. Accordingly, the judgment of the trial court was affirmed.

The trial court did not err by denying the appellant's motion to suppress custodial statements and admitting the testimony of a witness in the appellant's capital murder trial; however, the trial court's judgment of conviction must be modified because it contained errors in need of correction
Parlin v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
November 21, 2019
01-18-00551-CR
Sarah Beth Landau
Published
The State charged the appellant with five counts of capital murder. The appellant pleaded not guilty to all five counts and “not true” to both enhancement paragraphs. The case was tried to a jury, and the jury convicted the appellant of capital murder. At sentencing, the State waived three counts, leaving two counts of capital murder. The trial court sentenced the appellant to life imprisonment without the possibility of parole. In two issues, the appellant contended the trial court erred by denying his motion to suppress custodial statements and admitting the testimony of a witness. The appeals court overruled both of the appellant's issues. As to the judgment, the appeals court agreed with the State that it contained errors in need of correction because Texas Penal Code Section 19.03(a)(7) criminalizes the murder of multiple people during criminal transactions committed pursuant to the same scheme or course of conduct, as was established with the evidence of the murders of the victims. Texas Penal Code Section 19.03(a)(2) criminalizes murder in the course of committing certain statutory felonies with no regard to murdering multiple people. Thus, the appeals court modified the judgment to reflect that the appellant was convicted under Texas Penal Code section 19.03(a)(7). Accordingly, the appeals court affirmed the trial court’s judgment of conviction as modified.

The trial court acted within its discretion in denying the appellant's application for habeas relief; the appellant's arguments regarding ineffective assistance of counsel and newly discovered evidence were rejected
Ex Parte Nugent
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
November 21, 2019
01-18-00144-CR
Gordon Goodman
Published
The appellant pleaded guilty without an agreed punishment recommendation to the first-degree felony offense of theft, in an aggregate amount in excess of $200,000.00. The trial court assessed punishment at ten years’ confinement but suspended the sentence and placed the appellant on ten years’ community supervision. The appellant filed an application for writ of habeas corpus under Article 11.072 of the Texas Code of Criminal Procedure, asserting that he received ineffective assistance of counsel, counsel was so ineffective as to render his guilty plea involuntary, and newly discovered evidence established his innocence. Following a hearing, the trial court denied relief. The appellant attempted an appeal but the appeals court dismissed the appeal for lack of jurisdiction because the notice of appeal was untimely. Subsequently, the trial court granted the appellant's request for an out-of-time appeal of the habeas denial. On apppeal, the appeals court found that because the appellant failed to satisfy his burden of demonstrating ineffective assistance of counsel, he also failed to demonstrate that his guilty plea based on that assistance was involuntary. Furthermore, the appellant's argument that he was actually innocent because his acts were legal did not present new evidence. Thus, the trial court acted within its discretion in denying the appellant's application for habeas relief. Accordingly, the appeals court affirmed the trial court’s order denying habeas relief.

There was error in the jury charge that created such harm that the appellant, who was convicted of sexual abuse of a child, was deprived of a fair and impartial trial
Perez-Mancha v. State
Criminal, Evidence, Juvenile, Procedure
Texas 14th Court of Appeals
November 21, 2019
14-18-00713-CR
Margaret Poissant
Published
A jury found the appellant guilty of continuous sexual abuse of a child. The jury assessed his punishment at confinement for twenty-five years. From that conviction, the appellant appealed, claiming the jury charge was erroneous. Specifically, the appellant asserted the charge authorized the jury to convict him of the offense based on acts of sexual abuse committed before September 1, 2007, the effective date of the statute.The State conceded, and the appeals court agreed, the charge was erroneous. The appeals court found there was error in the charge that created such harm that the appellant was deprived of a fair and impartial trial. Accordingly, the appeals court reversed the trial court's judgment of conviction and remanded the case to the trial court for further proceedings.

Because the appellant did not prevail on any of its claims, it was not entitled to attorney’s fees or damages.
EJ Madison, LLC v. Pro-Tech Diesel, Inc.
Appellate: Civil, Business, Contracts, Corporations, Damages, Procedure, Torts
Texas 8th Court of Appeals
November 22, 2019
08-17-00229-CV
Yvonne T. Rodriguez
Published
The appellant appealed the judgment of the trial court which rendered a take-nothing judgment after a bench trial in which it raised claims against the appellee for breach of contract, breach of fiduciary duty, and misappropriation of trade secrets. On appeal, the appellant challenged the trial court’s judgment. The appellate court noted that because the appellant pointed the court to no evidence in the record establishing that the appellee was performing work related to the duel fuel conversion project after the appellee stopped doing business with the appellant, the court overruled the appellant’s points of error related to the scope of the agreement claim. The appellate court found that the appellant never sought reformation in the trial court. The appellate court concluded that because the appellant did not prevail on any of its claims, it was not entitled to attorney’s fees or damages. Accordingly, the judgment of the trial court was affirmed.

While the appellee could consider the improved sales, the individual’s improved RSE scores were irrelevant because RSE was not an appropriate measure of whether the individual had met his contractual obligations.
Nissan N.A., Inc. v. Tex. Dep’t of Motor Vehicles
Appellate: Civil, Contracts, Gov't/Administrative, Procedure
Texas 6th Court of Appeals
November 22, 2019
06-19-00007-CV
Ralph Burgess
Published
The appellant appealed the judgment of the trial court, seeking to terminate its Dealer Sales and Service Agreement (Agreement) with the individual due to the individual’s poor sales performance and violation of accepted accounting practices. On appeal, the appellant challenged the trial court’s order. The appellate court noted that even though the conditions upon which reasonableness must be compared were undisputed and did not find that every objectively reasonable seller in the appellant’s position would always use Regional Sales Effectiveness (RSE) metric under the undisputed circumstances in the case. The appellate court found that the appellee’s conclusion that the individual did not violate the Agreement was supported by substantial evidence. The appellate court concluded that while the appellee could consider the improved sales, the individual’s improved RSE scores were irrelevant because RSE was not an appropriate measure of whether the individual had met his contractual obligations. Accordingly, the judgment of the trial court was affirmed.

Because the arbitration agreements at issue were silent as to arbitrability and did not mention class claims at all, the lower courts correctly determined the respondent was not bound to arbitrate the petitioners’ putative class claims.
Robinson v. Home Owners Mgmt. Enterprises, Inc.
ADR, Appellate: Civil, Contracts, Damages, Gov't/Administrative, Insurance, Procedure, Torts
The Supreme Court of Texas
November 22, 2019
18-0504
Eva M. Guzman
Published
The petitioners appealed the judgment of the trial court which abated the case and compelled arbitration in accordance with the terms of the limited warranty and its addendum. On appeal, the petitioners alleged that the respondents routinely demanded overbroad releases as a precondition to fulfilling its warranty obligations. Thereafter, the respondents moved to strike the class claims from the arbitration proceeding and objected that the putative class claims were “beyond the scope” of the order referring the case to arbitration, were untimely under that order, and were untimely under the arbitrator’s scheduling order. The Supreme Court found that considering the fundamental differences between bilateral and class arbitration, and the bedrock principle that a party could not be forced to arbitrate any dispute absent a binding agreement to do so, a court must determine, as a gateway matter, whether an arbitration agreement permitted class arbitration unless the parties have clearly and unmistakably agreed otherwise. The Supreme Court concluded that because the arbitration agreements at issue were silent as to arbitrability and did not mention class claims at all, the lower courts correctly determined the respondent was not bound to arbitrate the petitioners’ putative class claims. Accordingly, the judgment of the trial court was affirmed.

When reviewing the propriety of the sanctions award by mandamus, the trial court must modify its order to allow the relator an opportunity to appeal before the sanctions must be paid.
In re Casey
Appellate: Civil, Constitution, Damages, Procedure
The Supreme Court of Texas
November 22, 2019
18-0289
Per Curiam
Published
The relator (attorney) appealed the judgment of the trial court which sanctioned him for “misrepresenting” and “not disclosing” legal authority in a motion to designate the real party in interest a vexatious litigant. On appeal, the relator sought a writ of mandamus compelling the trial court to either vacate the monetary sanctions order and reinstate the vexatious-litigant designation or defer the sanctions-payment deadline until rendition of an appealable judgment. The Supreme Court noted that deferral was required under Braden, and when satisfaction of the sanctions order was so deferred, an adequate appellate remedy existed. The Supreme Court found that the trial court did not consider the propriety of the sanctions order. The Supreme Court concluded that when reviewing the propriety of the sanctions award by mandamus, the trial court must modify its order to allow the relator an opportunity to appeal before the sanctions must be paid. Accordingly, the writ of mandamus would issue only if the court did not promptly comply with the court's directive.

The trial court did not err in denying the defendant’s motion for mistrial or in overruling his hearsay objection during the deputy’s testimony.
Crawford v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
November 20, 2019
04-18-00555-CR
Liza A. Rodriguez
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated robbery, found to be a habitual offender, and sentenced to seventy-five years of imprisonment. On appeal, the defendant challenged the trial court’s conviction and sentence. The appellate court found that the State’s commitment question included only facts necessary to test whether a prospective juror was challengeable for cause. The appellate court found that since the complainant’s statement about what the defendant’s mom said over the phone was not testimonial, the defendant’s right to confrontation was not violated. The appellate court concluded that the trial court did not err in denying the defendant’s motion for mistrial or in overruling his hearsay objection during the deputy’s testimony. Accordingly, the judgment of the trial court was affirmed.

The defendants failed to establish their limitations defense by a preponderance of the evidence.
Sullo v. Kubosh
Constitution, Procedure, Professional Responsibility, Torts
Texas 1st Court of Appeals
November 19, 2019
01-18-00418-CV
Evelyn V. Keyes
Published
The defendants appealed the judgment of the trial court which denied all three motions to dismiss in an action under the Texas Citizens Participation Act (TCPA). On appeal, the defendants challenged the trial court’s denial of its motions to dismiss. The appellate court noted that the record included evidence—in the form of emails—that the first defendant was involved in setting up the conference room where two of the plaintiffs called and evidence that the second defendant participated in email exchanges concerning the suits. The appellate court found that the plaintiffs established a prima facie case against the defendants by clear and specific evidence, satisfying their burden of proof necessary to avoid dismissal under the TCPA. The appellate court concluded that the defendants failed to establish their limitations defense by a preponderance of the evidence. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the trial setting was well within the time constraints contained in the trial court’s order extending the proceedings 180 days.
In re A.W.
Appellate: Civil, Family, Gov't/Administrative, Juvenile, Procedure, Tribal
Texas 6th Court of Appeals
October 24, 2019
06-19-00024-CV
Ralph Burgess
Published
The parents appealed the judgment of the trial court which terminated the parents’ parental rights to their two children. On appeal, the parents challenged the trial court’s termination. The appellate court noted that after considering the evidence, including the named-tribe’s findings, the trial court found that the children were not American-Indian children subject to the terms of the Indian Child Welfare Act (ICWA). The appellate court found that the trial court did not err in retaining jurisdiction over the case. The appellate court concluded that the trial setting was well within the time constraints contained in the trial court’s order extending the proceedings 180 days. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the trial court did not abuse its discretion in determining the defendant was competent to stand trial.
Clark v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
November 18, 2019
06-19-00023-CR
Ralph Burgess
Published
The defendant appealed the judgment of the trial court which convicted him of two counts of harassment while in a correctional or detention facility and sentenced him to ten years’ imprisonment on each count. On appeal, the defendant challenged the trial court’s sentences for the harassment convictions to run concurrently with each other, but consecutively with the sentences for the arson convictions. The appellate court noted that the defendant made no complaint about the qualifications to the trial court, and as a result, he could not challenge those qualifications on appeal. The appellate court found that although the trial court initially found that there was evidence supporting a “suggestion of incompetency” and properly ordered an expert evaluation and proceeded to the informal inquiry. The appellate court concluded that the trial court did not abuse its discretion in determining the defendant was competent to stand trial. Accordingly, the judgment of the trial court was affirmed.

In an attempted sexual assault case, the appellate court could not conclude that defense counsel was deficient for attempting to obtain a jury instruction on offensive-contact assault as a strategy for obtaining a more favorable outcome for his client.
Chabrier v. State
Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
November 14, 2019
03-18-00762-CR
Gisela D. Triana
Published
A jury convicted appellant of attempted sexual assault and assessed punishment at five years’ imprisonment with a recommendation that imposition of the sentence be suspended. On appeal, he argued the trial court erred by refusing to charge the jury on offensive-contact assault. He argued in the alternative that if offensive-contact assault was not a lesser included offense, then defense counsel was ineffective in planning his entire strategy around obtaining such a charge. The appellate court observed that the appellant could be guilty of penetrating the victim’s sexual organ without her consent even if there was no evidence presented as to his knowledge or belief that the victim would regard the contact as offensive or provocative. Thus, the trial court did not err in refusing the appellant’s request for an instruction on offensive-contact assault. Furthermore, the court could not conclude that pursuing alternative defensive theories in the case fell below an objective standard of reasonableness. Although defense counsel's efforts were unsuccessful, the court could not conclude that counsel was deficient for attempting to obtain an instruction that could have resulted in a more favorable outcome for his client, either at trial or on appeal. Finally, the appellant failed to demonstrate prejudice - that the appellant was harmed in any way by counsel’s request for an instruction on offensive-contact assault. Accordingly, the judgment was affirmed.

The trial court properly rejected the appellants' TCPA motions to dismiss; the TCPA does not apply to claims of conspiracy to convert or unlawfully appropriate property belonging to others.
Bandin v. Free And Sovereign State of Veracruz De Ignacio De La Llave
Appellate: Civil, Gov't/Administrative, Torts
Texas 14th Court of Appeals
November 14, 2019
14-18-00752-CV
Frances Bourliot
Published
The appellee sued the Texas governor and the appellants, the two individuals and nine limited liability companies in four separate lawsuits, bringing claims for conversion, theft, and civil conspiracy “to steal and embezzle, and to commit fraud” and seeking a constructive trust and damages. The appellants filed Texas Citizens Participation Act (TCPA) motions to dismiss each lawsuit. The appellants challenged the trial court’s denial of their TCPA motions to dismiss. The appellate court found that the TCPA does not apply to claims of conspiracy to convert or unlawfully appropriate property belonging to others. Thus, the appellants did not show that the actions alleged by the appellee were based on, in response to, or related to the appellants’ exercise of the right to free speech or of association. Thus, the court dismissed the appeal for lack of appellate jurisdiction.

The officer's affidavit provided a substantial basis for finding a fair probability child pornography would be found at the appellant’s residence; thus, the trial court did not err in denying the appellant's motion to suppress.
Owens v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
November 14, 2019
06-19-00020-CR
Scott E. Stevens
Published
The appellant was convicted of possession of child pornography. After finding the State’s punishment enhancement allegation true, the jury assessed a sentence of twenty years’ imprisonment and a $10,000.00 fine. On appeal, the appellant argued that the trial court erred in failing to suppress evidence obtained during execution of a search warrant. The appellate court need not resolve whether the affidavit mistakenly or accurately used two IP addresses. That was because the issuing magistrate could have reasonably inferred the following from Ranger Sergeant’s affidavit: (1) the 63.426.52.48 IP address was the one that shared child pornography, (2) the Internet service provider provided information showing that the IP address belonged to the appellant, (3) the appellant was a registered sex offender, and (4) the customer address for the IP address matched the appraisal district records showing that the appellant owned the home containing the computer with the 63.426.52.48 IP address. After applying a deferential standard to the magistrate’s determination, the court concluded that the facts from Ranger Sergeant’s affidavit provided a substantial basis by which the magistrate could reasonably find there was a fair probability that child pornography would be found at the appellant’s residence. As a result, the court found no abuse of discretion in the trial court’s decision to deny the appellant’s suppression motion. Accordingly the judgment was affirmed.

Because any rational trier of fact could have found the essential element of value beyond a reasonable doubt, the evidence was sufficient to support the appellant’s conviction of theft of property valued at $2,500 or more but less than $30,000.
Landrum v. State
Criminal, Evidence, Procedure
Texas 10th Court of Appeals
November 13, 2019
10-18-00321-CR
Tom Gray
Published
The appellant was convicted of theft of property valued at $2,500 or more but less than $30,000, a state jail felony. He was sentenced to 18 months in a state jail facility. The appellate court observed that after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential element of value beyond a reasonable doubt, and thus, the evidence was sufficient to support the appellant’s conviction. Further, the court found the appellant was not egregiously harmed by the trial court’s failure to define value in terms of Tex. Penal Code Ann. section 31.08(a)(1). Accordingly, the court affirmed the trial court’s judgment.

The trial court properly granted the Rule 91a of the Texas Rules of Civil Procedure dismissal on grounds of res judicata. That judgment was affirmed.
Smale v. Williams
Procedure, Torts, Wills/Trusts/Probate
Texas 6th Court of Appeals
November 13, 2019
06-19-00038-CV
Scott E. Stevens
Published
The appellant, a beneficiary of the Living Trust, sued the trustee appellee for an accounting of trust assets and asserted claims for breach of fiduciary duty and fraud for failing to list and distribute all trust assets. Those claims had been repeatedly raised in three other lawsuits filed by the appellant in other courts. The appellee moved to dismiss the appellant ’s petition under Rule 91a of the Texas Rules of Civil Procedure on grounds of res judicata. The trial court granted the appellee’s motion, dismissed the appellant’s petition, and awarded the appellee $5,125.00 for attorney fees. The appellate court found that a plaintiff could not show harm from the failure to follow the deadline, which was meant to “promote the orderly and prompt dismissal of baseless causes of action." The appellant cited no authority showing that the trial court was required to specify in its order whether the Rule 91a dismissal was granted because the appellant ’s petition had no basis in law or in fact. Rule 91a did not require such specification in its order. Appellant also failed to cite relevant authority showing that the trial court was required to rule on his motions to compel discovery before determining whether his claims were barred by res judicata. The appellant did not raise the issue that he was not able to present evidence concerning the merits of his case at the dismissal hearing. The appellant ’s petition showed that local counsel did not mislead the trial court, and that the court’s application of the res judicata doctrine was correct. Thus, the Rule 91a dismissal was proper. The judgment was affirmed.

The trial court abused its discretion by denying the appellant's election to represent himself at trial. Refusing an election for that reason was an abuse of discretion. The first and second causes were reversed, and the cases were remanded for further proceedings.
Cole v. State
Constitution, Criminal, Evidence, Procedure
Texas 9th Court of Appeals
November 13, 2019
09-18-00124-CR
Hollis Horton III
Published
A grand jury indicted the appellant for committing two aggravated robberies. The cases were assigned cause numbers, and they were consolidated for trial. The appellant's third attorney represented the appellant in the trial, and the jury found him guilty of simple, not aggravated, robbery in the first cause and second cause. When the punishment phase of the trial ended, the jury gave the appellant a twenty-five-year sentence in each case. In his appeal, the appellant asked for new trials in the first cause and second cause. The appellant directed his main complaint in his brief to the trial court’s decision denying the appellant the right to represent himself. The appellate court found that the record showed that the trial court denied the appellant the right to represent himself based on the trial court’s concern about the appellant's lack of legal training and knowledge to present meritorious defenses in his trial. But refusing an election for that reason was an abuse of discretion. Accordingly, the trial court’s judgments in the first cause and second cause were reversed and the cases were remanded to the trial court for further proceedings consistent with the opinion.

The trial court did not abuse its discretion when it determined that Appellants failed to establish good cause to extend the time to file the TCPA motion to dismiss
Kinder Morgan Sacroc, LP v. Scurry Cnty.
Appellate: Civil, Gov't/Administrative, Oil, Gas, & Mineral, Procedure, Tax
Texas 11th Court of Appeals
November 07, 2019
11-19-00097-CV
JOHN M. BAILEY
Published
The appeal arose out of a proceeding wherein several governmental entities were seeking to have mineral interests reappraised by the county appraisal review board. The appellees each filed a challenge to the appraisal roll for mineral interest property located in Scurry County, including the mineral interests of the appellants. The appellees filed the challenges with the Scurry County Appraisal Review Board. After the Appraisal Review Board denied the challenges, the appellees filed a petition for review and for mandamus relief in the district court. The appellate court found that the dismissal procedure in Rule 91a of the Texas Rules of Civil Procedure was in addition to, and did not supersede or affect, other procedures that authorized dismissal. Further, the court were aware of no authority that precluded the appellants from simultaneously filing special exceptions to require the appellees to plead with greater specificity, filing a Rule 91a motion to dismiss, and filing a Tex. Civ. Prac. & Rem. Code Ann. (TCPA) motion to dismiss. The appellants intentional choice to proceed with serial motions, rather than expeditiously seeking all relief to which they might have been entitled, caused significant delay in the resolution of the case. The trial court did not abuse its discretion when it determined that Appellants failed to establish good cause to extend the time to file the TCPA motion to dismiss. Accordingly, the trial court's judgment was affirmed.

The trial court properly granted summary judgment on the official-capacity claims against the superintendent and board member.
White Deer Ind. Sch. Dist. v. Martin
Appellate: Civil, Constitution, Gov't/Administrative, Procedure, Real Property, Tax, Torts
Texas 7th Court of Appeals
November 05, 2019
07-18-00193-CV
Judy C. Parker
Published
The defendant appealed the judgment of the trial court which granted summary judgment in favor of the plaintiff, challenging the plaintiff’s decision to reduce its local option homestead exemption. On appeal, the defendant challenged the trial court’s grant of summary judgment. The appellate court noted that when the issue presented was purely a question of law, exhaustion of administrative remedies was not required. The appellate court found that because of the nature of the claim, prior resort to the administrative process was not necessary, and the trial court did not err in assuming jurisdiction over the State’s claim. The appellate court concluded that the trial court properly granted summary judgment on the official-capacity claims against the superintendent and board member. Accordingly, the judgment of the trial court was affirmed in part, reversed in part and remanded.

The trial court properly granted summary judgment in favor of the County Attorney in determining that the DPAs at issue were excepted from disclosure under the PIA.
Paxton v. Escamilla
Appellate: Civil, Contracts, Criminal, Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
November 06, 2019
03-18-00346-CV
Thomas J. Baker
Published
The Attorney General appealed the judgment of the trial court which rendered final summary judgment in favor of the County Attorney, ruling that it was not required to disclose deferred prosecution agreement (DPA) records due to exceptions to the Texas Public Information Act (PIA). The appellate court noted that dismissal pursuant to a DPA, even if conditional until the DPA’s term had run, satisfied the requirement in subsection (a)(2) of an investigation that had not resulted in conviction or deferred adjudication. The appellate court found that supported by the County Attorney’s uncontroverted evidence, the trial court did not err in determining that the Category 3 DPAs were excepted from disclosure under subsection (a)(1). The appellate court concluded that the trial court properly granted summary judgment in favor of the County Attorney in determining that the DPAs at issue were excepted from disclosure under the PIA. Accordingly, the judgment of the trial court was affirmed.

Trial court's denial of court-appointed counsel to represent mother during the trial in the parental termination proceedings constituted reversible error
In re J.F.
Family, Gov't/Administrative, Procedure
Texas 7th Court of Appeals
November 06, 2019
07-19-00174-CV
Patrick A. Pirtle
Published
The appellant mother had a history of methamphetamine use. She suffered from multiple ailments and took numerous medications. She has been diagnosed with bipolar disorder, anxiety, asthma, migraines, seizures, polycystic ovarian syndrome (insulin resistance) and had a pituitary tumor. During her testimony, the appellant described at least ten medications that she had been prescribed for her ailments. When the child was born the appellee department was notified that he tested positive for amphetamines. Two days after his birth, the appellee filed its petition for his protection, as well as for conservatorship and for termination of the appellant's parental rights. The appellant challenged the trial court’s order terminating her parental rights to her child. The appellate court found that the appellee argued that the denial of counsel at the trial on the merits did not harm the appellant because she was subsequently appointed counsel for the de novo hearing. The subsequent appointment of counsel was, “too little, too late” because the referring court, in its de novo review, announced that it was considering the record from the trial on the merits before the associate judge. In doing so, it expressly indicated that it was considering evidence developed during a part of the proceeding where the appellant's right to counsel was violated and where the appellee's evidence was not subjected to the rigors of cross-examination in an adversarial process. The heightened standard of review that applies to termination proceedings was rendered meaningless when a parent was left without legal representation at a critical stage of the proceedings. Accordingly, the trial court’s Order of Termination was reversed and the cause was remanded to the trial court for further proceedings.

The evidence was sufficient to prove that the appellant committed capital murder because it showed that he committed murder in the course of committing kidnapping
Cunningham v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
November 07, 2019
01-18-00559-CR
Sherry Radack
Published
A jury found the appellant guilty of the capital murder of the victim. The trial court sentenced the appellant to life in prison as statutorily required. The appellate court found that the State presented evidence from the which the jury could have reasonably inferred that the intent to kidnap was formed before the victim’s death. The evidence showed that the victim was alive when accomplice and the appellant forcibly took him from the storage facility. The appellant put the victim in accomplice’s car, but the victim tried to leave the vehicle. Accordingly, the judgment was affirmed.

Trial court did not err when it determined that TCPA applied to appellant’s defamation claim made by appellee in pleadings filed in divorce case, but, it erred when it determined that TCPA applied to appellant’s defamation claim based on defamatory statements made by appellee to his parents
Rossa v. Mahaffey
Appellate: Civil, Damages, Gov't/Administrative, Torts
Texas 11th Court of Appeals
November 07, 2019
11-18-00347-CV
Jim R. Wright
Published
The appellant sued the appellee for defamation. The appellee filed a motion to dismiss pursuant to the Texas Citizens Participation Act (TCPA). The trial court granted the motion, dismissed the case with prejudice, and awarded the appellee $8,500 for attorney’s fees, court costs, and expenses incurred to defend against the appellant’s legal action. The appellate court found that the trial court did not err when it determined that the TCPA applied to the appellant’s defamation claim based on allegedly defamatory statements made by the appellee in pleadings filed in the divorce case. However, the trial court erred when it determined that the TCPA applied to the appellant’s defamation claim based on allegedly defamatory statements made by the appellee to his parents and to Self. Thus, the court affirmed the trial court’s order to the extent that it dismissed the appellant’s defamation claim based on statements made by the appellee in pleadings filed in a divorce proceeding and awarded the appellee attorney’s fees, court costs, and expenses. The court reversed the trial court’s order to the extent that it dismissed the appellant’s defamation claim based on statements made by the appellee to his parents and a family friend and remanded that claim to the trial court for further proceedings.

The trial court did not err in admitting the opinion over a Rule 403 objection, and thus, the trial court did not abuse its discretion by permitting judge to testify or by admitting judge’s redacted opinion in the disbarment proceeding.
Comm’n for Lawyer Discipline v. Cantu
Ethics, Evidence, Gov't/Administrative, Procedure, Professional Responsibility
The Supreme Court of Texas
October 25, 2019
18-0879
Per Curiam
Published
The Commission for Lawyer Discipline (the Commission) appealed the judgment of the appellate court which reversed the trial court’s decision to disbar the petitioner (attorney) from the practice of law. On appeal, the Commission challenged the appellate court’s reversal. The Supreme Court noted that, by repeatedly referencing the opinion—over 30 times—and repeatedly claiming there was no evidence of misconduct other than judge’s opinion, the expert’s testimony suggested that the opinion was somehow conclusory or perfunctory, or lacking in factual foundation. The Supreme Court found that by permitting the jury to see the relevant, detailed findings of the opinion fairly showed the jury that the opinion included findings of specific acts of misconduct and was consistent with the testimony of the judge and the trustee. The Supreme Court concluded that the trial court did not err in admitting the opinion over a Rule 403 objection, and thus, the trial court did not abuse its discretion by permitting judge to testify or by admitting judge’s redacted opinion in the disbarment proceeding. Accordingly, the judgment of the appellate court was reversed and remanded.

One of the parties to the mediated settlement agreement at issue did not receive proper notice of the hearing at which the trial court rendered judgment on the MSA.
Highsmith v. Highsmith
Appellate: Civil, Contracts, Family, Procedure, Real Property
The Supreme Court of Texas
October 25, 2019
18-0262
Per Curiam
Published
The appellant appealed the judgment of the appellate court which reversed the trial court’s order in the underlying family action. On appeal, the Supreme Court was asked to consider whether a mediated settlement agreement (MSA) that resolved the parties’ property-division and conservatorship issues could satisfy all statutory requirements if it was executed before a petition for divorce was filed. The Supreme Court noted that under the Texas Family Code, a party to a suit for dissolution of marriage or a suit affecting the parent–child relationship was entitled to judgment on an MSA if the agreement satisfied the statute’s enumerated requirements. The Supreme Court agreed with the appellate court that one of the parties to the MSA at issue did not receive proper notice of the hearing at which the trial court rendered judgment on the MSA. Accordingly, the judgment of the appellate court was reversed in part and remanded for further proceedings.

The Constitution did not permit the court to exercise the jurisdiction conferred by Section 72.010 of the Local Government Code at this time.
In re Corpus Christi Liquefaction, LLC
Appellate: Civil, Constitution, Gov't/Administrative, Procedure, Real Property, Tax
The Supreme Court of Texas
October 25, 2019
19-0671
Per Curiam
Published
The taxpayers appealed the judgment of the trial court after it was barred by immunity from suing the counties in its suit to file a tax protest year after year against each county to preserve their right to a refund whenever it was determined which county lacked the authority to assess the taxes. On appeal, the taxpayers challenged the decision of the trial court. The Supreme Court noted that the Corporation had complained of double taxation for only three years, had paid little under protest, may have some of that refunded, and was not currently being assessed. The Supreme Court found that the burdens that the county piled on taxpayers for years by their intransigence have precipitated extraordinary legislation to provide a resolution was improper. The Supreme Court concluded that the Constitution did not permit the court to exercise the jurisdiction conferred by Section 72.010 of the Local Government Code at this time. Accordingly, the judgment of the trial court was affirmed.

Since the trial court did not abuse its discretion in denying the defendant’s motion to dismiss for failure to comply with the expert-report requirements of Chapter 74, the defendants were not entitled to attorney’s fees.
Seton Family of Hospitals v. White
Appellate: Civil, Damages, Evidence, Gov't/Administrative, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 3rd Court of Appeals
October 24, 2019
03-19-00209-CV
Gisela D. Triana
Published
The defendants appealed the judgment of the trial court which denied its motion to dismiss the plaintiff’s suit, alleging that they were negligent in their evaluation and treatment of the deceased and that the negligence was the proximate cause of her death. On appeal, the defendants challenged the trial court’s order denying its motion to dismiss the health-care-liability claims. The appellate court noted that the defendants challenged the expert report, which limited the scope of the court's review. The appellate court found that the report identified the defendants as the hospital where the doctor's alleged negligence occurred. The appellate court concluded that since the trial court did not abuse its discretion in denying the defendant’s motion to dismiss for failure to comply with the expert-report requirements of Chapter 74, the defendants were not entitled to attorney’s fees. Accordingly, the judgment of the trial court was affirmed.

The State’s causation arguments did not preclude the court from concluding that more than a scintilla of evidence existed from which a jury could conclude the defendant was “guilty only” of attempted tampering.
Ransier v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 24, 2019
14-17-00580-CR
Charles Spain
Published
The State appealed the judgment of the trial court which granted rehearing in the defendant’s case and denied the State’s requested relief. On appeal, the State challenged the trial court’s dismissal of its motion for en banc reconsideration as moot without prejudice to filing a motion for en banc reconsideration in light of the supplemental opinion. The appellate court noted that the criminal appellate court reviewed tampering cases in a much different manner than murder cases. The appellate court found that the State’s causation arguments did not preclude the court from concluding that more than a scintilla of evidence existed from which a jury could conclude the defendant was “guilty only” of attempted tampering. The appellate court concluded that the remainder of the State’s arguments on rehearing were adequately addressed by the majority’s opinion, and the court did not address them. Accordingly, the State’s requested relief on rehearing was denied.

Since the same evidence regarding the defendant’s violence against the complainant’s brother was admitted through the testimony of the complainant and her mother, without objection, no harm was shown.
Schmidt v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
October 24, 2019
01-18-00239-CR
Sherry Radack
Published
The defendant appealed the judgment of the trial court which convicted him of continuous sexual assault of a child and assessed punishment at 45 years’ confinement. On appeal, the defendant argued that all of the intern therapist’s testimony was inadmissible expert testimony without any attempt to segregate between expert and non-expert testimony. The appellate court noted that because the defendant never objected to the trial court’s ruling that the expert was the proper outcry witness, he failed to preserve error on this issue. The appellate court found that the “hearsay within hearsay” issue was waived. The appellate court concluded that since the same evidence regarding the defendant’s violence against the complainant’s brother was admitted through the testimony of the complainant and her mother, without objection, no harm was shown. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the trial court did not err in denying the creditors’ request for reasonable attorney’s fees.
Feldman v. Watts
Appellate: Civil, Banking and Finance, Bankruptcy, Creditor/Debtor, Damages, Procedure
Texas 14th Court of Appeals
October 24, 2019
14-17-00851-CV
Kem Thompson Frost
Published
The creditors appealed the judgment of the trial court which denied their request for reasonable attorney’s fees under section 31.002(e) of the Texas Civil Practice and Remedies Code. On appeal, the creditors filed a motion for new trial, seeking a reconsideration of the court’s ruling on their request for attorney’s fees. The appellate court noted that the trial court did not assess sanctions against the creditors under Rule 13 or Chapter 10 of the Civil Practice and Remedies Code. The appellate court found that even presuming that the trial court denied requests by the debtors for Rule 13 or Chapter 10 sanctions, the debtors did not file a notice of appeal from the trial court’s final judgment in the turnover proceeding, and therefore they could not seek to alter the trial court’s judgment to award them more relief than the trial court granted in its final judgment. The appellate court concluded that the trial court did not err in denying the creditors’ request for reasonable attorney’s fees. Accordingly, judgment of the trial court was affirmed.

A rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt and could also have found against the defendant on the self-defense issue beyond a reasonable doubt.
Mitchell v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
October 22, 2019
01-18-00586-CR
Sherry Radack
Published
The defendant appealed the judgment of the trial court which convicted him of murder and assessed punishment at 55 years’ confinement. On appeal, the defendant challenged his conviction and sentence imposed. The appellate court noted that because the State presented more than mere conclusions to the trial court, the case was more like Bath and Kelley, and not like White and Allen. The appellate court found that the trial court did not abuse its discretion in exempting Ranger Owles from the Rule, and a rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt and could also have found against the defendant on the self-defense issue beyond a reasonable doubt. The appellate court concluded that the evidence was legally sufficient to support the defendant’s conviction. Accordingly, the judgment of the trial court was affirmed.

Since the plaintiffs did not show that the defendant had a duty to them, they failed to show a prima facie case of negligence, and therefore, the trial court erred in denying the TCPA motion on the claims.
Cunningham v. Waymire
Appellate: Civil, Family, Gov't/Administrative, Procedure, Torts
Texas 14th Court of Appeals
October 22, 2019
14-17-00883-CV
Charles Spain
Published
The defendant appealed the judgment of the trial court in a suit, alleging libel, intentional infliction of emotional distress, negligence, and conspiracy. On appeal, the defendant argued that the trial court improperly dismissed his lawsuit under the Texas Citizens’ Participation Act (TCPA). The appellate court noted that the plaintiffs’ claims related to the exercise of the right to free speech, as broadly defined by the TCPA and interpreted by the supreme court. The appellate court found that the extent the trial court’s denial was based on a conclusion that the TCPA did not apply, the trial court erred; and thus, the trial court did not err in denying the TCPA motion on the plaintiffs’ libel claims against the defendant. The appellate court concluded that since the plaintiffs did not show that the defendant had a duty to them, they failed to show a prima facie case of negligence, and therefore, the trial court erred in denying the TCPA motion on the claims. Accordingly, the judgment of the trial court was affirmed and reversed in part.

The trial court did not err in denying the appellant's motion for mistrial because there was no prejudicial misconduct that the trial court needed to cure
Torres v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 17, 2019
14-18-00502-CR
Tracy Christopher
Published
Appellant was charged with aggravated robbery with a deadly weapon, but the jury convicted appellant of just the lesser offense of simple robbery. The jury then assessed appellant’s punishment at twenty-two years’ imprisonment. The appellate Court found that the appellant believed that a mistrial was warranted in the case because the prosecutor “argued a hypothetical” on the topic of parole eligibility. But there was nothing improper with the prosecutor’s hypothetical argument. The prosecutor was allowed to explain how the rules on parole eligibility would apply towards sentences of varying lengths. Appellant did not specifically contend in his brief that the prosecutor’s invocation of his own personal fears constituted an improper plea for law enforcement (a point that was not preserved in any event). Even if the Court agreed that the prosecutor’s argument was improper, the trial court issued a curative instruction on that very point: “You may consider parole, but do not try to factor in the eligibility of this person.” The Court presumed that the jury followed the instruction, which was sufficient to cure any unfair prejudice stemming from the prosecutor’s argument. Further, Cabrera v. State, 513 S.W.3d 35, was not applicable in the case at bar because appellant’s punishment was determined by the jury, not by the trial court. On its face, the record did suggest that the trial court may have exceeded its proper role in the process of plea negotiations. But the complaint was not preserved for appellate review because appellant never objected to the trial court’s comments. Lastly, the deputy's video interview was admitted without objection, the deputy’s opinion was already before the jury. The deputy’s live opinion testimony was merely cumulative of that evidence, which meant that any error in its admission was harmless. Accordingly, the judgment was affirmed.

The State presented legally sufficient evidence that appellant's ex-girlfriend was an owner of the apartment at the time of the murder which, was sufficient to show appellant committed murder while burglarizing the apartment
Davis v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 15, 2019
14-17-00884-CR
Frances Bourliot
Published
The appellant challenged the legal sufficiency of the evidence in support of his capital murder conviction and challenged the constitutionality of his mandatory life sentence. The State charged the appellant by indictment with capital murder, alleging that he intentionally caused the death of the complainant while burglarizing or attempting to burglarize a habitation. The appellant contended that the State did not present legally sufficient evidence that he entered the apartment where the crime occurred without the effective consent of the owner as defined by the Penal Code, because he and the owner, his ex-girlfriend had equal rights of possession of the apartment. The appellate Court found that the State presented legally sufficient evidence that the appellant's ex-girlfriend was an owner of the apartment at the time of the offense and had possession of the apartment, while appellant did not. This was sufficient to show that appellant committed capital murder, in this case, murder while committing a burglary. Further, a person at least 18 years of age at the time of an offense must preserve error in the trial court as to a complaint that a mandatory life sentence was unconstitutional. In accordance with binding precedent, the Court concluded that the appellant was required to preserve error in the trial court as to his constitutional complaints and failed to do so. Accordingly, the Court affirmed the judgment of the trial court.

The email exchange between a city employee and the appellee was no evidence that the appellant had made a final decision to apply the new ordinance to the appellee property.
City of Houston v. Commons at Lake Houston, Ltd.
Evidence, Gov't/Administrative, Real Property, Technology
Texas 14th Court of Appeals
October 15, 2019
14-18-00664-CV
Ken Wise
Published
The appellee corporation sued the appellant city for inverse condemnation and a declaratory judgment regarding a newly amended ordinance that regulated development in the 500-year floodplain. The appellant filed a plea to the jurisdiction, contending that the appellee claims were not ripe. The appellate Court found that the permissible uses of the appellee property were not known to a reasonable degree of certainty. The appellee had give the appellant an opportunity to exercise its discretion. Because the appellee had not yet done so, the inverse condemnation claim was not ripe. Further, the chapter 245 claim was not ripe either. The email exchange between a city employee and the appellee was not an “official action” under section 245. The appellant’s employee clarified that she was not an attorney and gave a general answer. She offered to follow-up and get more information if the answer did not help. But the appellee did not respond with a request for more information or make any specific request to have Chapter 245 applied to the Crossing. The email exchange was no evidence that the appellant had made a final decision to apply the new ordinance to the appellee property. Finally, considering the pleadings and undisputed facts, the appellee claims were not ripe. The trial court erred by denying the appellant’s plea to the jurisdiction. Accordingly, the Court sustained the appellant’s issue, reversed the trial court’s order, and rendered a judgment that the appellee claims were dismissed without prejudice.

Although the jury specifically questioned the use of the term “injuries” in the negligence jury question, appellant’s counsel did not raise the objection asserted on appeal and was consequently not preserved
Saenz-Guerrero v. Gardner
Damages, Litigation: Personal Injury, Torts
Texas 14th Court of Appeals
October 15, 2019
14-18-00440-CV
Meagan Hassan
Published
The appellant was driving to work in stop-and-go traffic. The appellant brought his truck to a complete stop and was rear-ended by a vehicle driven by the appellee. The appellant’s truck sustained damaged on its bumper and tailgate, and the appellant went to the hospital that evening for neck and back pain. Several days later, the appellant saw a chiropractor for his back pain and was prescribed various treatments, including electric shocks, injections, and physical therapy. According to the appellant, he continued to have lower back pain and his doctor had recommended surgery. The appellant sued the appellee for negligence and the parties proceeded to a jury trial. The jury returned a verdict in the appellee’s favor. The appellate Court found that although the jury specifically questioned the use of the term “injuries” in the negligence jury question, the appellant’s counsel did not raise the objection he asserted on appeal. Thus, the issue was not preserved for appellate review. Further, the Court rejected the appellant’s argument on its merits. Neither the cited Pattern Jury Charge comment nor Nabors Well Services, Ltd. addressed the term at issue in the case, namely, the use of the word “injuries” in the trial court’s negligence jury question. Likewise, those authorities did not prohibit the use of injuries in a negligence jury question. Thus, the authorities did not show the trial court abused its discretion by using the term “injuries” in its negligence jury question. Accordingly, the judgment was affirmed.

The trial court did not err when it granted the defendants’ no-evidence summary judgment motion on the plaintiff’s alter ego claim.
Durham v. Accardi
Appellate: Civil, Employment, Insurance, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
Texas 14th Court of Appeals
October 10, 2019
14-18-00060-CV
Jerry Zimmerer
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in favor of the defendants on his claims against them. On appeal, the plaintiff argued that the trial court erred when it granted the defendants’ summary judgment on his veil piercing claims. The plaintiff further asserted that the defendants each owed him individual duties of care. The appellate court noted that the plaintiff did not address the separate grounds raised by the defendants that he had no evidence that they had breached a duty, or that any breach had proximately caused him damages. The appellate court found that even if it accepted the plaintiff’s argument that the evidence established the company did not rigidly follow corporate formalities, the lack of corporate formalities was no longer a consideration when determining an alter ego question. The appellate court concluded that the trial court did not err when it granted the defendants’ no-evidence summary judgment motion on the plaintiff’s alter ego claim. Accordingly, the judgment of the trial court was affirmed.

The trial court did not behave arbitrarily or unreasonably by concluding that therapist-supervised visits between the petitioner and his paternal grandmother would serve as an appropriate introduction.
In re M.I.A.
Appellate: Civil, Family, Gov't/Administrative, Juvenile, Procedure
Texas 4th Court of Appeals
October 09, 2019
04-19-00227-CV
Beth Watkins
Published
The petitioner appealed the judgment of the trial court which denied the petition filed by the Texas Department of Family and Protective Services (the Department) to terminate the parental rights of the petitioner’s biological father and award visitation to the petitioner’s paternal grandmother. On appeal, the petitioner argued that the trial court abused its discretion by refusing to terminate the father’s parental rights because the evidence was legally and factually sufficient to support termination. The appellate court noted that based on the court's review of the record and applying proper deference to the trial court’s findings and credibility determinations, it believed a reasonable factfinder could conclude that the evidence described weighed against terminating the parental rights on seven of the eight Holley factors. The appellate court concluded that the trial court did not behave arbitrarily or unreasonably by concluding that therapist-supervised visits between the petitioner and his paternal grandmother would serve as an appropriate introduction. Accordingly, the judgment of the trial court was affirmed.

The trial court’s order finding no probable cause in the context of a Chapter 841 biennial review was not a final judgment so it was not appealable
In the Commitment of Black
Appellate: Civil, Constitution, Criminal, Procedure
Texas 4th Court of Appeals
October 02, 2019
04-18-00798-CV
Luz Elena D Chapa
Published
The petitioner was civilly committed in April 2016, after a jury found him to be a sexually violent predator. The appellate court affirmed the judgment and commitment. In May 2018, the trial court signed a biennial review order that continued the requirements of the 2016 final judgment and order of commitment without modification. The petitioner sought review of that order. The appellate court found that the biennial review was not initiated by a party’s petition or motion; rather it was a statutorily required review. Generally, a post-judgment order that did not follow a new trial and did not impose any new obligations or “work a material change in the adjudicative portions of the original judgment” did not qualify as another final judgment and was not appealable. The court concluded a trial court’s order finding no probable cause after a biennial review was not a final judgment so it was not appealable. Accordingly, the court dismissed the appeal for lack of jurisdiction and denied the alternative petition for a writ of mandamus.

The inmate did not take advantage of the opportunity to amend his pleadings by dismissing the individual employees and instead naming the governmental unit as defendant within 30 days after the motion was filed, thus, the appellees were entitled to dismissal of the negligence claims against them
Morgan v. Whitfield
Appellate: Civil, Constitution, Gov't/Administrative, Torts
Texas 8th Court of Appeals
September 27, 2019
08-18-00055-CV
Yvonne T. Rodriguez
Published
The appellant, an inmate, filed suit against the appellees, a prison warden and two corrections officers, all sued in their individual and official capacities, for injuries the appellant sustained in an altercation with another inmate. The appellant appealed from the dismissal of his claims without prejudice. The appellate court found that to the extent the appellant addressed exhaustion of remedies for the first time in his reply brief, his response was conclusory and did not refute the appellees’ argument that his grievances raised different issues and requested different relief than his lawsuit. Further, the appellant did not take advantage of the opportunity to amend his pleadings by dismissing the individual employees and instead naming the governmental unit as defendant within 30 days after the motion was filed. Thus, the appellees were entitled to dismissal of the negligence claims against them. Finally, the appellant presented no argument that the trial court abused its discretion by finding the constitutional claims frivolous under the Standard of Section 14.003(b) because they had no arguable basis in law, including but not limited to his failure to exhaust administrative remedies. Accordingly, the court affirmed.

The Supreme Court concluded that the appellate court erred in deciding factual sufficiency without explaining its application of the standard.
Windrum v. Kareh
Appellate: Civil, Evidence, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
May 24, 2019
17-0328
Paul W. Green
Published
The petitioner appealed the judgment of the appellate court which denied their motion for judgment notwithstanding the verdict and motion for a new trial in a wrongful death action. On appeal, the Supreme Court was asked to determine whether the expert testimony was conclusory such that the jury could not rely on it to conclude that a neurosurgeon was negligent in breaching his standard of care by failing to treat his patient properly, and the defendant’s negligence was too remote to be a proximate cause of the plaintiff’s death. The petitioner maintained that the trial court erred in applying the factual sufficiency review standard. The Supreme Court noted that a conclusory statement asserted a conclusion with no basis or explanation. The Supreme Court found that the expert testimony was not conclusory, and the defendant’s negligence was not too remote to be a proximate cause of the plaintiff’s death. The Supreme Court concluded that the appellate court erred in deciding factual sufficiency without explaining its application of the standard. Accordingly, the judgment of the appellate court was reversed and remanded.

The requirement under the subsection that the attorney representing the state give notice applied only if the defendant makes a timely request to the attorney representing the state for the notice
Gullatt v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
October 04, 2019
06-19-00001-CR
Ralph Burgess
Published
The County jury convicted the appellant of murdering the victim. The appellant argues that the trial court erred in ruling that he had opened the door to extraneous-offense evidence. The appellate court found the appellant opened the door and that he received sufficient notice of that evidence. While the State’s amended notice was not filed until eight days before trial, there was nothing in the record establishing when the defense requested notice. There was no certificate of service, no copy of correspondence, or any reference in the record to any specific request for notice. In the absence of any record establishing when the appellant requested notice under Rule 404(b), the court could not say that eight days’ notice was untimely. Further, the requirement under the subsection that the attorney representing the state give notice applied only if the defendant makes a timely request to the attorney representing the state for the notice. As with the Rule 404(b) argument, the court did not find any evidence that the appellant requested notice under Article 37.07, Section 3(g). In the absence of such information, the State’s notices were untimely. Accordingly, the trial court’s judgment of conviction and sentence was affirmed.

The trial court did not abuse its discretion by declaring the appellant a vexatious litigant or by dismissing the case when the appellant failed to post the requisite security.
Amrhein v. Bollinger
Appellate: Civil, Procedure
Texas 5th Court of Appeals
October 03, 2019
05-18-00567-CV
Ken Molberg
Published
The appellant, appearing pro se, challenged the trial court’s order declaring her a vexatious litigant, pursuant to which the trial court subsequently dismissed with prejudice her claims against the appellee attorneys for failing to post the required security. The appellant filed suit against the appellees and she filed an amended petition on November 27, 2017, asserting a legal malpractice claim and other claims. The appellees filed a Texas Rule of Civil Procedure 91a motion to dismiss all of the appellant’s claims except for the legal malpractice claim. The appellate court found that the trial court did not abuse its discretion by declaring the appellant a vexatious litigant or by dismissing the case when the appellant failed to post the requisite security. Further, to the extent the appellant purports to appeal any order of the trial court other than the order declaring her a vexatious litigant, she was required to obtain an order from the appropriate local administrative judge permitting the filing. Accordingly, the trial court's judgment was affirmed.

The trial court’s appointment of the Guardian ad Litem and reappointment of the Master were both ineffective because the appointments occurred after the relator nonsuited the proceeding
In re Fort Bend Indep. Sch. Dist.
Constitution, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
October 03, 2019
01-18-01113-CV
Evelyn V. Keyes
Published
The mandamus proceeding arose out of a suit brought in 2018 by the relator district, under Texas Health & Safety Code chapter 711. The proceeding sought judicial approval under section 711.010 of the Code to remove the dedication of an abandoned prison farm cemetery found during construction of a vocational school on property the relator owned and to move human remains found there to a nearby municipal cemetery pursuant to an agreement reached by the relator and the City of Sugar Land (the City), which owns and maintains the municipal cemetery. The appellate court agreed with the relator that its filing of its nonsuit of the suit to remove the cemetery dedication mooted all proceedings pending in the underlying suit in the trial court except as to the assessment of court costs. Thus, the trial court lost jurisdiction to act on the merits of the proceeding. Next, the court held that the nonsuit moots the relator’s original mandamus petition challenging the November 2018 appointment of the Master, and the court therefore dismissed the original mandamus petition. Further, the court held that the trial court’s appointment of the Guardian ad Litem and reappointment of the Master were both ineffective because the appointments occurred after the relator nonsuited the proceeding. Therefore, the court conditionally granted the relator’s two supplemental mandamus petitions and ordered that the trial court vacate the two orders.

The court could not conclude that the trial court abused its discretion in overruling the appellant’s motion for new trial without conducting an evidentiary hearing, the court also could not conclude that the appellant was denied his right to a public trial
Corporon v. State
Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
October 02, 2019
03-18-00286-CR
Gisela D. Triana
Published
A jury convicted the appellant of two counts of indecency with a child by sexual contact and assessed punishment at twelve years’ imprisonment for count one and fifteen years’ imprisonment for count two. The trial court rendered judgment on the verdicts and ordered the sentences to run consecutively. The appellate court could not conclude that the trial court abused its discretion in overruling the appellant’s motion for new trial without conducting an evidentiary hearing. The court also could not conclude that the appellant was denied his right to a public trial. Further, the evidence was sufficient to prove that the appellant touched the victim’s anus and genitals with the requisite sexual intent. Next, given the strength of the evidence against the appellant and the limited nature of the allegedly improper testimony, the court could not conclude on the record that the trial court’s decision not to grant a mistrial was outside the zone of reasonable disagreement. Again, that remedy was reserved for “extreme circumstances.” Such circumstances were not present. Accordingly, the court affirmed the trial court’s judgments of conviction.

The trial court erred in failing to award any amount in attorneys’ fees and sanctions related to the nonsuited claims as authorized by Section 27.009(a), but, the court affirmed in part the trial court’s order denying the motion to dismiss pursuant to the TCPA
Brown Sims, P.C. v. L.W. Matteson, Inc.,
Admiralty & Maritime, Insurance, Litigation: Personal Injury, Torts
Texas 4th Court of Appeals
September 30, 2019
04-18-00596-CV
Liza A. Rodriguez
Published
When the appellee company, a dredging contractor, was sued in March 2012 by its former employee, the deceased, it hired the appellant attorney and the appellant firm to represent it. The deceased had filed a maritime personal injury suit in Starr County, Texas, pursuant to the Jones Act, as codified in 46 U.S.C. Section 30104. The deceased alleged that the appellee company was negligent by failing to furnish him with a reasonably safe place to work and by failing to provide a seaworthy vessel. After being diagnosed with liver cancer, the deceased passed away. The appellee company, along with the appellee insurance companies that provided the appellee company with excess coverage, filed the legal malpractice suit against the appellants. After the trial court denied the motion to dismiss, the appellants filed the interlocutory appeal. The appellate court observed that the TCPA did apply to the malpractice suit at issue in the case and the former client established a prima facie case for its malpractice claim. Thus, the court affirmed in part the trial court’s order denying the motion to dismiss pursuant to the TCPA. However, because the former client nonsuited other claims before the hearing on the motion to dismiss, the court agreed the trial court should have awarded reasonable attorney’s fees and sanctions with respect to those nonsuited claims. Thus, the court reversed the trial court’s order in part.

Appellate timetables to be reinstated in an appeal from a juvenile court delinquency adjudication because there was not sufficient evidence in the record showing that the juvenile affirmatively waived his appeal
In re J.A.C.
Juvenile, Procedure
Texas 8th Court of Appeals
September 27, 2019
08-19-00042-CV
Percuriam
Published
The attorney for juvenile filed a motion to dismiss the appeal from a juvenile court delinquency adjudication. The appellate court denied the motion to dismiss and directed the trial court to hold a hearing. The trial court conducted the hearing. Present at the hearing were the juvenile’s attorney, the juvenile’s mother, and the juvenile’s former probation officer. The juvenile was not present. Therefore, the trial court found that the juvenile had no desire to appeal his case. The appellate court ordered the appeal timetables to be reinstated and provided the juvenile’s counsel one more opportunity to file an appellate brief. There was not sufficient evidence in the record showing that the juvenile affirmatively waived his appeal, and his mother’s stated reason for wanting the appeal dismissed was not an adequate reason for the court to justify dismissing this appeal in light of the gravity of consequences that a quasi-criminal juvenile conviction carries for her son. Accordingly, the court order the appellate timetables to be reinstated.

The trial court did not have authority to reform the judgment of conviction to reflect a conviction for either attempted organized retail theft or theft of property against the defendant.
Lang v. State
Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
September 27, 2019
03-15-00332-CR
Melissa Goodwin
Published
The defendant appealed the judgment of the trial court which convicted her of organized retail theft involving merchandise valued at $500 or more but less than $1,500 and assessed her punishment at confinement for 20 months in a state jail facility. On appeal, the State argued that the existence of the specific owner of the property was inherent in the charged elements of organized retail theft. The appellate court noted that when evidence had been found to be insufficient to support a conviction, reformation of the judgment of conviction to a lesser-included offense was required when: (1) in the course of convicting the defendant of the greater offense, the jury necessarily found every element needed to convict the defendant of the lesser-included offense, and (2) the evidence that was presented at the defendant’s trial was sufficient to support a conviction on that lesser-included offense. The appellate court concluded that the trial court did not have authority to reform the judgment of conviction to reflect a conviction for either attempted organized retail theft or theft of property against the defendant. Accordingly, the judgment of the trial court was reversed.

In refusing to allow the defendant to withdraw his guilty plea and instead instructing the jury to find him guilty, the trial court erred and it was not harmless.
Mendoza v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
September 26, 2019
01-18-01140-CR
Gordon Goodman
Published
The defendant appealed the judgment of the trial court which convicted him of twelve sexual offenses. On appeal, the defendant challenged his judgment of conviction as to one of these offenses, contending that the trial court erred by refusing to allow him to withdraw his guilty plea to count eleven of the indictment and instructing the jury to find him guilty in conformity with his plea. The appellate court noted that the jury had not retired to deliberate when the defendant asked to withdraw his guilty plea to count eleven of the indictment. The appellate court found that the defendant had an absolute right to withdraw his guilty plea, and the trial court erred by not allowing him to do so. The appellate court concluded that in refusing to allow the defendant to withdraw his guilty plea and instead instructing the jury to find him guilty, the trial court erred and it was not harmless. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.

The appellate court concluded that considering the evidence in the light most favorable to the verdict, a rational trier of fact could have found the intent-to-deliver element beyond a reasonable doubt.
Espino-Cruz v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 24, 2019
14-18-00504-CR
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which convicted him of possession with intent to deliver a controlled substance weighing more than 400 grams and sentenced him to twenty years’ confinement in the Texas Department of Criminal Justice. On appeal, the defendant challenged the evidentiary sufficiency to support his conviction. The defendant contended that the evidence was legally insufficient to support a finding that he possessed the controlled substance, heroin, because no evidence affirmatively linked him to the heroin. The defendant further alleged that the evidence was legally insufficient to support the finding that he intended to deliver the heroin. The appellate court disagreed with the defendant and found that intent to deliver contraband could be proved by circumstantial evidence, including evidence that the accused possessed the contraband and the quantity of the drugs possessed. The appellate court concluded that considering the evidence in the light most favorable to the verdict, a rational trier of fact could have found the intent-to-deliver element beyond a reasonable doubt. Accordingly, the judgment of the trial court was affirmed.

The trial court did not err when it refused to submit an instruction on the lesser-included offense of murder.
Brooks v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
September 24, 2019
01-18-00175-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which convicted him of capital murder and automatically assessed his punishment at confinement for life. On appeal, the defendant contended that the trial court erred when it denied his motion for mistrial because he was not afforded the opportunity to effectively cross-examine a key State witness concerning the witness’s mental health history; the trial court erred by refusing his request to submit a jury instruction on the lesser-included offense of murder; and Texas’s statutory scheme of automatically sentencing juvenile defendants who committed capital felonies to confinement for life with the possibility of parole after forty years was facially unconstitutional. The appellate court noted that, at the time the defendant moved for a mistrial, no error had occurred relating to allowing the individual to testify. The appellate court found that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial and the evidence presented at trial was not sufficient to establish murder as a valid, rational alternative to the charged offense of capital murder. The appellate court concluded that the trial court did not err when it refused to submit an instruction on the lesser-included offense of murder. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the trial court did not abuse its discretion in denying their motion to dismiss.
Morris v. Ponce
Appellate: Civil, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
September 24, 2019
14-17-00997-CV
Charles Spain
Published
The defendants appealed the judgment of the trial court which denied their motion to dismiss the health-care liability claims of the plaintiffs against them. On appeal, the defendants claimed that the trial court abused its discretion in denying their motion to dismiss for failure to timely serve an expert report in accordance with the medical liability chapter of the Civil Practice and Remedies Code. The appellate court noted that the amended version of Tex. Civ. Prac. & Rem. Code Ann. section 74.351(a) applied in the case because the defendants were named as defendants after the amendment to chapter 74. The appellate court found that the plaintiffs served their expert report on the defendants within the statutory deadline of the 120th day after the date on which each of the defendants filed their respective answers. The appellate court concluded that the trial court did not abuse its discretion in denying their motion to dismiss. Accordingly, the judgment of the trial court was affirmed.

The trial court could have rationally determined that it would serve the interest of convenience to finalize its orders regarding all defendants except the City, and therefore, the trial court did not abuse its broad discretion by ordering severance.
Watson v. Southlake
Appellate: Civil, Constitution, Gov't/Administrative, Litigation: Personal Injury, Procedure
Texas 2nd Court of Appeals
September 19, 2019
02-18-00143-CV
J. Wade Birdwell
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s plea to the jurisdiction in its suit, seeking a declaration and injunction against enforcement of the redlight-camera laws, as well as the return of the fines that he and other citizens were assessed. On appeal, the plaintiff contended that the trial court erred by granting pleas to the jurisdiction in favor of all but one defendant. the appellate court noted that for failure to exhaust administrative remedies, the plaintiff’s claim for takings failed. The appellate court found that the trial court did not err in granting pleas to the jurisdiction as to the parties. The appellate court concluded that the trial court could have rationally determined that it would serve the interest of convenience to finalize its orders regarding all defendants except the City, and therefore, the trial court did not abuse its broad discretion by ordering severance. Accordingly, the judgment of the trial court was affirmed.

Since the trial court erred in granting summary judgment on the plaintiff’s breach of contract and noncontractual claims, there was no justiciable controversy as to the plaintiff’s request for declaratory judgment.
Hilburn v. Storage Trust Properties, LP
Appellate: Civil, Contracts, Procedure, Real Property
Texas 14th Court of Appeals
September 17, 2019
14-18-00184-CV
Frances Bourliot
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in favor of the defendant in a dispute involving the personal property from storage units. On appeal, the plaintiff challenged the trial court’s grant of final summary judgment in favor of the defendant. On appeal, the plaintiff argued that the defendant mischaracterized contested facts as undisputed. The appellate court found that the trial court lacked jurisdiction over the plaintiff’s request for declaratory judgment because there was not a justiciable controversy regarding whether the plaintiff paid rent for the storage units. The appellate court concluded that since the trial court erred in granting summary judgment on the plaintiff’s breach of contract and noncontractual claims, there was no justiciable controversy as to the plaintiff’s request for declaratory judgment. Accordingly, the judgment of the trial court was reversed in part and vacated in part.

The trial court did not err by refusing to instruct the jury under Article 38.23(a) of the Code of Criminal Procedure.
Ramjattansingh v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
September 17, 2019
01-15-01089-CR
Sarah Beth Landau
Published
The defendant appealed the judgment of the trial court which convicted him of Class A misdemeanor driving while intoxicated. On appeal, the defendant argued that the trial court erred by denying his requests for jury instructions on unlawful arrests and custodial interrogation; refusing to allow his counsel to present jury argument on the unlawfulness of the arrest; and admitting an audio recording of the call for emergency assistance from a tow truck driver who observed the defendant driving erratically the night of his arrest. The appellate court noted that because the timing of the tow was immaterial to the lawfulness of the first officer's ostensible arrest of the defendant, a jury finding that the car was towed before the second officer's conducted the DWI investigation could not serve as a basis for the jury to disregard the evidence that the defendant smelled of alcohol, had poor balance and slurred speech, admitted he had “some shots of alcohol” and had started drinking around 5:00 p.m., and showed signs of intoxication during certain field sobriety tests. The appellate court concluded that the trial court did not err by refusing to instruct the jury under Article 38.23(a) of the Code of Criminal Procedure. Accordingly, the judgment of the trial court was affirmed.

Since the essence of the plaintiff’s cause of action was one for ordinary negligence and not a health care liability claim, the plaintiff was not required to satisfy the expert report requirements of the TMLA.
Coci v. Dower
Appellate: Civil, Health Care, Litigation: Personal Injury, Torts
Texas 11th Court of Appeals
September 12, 2019
11-18-00353-CV
Jim R. Wright
Published
The defendants appealed the judgment of the trial court which denied its motion to dismiss the plaintiff’s personal injury lawsuit. On appeal, the appellate court was asked to consider whether the plaintiff’s claims constituted health care liability claims under the TMLA; and if so, then the plaintiff was required to serve an expert report and curriculum vitae in accordance with Section 74.351(a) of the TMLA. The appellate court noted that if the plaintiff’s claims constituted health care liability claims, then the trial court should have granted the motion filed by the defendants and dismissed the plaintiff’s claims with prejudice because she did not file or serve an expert report within 120 days of the defendants filing their original answer. The appellate court found that the plaintiff was not required to satisfy the expert report requirements of the TMLA. The appellate court concluded that since the essence of the plaintiff’s cause of action was one for ordinary negligence and not a health care liability claim, the plaintiff was not required to satisfy the expert report requirements of the TMLA. Accordingly, the judgment of the trial court was affirmed.

The trial evidence was legally sufficient to support each solicitation-to-commit-capital-murder conviction against the defendant.
Jacob v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 29, 2019
14-18-00304-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of solicitation to commit capital murder of two complainants. On appeal, the appellate court was asked to consider whether the evidence established beyond a reasonable doubt that defendant intended for a hitman to murder the complainants. The defendant argued that the use of initials to refer to the complainant in each indictment created a material variance because the trial evidence proved the full names of each complainant, and the trial court abused its discretion in excluding enhanced audio recordings that the defendant’s expert prepared for the stated purpose of assisting the jury in understanding recorded phone conversations. The appellate court found that the trial court did not err in excluding the defendant’s audio expert and the expert’s demonstrative exhibits, and that the trial court’s voir-dire comment challenged in the third issue did not constitute error. The appellate court concluded that the trial evidence was legally sufficient to support each solicitation-to-commit-capital-murder conviction against the defendant. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the defendant had standing to file a motion for new trial, to be heard on the matter, and to offer evidence in support thereof.
Barrow v. Wells Fargo Bank, N.A.
Appellate: Civil, Banking and Finance, Creditor/Debtor, Employment, Procedure
Texas 2nd Court of Appeals
September 05, 2019
02-19-00026-CV
Bonnie Sudderth
Published
The defendant appealed the judgment of the trial court which denied his motion for a new trial. On appeal, the defendant complained that he had standing to file the motion for new trial and that the evidence was legally and factually insufficient to grant a judgment of garnishment to the plaintiff. The appellate court noted that to require a garnishment defendant to intervene in a garnishment action at a time prior to acquiring proper notice of the proceeding would render meaningless the right to notice of the proceedings in the first place because most garnishment-action defendants would learn of improper service only after it was too late to complain. The appellate court concluded that the defendant had standing to file a motion for new trial, to be heard on the matter, and to offer evidence in support thereof. Accordingly, the judgment of the trial court was reversed and remanded.

The justice court had jurisdiction to determine who had a superior right of possession in eviction suits.
Fornesa v. Fifth Third Mortgage Co.
Appellate: Civil, Contracts, Procedure, Real Property
Texas 14th Court of Appeals
August 30, 2019
14-18-00045-CV
Per Curiam
Published
The defendants appealed the judgment of the district court which found them guilty of forcible detainer and awarded possession of the property to the plaintiff. On appeal, the defendants argued that the trial judge did not disregard the district court’s Findings of Fact and Conclusions of Law in a separate federal lawsuit. The appellate court noted that the defendant non-lawyer had no authority to sign the notice of appeal from the justice court on behalf of the other defendants. The appellate court found that the justice court had jurisdiction to determine who had a superior right of possession in eviction suits. Accordingly, the judgment of the trial court was affirmed.

The trial court did not abuse its discretion in denying the plaintiffs’ motion for a jury trial.
Kruse v. Henderson Tex. Bancshares, Inc.
Appellate: Civil, Business, Constitution, Procedure, Securities
Texas 12th Court of Appeals
August 30, 2019
12-18-00238-CV
Brian Hoyle
Published
The plaintiffs appealed the judgment of the trial court which rendered an adverse judgment in their suit to determine the value of their dissenters’ shares of stock in the company, which merged with the defendant company. On appeal, the plaintiffs contended that the trial court abused its discretion when it denied their motion for a jury trial. The appellate court noted that the proceeding for determining the fair value of a dissenting shareholder’s ownership interest was not a “cause” within the meaning of Article V, Section 10 of the Texas Constitution. The appellate court found that the constitutional provision’s jury trial mandate did not support the plaintiffs’ request for a jury trial. The appellate court concluded that the trial court did not abuse its discretion in denying the plaintiffs’ motion for a jury trial. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that Section 271.152 did not waive the Housing Authority’s governmental immunity from suit.
Hous. Auth. of Austin v. Elbendary
Appellate: Civil, Contracts, Damages, Family, Gov't/Administrative, Landlord and Tenant, Procedure, Real Property, Torts
Texas 3rd Court of Appeals
August 15, 2019
03-18-00657-CV
Edward Smith
Published
The Housing Authority appealed the judgment of the trial court which rendered default judgment against it in favor of the petitioner. On appeal, the Housing Authority argued that the trial court lacked subject matter jurisdiction and, in the alternative, that the default judgment should be set aside on equitable grounds. The appellate court noted that the record conclusively established that the Housing Authority and its counsel first learned of the judgment and the trial court’s contrary finding was therefore legally insufficient. The appellate court found that by timely filing notice of appeal, the Housing Authority successfully invoked its appellate jurisdiction. The appellate court concluded that Section 271.152 did not waive the Housing Authority’s governmental immunity from suit. Accordingly, the judgment of the trial court was vacated.

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