The appellees’ motion to deny modification based on the appellant’s alleged failure to identify a material and substantial change in circumstances was not a proper mechanism for dismissal of his claims
Nellis v. Haynie
Appellate: Civil, Family, Gov't/Administrative, Juvenile, Procedure
Texas 1st Court of Appeals
January 14, 2020
01-18-00736-CV
Evelyn V. Keyes
Published
In the following suit affecting the parent-child relationship, the appellant appealed the trial court’s order dismissing his petition to modify conservatorship, possession and access, and child support. The appellate Court concluded that the appellees’ motion to deny modification based on the appellant’s alleged failure to identify a material and substantial change in circumstances was not a proper mechanism for dismissal of his claims. Further, the record in the case, however, did not indicate that the parties complied with the summary judgment procedures set forth in the Texas Rules of Civil Procedure. The appellees did not attach affidavits or evidence to their motion, the appellant did not file a response, and witnesses were sworn in to testify at the start of the hearing on the motion. Lastly, the trial court was not authorized under the Rules of Civil Procedure or the Family Code to dismiss the appellant’s modification petition on the ground that there had been no material or substantial change in circumstances of a party to the suit without affording the appellant the opportunity to present his evidence through an evidentiary hearing. Accordingly, the judgment was reversed and remanded.


The party chairman had a ministerial duty to declare a potential candidate ineligible for the office of county commissioner, as that potential candidate was not registered to vote in the precinct where the office was held
In re Walker
Constitution, Election, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
January 13, 2020
14-20-00009-CV
Per Curiam
Published
The relator held the office of County Commissioner for Precinct 3 of Grimes County, Texas. She was a candidate for re-election to that office in the March 3, 2020 Democratic Party Primary Election. On January 6, 2020, relator filed a petition for writ of mandamus asked the appellate Court to compel Grimes County Democratic Party Chairman (party chairman) to declare another potential candidate ineligible as a candidate for the office of County Commissioner Precinct 3 for Grimes County, Texas because that individual was not a registered voter in Precinct 3 on the December 9, 2019 deadline for filing his application for a place on the ballot, as required by section 141.001(a)(6) of the Election Code. See Tex. Elec. Code Ann. Section 141.001(a)(6) (Supp.). The appellate Court held that relator presented the party chairman with public records showing that the individual did not give notice of his change of address and register to vote in Precinct 3 until December 9, 2019. The individual’s registration did not become effective until 30 days later, January 8, 2020. The Court agreed with the reasoning and the decision in the In re Perez, 508 S.W.3d 500 (Tex. App.—El Paso 2016, orig. proceeding) opinion. Because the public records showed that the individual was not effectively registered to vote in Precinct 3 on the December 9, 2019 deadline for filing his application for a place on the ballot, the party chairman had a ministerial duty to declare the individual ineligible as a candidate for the office of County Commissioner Precinct 3 for Grimes County, Texas. Accordingly, the Court conditionally granted relief.


Because the State’s information tracked the statutory language and set forth each and every element the State was required to prove at trial, the trial court did not err in overruling the appellant’s motion to quash.
Becker-Ross v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
January 13, 2020
06-19-00108-CR
Ralph Burgess
Published
A jury found the appellant guilty of three counts of abuse of official capacity, all Class A misdemeanors. The trial court imposed jury-recommended community supervision and ordered her to pay a $1,000.00 fine and two $500.00 fines as a term and condition of her community supervision. The appellate court noted that the appellant argued that the information did not provide adequate notice since it did not allege how she intended to benefit from the imposition of a traffic-offense quota. Further, the allegation that the appellant violated Section 720.002 of the Texas Transportation Code was not consistent with innocent conduct. The appellate court found that the State’s information tracked the statutory language and set forth each and every element the State was required to prove at trial. Lastly, the court found that the State’s information was sufficient to allege that the appellant committed the offenses of abuse of official capacity. Thus, because the trial court did not err in overruling the appellant’s motion to quash. Accordingly, the judgment was affirmed.


The appellate court concluded that the father had not sustained his appellate burden of demonstrating reversible error.
In re A.J.P.
Appellate: Civil, Family, Gov't/Administrative, Juvenile, Procedure
Texas 8th Court of Appeals
January 10, 2020
08-17-00247-CV
Gina M. Palafox
Published
The father appealed the judgment of the trial court which entered the enforcement order, contending that it was void because he agreed to it under duress. The appellate court noted that the father did not explain why he did not present and preserve his own testimony, either at the enforcement hearing or on motion for new trial, to establish the existence and effect of those alleged threats, and to request a ruling from the trial court as required to preserve error. The appellate court found that the father had not provided the court with a record establishing he met the appellate prerequisite of preserving error, if any, or which otherwise contained evidence to substantiate his claim of duress, and thus the court were precluded from considering as evidence the unsupported statements contained in his briefs. The appellate court concluded that the father had not sustained his appellate burden of demonstrating reversible error. Accordingly, the judgment of the trial court was affirmed.


The Emergency Services lacked standing to request declaratory relief regarding the County’s actions taken pursuant to Section 26.05(c) of the Texas Tax Code.
El Paso Cnty. v. El Paso Cnty. Emergency Services Dist. No. 1
Appellate: Civil, Constitution, Damages, Gov't/Administrative, Procedure, Torts
Texas 8th Court of Appeals
January 08, 2020
08-19-00105-CV
Yvonne T. Rodriguez
Published
The County appealed the judgment of the trial court which denied its plea to the jurisdiction, alleging that the Emergency Services failed to sufficiently plead their request for declaratory judgment against the County under the Uniform Declaratory Judgment Act (UDJA) to waive the County’s immunity from suit. The appellate court noted that the trial court erred in denying the County’s plea to the jurisdiction because the Emergency Services had failed to adequately plead or prove the existence of subject-matter jurisdiction. The appellate court found that the Emergency Services’ request for declaratory relief regarding the construction and/or interpretation of Texas Health and Safety Code 775(K) was insufficient to waive the County’s immunity. The appellate court concluded that the Emergency Services lacked standing to request declaratory relief regarding the County’s actions taken pursuant to Section 26.05(c) of the Texas Tax Code. Accordingly, the judgment of the trial court was reversed.


The trial court had a reasonable evidentiary basis to find that the search warrant permitting a blood draw was void because it was founded on an unsworn affidavit.
State v. Hodges
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
January 08, 2020
07-19-00237-CR
Brian Quinn
Published
The State appealed the judgment of the trial court which granted the defendant’s motion to suppress evidence involuntary obtained upon execution of a warrant permitting a blood draw. On appeal, the State asked the appellate court if an affidavit was an affidavit when no one administered an oath to the affiant who signed it. The appellate court noted that one could question the credibility of the officer’s testimony about believing he was under oath while at the same time believing that an oath was unnecessary. The appellate court found that resolution of those credibility issues fell within the bailiwick of the trial court, and, in the trial court granting the motion to suppress, it would be appropriate to imply that the trial court doubted the veracity of the officers’ testimony. The appellate court concluded that the trial court had a reasonable evidentiary basis to find that the search warrant permitting a blood draw was void because it was founded on an unsworn affidavit. Accordingly, the judgment of the trial court was affirmed.


Since the deed unambiguously reserved the royalty interest, the trial court erroneously granted a partial summary judgment in favor of the heirs and awarded attorney’s fees, among other relief.
WTX Fund, LLC v. Brown
Appellate: Civil, Contracts, Damages, Oil, Gas, & Mineral, Procedure, Real Property
Texas 8th Court of Appeals
January 08, 2020
08-17-00104-CV
Gina M. Palafox
Published
The appellant appealed the judgment of the trial court which ruled on cross motions for summary judgment. On appeal, the appellate court was asked to interpret a mineral deed to determine whether the grantors conveyed their entire mineral interest without reservation, or instead, reserved from the conveyance at least one incident of mineral ownership the royalty interest either in whole or in fractional share. The appellate court noted that the trial court erred in granting the heirs’ motion for partial summary judgment, while denying the appellant’s cross motion for partial summary judgment. The appellate court found that the trial court’s discretion was subject to the requirements that any fees awarded be reasonable and necessary, which were matters of fact, and to the additional requirements that fees be equitable and just, which were matters of law. The appellate court concluded that since the deed unambiguously reserved the royalty interest, the trial court erroneously granted a partial summary judgment in favor of the heirs and awarded attorney’s fees, among other relief. Accordingly, the judgment of the trial court was reversed. 


The trial court erred in concluding there was no reasonable suspicion to stop the defendant for a violation of § 545.060(a) of the Texas Transportation Code.
State v. Meras
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
January 08, 2020
10-18-00345-CR
Tom Gray
Published
The State appealed the judgment of the trial court which granted the defendant’s motion to suppress evidence after he was indicted for possession of a controlled substance. On appeal, the State argued that one could violate the statute by failing to stay within a lane, as it contended the defendant did, regardless of whether anything unsafe occurred. The appellate court agreed that it was an independent offense to fail to remain entirely within a marked lane of traffic when it was otherwise practical to do so, regardless of whether the deviation from the marked lane was, under the particular circumstances, unsafe. The appellate court found that the trial court’s conclusion that the defendant’s failure to drive as nearly as practical entirely within a single lane was not unsafe, and thus, there was no reasonable suspicion to stop the defendant for a violation of the statue was not correct under any applicable theory of law. The appellate court concluded that the trial court erred in concluding there was no reasonable suspicion to stop the defendant for a violation of § 545.060(a) of the Texas Transportation Code. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The appellate court concluded that the trial court did not err when it ruled that the plaintiff’s claim was barred.
W. Tex. LTC Partners, Inc. v. Collier
Appellate: Civil, Contracts, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts, Wills/Trusts/Probate
Texas 14th Court of Appeals
January 09, 2020
14-18-00282-CV
Jerry Zimmerer
Published
The plaintiff appealed the judgment of the trial court which rendered a take-nothing judgment in favor of the Estate following a bench trial. On appeal, the plaintiff sought to recover amounts it alleged were owed for nursing home care the deceased received prior to his death. The appellate court noted that because the court must construe statutes to harmonize them with other relevant laws whenever possible, the separation of the guardianship and probate sections into two different titles of the Estates Code did not dictate the court follow the plaintiff’s proffered construction. The plaintiff further argued that Estates Code section 1153.004 did not apply because Estates Code section 355.061(a) did not list this section as an exception to Estates Code section 355.001. The appellate court found that the three exceptions listed, Estates Code sections 355.060, 355.064, and 355.201(b), all addressed the effect of a failure to take an action only after a probate estate had been commenced. The appellate court concluded that the trial court did not err when it ruled that the plaintiff’s claim was barred. Accordingly, the judgment of the trial court was affirmed.


Chapter 38’s judicial notice and presumption provisions applied so that the trial court was not required to receive further evidence, and thus, legally sufficient evidence supported the trial court’s award of attorney’s fees.
Great Am. Lloyds Ins. Co. v. Vines-Herrin Custom Homes, L.L.C.
ADR, Appellate: Civil, Contracts, Corporations, Damages, Insurance, Procedure, Torts
Texas 5th Court of Appeals
January 09, 2020
05-18-00337-CV
Leslie Lester Osborne
Published
The appellants appealed the judgment of the trial court which ruled in the appellees’ favor in the amount of the arbitrator’s award against both of the insurers, jointly and severally. On remand, the trial court rendered its second amended final judgment in favor of the appellees. The appellate court noted that there was legally and factually sufficient evidence to support the trial court’s allocation of damages in its judgment. The appellate court found that the appellees offered evidence that damages occurred during each policy period and evidence of the total awarded by the arbitrator to compensate the appellee for those damages. The appellate court further found that the trial court allocated the total loss on a pro-rata basis, allocating a portion of indemnification for its single policy period. The appellate court concluded that Chapter 38’s judicial notice and presumption provisions applied so that the trial court was not required to receive further evidence, and thus, legally sufficient evidence supported the trial court’s award of attorney’s fees. Accordingly, the judgment of the trial court was affirmed.    


The appellee should have seen the error, which was apparent on the face of the record, and amended the return before moving for default judgment, by allowing the return to stand uncorrected, the appellee failed to meet its burden
Martell v. Texas Concrete Enter. Readymix, Inc.
Procedure
Texas 14th Court of Appeals
January 07, 2020
14-18-00764-CV
Tracy Christopher
Published
The appellee company filed a suit on a sworn account against the appellant on January 2, 2018. The clerk of the court issued the citation the same day. Private process server served the appellant and wrote by hand the underlined portions of the return of service. The appellant did not answer the suit or respond to the requests for disclosures and requests for admission included in the petition. In April 2018, the appellee moved for default judgment based on the deemed admissions. The trial court granted the motion and awarded the appellee its requested damages, attorneys’ fees, interest, and costs. About four months later, the appellant filed the restricted appeal and superseded the judgment. The appellate court observed that the movant for default judgment bears the burden to ensure strict compliance with Texas Rule of Civil Procedure 107 governing the return of service. The appellee should have seen the error, which was apparent on the face of the record, and amended the return before moving for default judgment. By allowing the return to stand uncorrected, the appellee failed to meet its burden. Accordingly, the court reversed the judgment and remanded the case.


The trial court could not have permissibly denied the Texas Citizens Participation Act motion to dismiss on grounds that limitations was tolled.
TV Azteca v. Ruiz
Appellate: Civil, Business, Constitution, Contracts, Procedure, Torts
Texas 13th Court of Appeals
January 09, 2020
13-18-00287-CV
Nora L. Longoria
Published
The defendants appealed the judgment of the trial court which denied their motion to dismiss the plaintiffs’ suit for defamation, libel per se, slander, defamation per se, business disparagement, civil conspiracy, and tortious interference with existing and prospective contracts and business relationships. On appeal, the defendants challenged the trial court’s order denying the motion to dismiss under Chapter 27 of the Texas Civil Practice and Remedies Code. The appellate court noted that while a party need not specify exact statements made in a defamation pleading in order to provide adequate notice to the defendant, the law did not stand for the proposition that specific statements alleged to be defamatory in an amended petition were not newly added, separate occurrences with independent injury. The appellate court found no support for such a contention and therefore, it rejected the argument. The appellate court concluded that the trial court could not have permissibly denied the Texas Citizens Participation Act motion to dismiss on grounds that limitations was tolled. Accordingly, the judgment of the trial court was affirmed in part, reversed in part and remanded for further proceedings.


Under the automobile exception, a search warrant was not required to search an automobile when an officer had probable cause to believe the automobile contained contraband.
Borne v. State
Constitution, Criminal, Evidence, Procedure
Texas 9th Court of Appeals
January 08, 2020
09-19-00094-CR
Leanne Johnson
Published
The defendant appealed the judgment of the trial court which convicted him of the manufacture or possession of a controlled substance—lysergic acid diethylamide (LSD)—with the intent to deliver, in an amount of eighty abuse units or more but less than 4,000 abuse units, a first-degree felony. On appeal, the defendant challenged the trial court’s assessment of a punishment at ten years’ imprisonment, probated for a period of ten years. The appellate court noted that the defendant presented no legal authority that his consent was required for the trial court to have jurisdiction over him in a criminal proceeding, nor did he explain his “proven on the record” complaint. The appellate court found that the Uniform Commercial Code (UCC) applied to commercial transactions and did not apply to criminal proceedings. The appellate court concluded that under the automobile exception, a search warrant was not required to search an automobile when an officer had probable cause to believe the automobile contained contraband. Accordingly, the judgment of the trial court was affirmed.


Based on the limited evidence that was presented, the trial court could have reasonably found that the experiments occurred in the deliberation room and that they produced no new facts that were harmful to the defendant.
Melgar v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
January 07, 2020
14-17-00932-CR
Tracy Christopher
Published
The defendant appealed the judgment of the trial court which convicted her of murder. On appeal, the defendant argued that she was entitled to an acquittal because the evidence was legally insufficient to support the conviction, and that, even if the evidence were sufficient to support the conviction, she was entitled to a new trial because the jury engaged in misconduct by conducting experiments during deliberations. The appellate court noted that the evidence was legally sufficient to support every essential element of the offense beyond a reasonable doubt. The appellate court found that because the affidavit contained no information about these matters, the trial court was free to determine that the jurors’ experiments, though improper, did not differ in any way from the prosecution’s in-court demonstration. The appellate court concluded that the trial court could have reasonably found that the jury did not discover any new facts in their experiments that was hurtful to defendant. The appellate court further concluded that based on the limited evidence that was presented, the trial court could have reasonably found that the experiments occurred in the deliberation room and that they produced no new facts that were harmful to the defendant. Accordingly, the judgment of the trial court was affirmed.


The defendants did not meet their initial burden of establishing that the TCPA applied to the Estate’s claims, and thus, the trial court properly denied the defendants’ motion to dismiss.
Pacheco v. Rodriguez
Appellate: Civil, Constitution, Damages, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
January 06, 2020
08-19-00129-CV
Jeff Alley
Published
The defendants appealed the judgment of the trial court which granted an order of partial non-suit of the Estate’s claims against the defendants. On appeal, the defendants challenged the trial court’s denial of the motion to dismiss the cross-claim under the Texas Citizens Participation Act (TCPA). The appellate court noted that the unique aspect of the TCPA convinced the court that it must, as part of the court's de novo review, be satisfied that the movant had met the initial burden under the statute to show the disputed claim was based on, related to, or was in response to the exercise of free speech, petition, or associational rights. The appellate court found that the defendants’ cross-claim could not properly be categorized as a claim for defamation and was instead more properly characterized as a claim for negligence. The appellate court concluded that the defendants did not meet their initial burden of establishing that the TCPA applied to the Estate’s claims, and thus, the trial court properly denied the defendants’ motion to dismiss. Accordingly, the judgment of the trial court was affirmed.


The appellants presented the issue only to preserve it for en banc or supreme court review, acknowledging that binding precedents constrained the panel to overrule the issue.
Guillory v. Dietrich
Appellate: Civil, Contracts, Damages, Insurance, Procedure, Real Property, Tax, Torts
Texas 5th Court of Appeals
January 06, 2020
05-18-00504-CV
Bill Whitehill
Published
The appellants appealed the judgment of the trial court which ordered the appellants to take nothing on their claims and awarded the appellee actual damages, exemplary damages, attorney’s fees, and declaratory relief on his counterclaims. On appeal, the appellants asserted that the trial court erred by simply adopting the appellee’s voluminous proposed fact findings and legal conclusions without any independent expressed judicial thought evidencing independent judicial findings and conclusions. The appellate court noted that the trial court erred by awarding the appellee actual damages for long-term care insurance payments and for a property tax late fee. The appellate court found that the appellants did not show that the trial court erred by awarding the appellee conversion damages for the savings account and for jewelry insurance proceeds, nor did they show that the trial court erred by awarding the appellee unjust enrichment actual damages. The appellate court concluded that the appellants presented the issue only to preserve it for en banc or supreme court review, acknowledging that binding precedents constrained the panel to overrule the issue. Accordingly, the judgment of the trial court was reversed in part, affirmed in part and remanded.


The judicial admissions were sufficient to support the trial court’s finding and conclusion that the lien documents were invalid and unenforceable.
Texas Tax Solutions, LLC v. City of El Paso
Appellate: Civil, Contracts, Procedure, Tax
Texas 8th Court of Appeals
December 30, 2019
08-18-00126-CV
Gina M. Palafox
Published
The plaintiff appealed the judgment of the trial court which denied the plaintiff’s claim to enforce a transferred tax lien based on the trial court’s finding that the lien was void and invalid because the documents on which the lien was based were fraudulently executed. The appellate court noted that the trial court did not abuse its discretion by concluding that the City was not required to plead fraud as an affirmative defense. The appellate court found that the evidence was legally and factually sufficient to support the trial court’s finding that the lien documents were void and invalid. The appellate court further found that the Texas Tax’s judicial admissions that the lien documents were procured by fraud and, particularly, its judicial admissions that the signatures on the lien documents were forgeries, relieved the City of any burden to plead or produce evidence of fraud. The appellate court concluded that the judicial admissions were sufficient to support the trial court’s finding and conclusion that the lien documents were invalid and unenforceable. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that it must presume that the trial court’s conversation with the Indiana judge supported the decision to decline to exercise jurisdiction because Indiana was a more appropriate forum.
In re C.H.
Appellate: Civil, Family, Procedure
Texas 7th Court of Appeals
December 31, 2019
07-18-00285-CV
Judy C. Parker
Published
The alleged father of the child appealed the judgment of the trial court, filing a petition to adjudicate parentage, whereby the trial court entered temporary orders granting the mother the exclusive right to designate the primary residence of the child. On appeal, the alleged father challenged the trial court’s award of a standard possession schedule and ordered that he pay child support. The alleged father further contended that the trial court abused its discretion in declining to exercise jurisdiction and determining that Indiana was a more appropriate forum. The appellate court noted that approximately eighteen months passed between the date the suit commenced in Texas and the date the trial court entered its order determining that Texas was an inconvenient forum in deference to Indiana. The appellate court found that the trial court did not abuse its discretion in declining to exercise jurisdiction based on its finding that Indiana was a more appropriate forum for the proceeding. The appellate court concluded that it must presume that the trial court’s conversation with the Indiana judge supported the decision to decline to exercise jurisdiction because Indiana was a more appropriate forum. Accordingly, the judgment of the trial court was affirmed. 


The trial court properly entered a default judgment against the appellant mortgage company after it failed to timely answer a lawsuit filed against it by the appellee, where the appellant failed to establish a prima facie meritorious defense to the lawsuit
Reverse Mortg. Funding, LLC v. Blevins Robertson
Banking and Finance, Contracts, Procedure, Real Property
Texas 6th Court of Appeals
January 03, 2020
06-19-00063-CV
Ralph Burgess
Published
The appellee's father executed a will in which he left his real property to his wife to be used, occupied and enjoyed by her for and during her natural life. According to the will, the property was to vest in the father’s daughters on the wife’s death. Following the father’s death, the wife entered into a reverse mortgage loan agreement with the predecessor in interest to the appellant mortgage company. In a suit to quiet title to the property, the appellee alleged that the wife’s life estate in the property terminated when she died. When the appellant did not timely answer the lawsuit, the trial court entered a default judgment in favor of the appellee. The appellant moved for new trial which was overruled by operation of law. On appeal, the appellant contended that it was a bona fide mortgagee. To claim the status of a bona fide mortgagee, the appellant was bound to support its conclusory statements that it had no actual or constructive notice of the appellee’s claim to the property with verified allegations of fact. Because no such allegations appeared in the appellant’s motion for new trial, the appeals court found the appellant failed to establish a prima facie meritorious defense. Accordingly, the judgment of the trial court was affirmed.


The trial court erred in denying the appellants' motion to dismiss the appellee's Rule 202 petition under the Texas Citizens Participation Act, since the appellee failed to establish its prima facie case for its Rule 202 petition by clear and specific evidence
In re Petition of Krause Landscape Contractors, Inc.
Evidence, Procedure
Texas 7th Court of Appeals
January 02, 2020
07-19-00182-CV
Judy C. Parker
Published
After the appellee corporation filed a petition requesting depositions to investigate potential claim or suit under Texas Rules of Civil Procedure 202, the appellants moved to dismiss the petition under the Texas Citizens Participation Act (TCPA). The trial court denied the motion to dismiss and authorized the appellee’s pre-suit depositions. The appellants filed an interlocutory appeal. The appeals court concluded that pre-suit depositions under Rule 202 are legal actions within the scope of the TCPA and that the appellee failed to establish its prima facie case by clear and convincing evidence. Accordingly, the judgment of the trial court was reversed and remanded with direction that the trial court enter an order granting the appellants’ motion to dismiss and conduct further proceedings. 


Since there was a written commission agreement that complied with the statute of frauds, Texas Occupations Code Section 1101.806(c), the plaintiff, as the assignee of the principal broker, was entitled to recover a three percent commission from the defendant on the proceeds at the closing.
NLD, Inc. v. Huang
Appellate: Civil, Contracts, Damages, Real Property, Torts
Texas 1st Court of Appeals
December 31, 2019
01-17-00885-CV
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which determined whether a real estate broker was entitled to receive a commission in connection with the sale of a motel. On appeal, the defendant claimed that the defendant owed him a commission because he had introduced the parties to the sale and brokered an earlier attempt to sell the property that ultimately resulted in the sale of the property from the same seller, the defendant, to the same buyer, the individual. The appellate court noted that the plaintiff established that the defendant, as seller, and the individual, as buyer, signed a written standard form contract governing the sale of the property and obligating the defendant to pay the plaintiff a commission on the sale of the motel. That appellate court found that the agreement was still in effect under its own plain language when negotiations concluded and the sale closed. The appellate court concluded that since there was a written commission agreement that complied with the statute of frauds, Texas Occupations Code Section 1101.806(c), the plaintiff, as the assignee of the principal broker, was entitled to recover a three percent commission from the defendant on the proceeds at the closing of the sale. Accordingly, the judgment of the district court was affirmed.  


The appellate court concluded that it was unable to hold the trial court abused its discretion in setting the defendant’s bond.
Ex parte Temple
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 31, 2019
14-19-00711-CR
Meagan Hassan
Published
The defendant appealed the judgment of the trial court which set bond at $1,000,000 after a jury found him guilty but was unable to reach an agreement on punishment. Thereafter, the trial court declared a mistrial as to the punishment phase of trial. On appeal, the defendant was currently incarcerated awaiting the new punishment phase of trial. The appellate court noted that having considered all the pertinent factors and in light of the jury’s finding the defendant guilty of murder, the trial court did not act arbitrarily or unreasonably in setting the defendant’s bond at $1,000,000. The appellate court concluded that it was unable to hold the trial court abused its discretion in setting the defendant’s bond. Accordingly, the judgment of the trial court was affirmed.  


Any error in admitting the individual’s statements was harmless because the statements were cumulative of properly admitted evidence.
Trejo v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 31, 2019
14-18-00076-CR
Frances Bourliot
Published
The defendant appealed the judgment of the trial court which convicted him of murder. The appellate court noted that the factors weighed in favor of the court's conclusion that the trial court’s error, if any, in admitting the statement was harmless, and the defendant’s interview was not very important to the State’s case, given that the defendant did not make any statements incriminating himself in the murder. The appellate court found that ample evidence contradicted the defendant’s denials regarding his presence on the scene and his acquaintance with the individual, and the State’s case was strong because direct evidence linked the defendant to the murder weapon. The appellate court further found that an accused’s Fifth Amendment right to consult with counsel before speaking was distinct from an accused’s Sixth Amendment right to representation by counsel. The appellate court concluded that any error in admitting the individual’s statements was harmless because the statements were cumulative of properly admitted evidence. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the trial court retained jurisdiction to grant a new trial within the time period allowed by Rule 329b.
State v. $71,404.00 U.S. Currency
Appellate: Civil, Gov't/Administrative, Procedure, Real Property
Texas 3rd Court of Appeals
December 31, 2019
03-19-00310-CV
Gisela D. Triana
Published
The State appealed the judgment of the trial court which granted a motion for new trial in a civil-asset-forfeiture case. On appeal, the State asserted that the trial court erred in granting the motion for new trial because the trial court no longer had jurisdiction over the property that had been forfeited. The appellate court noted that the money was seized illegally, that it was thus proper for the trial court to return the money, and that once the money was returned to its owner, the trial court lost jurisdiction to continue the State’s forfeiture action. The appellate court found that it could not conclude on the record that the useless judgment exception, to the extent that it applied at all to forfeiture proceedings in Texas state courts, would apply to the facts. The appellate court concluded that the trial court retained jurisdiction to grant a new trial within the time period allowed by Rule 329b. Accordingly, the judgment of the trial court was affirmed.


There was no evidence or argument that, before his marriage, the child obtained in either Texas or Missouri a court order removing the disabilities of his minority, and therefore, not married in accordance with the laws of Texas.
Broussard v. Arnel
Appellate: Civil, Family, Procedure
Texas 1st Court of Appeals
December 31, 2019
01-18-00687-CV
Evelyn V. Keyes
Published
The appellant appealed the judgment of the trial court which modified custody in the suit affecting the parent-child relationship (SAPCR). On appeal, the appellant challenged the trial court’s modification order designating the appellee sole managing conservator of their child. The appellant argued that the trial court lacked subject-matter jurisdiction to render its modification order due to the child’s emancipation by marriage during the pendency of the modification suit. The appellate court noted that the trial court began by addressing the appellee’s assertion that the appellant failed to register the Missouri declaratory judgment as a foreign judgment under Texas’s Uniform Enforcement of Foreign Judgments Act (UEFJA), which governed registration and enforcement of out-of-state judgments. The appellate court found that the trial court failed to understand how a valid marriage could have sprung from a subsequent declaratory judgment. The appellate court concluded that there was no evidence or argument that, before his marriage, the child obtained in either Texas or Missouri a court order removing the disabilities of his minority, and therefore, not married in accordance with the laws of Texas. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that there was sufficient evidence to support convictions for both offenses.
Garcia v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
December 31, 2019
11-17-00318-CR
Keith Stretcher
Published
The defendant appealed the judgment of the trial court which convicted him of one count of aggravated sexual assault of a child and one count of indecency with a child by contact. On appeal, the defendant challenged the district court’s sentence to imprisonment for forty years and ten years, respectively. The appellate court noted that due to the nature of the crime, every juror who found penetration would have also found contact, and therefore, the jury charge in the case did not permit the defendant to be convicted by a non-unanimous verdict. The appellate court found that it was erroneous to include an instruction defining the offense as prohibiting contact by any means. The appellate court concluded that there was sufficient evidence to support convictions for both offenses. Accordingly, the judgment of the trial court was affirmed. 


Since the economic loss rule applied to the appellees’ claims, the appellees had not established a prima facie case for damages, and the trial court erred in denying the appellant’s motion to dismiss.
Shopoff Advisors, LP v. Atrium Circle, GP
Appellate: Civil, Corporations, Damages, Procedure, Real Property, Torts
Texas 4th Court of Appeals
December 27, 2019
04-18-00438-CV
Liza A. Rodriguez
Published
The appellant appealed the judgment of the trial court which denied its motion to dismiss the suit pursuant to the Texas Citizens Participation Act (TCPA). On appeal, the appellant contended that the trial court erred in denying its motion because the claims brought by appellees related to the exercise of the appellant’s right to petition. The appellate court noted that the TCPA applied because the appellees’ legal action was related to the appellant’s exercise of its right to petition. The appellate court found that, with respect to the appellees’ claims against the appellant, the burden shifted to the appellees to establish by clear and specific evidence a prima facie case for the element of damages. The appellate court concluded that because the economic loss rule applied to the appellees’ claims, the appellees had not established a prima facie case for damages, and the trial court erred in denying the appellant’s motion to dismiss. Accordingly, the judgment of the trial court was reversed.


The trial court did not abuse its discretion in limiting the defendant’s right to confer with his counsel during an overnight recess to matters other than his ongoing trial testimony.
Villarreal v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
December 27, 2019
04-18-00484-CR
Sandee Bryan Marion
Published
The defendant appealed the judgment of the trial court which convicted him of murder with a repeat offender enhancement and sentenced him to confinement for sixty years. The appellate court noted that although the trial court overruled the defendant’s initial hearsay objection, the defendant’s mutual friend did not immediately testify regarding the contents of the victim’s text message. The appellate court further found that, after answering several additional questions regarding her familiarity with the victim’s telephone number and the frequency of her communications with the victim, the defendant’s friend eventually relayed the contents of the victim’s text message in response to a different question. The appellate court found that the defendant’s attorneys repeatedly confirmed they understood the trial court’s order. The appellate court concluded that the trial court did not abuse its discretion in limiting the defendant’s right to confer with his counsel during an overnight recess to matters other than his ongoing trial testimony. Accordingly, the judgment of the trial court was affirmed.


The record established that, considering the benefits to the mother and, ultimately, to a child, as well as any impairment of the father’s contact with the child, the trial court did not err in its application of discretion.
In re A.C.M.
Appellate: Civil, Family, Juvenile, Procedure
Texas 8th Court of Appeals
December 23, 2019
08-18-00014-CV
Gina M. Palafox
Published
The father appealed the judgment of the trial court which modified the parent-child relationship after a de novo hearing. On appeal, the father challenged the trial court’s order insofar as it permitted the mother to designate the primary residence of the couple’s minor son without any geographic restriction. The appellate court noted that the record established that the trial court had sufficient information concerning the reasons for the mother’s desire to relocate and the impact relocation would have on her, the child, and the father to exercise its discretion. The appellate court found that the record established that, considering the benefits to the mother and, ultimately, to a child, as well as any impairment of the father’s contact with the child, the trial court did not err in its application of discretion. Accordingly, the judgment of the trial court was affirmed.


The appellate court found that the jury charge presented in the case contained an erroneous definition of reckless.
Fraser v. State
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
December 20, 2019
07-15-00267-CR
Patrick A. Pirtle
Published
The defendant appealed the judgment of the trial court which convicted her of the offense of murder, sentenced her to fifty years confinement, and assessed a $10,000 fine. On appeal, the defendant challenged the trial court’s conviction, sentence, and assessment of a fine. The defendant contended that the trial court’s definition of reckless was overly broad because it did not distinguish between “result-of-conduct” offenses and “nature-of-conduct” offenses and it did not properly tailor the definition of reckless to the facts of the case, and that by failing to do so, the trial court committed error. The appellate court noted that where the prosecution was relying upon multiple theories as to the underlying offense making the death in the case punishable as a felony murder, as well as multiple theories as to the applicable culpable mental state for that underlying offense, it was critical that the charge of the trial court correctly set forth the law applicable to the case. The appellate court found that the jury charge presented in the case contained an erroneous definition of reckless, and having considered the court’s charge as a whole, the arguments of the prosecution, the state of the evidence, and other relevant factors, such error deprived the defendant of her right to a fair trial and vitally affected at least one of her defensive theories. The appellate court concluded that the trial court’s error was egregious. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.


The jury was not properly instructed on any of the offenses, rather, it received a hodge-podge of inappropriately defined terms and offenses.
Alcoser v. State
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
December 20, 2019
07-18-00032-CR
Patrick A. Pirtle
Published
The defendant appealed the judgment of the trial court which convicted him of assault family violence, endangering a child, and interference with emergency request for assistance. On appeal, the defendant challenged the trial court’s conviction and sentence. The appellate court noted that the instruction on self-defense failed to include a presumption instruction on the reasonableness of the defendant’s belief that force was immediately necessary to protect himself as the law applicable to the case. The appellate court found that the instruction contained multiple errors and the jurors were not only misguided and left without adequate explanation as to the appropriate culpable mental states to apply to either Count II or Count III, they were, in fact, affirmatively misinformed by being given an incorrect explanation. The appellate court concluded that the jury was not properly instructed on any of the offenses, rather, it received a hodge-podge of inappropriately defined terms and offenses. Accordingly, the judgment of the trial court was reversed and remanded.


Since counsel’s error, if any, was not so serious as to deprive the appellant of a trial whose result was reliable, the appellant’s trial counsel did not commit ineffective assistance with regard to the oral motion for continuance.
In re J.P-L.
Appellate: Civil, Family, Juvenile, Procedure
Texas 2nd Court of Appeals
December 19, 2019
02-19-00255-CV
Bonnie Sudderth
Published
The appellant appealed the judgment of the trial court which denied the motion for continuance and terminated the appellant’s parental rights to the child. On appeal, the appellant conceded that the evidence in the case was sufficient to support the termination of her parental rights to the child but contended that she was deprived of due process when the interests of the child appeared to be in direct conflict with the interests of the parent. The appellate court noted that under its current statutory scheme, as between a parent and a child, only one could prevail: the child. The appellate court found that because the appellant did not comply with Tex. R. Civ. P. Rule 251 and two of the parties disagreed with her oral request for a continuance, the trial court did not abuse its discretion by denying the motion. The appellate court concluded that since counsel’s error, if any, was not so serious as to deprive the appellant of a trial whose result was reliable, the appellant’s trial counsel did not commit ineffective assistance with regard to the oral motion for continuance. Accordingly, the judgment of the trial court was affirmed. 


The evidence was insufficient to support the trial court’s legal conclusion that the individual acted as the defendant’s agent and that the plaintiff had not otherwise alleged facts that, if true, brought the defendant within the reach of Texas’s long-arm statute.
Stocksy United v. Morris
Appellate: Civil, Contracts, Procedure, Torts
Texas 1st Court of Appeals
December 19, 2019
01-18-00924-CV
Sherry Radack
Published
The defendant appealed the judgment of the trial court which ruled in favor of the plaintiff in her suit against the defendant for misappropriation of likeness. Thereafter, the defendant filed a special appearance. On appeal, the plaintiff argued that the defendant was subject to specific jurisdiction because the individual acted as the defendant’s agent when she took the photographs and uploaded them onto the website. The appellate court found that the evidence was insufficient to support the trial court’s legal conclusion that the individual acted as the defendant’s agent and that the plaintiff had not otherwise alleged facts that, if true, brought the defendant within the reach of Texas’s long-arm statute. The appellate court concluded that the trial court improperly denied the defendant’s special appearance. Accordingly, the judgment of the trial court was reversed.


The trial court did not find that the motion to dismiss was solely intended to delay and there was no statutory basis to support the trial court’s award of attorney’s fees to the plaintiff.
Stallion Oilfield Services Ltd. v. Gravity Oilfield Services, LLC
Appellate: Civil, Contracts, Employment, Procedure, Torts
Texas 11th Court of Appeals
December 19, 2019
11-19-00217-CV
John Bailey
Published
The defendant appealed the judgment of the trial court which denied its motion to dismiss the plaintiff’s claims pursuant to the Texas Citizens Participation Act (TCPA). This suit stemmed from the plaintiff’s allegations that the defendant breached a noncompete, nondisclosure, and nonsolicitation agreement and that the defendant tortiously interfered with that agreement when it hired the employee. The appellate court noted that the trial court properly denied the defendant’s motion to dismiss, and therefore, the defendant was not entitled to an award of attorney’s fees, costs, or sanctions. The appellate court found that the plaintiff established a prima facie case that it had the right to enforce those restrictive covenants, the plaintiff was not a party to those agreements, and the evidence as to the plaintiff’s relationship with the first corporation and the second corporation was extensive and disputed. The appellate court concluded that the trial court did not find that the motion to dismiss was solely intended to delay and there was no statutory basis to support the trial court’s award of attorney’s fees to the plaintiff. Accordingly, the judgment of the trial court was affirmed.        


Since the petitioner’s argument on appeal did not comport with the objection asserted at trial, the petitioner’s fourth issue was not preserved.
In re T.B.
Appellate: Civil, Constitution, Gov't/Administrative, Health Care, Procedure
Texas 10th Court of Appeals
December 18, 2019
10-19-00190-CV
Tom Gray
Published
The petitioner appealed the judgment of the trial court which ordered an Extended Mental Health Services, wherein he was directed to receive in-patient mental health treatment for one year. On appeal, the petitioner challenged the trial court’s order based on his indictment for stalking. The appellate court noted that the petitioner’s proposed instruction about which he wished to question the prospective jurors proposed a blanket assertion of his Fifth Amendment not to testify and incorrectly prohibited adverse inferences if the petitioner refused to testify. The appellate court found that the trial court did not abuse its discretion in failing to submit the petitioner’s requested instruction. The appellate court concluded that since the petitioner’s argument on appeal did not comport with the objection asserted at trial, the petitioner’s fourth issue was not preserved. Accordingly, the judgment of the trial court was affirmed.  


In the absence of a clear indication that the Legislature intended to subject children under 14 years of age to prosecution for aggravated sexual assault when they lacked the capacity to consent to sex as a matter of law, that child could not be charged with that offense.
In re T.V.T.
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 19, 2019
14-18-00807-CV
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which convicted him of sexual assault of a child under the age of 14 and denied his pretrial application for writ of habeas corpus, motion for summary judgment, motion to quash the petition, and motion to dismiss the petition. On appeal, the defendant challenged the order of adjudication. The appellate court noted that the fact that a 13-year old could not be tried as an adult and sentenced as an adult did not remove the State’s burden to show that a person knowingly committed the charged offense. The appellate court found that the Legislature passed laws recognizing the vulnerability of children to sexual exploitation, including an absolute prohibition of legal consent for children under 14. The appellate court concluded that in the absence of a clear indication that the Legislature intended to subject children under 14 years of age to prosecution for aggravated sexual assault when they lacked the capacity to consent to sex as a matter of law, that child could not be charged with that offense. Accordingly, the judgment of the trial court was reversed.


The totality of the circumstances showed that the appellants substantial invocation of the judicial process prejudiced the appellee.
Pounds v. Rohe
ADR, Appellate: Civil, Contracts, Procedure, Real Property, Wills/Trusts/Probate
Texas 1st Court of Appeals
December 19, 2019
01-19-00623-CV
Gordon Goodman
Published
The appellants appealed the judgment the trial court which denied their motion to compel arbitration in the underlying suit concerning the Estate. On appeal, the appellants challenged the trial court’s order denying the motion to compel arbitration. The appellate court noted that the totality of the circumstances showed that the appellants substantially invoked the judicial process before trying to compel arbitration. The appellate court found that the record showed the existence of prejudice, as the appellee was not required to submit additional evidence establishing the extent of the prejudice. The appellate court concluded that the totality of the circumstances showed that the appellants substantial invocation of the judicial process prejudiced the appellee. Accordingly, the judgment of the trial court was affirmed.


Since the only exhibit offered by the appellant could not be considered, it did not create a genuine issue of material fact and the trial court did not err when it granted the appellee’s motion for summary judgment on the removal costs.
Consol. Healthcare Services, LLC v. Mainland Shopping Ctr., Ltd.
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 14th Court of Appeals
December 19, 2019
14-18-00189-CV
Jerry Zimmerer
Published
The appellant appealed the judgment of the trial court which granted summary judgment in favor of the appellee on its breach of contract cause of action. On appeal, the appellee argued that the trial court did not err when it granted its motion for summary judgment and the appellate court did not have jurisdiction over the appeal because the appellant filed its notice of appeal too late. The appellate court disagreed with the appellee and noted that it had jurisdiction to consider the appellant’s appeal. The appellate court found that the trial court did not err when it granted the appellee’s motions for summary judgment. The appellate court concluded that since the only exhibit offered by the appellant could not be considered, it did not create a genuine issue of material fact and the trial court did not err when it granted the appellee’s motion for summary judgment on the removal costs. Accordingly, the judgment of the trial court was affirmed.


Since the record showed a plea of “not true” entered on the defendant’s behalf as to all of the State’s allegations in the amended motion to revoke, it would modify the language in the judgments to reflect that the defendant pleaded “not true” to all allegations in the State’s motion to revoke.
Washington v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
December 18, 2019
10-19-00204-CR
John E. Neill
Published
The defendant appealed the judgment of the trial court which convicted him of two counts of retaliation and sentenced him to ten years’ imprisonment with a $250 fine for each count, suspended the sentences, and placed him on community supervision for ten years. On appeal, the defendant challenged the trial court’s revocation of his community supervision. The appellate court noted that because Article 102.011(a)(2) and (a)(6) were reimbursement-based court-costs provisions, and because the court were duty-bound to follow the precedent of the Court of Criminal Appeals, it rejected the defendant’s constitutional claim in the issue. The appellate court found that the record reflected that the defendant represented himself at trial with the assistance of standby counsel. The appellate court concluded that since the record showed a plea of “not true” entered on the defendant’s behalf as to all of the State’s allegations in the amended motion to revoke, it would modify the language in the judgments to reflect that the defendant pleaded “not true” to all allegations in the State’s amended motion to revoke. Accordingly, the judgment of the trial court was affirmed.


The manner in which the trial was conducted significantly impaired the mother’s ability to present the issue on appeal and show its impact on the judgment.
In re J.T.
Appellate: Civil, Evidence, Family, Juvenile, Procedure
Texas 10th Court of Appeals
December 18, 2019
10-19-00298-CV
Tom Gray
Published
The mother appealed the judgment of the trial court which terminated her parental rights to her child. On appeal, the mother challenged the termination of her parental rights. The appellate court noted that from all of the questions tendered by the jurors, there were over 165 of the jurors' questions actually allowed and asked by the trial court to the witnesses, and it was impractical, if not impossible, to isolate in the record the impact of the evidence received in response to those questions and determine what, if any, impact it had on the judgment. The appellate court found that the trial court did not intend to imply that fewer questions would necessarily be harmless, but that on the record, the manner in which the trial was conducted significantly impaired the mother’s ability to present the issue on appeal and show its impact on the judgment. The appellate court concluded that the mother was entitled to a new trial. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.


The appellate court concluded that since the trial court’s temporary injunction did not satisfy the requirements of Rule 683 of the Texas Rules of Civil Procedure, it was void.
Caniglio v. Woods
Appellate: Civil, Contracts, Damages, Procedure, Real Property, Torts
Texas 6th Court of Appeals
December 18, 2019
06-19-00080-CV
Scott E. Stevens
Published
The defendant appealed the judgment of the trial court which granted a temporary injunction enjoining the defendant from interfering with his rights under the farm lease agreement. On appeal, the plaintiff argued that the defendant’s continued use of the property would result in loss of income to the plaintiff and cause him to spend substantial sums of money for breach of contract. The defendant maintained that the plaintiff failed to demonstrate the element of irreparable harm. The appellate court noted that while the order stated that the plaintiff would be unable to use the property, it contained no explanation as to why any resulting harm from the plaintiff’s inability to use the property was irreparable such that it could not be compensated with money damages against the defendant. The appellate court found that since the order did not show the facts the trial court relied on, the finding of irreparable harm was improperly conclusory. The appellate court concluded that since the trial court’s temporary injunction did not satisfy the requirements of Rule 683 of the Texas Rules of Civil Procedure, it was void. Accordingly, the judgment of the trial court was vacated and remanded.


The appellate court concluded that it was reasonably assured that any error in admitting the mother’s outcry testimony did not influence the jury’s verdict or had but a slight effect.
Waldrep v. State
Criminal, Evidence, Procedure
Texas 8th Court of Appeals
December 17, 2019
08-19-00027-CR
Jeff Alley
Published
The defendant appealed the judgment of the trial court which convicted him of one count of continuous sexual abuse of a child under 14 years of age and sentenced to 99 years in prison. On appeal, the defendant found it significant that the State did not present any corroborating evidence at the Article 38.072 hearing. The appellate court noted that the trial court did not abuse its discretion in concluding that the victim sufficiently described the alleged offense to her mother within the meaning of Article 38.072 of the Texas Code of Criminal Procedure. The appellate court found that the State presented the testimony of several witnesses who testified, without objection, that the victim had made similar outcries to them. The appellate court concluded that it was reasonably assured that any error in admitting the mother’s outcry testimony did not influence the jury’s verdict or had but a slight effect. Accordingly, the judgment of the trial court was affirmed.            


The evidence of the mother’s unlawful conduct in the case rebutted the presumption in favor of joint managing conservatorship and amply supported the trial court’s determination that appointing the father sole managing conservator was in best interest.
Jardon v. Pfister
Appellate: Civil, Family, Juvenile, Procedure
Texas 8th Court of Appeals
December 17, 2019
08-17-00183-CV
Gina M. Palafox
Published
The mother appealed the judgment of the trial court which entered a final decree of divorce between the mother and the father. The appellate court noted that the sanction in the case was limited to prohibiting the mother from offering evidence or documents she failed to produce and that sanction was authorized by both Rule 193.6 and Rule 215. The appellate court found that the mother had not demonstrated that the trial court’s order complying with those rules constituted an abuse of discretion, and the mother did not identify anywhere in the record that she attempted to introduce any evidence that was excluded based on the sanctions order. The appellate court concluded that the evidence of the mother’s unlawful conduct in the case rebutted the presumption in favor of joint managing conservatorship and amply supported the trial court’s determination that appointing the father sole managing conservator was in best interest. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.


There was no factual basis in the record to support a determination that the defendant could pay the attorney’s fees.
Kuykendall v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 17, 2019
01-18-00930-CR
Russell Lloyd
Published
The defendant appealed the judgment of the trial court which convicted him of two counts of the third-degree felony offense of failure to appear. On appeal, the defendant challenged the trial court’s sentence to ten years’ confinement on each count, with the sentences to run concurrently. The appellate court noted that because the defendant may be convicted of only one failure-to-appear case for his failure to appear at a single court setting on a two-count indictment for which he had been released from confinement, a double jeopardy violation was apparent on the face of the record. The appellate court found that the defendant was sentenced to the same sentence of ten years’ confinement on each count, with the sentences to run concurrently. The appellate court concluded that there was no factual basis in the record to support a determination that the defendant could pay the attorney’s fees. Accordingly, the judgment of the trial court was vacated and affirmed.    


The undisputed jurisdictional evidence sufficiently established the existence of a special defect for which the Texas Tort Claims Act’s waiver provision was invoked.
City of Elpaso v. Lopez
Appellate: Civil, Damages, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
December 16, 2019
08-19-00056-CV
Yvonne T. Rodriguez
Published
The City appealed the judgment of the trial court which denied its plea to the jurisdiction in a suit brought against the City for the wrongful death of the deceased. The appellate court believed the connection was made between the City’s alleged ownership and control of the road and the factors identified as contributing to the deceased’s death. The appellate court found that after the report was issued, the City exercised its control over the road to remediate the hazard identified in the STI report by installing warning signs, barricades, and lighting. The appellate court further found that the fact that the City’s remediating actions mirrored the contributing factors identified in the STI’s report, clearly demonstrated an actual anticipation of a claim as alleged by the plaintiffs, and thus, the City had “actual notice” under Section 101.101(c) of the Texas Tort Claims Act as that phrase was interpreted by the Texas Supreme Court, and that “notice of a claim” under Sections 101.101(a) and (b) were not required. The appellate court concluded that the undisputed jurisdictional evidence sufficiently established the existence of a special defect for which the Act’s waiver provision was invoked. Accordingly, the judgment of the trial court was affirmed.  


The trial court’s jury charge tracked the language of the proper charge and contained all the required elements for a premises defect claim against the Texas Department of Transportation
Tex. Dep't of Transp. v. Padron
Damages, Family, Gov't/Administrative, Torts
Texas 6th Court of Appeals
December 13, 2019
06-19-00010-CV
Josh Morriss, III
Published
A Travis County jury awarded $5,232,994 in damages for premises liability claims brought by the three appellees against the Texas Department of Transportation (TxDOT). The appellate Court found that TxDOT's evidence failed to demonstrate that there was an unreasonable risk of harm. The appellate Court noted that the undisputed evidence showed that the friction coefficient was within the safe range for both wet and dry weather, that there was no evidence of an uneven coefficient of friction at the accident site, that the photographs relied on by the experts were miles from the Martinez accident site and only showed “moderate” flushing, and that there was no evidence that the other accidents occurring on the same day were the result of flushing or a low coefficient of friction. Further, TxDOT’s proposed jury instructions sought to narrow the inquiry by asking the jury only if the amount of friction provided by the road surface at the time and place of the accident posed an unreasonable risk of harm. TxDOT also argued that the appellees failed to obtain required jury findings because the jury charge did not define the unreasonably dangerous condition. However, the Court found nothing that required the trial court to limit the jury charge in the manner requested by TxDOT. Pursuant to State v. Williams, the trial court’s jury charge tracked the language of the proper charge and contained all the required elements for a premises defect claim against TxDOT. Because the Court found that the appellees secured all required jury findings, the trial court's judgment was affirmed.  


The addition of the claim for shareholder inspection to the appellee’s Fifth Amended Petition was not based on, related to, or made in response to the appellants exercise of the right to petition and, thus, correctly denied
Chandni I, Inc. v. Patel
Corporations, Gov't/Administrative, Securities
Texas 8th Court of Appeals
December 13, 2019
08-18-00107-CV
Yvonne T. Rodriguez
Published
The following case involved an interlocutory appeal from the trial court’s denial of the appellant's motion to dismiss under the Texas Citizens Participation Act (TCPA). The appeal arose out of a shareholder derivative suit brought by the appellee against the managers and directors of the corporation, a corporation that owned and managed a Quality Inn & Suites in El Paso, Texas. The appellants filed a motion to dismiss under the Texas Citizens Participation Act, asserting that the claims for fraud, theft, and shareholder inspection were made in response to their exercise of freedom of speech, association, and petition. The appellate Court found that it was a denial of a demand for shareholder inspection. Accordingly, the addition of the claim for shareholder inspection to the appellee’s Fifth Amended Petition was not based on, related to, or made in response to the appellants exercise of the right to petition. The trial court did not err in denying the appellants motion to dismiss the shareholder inspection claim. Because the Court had concluded that the appellants had not met their burden to show their TCPA motion to dismiss the fraud and theft claims was timely filed, and that the appellants motion to dismiss the shareholder inspection claim was not based on the exercise of the right to petition, the Court did not need to address the appellants contentions regarding whether the appellee had established a prima facie case or whether the appellants met their burden of proof in establishing a valid defense to the appellee’s prima facie case. Because the Court had determined the trial court did not err in denying the appellants motions to dismiss under the TCPA, the appellants were not entitled to costs, attorney’s fees, or expenses. Accordingly, the trial court judgment was affirmed.  


The court of appeals erred in refusing to review the trial court’s denial of the petitioner’s no-evidence motion for summary judgment challenging jurisdiction on the basis of governmental immunity
Town of Shady Shores v. Swanson
Appellate: Civil, Contracts, Damages, Employment, Gov't/Administrative, Torts
The Supreme Court of Texas
December 13, 2019
18-0413
Debra Lehrmann
Published
The following suit stemmed from an employment dispute between the petitioner town and its former town secretary, the respondent. During a February 27, 2014 town-council meeting, the council voted to terminate the respondent’s employment. The respondent sued the petitioner, initially alleging that she was wrongfully terminated in retaliation for refusing to destroy a recording of a petitioner investment-committee meeting, reporting that members of the committee had destroyed the recording after she refused to do so and reported violations of the Texas Open Meetings Act and Texas Public Information Act. The trial court granted the petitioner’s plea to the jurisdiction and dismissed the Whistleblower Act and Sabine Pilot claims. In separate orders, the trial court denied the petitioner’s traditional and no-evidence motions for summary judgment. The petitioner appealed the summary judgment orders. The court of appeals affirmed in part and reversed in part. The Texas Supreme Court held that when a challenge to jurisdiction that implicated the merits was properly made and supported, whether by a plea to the jurisdiction or by a traditional or no-evidence motion for summary judgment, the plaintiff was required to present sufficient evidence on the merits of her claims to create a genuine issue of material fact. Thus, the court of appeals erred in refusing to review the trial court’s denial of the petitioner’s no-evidence motion for summary judgment challenging jurisdiction on the basis of governmental immunity. Further, because the Open Meetings Act did not waive governmental immunity from suit for Uniform Declaratory Judgments Act claims as a matter of law, the petitioner was entitled to summary judgment on all of the respondent’s claims for declaratory relief. Lastly, because of the Court's conclusion about the respondent’s pleadings, the court of appeals did not address the substance of the petitioner’s arguments. Accordingly, the Court reversed and remanded.


The appellants failed to show the motion to dismiss the theft claim under the Texas Citizens Participation Act was timely, as the essential factual allegations as to the claim were present in a prior petition
Chandni, Inc., v. Patel
Corporations, Procedure, Securities, Torts
Texas 8th Court of Appeals
December 13, 2019
08-18-00108-CV
Yvonne T. Rodriguez
Published
The following case involved an interlocutory appeal from the trial court’s denial of the appellants’ motion to dismiss under the Texas Citizens Participation Act (TCPA). The appellate Court observed that because additional factual details in a subsequent petition did not reset the TCPA clock if the essential factual allegations as to the claim were present in the prior petition, the appellants failed to show the motion to dismiss the theft claim under the TCPA was timely. Further, because the same essential factual allegations were asserted regarding the appellants’ alleged conspiracy and aiding and abetting that were previously asserted in the Third Amended Petition, the appellants failed to show the motion to dismiss the civil conspiracy claim under the TCPA was timely. Next, because no new claims were added in the Fourth Amended Petition against the appellants and the claim asserted relied upon the same factual allegations the Third Amended Petition, the 60-day deadline was not reset as to the fraud claim and the appellants’ motion to dismiss was untimely. Finally, the trial court did not err in denying the appellants’ motion to dismiss the shareholder inspection claim. Accordingly, the judgment of the trial court was affirmed.


The appellant’s notice of appeal was timely filed, as the first memorandum order by the trial court modifying possession and child support was not intended to be the final order
In re R.R.K.
Family, Gov't/Administrative, Juvenile, Procedure
The Supreme Court of Texas
December 13, 2019
18-0273
Jane N. Bland
Published
In the following case, the appellate Court decided the trial court's first memorandum order modifying possession and child support was final and appealable, which rendered the trial court’s second later order void, and the appellant mother’s appeal from the second order untimely. Relying on a Mother Hubbard clause, the appellate Court held that the memorandum order was the final order, and it dismissed the appellant’s appeal for lack of jurisdiction. The Texas Supreme Court observed that the memorandum order lacked “clear and unequivocal” indicia of finality, requiring an examination of the record to determine the trial court’s intent. The record in the case demonstrated that neither the trial court nor the parties intended the memorandum to be the final order. Thus, because the trial court’s later “Order in Suit to Modify Parent-Child Relationship” was the appealable order, the appellant’s notice of appeal was timely filed. Accordingly, the Court reversed and remanded to the appellate court for consideration of the merits of the appellant’s appeal.


The State was obligated to perfect its appeal within twenty days of May 14, 2018, as those fact findings and legal conclusions met the criteria for being a written order under the Texas Code of Criminal Procedure
State v. Janssen
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
December 12, 2019
07-19-00148-CR
Brian Quinn
Published
The following appeal was by the State from an order granting and denying, in part, a motion to suppress evidence filed by the appellee. The evidence in question involved controlled substances and drug paraphernalia. The appellee moved to suppress it because of purported violations of his constitutional rights against unreasonable searches and seizures. The appellate Court observed that that the May 14, 2018, fact findings and legal conclusions met the criteria for being a written order or ruling for purposes of article 44.01(a) and (d) of the Texas Code of Criminal Procedure. Thus, the State was obligated to perfect its appeal within twenty days of May 14th. It did not, thus, the Court lacked jurisdiction to consider its complaint regarding the search of the Hyundai and suppression of evidence found during it. Further, the first drug sale in March provided the initial piece of foundation. Over the ensuing months, additional pieces were laid to form the foundation request for and issuance of the search warrant hours after the appellee’s arrest. In so viewing the events expressed in the affidavit sequentially, the magistrate and the Court could see how the information therein was not stale. Evidence of ongoing criminal activity generally defeats a claim of staleness. Accordingly, the judgment was affirmed, reversed and remanded.


The appellant met its initial burden to evidence an agreement to arbitrate, and the agreement was not procedurally unconscionable
APC Home Health Servs., Inc. v. Martinez
ADR, Appellate: Civil, Contracts, Damages, Employment, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
Texas 8th Court of Appeals
December 12, 2019
08-18-00171-CV
Ann Crawford McClure
Published
The appellee filed suit against the appellant company, alleging a common law negligence cause of action. The appellant was a non-subscriber under the Texas worker’s compensation system. The appellant answered and then moved to compel arbitration. The following was an interlocutory appeal from the denial of a motion to compel arbitration. The trial court denied the motion without saying why. The appellate Court observed that the appellant's first issue on appeal generally claimed that the trial court erred in not granting its motion to compel arbitration. The Appellate Court agreed, reasoning the appellant met its initial burden to evidence an agreement to arbitrate in two ways. First, it presented the agreement supported by the affidavit of its records custodian. Second, when the appellee requested the original document as the best evidence of the contract, the appellant was prepared to present at the hearing a witness who would confirm the execution of the agreement by appellee. The Court also rejected the appellee's claim that the arbitration agreement was procedurally unconscionable. The Court noted that the appellee did not allege she failed to understand the document or that she signed it, only that it was misrepresented to her that the arbitration agreement was misrepresented as "routine" paperwork. This would not support a claim of procedural unconscionability. Accordingly, the Court reversed and remanded with instructions.        


The trial court's take-nothing verdict on the appellee lawyer's claim for fees was appropriately entered, as the verdict was not contrary to the greater weight and preponderance of the evidence admitted in the trial
Webb v. Crawley
Contracts, Damages, Employment, Litigation: Personal Injury, Torts
Texas 9th Court of Appeals
December 12, 2019
09-17-00498-CV
Hollis Horton III
Published
The subject appeal arose following a trial that resulted in a take-nothing verdict on a lawyer’s suit to collect a fee and the client’s resulting counterclaims for malpractice and the alleged breaches of their fiduciary duties. Both parties appealed. The lawyer complained the evidence showed he had the right to recover on his claim for unpaid fees. The appellate Court determined that the trial court's take-nothing verdict on the appellee lawyer's claim for fees was appropriately entered, as the verdict was not contrary to the greater weight and preponderance of the evidence admitted in the trial. The Court pointed to several instances where factual issues existed as to whether fees charged were reasonable, including another lawyer’s testimony that she did not perform some of the work the appellee lawyer claimed she did for him on behalf of the appellant client. Moreover, the appellate Court found that the appellant's malpractice counterclaim against the appellee lawyer was time-barred. The Court reasoned that even with the benefit of the Hughes Rule, the appellant could not wait more than two years after February 11, 2015, to sue the appellee and his firm for malpractice. But the appellant waited until February 26, 2017 to file her counterclaim, and by then, limitations barred her claim. Thus, appellant's arguments suggesting the Hughes Rule saved her malpractice claims lacked merit. The appellate Court found that the trial court’s judgment on all claims reflected a reasonable resolution of the dispute based on the evidence admitted in the trial, and neither party established a right to prevail on their claims as a matter of law. Accordingly, the trial court’s judgment was affirmed.


The record evidence did not permit a reasonable fact finder to form a firm belief or conviction that termination of the appellant father’s parental rights would be in the child’s best interest
In re C.V.L.
Appellate: Civil, Family, Gov't/Administrative, Juvenile
Texas 5th Court of Appeals
December 13, 2019
05-19-00506-CV
Robbie Partida-Kipness
Published
The appellant father challenged the trial court’s decree terminating his parental rights to his daughter. The appellant argued the evidence was legally and factually insufficient to support termination of his parental rights under sections 161.001(b)(1)(D) and 161.001(b)(1)(E) of the Texas Family Code and (2) to support the trial court’s finding that termination was in the child’s best interest. The appellate Court found that in light of the constitutional concerns related to parental termination, clear instructions from the trial court to strictly scrutinize termination proceedings, and strictly construed involuntary-termination statutes, the strong presumption that preservation of the parent–child relationship was in the child’s best interest, the absence of evidence that the appellant would not meet his child’s needs, and the Court's obligation under a factual-sufficiency review to consider all evidence, the Court concluded that the record evidence did not permit a reasonable fact finder to form a firm belief or conviction that termination of the appellant father’s parental rights would be in the child’s best interest. The Court therefore sustained the appellant’s issue that the evidence was factually insufficient to support a finding that termination was in his child’s best interest. The Court noted that there was no evidence or suggestion in the record that the appellant engaged in assaultive conduct or ever intentionally placed the child in danger. Moreover, there was no evidence or suggestion in the record that the appellant ever used drugs in the presence of the child or allowed the child to be in a location where drugs were present. Accordingly, the Court reversed the trial court’s decree of termination that terminated the appellant’s parental rights to the daughter, reversed that portion of the decree appointing the Department as the permanent managing conservator of the daughter, and remanded the case to the trial court for a new trial to commence no later than 180 days after the mandate was issued by the Court. 


Nothing in the record suggested the evidence gathered in connection with the unadjudicated cases, even if exculpatory as to those offenses, would have prevented appellant's conviction in the case in which he plead guilty
Holland v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
December 13, 2019
05-19-00272-CR
Cory L Carlyle
Published
The appellant was indicted and charged with aggravated sexual assault in three separate cases, based on offenses committed against separate victims. Faced with the possibility of multiple convictions that could lead to consecutive sentences, the appellant agreed to a plea deal in which he would plead guilty to one of the offenses while admitting his guilt as to the other two, with the understanding that although those unadjudicated offenses would be considered in determining his sentence for the offense to which he pleaded guilty, he would not be prosecuted for the other two offenses. The trial court accepted the appellant’s guilty plea, and after considering the two unadjudicated offenses, sentenced him to 40 years in prison. The charges in the unadjudicated cases were then dismissed. Appellant alleged that, years later, he discovered there was physical evidence collected during the investigations into the unadjudicated offenses. He thus filed motions under Chapter 64 of the Texas Code of Criminal Procedure in both of the unadjudicated cases, asserting there was a substantial likelihood DNA testing would show he did not commit the offenses charged in those cases. He did not, however, file a motion in the case in which he was convicted. The appellate Court reviewed the question of law de novo, and noted it was bound by the language of the statute. Chapter 64 did not provide for DNA testing merely because the evidence at issue might have affected an applicant’s decision to plead guilty, the length of his sentence, or the items included in the judgment of his conviction. A convicting court could order forensic DNA testing only if, among other things, identity was an issue in the case; and the convicted person established by a preponderance of the evidence that the person would not had been convicted if exculpatory results had been obtained through DNA testing. Further, nothing in the record suggested the evidence gathered in connection with the unadjudicated cases, even if exculpatory as to those offenses, would have prevented appellant's conviction in the case in which he entered the guilty plea. Accordingly, the judgment was affirmed.


The trial court’s jury charge tracked the language of the proper charge and contained all the required elements for a premises defect claim against the Texas Department of Transportation
Tex. Dep't of Transp. v. Padron
Damages, Family, Gov't/Administrative, Torts
Texas 6th Court of Appeals
December 13, 2019
06-19-00010-CV
Josh Morriss, III
Published
A Travis County jury awarded $5,232,994 in damages for premises liability claims brought by the three appellees against the Texas Department of Transportation (TxDOT). The appellate Court found that TxDOT's evidence failed to demonstrate that there was an unreasonable risk of harm. The appellate Court noted that the undisputed evidence showed that the friction coefficient was within the safe range for both wet and dry weather, that there was no evidence of an uneven coefficient of friction at the accident site, that the photographs relied on by the experts were miles from the Martinez accident site and only showed “moderate” flushing, and that there was no evidence that the other accidents occurring on the same day were the result of flushing or a low coefficient of friction. Further, TxDOT’s proposed jury instructions sought to narrow the inquiry by asking the jury only if the amount of friction provided by the road surface at the time and place of the accident posed an unreasonable risk of harm. TxDOT also argued that the appellees failed to obtain required jury findings because the jury charge did not define the unreasonably dangerous condition. However, the Court found nothing that required the trial court to limit the jury charge in the manner requested by TxDOT. Pursuant to State v. Williams, the trial court’s jury charge tracked the language of the proper charge and contained all the required elements for a premises defect claim against TxDOT. Because the Court found that the appellees secured all required jury findings, the trial court's judgment was affirmed.  


The State was obligated to perfect its appeal within twenty days of May 14, 2018, as those fact findings and legal conclusions met the criteria for being a written order under the Texas Code of Criminal Procedure
State v. Janssen
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
December 12, 2019
07-19-00148-CR
Brian Quinn
Published
The following appeal was by the State from an order granting and denying, in part, a motion to suppress evidence filed by the appellee. The evidence in question involved controlled substances and drug paraphernalia. The appellee moved to suppress it because of purported violations of his constitutional rights against unreasonable searches and seizures. The appellate Court observed that that the May 14, 2018, fact findings and legal conclusions met the criteria for being a written order or ruling for purposes of article 44.01(a) and (d) of the Texas Code of Criminal Procedure. Thus, the State was obligated to perfect its appeal within twenty days of May 14th. It did not, thus, the Court lacked jurisdiction to consider its complaint regarding the search of the Hyundai and suppression of evidence found during it. Further, the first drug sale in March provided the initial piece of foundation. Over the ensuing months, additional pieces were laid to form the foundation request for and issuance of the search warrant hours after the appellee’s arrest. In so viewing the events expressed in the affidavit sequentially, the magistrate and the Court could see how the information therein was not stale. Evidence of ongoing criminal activity generally defeats a claim of staleness. Accordingly, the judgment was affirmed, reversed and remanded.


The appellant was precluded from bringing an ineffective assistance of counsel claim against her attorney in a proceeding involving her child, as she did not accept court-appointed counsel and retained her own counsel
In re D.T.
Appellate: Civil, Family, Gov't/Administrative, Juvenile
Texas 6th Court of Appeals
December 13, 2019
06-19-00064-CV
Ralph Burgess
Published
The Texas Department of Family and Protective Services (Department) filed a petition to terminate the individual's parental rights to her child, on the grounds that she had knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered his physical or emotional well-being, engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered his physical or emotional well-being, and failed to comply with the provisions of the trial court order that specifically established the actions necessary for her to obtain child’s return after he had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of his removal for abuse or neglect. The appellate Court found that the appellant failed to preserve her point of error regarding the legal and factual sufficiency. In order to perserve the issue, the appellant had to raise the error in one of the following, which she failed to do: (1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict (JNOV); (3) an objection to the submission of the question to the jury; (4) a motion to disregard the jury's answer to a vital fact question; or (5) a motion for new trial. Further, the appellant was precluded from bringing an ineffective assistance of counsel claim, as she did not accept court-appointed counsel and retained her own counsel. Because the individual’s counsel was retained, the Court overruled her last point of error alleging ineffective assistance. Accordingly, the trial court's judgment was affirmed.


Because the deed restriction amendments contravened the statutory management authority granted to the appellee’s board of directors, they were not authorized by law and, therefore, illegal
Roddy v. Holly Lake Ranch Ass'n, Inc.
Business, Contracts, Real Property
Texas 12th Court of Appeals
December 11, 2019
12-18-00261-CV
Brian Hoyle
Published
The appellee company filed the following suit on August 30, 2017, seeking a declaratory judgment that the amendments done to deed restrictions of a certain subdivision were void. It further alleged breach of contract and sought monetary relief, injunctive relief, and attorney’s fees. Thereafter, it filed a traditional motion for summary judgment, to which the appellants responded. The appellants appealed the trial court’s declaratory summary judgment and award of attorney’s fees rendered in favor of the appellee company. The appellate Court observed that because the amendments contravened the statutory management authority granted to the appellee’s board of directors in accordance with Tex. Bus. Org. Code Ann. Section 22.202(a), they were not authorized by law and, therefore, illegal. Because they were illegal, those amendments were void. Further, even assuming arguendo that a motion to abate filed more than three months after an answer was timely, the appellants’ motion to abate made no reference to the notice provisions of Section 209.006(a). Therefore, the Court concluded that the appellants waived the notice requirement of Section 209.006(a), if applicable. Next, the allegations underlying the appellee’s declaratory judgment action were not part and parcel to its breach of contract cause of action against the appellants; therefore, its recovery of attorney’s fees was not impermissible on the basis. Finally, because the Court's disposition of the case substantially affected the trial court’s judgment, a partial remand was warranted so that the trial court could address whether the reasonable and necessary attorney’s fees it awarded to the appellee still were equitable and just in accordance with the judgment rendered by the Court. Accordingly, the judgment was reversed and rendered in part, remanded in part, and affirmed in part.


Because appellant had at least two prior felonies, and the possession of at least two separate firearms in two separate locations, each felon-in-possession conviction was wholly independent of the other
Dorsey v. Texas
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 12, 2019
01-18-00520-CR
Peter Kelly
Published
A grand jury indicted the appellant for possession of a controlled substance, methadone, with intent to deliver and two violations of the statute barring felons from possessing firearms. After the trial court denied the appellant's motion to suppress certain evidence, the appellant pleaded guilty to all three charges. The appellant contended that the trial court erred in denying his motion to suppress the evidence law enforcement officers found in the search of his home. He argues that the victim's identification of him as the shooter was the sole basis for probable cause underlying the search warrant and that the identification procedure used by the officers was impermissibly suggestive in violation of his right to due process. The appellate Court found that viewing the evidence in the light most favorable to the trial court’s decision and deferring to its implied findings of historical fact, the Court held that the trial court did not err in denying the appellant's motion to suppress the evidence. Further, because the appellant's particular circumstances included at least two separate prior felonies, and the possession of at least two separate firearms in two separate locations, each felon-in-possession conviction was wholly independent of the other. Thus, double jeopardy could not attach. Accordingly, the Court affirmed the trial court’s judgments of conviction.


Because the corporation had the contractual right to terminate the purchase and sales agreement based upon breaches by appellants, any conduct by appellees to induce the termination did not constitute tortious interference
Lance Duncan & Mark IV Energy Holdings, LLC v. Hindy
Banking and Finance, Business, Contracts, Torts
Texas 11th Court of Appeals
December 12, 2019
11-17-00283-CV
John M. Bailey
Published
The following appeal arose from a business dispute concerning a large financial investment in oil and gas properties. The case involved multiple written agreements executed by the parties as well as litigation between the parties in multiple counties over a period of time. The trial court granted summary judgment in favor of the appellees on all of the appellants' claims. The appellants filed the suit asserting numerous causes of action. The appellate Court examined the second element of the appellants' tortious interference claim to determine whether the appellees conclusively established that the appellees did not willfully and intentionally interfere with the purchase and sale agreement between the parties. The Court found that even if it accepted the appellants' alleged inference that the appellees induced the corporation individual appellant's corporate entity to terminate the purchase and sale agreement (PSA), the appellants would not have a cause of action against the appellees for tortious interference with an existing contract if the appellees merely induced the corporation into doing what it had a contractual right to do. The corporation sent a written notification to the appellant company that it was terminating the purchase and sale agreement (PSA) pursuant to Paragraphs 15.1(a)(III) and 9.2 of the PSA. Because the corporation had the contractual right to terminate the PSA based upon the breaches, any conduct by the appellees to induce the termination did not constitute tortious interference with an existing contract. Finally, the trial court did not err when it granted the appellees traditional motion for summary judgment as to the appellants tortious-interference-with-a-contract claim. Accordingly, the trial court's judgment was affirmed.    


Because the full record was not filed in the first case, the Court did not receive the full information it needed to grant appellant's requests for relief on limitations, the discovery rule, and fraudulent concealment
Cody Tex., L.P. v. BPL Exploration, Ltd.
Corporations, Procedure, Torts
Texas 4th Court of Appeals
December 11, 2019
04-17-00810-CV
Beth Watkins
Published
The appellant filed a bill of review petition in the trial court. In that petition, the appellant argued its failure to timely file a notice of appeal after the trial on the merits was the result of official mistake unmixed with its own negligence. It also alleged it had three meritorious grounds to appeal the trial court’s May 31, 2013, final judgment. The appellant appealed a November 15, 2017, final judgment in favor of the appellee company. The trial court signed that judgment on remand after the Court reversed the trial court’s denial of the appellant’s petition for bill of review. The appellate Court found that because the full record was not filed in the first case, the Court did not receive the full information it needed to grant appellant's requests for relief on limitations, the discovery rule, and fraudulent concealment. The Court observed that it could not agree with the appellant’s assertion that its “matter of law” argument relieved it of its duty to present the entire record of the trial in the prior case. The Court noted that its holding was a recognition that the trial court correctly denied appellant's petition for bill of review, and that the subsequent proceedings, including the trial court's post-remand final judgment, never should have occurred. Thus, because the Court had overruled the opinion that led to proceedings, the Court also held that the trial court’s November 15, 2017, final judgment including the portion setting aside the trial court’s previous May 31, 2013, final judgment had to be vacated. Under the extraordinary circumstances of the case, the Court concluded that the result was acceptable in equity. Accordingly, the Court vacated the trial court’s November 15, 2017, final judgment and rendered judgment denying the appellant’s petition for bill of review.


The defendant was not required to lodge a contemporaneous objection to a void sentence, and such a remedy was that the defendant was entitled to a new punishment hearing.
Blue v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 10, 2019
14-18-00683-CR
Tracy Christopher
Published
The defendant appealed the judgment of the trial court which convicted her of possession of a controlled substance. On appeal, the defendant argued that the trial court improperly denied her motion to suppress. The appellate court noted that even if the evidence were true, the trial court was not required to conclude from such facts that defendant’s will was so overborne and her capacity for self-determination so critically impaired that her consent to search must have been involuntary. The appellate court found that the trial court assessed the defendant’s punishment at thirty years’ imprisonment. The appellate court concluded that the defendant was not required to lodge a contemporaneous objection to a void sentence, and such a remedy was that the defendant was entitled to a new punishment hearing. Accordingly, the judgment of the trial court was reversed and remanded.


The failure to contact Cherokee officials to ascertain the child’s potential Indian child status and the failure to use the beyond a reasonable doubt standard here were both errors by the trial court.
In re S.J.H.
Appellate: Civil, Family, Juvenile, Procedure, Tribal
Texas 8th Court of Appeals
December 09, 2019
08-19-00182-CV
Yvonne T. Rodriguez
Published
The mother appealed the judgment of the trial court which involuntarily terminated her parental rights in a case implicating the Indian Child Welfare Act (ICWA). On appeal, the mother challenged the termination order of the trial court. The appellate court noted that the trial court erred by applying the clear and convincing evidence standard in the mother’s termination. The appellate court found that the ICWA procedures required notification to Cherokee officials so that the tribe could send a representative to participate and possibly argue for an Indian Child Welfare Act custody placement for the child. The appellate court concluded that the failure to contact Cherokee officials to ascertain the child’s potential Indian child status and the failure to use the beyond a reasonable doubt standard here were both errors by the trial court. Accordingly, the judgment of the trial court was reversed and remanded.


The appellate court concluded that the petitioner presented no other argument to reverse the judgment in favor of the respondent.
Summit Global Contractors, Inc. v. Enbridge Energy, L.P. & Enbridge Gathering (N. Tex.) L.P.
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 14th Court of Appeals
December 10, 2019
14-18-00052-CV
Frances Bourliot
Published
The petitioner appealed the judgment of the trial court which ruled in favor of the respondent in a breach of contract and quantum meruit suit. On appeal, the petitioner challenged the sufficiency of the evidence in support of the trial court’s findings and the conclusion regarding the quantum meruit claim. The appellate court noted that considering the conflicting evidence presented at trial and deferring to the trial court as factfinder as the court must, the petitioner did not establish as a matter of law that the respondent’s failure to make an advanced payment on time caused damages to the petitioner. The appellate court found that the petitioner had not conclusively demonstrated that the respondent delayed the project by negotiating with the pipe supplier. The appellate court concluded that the petitioner presented no other argument to reverse the judgment in favor of the respondent. Accordingly, the judgment of the trial court was affirmed.


Since the officer did not violate section 33.02 of the Texas Penal Code, the defendant failed to prove the evidence should have been excluded under article 38.23 of the Texas Code of Criminal Procedure.
Oseguera-Viera v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 10, 2019
01-18-00459-CR
Peter Kelly
Published
The defendant appealed the judgment of the trial court which convicted him of attempted possession of child pornography after his motion to suppress evidence was denied. On appeal, the defendant argued that the trial court erred in denying his dispositive motion to suppress. The appellate court noted that the trial court did not abuse its discretion in denying the defendant’s motion to suppress the evidence obtained as a result of the officer’s attempt to identify the phone’s owner. The appellate court found that because the officer did not violate section 33.02 of the Texas Penal Code, the defendant failed to prove the evidence should have been excluded under article 38.23 of the Texas Code of Criminal Procedure. Accordingly, the judgment of the trial court was affirmed.


The trial court did not abuse its discretion in admitting the extraneous-offense evidence.
Price v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
December 09, 2019
06-19-00118-CR
Ralph Burgess
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of the victim, a child, and sentenced him to life imprisonment. On appeal, the defendant challenged the trial court’s conviction and sentence. The appellate court noted that because the defendant failed to specifically identify any other venire members he wished to strike, the record failed to show that the defendant was forced to accept an objectional juror. The appellate court found that as a result, error was not preserved, and the trial court, after balancing the Rule 403 factors, could have reasonably concluded that the probative value of the extraneous-offense evidence was not substantially outweighed by the danger of unfair prejudice and the other factors in the rule. The appellate court concluded that the trial court did not abuse its discretion in admitting the extraneous-offense evidence. Accordingly, the judgment of the trial court was affirmed. 


After examining the summary judgment record in the light most favorable to the petitioners, indulging every reasonable inference and resolving any doubts against the respondent, the fact issues were presented as to the statutory requirements of section 95.003.
Barfield v. Sandridge Energy, Inc.
Appellate: Civil, Litigation: Personal Injury, Procedure, Real Property, Torts
Texas 8th Court of Appeals
December 06, 2019
08-17-00059-CV
Gina M. Palafox
Published
The petitioners appealed the judgment of the trial court which granted summary judgment in favor of the respondent in a suit based on premises liability. On appeal, the petitioner alleged that he was electrocuted while working for an independent contractor on an improvement located on property owned and controlled by the respondent. The appellate court noted that there existed a question of fact on whether the respondent retained “some control” over the manner of the petitioner’s work at the time he was injured as required to satisfy the first prong of Tex. Civ. Prac. & Rem. Code Ann. section 95.003. The appellate court found that the respondent never asserted an absence of knowledge of the condition or a lack of awareness of the danger it posed. The appellate court concluded that after examining the summary judgment record in the light most favorable to the petitioners, indulging every reasonable inference and resolving any doubts against the respondent, the fact issues were presented as to the statutory requirements of section 95.003. Accordingly, the judgment of the trial court was reversed and remanded.


Under both the no-evidence and traditional summary-judgment standards, the appellants’ evidence raised a triable question of fact as to the existence of a conspiracy
IPIC-GOLD Class Entm't, LLC v. AMC Entm't Holdings, Inc.
Antitrust, Appellate: Civil, Corporations, Damages, Procedure, Torts
Texas 1st Court of Appeals
December 05, 2019
01-17-00805-CV
Peter Kelly
Published
The following was an appeal from summary judgment in an antitrust case. The appellant companies alleged that the appellee companies and the cinema conspired with each other and with third parties to exclude them from exhibiting popular films at two locations in Texas. The trial court granted a temporary restraining order in the appellants’ favor. The cinema settled with the appellants. The appellees moved for summary judgment on no-evidence and traditional grounds. The trial court granted final summary judgment in favor of the appellees. The appellate Court considered a plaintiff’s evidence of contract, combination, or conspiracy as a whole. The appellant was to be given the full benefit of their proof without tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each. Further, examining the appellants’ summary-judgment evidence as a whole, the Court concluded that the circumstantial evidence supported plus factors of motive, opportunity, actions against self-interest, a pretextual explanation for anticompetitive conduct, the sharing of information through Open Road, and other facts consistent with the existence of a traditional conspiracy. Thus, under both the no-evidence and traditional summary-judgment standards, the appellants’ evidence raised a triable question of fact as to the existence of a conspiracy.  The appellee's evidence that more than a dozen individuals who worked for AMC and the theater during the relevant time period denied talking to anyone from the other company about the appellant or clearances was not capable of being effectively countered by opposing evidence because the testimony did not refer to independently ascertainable facts. And, even if the testimony was capable of being effectively countered by opposing evidence, the credibility of these interested witnesses would be a dispositive factor. Therefore, the appellee did not meet its burden to conclusively prove that there was no contract, combination, or conspiracy. Accordingly, the Court reversed and remanded.


The permissive appeal was dismissed as improvidently granted, as it was not clear that the trial court applied the wrong legal test in deciding if the appellee was the appellant's employee at the time of the accident
El Paso Tool & Die Co., Inc. v. Mendez
Contracts, Employment, Litigation: Personal Injury, Torts
Texas 8th Court of Appeals
December 04, 2019
08-19-00087-CV
Jeff Alley
Published
The appellee lost all or parts of two fingers in an industrial accident on March 16, 2015. According to the allegations in his lawsuit, he was employed by the company at the time of the accident. He alleged that he was working as an independent contractor at the appellant’s facility. The appellant filed a motion for summary judgment. The trial court denied the appellant’s motion. The appellate Court concluded that the permissive appeal should be dismissed as improvidently granted for two reasons. First, it was not clear that the trial court applied the wrong legal test in deciding if the appellee was the appellant's employee at the time of the accident. Thus, the Court could not identify a controlling issue of law that governed the outcome of the appeal. Second, and somewhat related, the record contained disputed evidence over who controlled the details of the work that gave rise to the injury and the Court could not conclude the case could be resolved by applying an undisputed set of facts to the prevailing law. Accordingly, the permission to appeal was improvidently granted.


Legally and factually sufficient evidence supported the trial court’s finding that termination of the appellant's parental rights was in the best interest of the children
J.G. v. Tex. Dep't of Family & Protective Servs.
Family, Gov't/Administrative, Juvenile
Texas 3rd Court of Appeals
December 04, 2019
03-19-00447-CV
Edward Smith
Published
The appellant father appealed from a judgment terminating his parental rights to his children. The appellant, who was imprisoned throughout the case, challenged the denial of his motions for continuance and for issuance of a bench warrant to allow him to attend the trial in person. He also challenged the legal and factual sufficiency of the trial court’s findings that he committed several statutory grounds for termination and that termination was in the best interest of the children. The appellate Court found that having decided the appellant did not show he was entitled to a bench warrant, the Court concluded that the denial of his motion for a continuance was not an abuse of discretion. Further, reviewing the record under the applicable standards, the Court concluded legally and factually sufficient evidence supported the trial court’s finding that the appellant engaged in a course of conduct that endangered the physical and emotional well-being of the children and that subjected them to a dangerous home environment. Furthermore, reviewing the record under the appropriate standards of review and considering the relevant factors, the Court concluded that legally and factually sufficient evidence supported the trial court’s finding that termination was in the best interest of the children. The mother testified that Father physically abused her for ten years, sometimes in front of the children. The violence was constant and ceased only when he went to prison. The Department's caseworker, testified that Father was currently serving a prison sentence for the offense of felon in possession of a firearm. Father was a felon as result of a previous conviction for assaulting one of his older children (not involved in this case). Father did not address whether his conduct endangered the children or created a dangerous environment for them. Accordingly, the Court affirmed the trial court’s judgment.  


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.