The Texas Commission on Human Rights Act did not waive the petitioner's sovereign immunity from the suit, and the trial court therefore erred by not granting its plea to the jurisdiction.
Tex. Tech Univ. Health Sciences Ctr.-El Paso v. Flores
Appellate: Civil, Civil Rights, Employment, Evidence, Gov't/Administrative, Procedure
The Supreme Court of Texas
November 20, 2020
19-0790
Jeffrey S. Boyd
Published
The petitioner appealed the judgment of the trial court which denied the petitioner's plea to the jurisdiction, concluding that the respondent's evidence created fact issues on whether the President “replaced” the respondent with a younger worker and whether the President's stated reasons for reclassifying the respondent were pretexts for age discrimination. The Supreme Court found that as a long-time, executive-level employee at the petitioner, the respondent fully expected that the new university’s incoming president would make changes to his staff. The Supreme Court noted that the respondent was on the losing end of those changes simply did not justify an age-discrimination lawsuit. The Supreme Court concluded that the Texas Commission on Human Rights Act did not waive the petitioner's sovereign immunity from the suit, and the trial court therefore erred by not granting its plea to the jurisdiction. Accordingly, the judgment of the trial court was reversed. 

Since the petitioner relied on the appellate court's holding in the previous case that declaratory relief was available—when it was not—and Open Meetings Act and Chapter 252 afforded alternative relief to consider, rehearing was granted and the case and remanded in interest of justice.
Carowest Land, LTD. v. New Braunfels
Appellate: Civil, Gov't/Administrative, Procedure
The Supreme Court of Texas
November 20, 2020
18-0678
Per Curiam
Published
The City appealed the judgment of the trial court which awarded the petitioner declaratory relief and attorney's fees against the City for violations of the Open Meetings Act and the contract-bidding provisions of Local Government Code Chapter 252. On appeal, the City challenged the trial court's denial of the City’s jurisdictional plea based on governmental immunity. The Supreme Court found that because the petitioner relied on the appellate court's holding in the previous case that declaratory relief was available—when it was not—and Open Meetings Act and Chapter 252 afforded alternative relief to consider, rehearing was granted and the case and remanded in interest of justice. The Supreme Court granted the petitioner’s motion for rehearing, granted its petition, and, without hearing oral argument, vacated the appellate court's judgment and remanded the case to the trial court for further proceedings under Chapter 252 and the Open Meetings Act. Accordingly, the judgment of the trial court was reversed and remanded. 

The Supreme Court concluded that the appellate court correctly ruled that the evidence in the case did not show that a petitioner knew that he would cause a falling lead to injuring the respondent.
Berkel & Co. Contractors, Inc. v. Lee
Appellate: Civil, Employment, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
The Supreme Court of Texas
November 20, 2020
18-0309
Jane N. Bland
Published
The petitioner appealed the judgment of the trial court which ruled in favor of the respondent in a suit arising under the exception to the Workers' Compensation Act and confirmed that the substantial certainty test established in Reed Tool Co. v. Copelin and re-affirmed in Mo-Vac Service Co. v. Escobedo required that the defendant intend or know that its actions were substantially certain to injure a particular employee. The Supreme Court noted that the evidence in the case did not meet that level, and the court agreed with its conclusion. The Supreme Court found that under the intentional-injury exception to the Workers’ Compensation Act, the plaintiff must prove that the employer believed that its actions were substantially certain to injure the plaintiff. The Supreme Court concluded that the appellate court correctly ruled that the evidence in the case did not show that a petitioner knew that he would cause a falling lead to injuring the respondent. Accordingly, the judgment of the trial court was affirmed. 

Since a genuine issue of material fact existed as to whether the first petitioner breached a duty of care, the appellate court correctly reversed summary judgment on the respondent’s negligence claim against the first petitioner.
AEP Tex. Cent. Co. v. Arredondo
Appellate: Civil, Contracts, Damages, Employment, Evidence, Litigation: Personal Injury, Procedure, Real Property, Torts
The Supreme Court of Texas
November 20, 2020
19-0045
Debra Ann H. Lehrman
Published
The respondent appealed the judgment of the trial court which granted the petitioners's motion for no-evidence and traditional summary judgment in an action alleging negligence, negligence per se, and gross negligence. The Supreme Court noted that because a genuine issue of material fact existed as to whether the first petitioner failed to exercise reasonable care in removing the stub pole, the first petitioner was not entitled to summary judgment on the respondent’s negligence claim. The Supreme Court found that the second petitioner did not have the right to control the means, methods, or details of the first petitioner's work with respect to removal of the stub pole or restoration of the property necessitated by the pole’s removal. The Supreme Court concluded that because a genuine issue of material fact existed as to whether the first petitioner breached a duty of care, the appellate court correctly reversed summary judgment on the respondent’s negligence claim against the first petitioner. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded.

The Supreme Court concluded that the default judgment could not stand, and without hearing oral argument, the court granted the petitioners’ petition for review.
Spanton v. Bellah
Appellate: Civil, Employment, Procedure, Torts
The Supreme Court of Texas
November 20, 2020
19-0920
Per Curiam
Published
The petitioners appealed the judgment of the trial court which entered a default judgment in favor of the respondent after the petitioners failed to timely file an answer or otherwise appear. On appeal, the petitioners claimed that the respondent failed to properly serve them with process. The Supreme Court disagreed, holding that a discrepancy between the address at which the trial court authorized substitute service and the address where the process server actually sent substitute service was minor and did not invalidate service or the default judgment. The Supreme Court found that nothing in the record demonstrated that the petitioners actually received substitute service. The Supreme Court determined that the face of the record in the case established that the substitute service did not strictly comply with the order permitting such service. The Supreme Court concluded that the default judgment could not stand, and without hearing oral argument, the court granted the petitioners’ petition for review. Accordingly, the judgment of the trial court was vacated and remanded for further proceedings.  

The trial court abused its discretion in proceeding to an adjudication of guilt and in revoking the defendant's deferred-adjudication community supervision.
Martell v. State
Criminal, Evidence, Procedure
Texas 8th Court of Appeals
November 20, 2020
08-18-00180-CR
Gina M. Palafox
Published
The defendant appealed the judgment of the trial court which convicted him of unlawful possession of marihuana in an amount of greater than five pounds but less than fifty pounds. On appeal, the defendant challenged the trial court's sentence to ten years’ confinement in the Texas Department of Criminal Justice, which the court then suspended, and he was placed on ten years’ community supervision. The appellate court found that it was undisputed that no supervision officer, peace officer, or other officer attempted in-person contact with the defendant at the address used for both his residence and employment, and the defendant satisfied his burden of proving the due-diligence affirmative defense. The appellate court determined that the evidence was both legally and factually insufficient to support the trial court’s rejection of the due-diligence affirmative defense. The appellate court concluded that the trial court abused its discretion in proceeding to an adjudication of guilt and in revoking the defendant's deferred-adjudication community supervision. Accordingly, the judgment of the trial court was reversed and remanded with instructions to dismiss the motion to adjudicate.  

Since the plaintiff had actual notice of the taxes owed each year in time to file a protest, it had the opportunity to be heard on the issue of its property taxes for that particular year.
Harris Cnty. Appraisal Dist. v. IQ Life Sciences Corp.
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Tax
Texas 14th Court of Appeals
October 13, 2020
14-18-00894-CV
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which denied the defendant's plea to the jurisdiction in response to the plaintiff's Tex. Tax Code Ann. section 25.25(d) motion for correction of its property taxes and section 41.411 protest of its property taxes for the tax years. On appeal, the defendant argued that the trial court did not have subject-matter jurisdiction because the plaintiff did not timely file either the motion for correction or protest. The appellate court noted that like Anderton, the plaintiff's construction of section 25.25(d) conflicted with the legislature’s intent. The appellate court found that as a result, the trial court did not have jurisdiction over the plaintiff's claim and it erred when it denied the defendant's plea to the jurisdiction. The appellate court concluded that since the plaintiff had actual notice of the taxes owed each year in time to file a protest, it had the opportunity to be heard on the issue of its property taxes for that particular year. Accordingly, the judgment of the trial court was reversed.

Although the untimely motion for new trial was included in the clerk’s record of this case, it was not properly before the trial court, and thus, the court could not consider it.
In re S.W.
Appellate: Civil, Family, Procedure
Texas 2nd Court of Appeals
November 19, 2020
02-20-00159-CV
Bonnie Sudderth
Published
The parents appealed the judgment of the trial court which terminated the mother’s and unknown biological father’s parental rights in a suit brought by a private adoption agency instead of the Department of Family and Protective Services. The appellate court found that it was undisputed that the parents were not present at the final termination hearing, and the plain language of the affidavit the mother signed indicated that she did not want to, or intend to, participate in the final trial. The appellate court noted that the mother did not participate in the decision-making event resulting in the termination order and, therefore, that the mother had shown that the court had jurisdiction over her restricted appeal. The appellate court concluded that although the untimely motion for new trial was included in the clerk’s record of this case, it was not properly before the trial court, and thus, the court could not consider it. Accordingly, the court affirmed the trial court’s judgment. 

The appellate court concluded that the appellee failed to establish its entitlement to summary judgment on the merits of the appellant’s statutory claims as to the tax years.
SPX Corp. v. Altinger
Appellate: Civil, Business, Gov't/Administrative, Procedure, Real Property, Tax
Texas 14th Court of Appeals
November 19, 2020
14-19-00057-CV
Tracy Christopher
Published
The appellant appealed the judgment of the trial court, challenging the procedures used to correct the taxable situs of, and assess taxes, penalties, and interest on, its business personal property in tax years. On appeal, the appellant challenged the trial court's grant of the appellees’ motion combining a plea to the jurisdiction with a summary judgment on the merits. The appellate court noted that the appellant’s statutory petition for judicial review against the appellee was the appellant’s exclusive remedy. The appellate court found that the trial court did not err in dismissing the appellant’s statutory claims against the appellee chief appraiser and the appellee board and the appellant’s claims against the appellee district for relief outside the Property Tax Code. The appellate court concluded that the appellee failed to establish its entitlement to summary judgment on the merits of the appellant’s statutory claims as to the tax years. Accordingly, the judgment was affirmed as modified. 

The trial court’s order fell within section 85.022(b)(5), and thus, it was within the trial court’s discretion to include the provision in the protective order to effectuate the statute’s preventative purpose.
Rodriguez v. Doe
Appellate: Civil, Family, Procedure
Texas 14th Court of Appeals
November 19, 2020
14-18-01026-CV
Margaret Poissant
Published
The appellant appealed the judgment of the trial court which granted a family violence protective order against the appellant. On appeal, the appellant asserted that the provision in the trial court’s protective order prohibiting the appellant from going within 500 feet of any location where the appellee was located exceeded the scope of protection allowed by section 85.022(b) of the Family Code. The appellate court found that the appellant’s argument that, because any location was not enumerated as one of the prohibited locations in section 85.022 the trial court erred when it issued an order that prohibited him from going within 500 feet of any location that the appellee could be found, failed. The appellate court concluded that the trial court’s order fell within section 85.022(b)(5), and thus, it was within the trial court’s discretion to include the provision in the protective order to effectuate the statute’s preventative purpose. Accordingly, the judgment was affirmed.  

The appellate court concluded that the trial court did not abuse its discretion by overruling the defendant's objection based on extraneous conduct.
Gutierrez v. State
Criminal, Evidence, Juvenile, Procedure
Texas 11th Court of Appeals
November 19, 2020
11-18-00298-CR
John M. Bailey
Published
The defendant appealed the judgment of the trial court which convicted him of continuous sexual abuse of a child and indecency with a child. On appeal, the defendant challenged the trial court's assessment of the defendant's punishment at confinement for life on the conviction for continuous sexual abuse of a child and at confinement for a term of twenty years on the conviction for indecency with a child. The appellate court observed that while the defendant alleged that the victim fabricated the allegations from the beginning, he also asserted that her trial testimony contained matters that she had not previously alleged. The appellate court found that the trial court did not abuse its discretion by admitting the victim’s statements to the nurse examiner and a forensic interviewer as prior statements. The appellate court concluded that the trial court did not abuse its discretion by overruling the defendant's objection based on extraneous conduct. Accordingly, the judgment was affirmed.

Since the currency and property seized from the defendant was seized as an instrumentality of the gambling offenses, and not as a fine intended to punish him, the court need not reach the issue of proportionality.
Ahmad v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
November 19, 2020
01-19-00569-CV
Sarah Beth Landau
Published
The defendant appealed the judgment of the trial court which convicted him of gambling promotion, keeping a gambling place, and possession of a gambling device, equipment, or paraphernalia. On appeal, the defendant challenged the trial court's conviction. The appellate court found that the gambling machines, proceeds, and other property were “tainted” by the illegal gambling offense. The appellate court noted that the defendant did not show what portion, if any, of the seized funds was starting capital versus currency paid by customers, and he did not attach any evidence in support of his allegations. The appellate court concluded that because the currency and property seized from the defendant was seized as an instrumentality of the gambling offenses, and not as a fine intended to punish him, the court need not reach the issue of proportionality. Accordingly, the trial court's judgment was affirmed.  

The appellate court was bound by the doctrine of stare decisis to hold that the trial court did not abuse its discretion by following the precedent of Arnold, as modified by Murray, in entering an order compelling such discovery.
In re State Farm Mut. Auto. Ins. Co.
Constitution, Contracts, Insurance, Torts
Texas 2nd Court of Appeals
November 19, 2020
02-20-00144-CV
Wade J. Birdwell
Published
The petitioner appealed the judgment of the trial court in a suit arising due to the unique incorporation of the elements of a negligence cause of action against the uninsured or underinsured motorist into the contractual terms of the UM/UIM coverage provided by the standard automobile liability policy. The appellate court observed that consistent with Arnold, the accrual analysis in Murray clearly contemplated a contractual obligation to pay such a claim without the insured having to file and successfully prosecute a direct action to a binding judgment for benefits against the insurer. The appellate court found that because Brainard did not expressly overrule either Arnold or Murray and thereby foreclosed the accrual or ripening of the common law bad faith cause of action asserted by the real party interest due to the relator’s alleged contractual mishandling and maladjustment of her claim, the court was bound by the doctrine of stare decisis to hold that the trial court did not abuse its discretion by following the precedent of Arnold, as modified by Murray, in entering an order compelling such discovery. Accordingly, the appellate court denied the mandamus relief requested.  

The appellate court concluded that since the error was calculated to injure the defendant's rights, it caused the defendant “some harm.”
Smith v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
November 17, 2020
14-15-00502-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated assault with a deadly weapon. The appellate court found that the trial court essentially explained that it was giving the instruction because it was concerned that the jury might look at the evidence of addiction and intoxication, regard that evidence as having reduced the defendant's blameworthiness, and then assess a lenient sentence. The appellate court noted that the erroneous Voluntary Intoxication Instruction was calculated to injure the defendant's rights and thus caused the defendant “some harm.” The appellate court concluded that since the error was calculated to injure the defendant's rights, it caused the defendant “some harm.” Accordingly, the judgment of the trial court was affirmed and remanded to the trial court for a new punishment hearing.      

The appellate court concluded that the trial court did not err in granting a directed verdict on the appellee's breach of fiduciary duty claim.
Adam v. Marcos
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 14th Court of Appeals
November 17, 2020
14-18-00450-CV
Frances Bourliot
Published
The appellant appealed the judgment of the trial court in a dispute over an alleged partnership, alleging that the appellee and the appellant had agreed to enter a 50/50 partnership to own and operate future joint ventures. On appeal, the appellant challenged the trial court's decision to disregard the jury’s findings that the appellant breached the partnership agreement and the value of the appellee's unpaid legal services was $0, and it entered a judgment notwithstanding the verdict (JNOV) favoring the appellee on his quantum meruit claim in the amount of $405,000. The appellate court determined that the appellee conclusively established that he incurred some damages but did not conclusively establish a specific amount of damages, the issues were sustained in part and reversed the trial court’s judgment to the extent it awarded quantum meruit damages. The appellate court found that the trial court did not err in holding the agreement was invalid and unenforceable. The appellate court concluded that the trial court did not err in granting a directed verdict on the appellee's breach of fiduciary duty claim. Accordingly, the judgment was affirmed, reversed and remanded.  

The appellate court found that having considered the evidence concerning the appellants' motion to compel arbitration and the appellee's traditional motion for summary judgment under the standard of review applicable to each, none of the movants satisfied their respective burdens.
Nationwide Coin & Bullion Reserve, Inc. v. Thomas
ADR, Appellate: Civil, Consumer, Contracts, Damages, Gov't/Administrative, Torts
Texas 14th Court of Appeals
November 17, 2020
14-19-00632-CV
Tracy Christopher
Published
The appellants appealed the judgment of the trial court in a suit under the Texas Deceptive Trade Practices–Consumer Protection Act (DTPA), alleging that the appellants violated the DTPA in connection with her purchase of collectible coins from the first appellant for investment purposes. On appeal, the appellants challenged the denial of their motion to compel arbitration, and in addition, the first appellant appealed the denial of the summary judgment rendered against it. The appellate court found that having considered the evidence concerning the appellants' motion to compel arbitration and the appellee's traditional motion for summary judgment under the standard of review applicable to each, none of the movants satisfied their respective burdens. Accordingly, the court affirmed the order denying the motion to compel arbitration, reversed the order granting summary judgment, and remanded the case to the trial court for further proceedings consistent with the opinion.    

The defendant only cited to Barton to support his argument the statute was unconstitutionally vague, and his reliance on that case was misplaced, and therefore, he failed to show how the statute was unconstitutionally vague as applied to his conduct.
State v. Grohn
Constitution, Criminal, Evidence, Procedure
Texas 9th Court of Appeals
November 18, 2020
09-20-00075-CR
Charles A. Kreger
Published
The State appealed the judgment of the trial court after it charged the defendant with intent to harass, annoy, alarm, abuse, torment and embarrass the victim, making repeated electronic communication to the victim, in a manner reasonably likely to harass the said victim to wit: emailing and or texting her numerous times with vague and rambling messages despite being asked not to send her such communications. On appeal, the State challenged the trial court's grant of the defendant's Motion to Quash and Exception to Substance of Information. The appellate court agreed with the sister court in Ex parte McDonald that Ex parte Barton was not binding on another intermediate court of appeals and was unpersuaded by Barton when the overwhelming majority of the sister courts that have examined the issue have held that section 42.07(a)(7) was constitutional. The appellate court held that section 42.07(a)(7) was not unconstitutionally overbroad. The appellate court concluded that the defendant only cited to Barton to support his argument the statute was unconstitutionally vague, and his reliance on that case was misplaced, and therefore, he failed to show how the statute was unconstitutionally vague as applied to his conduct. Accordingly, the judgment was reversed and remanded.    

The appellate court concluded that the friend’s statements were non-testimonial because their primary purpose was not to create an out-of-court substitute for trial testimony.
Lopez v. State
Criminal, Evidence, Procedure
Texas 8th Court of Appeals
November 17, 2020
08-17-00240-CR
Gina M. Palafox
Published
The defendant appealed the judgment of the trial court which convicted him of three counts of engaging in organized criminal activity (EOCA), alleging charges of assault and aggravated assault, against two victims, enhanced by two previous convictions. On appeal, the defendant challenged the assessed punishment at 50-years’ confinement and a $10,000 fine on count two, and 20-years’ confinement and a $10,000 fine on count three. The appellate court held that the evidence was legally sufficient to support the defendant's conviction for EOCA assault. The appellate court found that the evidence was legally sufficient to support the appellant’s conviction for EOCA aggravated assault. The appellate court concluded that the friend’s statements were non-testimonial because their primary purpose was not to create an out-of-court substitute for trial testimony. Accordingly, the judgment was affirmed.      

The trial court erred in denying the motion to dismiss the claims against the second appellant for intentional and negligent nuisance, tortious interference, fraudulent misrepresentation, promissory estoppel, and conspiracy.
Enterprise Crude GP LLC v. Sealy Partners, LLC
Appellate: Civil, Contracts, Gov't/Administrative, Procedure, Real Property, Torts
Texas 14th Court of Appeals
November 17, 2020
14-19-00818-CV
Kevin Jewell
Published
The appellant appealed the judgment of the trial court after it jointly moved to dismiss all claims under the TCPA, which the trial court denied. The appellate court found that the trial court did not err in denying the motion to dismiss the claim against the first appellant for negligent nuisance because the TCPA applied to that claim, and the appellees established a prima facie case for each element of that claim. The appellate court noted that the trial court did not err in denying the motion to dismiss the claim against the second appellant for trespass because the TCPA did not apply to that claim. The appellate court concluded that the trial court erred in denying the motion to dismiss the claims against the second appellant for intentional and negligent nuisance, tortious interference, fraudulent misrepresentation, promissory estoppel, and conspiracy. Accordingly, the judgment was affirmed in part, reversed in part, and remanded for further proceedings.  

The trial court abused its discretion to the extent it dismissed the indictment pursuant to Rule 508(c)(3) because this section of the rule did not authorize a trial court to dismiss a case.
State v. Dunn
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
November 17, 2020
14-19-00701-CR
Jerry Zimmerer
Published
The State appealed the judgment of the trial court which granted the defendant's motion for disclosure of a confidential informant after it charged the defendant with possession of more than 4 grams and less than 200 grams of a controlled substance, specifically cocaine. The appellate court observed that because the defendant failed to establish that the confidential informant had any connection with the drugs underlying the charge at issue in the appeal, the defendant also failed to offer any evidence demonstrated that the police did not reasonably believe the confidential informant was reliable or credible. The appellate court found that any determination by the trial court that the State relied on the confidential informant to establish the legality of the means by which the police obtained the evidence against the defendant and that the confidential informant was not considered reliable or credible was based on mere speculation. The appellate court concluded that the trial court abused its discretion to the extent it dismissed the indictment pursuant to Rule 508(c)(3) because this section of the rule did not authorize a trial court to dismiss a case. Accordingly, the judgment was reversed and remanded.

The appellate court found that because the appellee’s affidavit was insufficient, the trial court erred by denying the parents’ motion to dismiss.
In re H.L.
Appellate: Civil, Family, Juvenile, Procedure
Texas 2nd Court of Appeals
November 12, 2020
02-20-00143-CV
Bonnie Sudderth
Published
The parents appealed the judgment of the trial court, in a private termination suit, which terminated the parental rights of eight-year-old the child’s biological parents and granted possession and access to the child’s paternal grandparents. On appeal, the parents challenged the trial court's termination. The appellate court noted that the appellee made a conclusory assertion about the results of denial of possession or access and made unsupported predictions about what the lack of possession or access would teach the child in the future. The appellate court found that because the appellee’s affidavit was insufficient, the trial court erred by denying the parents’ motion to dismiss. Accordingly, the court reversed the trial court’s order granting possession and access and rendered judgment dismissing the grandparent access suit.  

The appellate court concluded that since it was undisputed that the plaintiff presented no evidence to support his allegations other than the allegations themselves, the trial court did not err in granting the defendants' TCPA motions to dismiss.
Buzbee v. Clear Channel Outdoor, LLC
Damages, Election, Torts
Texas 14th Court of Appeals
November 17, 2020
14-19-00512-CV
Kevin Jewell
Published
The plaintiff appealed the judgment of the trial court which dismissed his claims against the defendants under the Texas Citizens Participation Act (TCPA). On appeal, the plaintiff argued that the defendants' billboards constituted campaign propaganda for the first defendant under the guise of a public safety message, and the defendants failed to properly document the billboards’ value as a campaign contribution under the Election Code. The appellate court agreed with the plaintiff that he established standing to assert all his claims, but the court concluded that his claim for injunctive relief had become moot. The appellate court found that as to the propriety of dismissing the plaintiff's monetary damages claims under the TCPA, the dispositive question was whether a claimant, in responding to a TCPA motion to dismiss, may meet his prima facie burden by relying solely on the allegations in his petition. The appellate court concluded that since it was undisputed that the plaintiff presented no evidence to support his allegations other than the allegations themselves, the trial court did not err in granting the defendants' TCPA motions to dismiss. Accordingly, the judgment of the trial court was affirmed.

The lack of a clear organizational chart with a defined leader and chain of command was antithetical to promoting cooperation, and the court left it to the political leaders of the State and that region, whose motives were all beyond reproach, to cooperatively lead the court.
State v. El Paso Cnty.
Appellate: Civil, Business, Gov't/Administrative, Health Care, Procedure
Texas 8th Court of Appeals
November 13, 2020
08-20-00226-CV
Jeff Alley
Published
The appellants appealed the judgment of the trial court, filing suit to enjoin enforcement of CE-13 on the basis that the County Judge acted ultra vires and without legal authority. On appeal, the appellate court was asked to consider whether the appellants must comply with CE-13 or GA-32. The appellate court found that just as a servant could not have two masters, the public could not have two sets of rules to live by, particularly in a pandemic and when those rules carry criminal penalties substantially impacting peoples’ lives and livelihood. The appellate court noted that much of the Disaster Act was premised on promoting cooperation between levels of government for the benefit of Texas citizens. The appellate court concluded that the lack of a clear organizational chart with a defined leader and chain of command was antithetical to promoting cooperation, and the court left it to the political leaders of the State and that region, whose motives were all beyond reproach, to cooperatively lead the court through the unparalleled disaster.  

The appellate court concluded that the variance between the indictment and the jury instruction was not plain error.
Ex parte Becciu
Constitution, Criminal, Evidence
Texas 1st Court of Appeals
November 10, 2020
01-19-00800-CR
Evelyn Keyes
Published
The defendant appealed the judgment of the trial court which convicted him of the Class A misdemeanor offense of assault on a family member. On appeal, the defendant filed the application for writ of habeas corpus, seeking relief from the order of deferred adjudication, arguing that his guilty plea was involuntary. The appellate court noted that the trial court concluded that no evidence justified the defendant's seven-year delay in filing his writ of habeas corpus, that the State demonstrated that it had been prejudiced by the defendant's delay, that the defendant had presented no evidence of any compelling reason why laches should not apply, and that the defendant's claim for habeas relief should be barred by laches. The appellate court found that the record in the light most favorable to the trial court’s findings and affording almost total deference to the trial court’s findings, especially those that turn on credibility and demeanor, as the court must in the Article 11.072 habeas proceeding, the court could not conclude that the trial court abused its discretion by determining that the doctrine of laches applied and barred the defendant's claim for habeas relief. The appellate court concluded that the trial court did not abuse its discretion in denying the defendant's application for a writ of habeas corpus. Accordingly, the judgment was affirmed.    

The appellate court concluded that because simple possession, if such possession facilitated the associated felony, was sufficient, the deadly weapon finding was supported by legally sufficient evidence.
Davis v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
November 10, 2020
06-20-00032-CR
Ralph Burgess
Published
The defendant appealed the judgment of the trial court which convicted the defendant of attempted burglary of a habitation, finding that the defendant had used or exhibited a deadly weapon during the commission of the offense, and sentenced him to seventeen years imprisonment. The appellate court found that the defendant admitted the prior extraneous offense, and by testifying first on direct examination, the defendant waived any error on the trial court’s ruling regarding admissibility of the extraneous offense. The appellate court noted that based on the evidence, a rational fact-finder could determine, beyond a reasonable doubt, that the defendant attempted to enter the home, without the defendant's consent, with the intent to assault or kill the defendant's parent. The appellate court concluded that because simple possession, if such possession facilitated the associated felony, was sufficient, the deadly weapon finding was supported by legally sufficient evidence. Accordingly, the trial court's judgment was affirmed.  

Since the right to immediate possession of the property could be adjudicated only on the basis of title, neither the justice court nor the county court at law had subject-matter jurisdiction over the respondent's forcible-detainer action.
Tellez v. Rodriguez
Appellate: Civil, Procedure, Real Property
Texas 14th Court of Appeals
November 10, 2020
14-19-00317-CV
Tracy Christopher
Published
The petitioner appealed the judgment of the trial court in a forcible-detainer action. On appeal, the petitioner argued that the justice court and the county court at law lacked subject-matter jurisdiction over remainderman, the respondent's claim for possession of the property. The appellate court noted that the petitioner's right to possession of the property during her lifetime could be terminated only by terminating her title in the life estate. The appellate court found that this was exactly what the respondent sought to do via the forcible-detainer action. The appellate court concluded that since the right to immediate possession of the property could be adjudicated only on the basis of title, neither the justice court nor the county court at law had subject-matter jurisdiction over the respondent's forcible-detainer action. Accordingly, the court declared the judgment void and dismissed the appeal.    

The appellate court concluded that the trial court lacked subject matter jurisdiction over the suit.
Moody v. Moody
Appellate: Civil, Contracts, Procedure, Real Property
Texas 14th Court of Appeals
November 10, 2020
14-18-01018-CV
Margaret Poissant
Published
The appellant appealed the judgment of the trial court in a probate proceeding in which the jury rendered a verdict in favor of the appellee, finding that the decedent lacked the requisite capacity to execute a marital property agreement, the surviving spouse breached a fiduciary duty to the decedent in connection with making the marital property agreement and committed fraud regarding her spouse’s separate property rights, and the marital property agreement was unenforceable. On appeal, the appellant challenged the jury's award of compensatory and exemplary damages to the appellee. The appellate court noted that the trial judge awarded the attorneys’ fees and expenses of appellee and appellants paid from the decedent’s trust. The appellate court found that the appellee lacked standing and/or capacity to pursue her claims. The appellate court concluded that the trial court lacked subject matter jurisdiction over the suit. Accordingly, the court reversed the judgment of the trial court. 

The appellate court concluded that the relator failed to show that the trial court abused its discretion, and therefore, it must deny the relator's petition for writ of mandamus.
In re Muller
Appellate: Civil, Constitution, Contracts, Discovery, Procedure, Torts
Texas 7th Court of Appeals
November 06, 2020
07-20-00137-CV
Judy C. Parker
Published
The relator appealed the judgment of the trial court, filing a petition for writ of mandamus in which she requested that the Court instruct the trial court to vacate its order denying her motion to compel discovery and grant said motion. In response, the respondent alleged that it was still owed $40,444.84 for the goods and services it provided to the relator and her son. The appellate court noted that the trial court could have reasonably determined that the requested discovery was not proportional to the needs of the case or that the burden or expense of production outweighed its likely benefit. The appellate court found that the relator had not met her burden to establish that the trial court clearly abused its discretion in denying her motion to compel. The appellate court concluded that the relator failed to show that the trial court abused its discretion, and therefore, it must deny the relator's petition for writ of mandamus. Accordingly, the court denied the petition for writ of mandamus.    

The appellate court concluded that the test was a balance between the appellant’s choice of forum and the public and private factors that were implicated by an available alternate forum.
Diaz v. Todd
Appellate: Civil, Business, Procedure, Torts
Texas 8th Court of Appeals
November 04, 2020
08-18-00184-CV
Jeff Alley
Published
The appellant appealed the judgment of the trial court which made detailed findings of fact supporting the argument that the suit would be better suited for trial in Mexico in a case arising out of a business dispute between the appellant and the appellee. The appellate court noted that the fact that both the appellant and the appellee could claim Texas residence did not by itself answer the broader question of what forum was the most convenient under the correctly applied forum non conveniens test. The appellate court found that because the trial court applied the incorrect standard for one-half of the balancing test, there was an abuse of discretion as it was for the trial court in the first instance to make the appropriate balance. The appellate court concluded that the test was a balance between the appellant’s choice of forum and the public and private factors that were implicated by an available alternate forum. Accordingly, the judgment was reversed and remanded.  

The appellate court concluded that the defendant pled guilty to murder under Penal Code section 19.02(b)(1).
McDade v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
November 03, 2020
05-19-00485-CR
Bill Pedersen, III
Published
The defendant appealed the judgment of the trial court which convicted him of murder after a judicial confession. On appeal, the defendant challenged the trial court's assessment of punishment of confinement for thirty years. The appellate court found that the trial court’s admission of the State’s exhibits were not outside the zone of reasonable disagreement. The appellate court noted that the trial court did not abuse its discretion in admitting the recordings. The appellate court concluded that the defendant pled guilty to murder under Penal Code section 19.02(b)(1). Accordingly, the judgment was affirmed.  

The defendant was not required to raise a misidentification defense or file special exceptions in the trial court to bring a sufficiency challenge on appeal and the jury’s negligence finding was not supported by legally sufficient evidence.
Ross Stores, Inc. v. Miller
Appellate: Civil, Damages, Employment, Gov't/Administrative, Litigation: Personal Injury, Torts
Texas 14th Court of Appeals
November 03, 2020
14-18-01032-CV
Frances Bourliot
Published
The defendant appealed the judgment of the trial court in a personal injury action, challenging the legal sufficiency of the evidence in support of the jury’s negligence finding in favor of the plaintiff. The appellate court found that the defendant was not required to raise a misidentification defense or file special exceptions in the trial court to bring a sufficiency challenge on appeal and the jury’s negligence finding was not supported by legally sufficient evidence. The appellate court concluded that it must reverse the judgment of the trial court. Accordingly, the judgment of the trial court was reversed and rendered. 

Despite the defendant's protests to the contrary, there was evidence that the defendant stole the boat, and article 13.08 of the Texas Code of Criminal Procedure was applicable in the case.
Mottin v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
November 03, 2020
01-19-00249-CR
Sherry Radack
Published
The defendant appealed the judgment of the trial court which convicted the defendant, of theft over $2,500 but less than $30,000, and the trial court assessed punishment at 180 days’ confinement in a State Jail. The appellate court noted that the defendant was not indicted under Tex. Penal Code under 31.01(b)(2), but was indicted under the more general 31.01(b)(1). The appellate court found that before the inference may be invoked, the State must establish that the possession was personal, recent, unexplained, and involved a distinct and conscious assertion of a right to the property by the defendant. The appellate court concluded that despite the defendant's protests to the contrary, there was evidence that the defendant stole the boat, and article 13.08 of the Texas Code of Criminal Procedure was applicable in the case. Accordingly, the court affirmed the trial court’s judgment.  

The appellate court could not conclude that the trial court abused its discretion in striking the balance that it did.
In re Plains Pipeline, L.P.
Appellate: Civil, Constitution, Contracts, Damages, Environmental, Gov't/Administrative, Procedure, Real Property, Torts
Texas 8th Court of Appeals
October 30, 2020
08-19-00224-CV
Jeff Alley
Published
The relator appealed the judgment of the trial court in an action where the plaintiffs sought a declaratory judgment stating, inter alia, that as owner of the dominant groundwater estate, the plaintiffs were entitled to develop the groundwater estate by making use of the surface of the Property, and that there were no other reasonable and efficient means of producing groundwater off the Property. The appellate court found that the risk to the facility was disputed and unquantified, and the relevance of the test holes was explained in plausible, but qualitative terms. The appellate court concluded that balancing of those two interests against each other struck the court as more of an art than a science. The appellate court could not conclude that the trial court abused its discretion in striking the balance that it did. Accordingly, the relator's mandamus application was denied.  

The appellate court concluded that since the defendant's global Confrontation Clause objection to voluminous documents did not preserve error, the court overruled his sole complaint on appeal.
In re A.R.G.
Criminal, Evidence, Family, Juvenile, Procedure
Texas 6th Court of Appeals
November 05, 2020
06-20-00040-CV
Ralph Burgess
Published
The defendant appealed the judgment of the juvenile court after the State charged the defendant with intentionally causing the shooting death of the victim while in the course of committing a robbery. On appeal, the defendant challenged the juvenile court’s waiver of jurisdiction and discretionary transfer to a criminal district court. The appellate court noted that even assuming, without deciding, that the Confrontation Clause applied to Section 54.02 of Texas Family Code proceedings, the court could not address the point of error raised by the defendant  in his brief on the merits because he did not properly preserve his complaint. The appellate court found that the defendant's global objections were insufficient to make the court aware of which statements in or portions of the documents he believed violated the Confrontation Clause. The appellate court concluded that since the defendant's global Confrontation Clause objection to voluminous documents did not preserve error, the court overruled his sole complaint on appeal. Accordingly, the court affirmed the juvenile court’s order.    

The appellate court concluded that the plaintiff's appeal was not frivolous under Rule 45.
Hernandez v. Hernandez
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Landlord and Tenant, Real Property
Texas 8th Court of Appeals
November 04, 2020
08-19-00060-CV
Yvonne T. Rodriguez
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in his wrongful-removal claim and awarded attorney’s fees. On appeal, the plaintiff challenged those rulings. The appellate court found that the plaintiff failed to show the summary judgment was error where: (1) his appellate argument was unreviewable because it was based on a claim not raised in his original petition; (2) he failed to negate all grounds upon which the judgment could be upheld; and (3) his claim, newly argued claim on appeal, would not have established a genuine issue of material fact. The appellate court held that the trial court erred by awarding attorney’s fees in the absence of any authority alleged in the pleadings on which such fees could be upheld. The appellate court concluded that the plaintiff's appeal was not frivolous under Rule 45. Accordingly, the judgment was affirmed. 

The appellant’s wholesale reliance on the process server to exercise due diligence did not constitute due diligence on the appellant’s part as a matter of law.
Flanigan v. Nekkalapu
Appellate: Civil, Evidence, Health Care, Procedure, Torts
Texas 2nd Court of Appeals
November 05, 2020
02-20-00024-CV
Bonnie Sudderth
Published
The appellant appealed the judgment of the trial court which granted the appellee’s motion for summary judgment on his affirmative defense of limitations. The appellate court observed that the appellant’s excuse was that she exercised due diligence by placing her faith in the process server to effectuate service in a diligent manner and that the process server failed to do so. The appellate court found that the appellant’s wholesale reliance on the process server to exercise due diligence did not constitute due diligence on the appellant’s part as a matter of law. The appellate court concluded that the appellant’s waiting until limitations had run before even requesting citation, the multiple unexplained gaps of time between filing suit and service, and the appellant’s four-and-a-half week reliance on the process server an excuse that was invalid as a matter of law established that diligence was lacking as a matter of law. Accordingly, the judgment was affirmed.

The appellate court concluded that there was no reason the same protection should not be afforded to a defendant for whom bail had been set but not taken when the court decided to increase bail.
Ex parte Robles
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 29, 2020
14-20-00317-CR
Tracy Christopher
Published
The appellant appealed the judgment of the trial court, filing a writ of habeas corpus asking the court to lower his bail from $75,000 to $10,000. On appeal, the appellant challenged the trial court's denial of the habeas application by written order and orally raised bail to $100,000. The appellate court noted that the appellant’s mother lived in Ohio, and it appeared he lived with her for most of his life; she was involved in his life enough to write an affidavit on his behalf in the case. The appellate court found that the appellant had not shown the trial court abused its discretion in denying his habeas application to reduce bail. The appellate court concluded that there was no reason the same protection should not be afforded to a defendant for whom bail had been set but not taken when the court decided to increase bail. Accordingly, the court affirmed the trial court’s order denying the appellant’s habeas application to decrease bail.  

The appellate court concluded that it did not believe that such a conclusion was so arbitrary and unreasonable as to amount to a clear and prejudicial error of law such that the trial court could reasonably have reached only one decision.
In re Stutsman
ADR, Appellate: Civil, Damages, Litigation: Personal Injury, Torts
Texas 6th Court of Appeals
November 05, 2020
06-20-00072-CV
Ralph Burgess
Published
The claimant appealed the judgment of the trial court in a personal injury case. On appeal, the claimant sought mandamus relief from the trial court’s severance order that severed her claims against two alleged tortfeasors. The appellate court found that the trial court could have concluded that the claimant’s claims against the first tortfeasor and her claims against the second tortfeasors had originated from two different automobile accidents more than one week apart. The appellate court noted that the accidents were not in such close temporal proximity to cause proof of damages in each case to have been interrelated to the extent that the tortfeasors would be jointly and severally liable for those damages. The appellate court concluded that it did not believe that such a conclusion was so arbitrary and unreasonable as to amount to a clear and prejudicial error of law such that the trial court could reasonably have reached only one decision. Accordingly, the court denied the claimant’s petition for writ of mandamus. 

The appellate court concluded that the Gigliobianco v. State factors weighed in favor of admitting the evidence, the court found no abuse of discretion.
Garcia v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
November 05, 2020
11-18-00357-CR
Keith Stretcher
Published
The defendant appealed the judgment of the trial court which convicted him of murder and assessed his punishment at fifty years imprisonment in the Correctional Institutions Division of the Texas Department of Criminal Justice. On appeal, the defendant challenged the State's introduction of the crime scene photographs during its case-in-chief. The appellate court found that the trial court could have reasonably determined that the photographs had probative value because they accurately depicted the victim’s body and could help the jury understand the injuries sustained from a close-range gunshot. The appellate court noted that the trial court could have reasonably concluded that the jury was not likely to give the photographs undue weight. The appellate court concluded that the Gigliobianco v. State factors weighed in favor of admitting the evidence, the court found no abuse of discretion. Accordingly, the judgment was affirmed.    

Since the defendant had not met its burden to show it was entitled to the protections of section 184 of the Restatement, the trial court erred in granting the defendant's plea to the jurisdiction.
Tozi v. RJ & Sons LLC
Appellate: Civil, Corporations, Procedure, Torts
Texas 4th Court of Appeals
October 28, 2020
04-19-00591-CV
Liza A. Rodriguez
Published
The plaintiff appealed the judgment of the trial court which granted the defendant's plea to the jurisdiction and dismissed all of the plaintiff's claims. On appeal, the defendant argued that Texas courts lacked subject matter jurisdiction over the plaintiff's claims. The appellate court found that the plaintiff's affidavit presented disputed material facts regarding the location of his hire. The appellate court found that because of the issue of material fact surrounding the location of the plaintiff's contract for hire, the court held the defendant had also not met its burden under the second requirement of section 184 of the Restatement to show that the plaintiff could obtain an award for his injury in Michigan. The appellate court concluded that since the defendant had not met its burden to show it was entitled to the protections of section 184 of the Restatement, the trial court erred in granting the defendant's plea to the jurisdiction. Accordingly, the judgment of the trial court was reversed and remanded the cause for further proceedings.    

The appellate court concluded that the defendant was not entitled to an Texas Penal Code article 38.23 instruction based on the argument he made to the trial court or to the court on appeal.
Aguirre v. State
Criminal, Evidence, Procedure
Texas 10th Court of Appeals
October 28, 2020
10-19-00286-CR
Tom Gray
Published
The defendant appealed the judgment of the trial court which convicted him of resisting arrest and sentenced him to 365 days in jail. On appeal, the defendant challenged the sentence, which was suspended, and placed him on community supervision for 18 months. The appellate court found that the evidence of resisting arrest was obtained lawfully during the course of the defendant's arrest for public intoxication. The appellate court concluded that the defendant was not entitled to an Texas Penal Code article 38.23 instruction based on the argument he made to the trial court or to the court on appeal. Accordingly, the trial court’s judgment was affirmed.  

Since the State had not shown that any procedure did not encompass a bench trial, it had not established it was indisputably entitled to the relief it sought or that the trial court had a ministerial duty to deny the relator's request.
In re State ex rel. Ogg
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 27, 2020
14-20-00451-CR
Per Curiam
Published
The relator appealed the judgment of the trial court, filing petitions for writs of mandamus and petitions for writs of prohibition. On appeal, the relator asked the court to compel the presiding judge of the criminal court to set aside his ruling in trial court in a criminal case which granted the criminal defendant's motion to conduct a bench trial without the State’s consent to waiver of a jury trial. The appellate court found that the State’s argument was not based on the plain language of the emergency order, which allowed the trial court to modify any procedure subject only to constitutional limitations. The appellate court noted that, assuming, without deciding, that for the conduct imposed a limitation on the type of procedure that an emergency order might suspend, it was a statutory, not constitutional limitation. The appellate court concluded that since the State had not shown that any procedure did not encompass a bench trial, it had not established it was indisputably entitled to the relief it sought or that the trial court had a ministerial duty to deny the relator's request. Accordingly, the petition was denied.  

The appellate court concluded that since the release of those results did not violate HIPAA, the grand jury subpoena sought the defendant's medical records could not be fruit of the poisonous tree.
Consuelo v. State
Constitution, Criminal, Evidence, Health Care, Procedure
Texas 5th Court of Appeals
October 27, 2020
05-19-01385-CR
Bill Pedersen, III
Published
The defendant appealed the judgment of the trial court which convicted him of three counts of intoxication assault and sentenced him to eight years’ confinement in each case. On appeal, the defendant challenged the trial court’s order denying his Motion to Suppress. The appellate court noted that it gave almost total deference to the trial court’s determination of historical facts and reviewed de novo the application of the law to the facts. The appellate court viewed the record in the light most favorable to the trial court’s ruling and upheld the ruling if it was supported by the record and is correct under any theory of the law applicable to the case. The appellate court determined that the Health Insurance Portability and Accountability Act (HIPAA) specifically allowed the release of the defendant's toxicology results to the police. The appellate court concluded that since the release of those results did not violate HIPAA, the grand jury subpoena sought the defendant's medical records could not be fruit of the poisonous tree. Accordingly, the judgment was affirmed.

The appellate court found that the plaintiff did not seek judicial review of the Board of Adjustment’s decision under Local Government Code section 211.011.
City of Dickinson v. Stefan
Appellate: Civil, Business, Constitution, Contracts, Evidence, Gov't/Administrative, Procedure, Real Property, Zoning
Texas 14th Court of Appeals
October 27, 2020
14-18-00778-CV
Kem Thompson Frost
Published
The City appealed the judgment of the trial court which denied its plea to the jurisdiction, attaching evidence, and asserting that the trial court lacked jurisdiction because the plaintiff failed to exhaust his administrative remedies by failing to seek judicial review of the Board of Adjustment’s decision under Texas Local Government Code section 211.011. The appellate court noted that because the plaintiff failed to exhaust his administrative remedies by seeking review of the Board of Adjustment’s decision under Local Government Code section 211.011, the trial court lacked subject-matter jurisdiction over the plaintiff’s declaratory-judgment claim, and the trial court erred in denying the defendant’s plea to the jurisdiction as to this claim. The appellate court found that the plaintiff did not seek judicial review of the Board of Adjustment’s decision under Local Government Code section 211.011. The appellate court concluded that there was a difference between allowing the plaintiff an opportunity to plead more facts to show jurisdiction over claims that the plaintiff purported to plead and allowing the plaintiff a chance to assert new claims after the appellate court concluded that the trial court lacked jurisdiction over the claims the plaintiff purportedly pleaded. Accordingly, the judgment was reversed and rendered.

The appellate court concluded that it must overrule the issue because any error in the charge was harmless.
Ramirez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 27, 2020
14-19-00433-CR
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which convicted the defendant of felony driving while intoxicated (DWI). The appellate court noted that the trial court did not abuse its discretion when it refused to exclude evidence related to the lab analysis of his blood because the blood was drawn, and subsequently analyzed, pursuant to a search warrant. The appellate court denied the defendant's second issue because the deputy constable who stopped the defendant had reasonable suspicion that the defendant had engaged in, or was about to engage in, criminal activity. The appellate court concluded that it must overrule the issue because any error in the charge was harmless. Accordingly, the judgment was affirmed.  

The appellate court concluded that the plaintiffs' lawsuit, as pleaded, failed for lack of standing.
Bickham v. Dallas Cnty.
Appellate: Civil, Election, Gov't/Administrative, Litigation: Personal Injury, Procedure
Texas 5th Court of Appeals
October 23, 2020
05-20-00560-CV
Robert Burns, III
Published
The plaintiffs appealed the judgment of the trial court. On appeal, the appellate court was asked to consider whether “election watchers”—persons appointed to observe the conduct of an election under Chapter 33 of the Texas Election Code—had standing to pursue claims against certain election officials for alleged violations of chapter 33 and the Texas Administrative Code. The appellate court found that relying on the reasoning in Andrade, the trial court observed that if the language found in Section 273.081—“a person who is being harmed or is in danger of being harmed by a violation or threatened violation of this code”—did not confer standing without a showing of harm other than as a member of the general public, then there was no reason to conclude that Section 273.061 would create individual standing without the claimant showing a particularized injury beyond that of the general public. The appellate court noted that the legislature had not conferred statutory standing to the plaintiffs exempting them from showing proof of a special injury, nor have the plaintiffs alleged claims or injuries showing they have common-law standing to assert their claims. The appellate court concluded that the plaintiffs' lawsuit, as pleaded, failed for lack of standing. Accordingly, the judgment of the trial court was affirmed. 

Since the plaintiff could not establish a probable right to the relief sought through its constitutional challenge to Section 112.101 of the Tax Code, it was not entitled to a temporary injunction pending the adjudication of that claim.
Texley Inc. v. Hegar
Business, Constitution, Gov't/Administrative, Tax
Texas 3rd Court of Appeals
October 23, 2020
03-18-00397-CV
Edward Smith
Published
The plaintiff appealed the judgment of the trial court which sustained the defendant's plea to the jurisdiction and dismissing all but one of the plaintiff's claims challenging a tax assessment. On cross-appeal, the defendant challenged an order enjoining its efforts to collect the disputed assessment. The appellate court found that the taxpayer sought judicial review of an assessment under Chapter 112 without first paying the entire amount assessed, and the taxpayer filed an oath of inability to pay. The appellate court noted that the trial court did not hold a hearing on the alleged ability to pay or determine whether prepayment would constitute an unreasonable restraint on the plaintiff's right of access to the courts. The appellate court concluded that since the plaintiff could not establish a probable right to the relief sought through its constitutional challenge to Section 112.101 of the Tax Code, it was not entitled to a temporary injunction pending the adjudication of that claim. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.  

The Supreme Court concluded that based on the asset-purchase agreement’s plain and unambiguous language, the buyer’s expressed assumption of the written warranty for repair or replacement of defective treadmill parts was not an assumption of a warranty of merchantability implied by law.
Northland Indus., Inc. v. Kouba
Appellate: Civil, Business, Contracts, Damages, Procedure, Real Property, Torts
The Supreme Court of Texas
October 23, 2020
19-0835
Eva M. Guzman
Published
The buyer appealed the judgment of the appellate court in a dispute over an asset-purchase agreement as to both the assumed and excluded liabilities, arising from a fatal treadmill injury. On appeal, the Supreme Court was asked to consider whether the entity who purchased the treadmill manufacturer’s assets assumed an implied warranty of merchantability that attached, and was not disclaimed when the manufacturer sold the treadmill. The Supreme Court found that the appellate court ascertained intent by giving words the meaning a reasonable person would afford them under the circumstances and by construing them within the contractual context as a whole, not in isolation. The Supreme Court noted that absent absurdity, contracts must be interpreted according to their literal terms. The Supreme Court concluded that based on the asset-purchase agreement’s plain and unambiguous language, the buyer’s expressed assumption of the written warranty for repair or replacement of defective treadmill parts was not an assumption of a warranty of merchantability implied by law. Accordingly, the judgment of the appellate court was reversed.

There was insufficient evidence to find, beyond a reasonable doubt, that the defendant possessed the specific intent to conceal the photograph.
Denny v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
October 30, 2020
11-18-00270-CR
Keith Stretcher
Published
The defendant appealed the judgment of the trial court which convicted him of the third-degree felony offense of tampering with physical evidence. On appeal, the defendant challenged the trial court's sentence to six years’ confinement in the Correctional Institutions Division of the Texas Department of Criminal Justice, with the sentence suspended and community supervision imposed for six years. The appellate court noted that it was constrained to follow the holding of the Court of Criminal Appeals; the court therefore rejected the State’s argument that it only needed to prove the defendant's intent to impair the availability of evidence. The appellate court found that the State must prove that the defendant intended to conceal and actually concealed the photograph, and there was no evidence from which a rational trier of fact could have found beyond a reasonable doubt that the photograph was actually concealed. The appellate court concluded that there was insufficient evidence to find, beyond a reasonable doubt, that the defendant possessed the specific intent to conceal the photograph. Accordingly, the judgment of the trial court was reversed and rendered.

The appellate court concluded that the trial court did not abuse its discretion in excluding the evidence, and the court overruled the defendant's second issue.
Blacklock v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 22, 2020
14-19-00307-CR
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault and sentenced him to 35 years in prison for the aggravated assault reformation. On appeal, the defendant challenged the trial court's conviction and sentence. The appellate court found that the defendant was allowed to impeach the complainant on two prior felony prostitution convictions, three theft convictions, and one burglary of a motor vehicle conviction. The appellate court noted that the defendant's ability to impeach the complainant with much more recent convictions allowed him to attack the complainant’s credibility in front of the jury. The appellate court concluded that the trial court did not abuse its discretion in excluding the evidence, and the court overruled the defendant's second issue. Accordingly, the judgment of the trial court was affirmed. 

The appellate court concluded that had the wife's affidavit been admitted over the husband's objections, there was at the very least a fact issue as to her signature on the Acto de Matrimonio precluding partial summary judgment.
De Juarez v. Delgado
Appellate: Civil, Contracts, Family, Procedure
Texas 8th Court of Appeals
October 22, 2020
08-16-00046-CV
McClure Ann Crawford
Published
The husband appealed the judgment of the trial court which rendered a ruling regarding the parties' dissolution of the marriage. On appeal, the appellate court was asked to consider whether a Mexican premarital agreement existed between the parties. The appellate court found that because the court could not ascertain from the voluminous record-which consisted of twenty-eight reporters’ records and sixteen clerk’s records-whether the executed marriage certificate was timely disclosed, was overruled. The appellate court concluded that had the wife's affidavit been admitted over the husband's objections, there was at the very least a fact issue as to her signature on the Acto de Matrimonio precluding partial summary judgment. Accordingly, the judgment of the trial court was reversed and remanded. 

The appellate court concluded that since the trial court already conditionally awarded appellate attorneys’ fees in the event the appellant’s appeal was unsuccessful, the court declined to award additional damages.
Nunu v. Risk
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Torts
Texas 14th Court of Appeals
October 22, 2020
14-19-00564-CV
Tracy Christopher
Published
The appellant appealed the judgment of the trial court, asking the court to reverse the court's prior decision affirming the trial court’s finding that he was a vexatious litigant and requiring him to obtain leave from the local administrative judge before filing any new pro se litigation. On appeal, the appellant asked the appellate court to reverse the local administrative judge’s order denying him leave to file the pro se appeal and to reverse multiple trial-court orders. The appellate court noted that because the appellant failed in his burden to establish that the Texas Citizens Participation Act (the TCPA) applied to those matters, the court affirmed the trial court’s denial of the appellant’s motion and counter-motion to dismiss. The appellate court found that the appellant failed to establish that those motions and objections were legal actions as that term was defined in the TCPA. The appellate court concluded that since the trial court already conditionally awarded appellate attorneys’ fees in the event the appellant’s appeal was unsuccessful, the court declined to award additional damages. Accordingly, the judgment of the trial court was affirmed and motion denied.  

The appellate court concluded that the part of the trial court's order the relators challenged materially changed the trial court’s final judgment and was therefore void.
In re Fluid Power Equip., Inc.
ADR, Appellate: Civil, Constitution, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
October 22, 2020
14-20-00577-CV
Kevin Jewell
Published
The relators appealed the judgment of the trial court, filing a petition for writ of mandamus. On appeal, the relators asked the appellate court to compel the presiding judge to vacate her order granting the deceased's motion to enforce a final judgment confirming an arbitration award. The appellate court noted that the trial court, however, may not issue an order that was inconsistent with the original judgment or that otherwise constituted a material change in the substantive adjudicative portions of the judgment after its plenary power had expired. The appellate court found that such an order was void. The appellate court concluded that the part of the trial court's order the relators challenged materially changed the trial court’s final judgment and was therefore void. Accordingly, the court conditionally granted mandamus relief.  

Viewed in the light most favorable to the defendant, the summary judgment evidence did not conclusively prove that the plaintiff owned or was entitled to possession of the dog.
Hunsaker v. Richardson
Appellate: Civil, Evidence, Procedure
Texas 11th Court of Appeals
October 22, 2020
11-19-00248-CV
Jim R. Wright
Published
The defendant appealed the judgment of the trial court which granted summary judgment in favor of the plaintiff and ordered that the plaintiff was entitled to possession of the dog. The appellate court noted that when the trial court granted one motion for summary judgment and denied the other, the court reviewed all the summary judgment evidence and determined all questions presented. The appellate court found that since the dachshund that the individual took to Dusty Puddles Dachshund Rescue (DPDR) was seen on the plaintiff's neighbors properties during the time that Sally was in the plaintiff's possession or on the property, there was at least an inference that the dachshund taken by the individual to DPDR was not Sally. The appellate court concluded that viewed in the light most favorable to the defendant, the summary judgment evidence did not conclusively prove that the plaintiff owned or was entitled to possession of the dog. Accordingly, the judgment of the trial court was reversed and remanded.

Since the defendant's DWI conviction and DWI acquittal did not meet the definition of a criminal episode, she was entitled to the expunction of her DWI arrest records.
Ex Parte K.T.
Appellate: Civil, Criminal, Evidence, Gov't/Administrative, Procedure
Texas 2nd Court of Appeals
October 22, 2020
02-19-00376-CV
Lee Gabriel
Published
The Texas Department of Public Safety (the Department) appealed the judgment of the trial court which granted the defendant's motion to expunge the records of the defendant's driving-while-intoxicated (DWI) arrest because she had been acquitted of the offense. On appeal, the Department argued that the defendant was not entitled to expunction because she has a prior DWI conviction and, in the Department’s view, the governing expunction statute prohibited the expunction of arrest records relating to an acquitted offense when the acquitted person has once before been convicted of the same or similar offense even if the two offenses arose out of separate arrests. The appellate court concluded that because the defendant's DWI conviction and DWI acquittal did not meet the definition of a criminal episode, she was entitled to the expunction of her DWI arrest records. Accordingly, the judgment of the trial court was affirmed. 

The appellate court concluded that the respondent abused his discretion by signing an order in aid of investigation.
In re Berryman
Constitution, Family, Gov't/Administrative, Juvenile
Texas 12th Court of Appeals
October 14, 2020
12-20-00210-CV
James T. Worthen
Published
The relators appealed the judgment of the trial court, filing an original proceeding to challenge the respondent’s order in aid of investigation of child abuse or neglect. The appellate court noted that absent a sufficient supporting affidavit, an order in aid of investigation of child abuse or neglect did not authorize a legitimate interference with family autonomy for purposes of protecting children from genuine abuse or neglect. The appellate court found that the Texas Department of Family and Protective Services’ representative’s affidavit was simply insufficient to support a conclusion of good cause to order that the relators allow entrance for interviews, examination, and investigation. The appellate court concluded that the respondent abused his discretion by signing an order in aid of investigation. Accordingly, the court conditionally granted the writ.  

The appellate court concluded that the defendant was not entitled to a lesser-included offense instruction and failed to preserve and adequately brief his point of error.
Laws v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
October 14, 2020
06-19-00221-CR
Scott E. Stevens
Published
The defendant appealed the judgment of the trial court which convicted him of assaulting peace officers. On appeal, the defendant challenged the trial court's conviction and sentence of thirty years’ imprisonment for the first officer’s assault and forty years’ imprisonment for the second officer’s assault. The appellate court noted that the defendant argued that the State failed to prove his name was meritless. The appellate court found to the contrary of the defendant's argument, the trial court did not abuse its discretion by striking the venire member for cause and the trial court’s evidentiary rulings were not an abuse of discretion. The appellate court concluded that the defendant was not entitled to a lesser-included offense instruction and failed to preserve and adequately brief his point of error. Accordingly, the judgment of the trial court was affirmed. 

The trial court did not err when it granted the defendant's motions for partial summary judgment as to mental anguish associated with the plaintiffs’ claims for trespass.
Cox v. Helena Chem. Co.
Agricultural, Appellate: Civil, Damages, Procedure, Torts
Texas 11th Court of Appeals
October 16, 2020
11-18-00215-CV
Jim R. Wright
Published
The plaintiffs appealed the judgment of the trial court which granted the defendant's motions for partial summary judgment. On appeal, the plaintiffs sought damages allegedly caused to their cotton crops by drift from the aerial application of Sendero, an herbicide that contained clopyralid and aminopyralid and was toxic to broadleaf plants such as cotton. The appellate court noted that relying on a pesticide inspector’s investigation and observations that the defendant's aerial application of Sendero, which was done in conditions that exacerbated drift, was the only such large-scale application at the relevant time and place, they concluded that the damage to the plaintiffs’ cotton crops was caused by the defendant. The appellate court saw no analytical gap in such a conclusion. The appellate court concluded that the trial court did not err when it granted the defendant's motions for partial summary judgment as to mental anguish associated with the plaintiffs’ claims for trespass. Accordingly, the judgment of the trial court was affirmed, reversed and rendered.  

Since the appellant could not show a right to receive benefits under the policy and because it had not alleged or shown an independent injury, the appellant could not recover on its extracontractual claims.
Prime Time Family Ent. Ctr., Inc. v. Axis Ins Co.
Appellate: Civil, Business, Contracts, Damages, Entertainment, Gov't/Administrative, Insurance, Torts
Texas 11th Court of Appeals
October 16, 2020
11-18-00241-CV
John M. Bailey
Published
The appellant appealed the judgment of the trial court, asserting claims for roof damage that the appellant alleged it had suffered because of the hailstorm. On appeal, the appellant alleged that the appellee breached the policy by underpaying the appellant's claim. The appellate court determined that the appellee properly invoked the doctrine of concurrent causes in its motion for summary judgment. The appellate court found that the appellee's summary judgment evidence established that the appellant had no evidence attempting to segregate losses attributable to covered perils from losses attributable to non-covered perils, and thus, the trial court did not err in granting the appellee's motion for summary judgment on the appellant's breach of contract claim. The appellate court concluded that since the appellant could not show a right to receive benefits under the policy and because it had not alleged or shown an independent injury, the appellant could not recover on its extracontractual claims. Accordingly, the court affirmed the judgment of the trial court.      

While the court did not condone the failure of the trial court to schedule an expeditious hearing, the appellant’s argument and the record did not show that the appellant was entitled to the relief he sought.
Ex Parte I.A.
Constitution, Criminal, Evidence, Juvenile, Procedure
Texas 7th Court of Appeals
October 16, 2020
07-19-00424-CV
Judy C. Parker
Published
The appellant appealed the judgment of the trial court which adjudicated the appellant, a juvenile, alleging he participated in an aggravated robbery and murder. On appeal, the appellant challenged the denial of his petition for writ of habeas corpus, which challenged his detention while awaiting an adjudication hearing before the juvenile court. The appellate court noted that the appellant asserted that his constitutional right to a hearing before the trial court judge was implicated in the case because the magistrate was not an elected official. The appellate court found that the appellant was entitled to have the “head honcho” make the ultimate detention determination. The appellate court found that because either of those grounds justified a continuation of the appellant’s detention, and the appellant did not challenge one of those independent grounds. The appellate court concluded that while the court did not condone the failure of the trial court to schedule an expeditious hearing, the appellant’s argument and the record did not show that the appellant was entitled to the relief he sought. Accordingly, the judgment was affirmed.

The appellate court concluded that the trial court did not have subject-matter jurisdiction over the part of the appellee’s lawsuit seeking judicial review of the Exemption Protest.
Fort Bend Cent. Appraisal Dist. v. McGee Chapel Baptist Church
Appellate: Civil, Gov't/Administrative, Real Property, Tax
Texas 14th Court of Appeals
October 15, 2020
14-19-00334-CV
Kevin Jewell
Published
The appellant appealed the judgment of the trial court which denied its plea to the jurisdiction in the interlocutory appeal in a tax-exemption dispute. The appellate court found that the court sustained the appellant's first issue and held that the trial court lacked subject-matter jurisdiction over the part of the appellee’s lawsuit seeking judicial review of the appellee’s Exemption Protest because the appellee had not exhausted administrative remedies as to that protest. The appellate court found that the trial court erred in denying the jurisdictional plea in that respect. The appellate court concluded that the trial court did not have subject-matter jurisdiction over the part of the appellee’s lawsuit seeking judicial review of the Exemption Protest. Accordingly, the court remanded the case to the trial court for further proceedings.    

The appellate court concluded that since the defendant did not admit to the requisite mental state, he was not entitled to an instruction on the defense of necessity.
Enns v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
October 15, 2020
01-19-00234-CR
Sherry Radack
Published
The defendant appealed the judgment of the trial court which convicted him of possession with intent to deliver methamphetamine in the amount of 400 grams or more, and the trial court assessed punishment at 18 years’ confinement. The appellate court noted that the trial court did not abuse its discretion in finding that there was reasonable suspicion to stop the defendant's car based on the surveillance and information relayed to the captain as well as the deputy’s observation of an arguable violation of the Transportation Code, and thus denying the defendant's motion to suppress. The appellate court found that the defendant conceded in his brief on appeal that he did not admit to all the elements of the offense because he did not have the requisite mens rea because he was forced to participate in the crime at gun point. The appellate court determined that the argument attempted to negate an essential element of the offense the culpable mental state rather than admit to an essential element of the offense as was required to raise the defense of necessity. The appellate court concluded that since the defendant did not admit to the requisite mental state, he was not entitled to an instruction on the defense of necessity. Accordingly, the judgment was affirmed.    

The appellate court concluded that the trial court did not abuse its discretion by concluding the two convictions in the case did not violate the defendant's rights.
Cisneros v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
October 15, 2020
13-18-00652-CR
Dori Contreras
Published
The defendant appealed the judgment of the trial court which convicted the defendant of eleven sex offenses: two counts of continuous sexual abuse of a young child or children, a first degree felony; three counts of aggravated sexual assault, a first degree felony; and six counts of indecency with a child, a second degree felony. On appeal, the defendant challenged the trial court's sentence to concurrent terms of ten years’ imprisonment. The appellate court noted that the parties both asserted that continuous sexual abuse was the most serious offense because, not only was it a first degree felony like aggravated sexual assault, it also carried parole ineligibility as a penalty upon conviction. The appellate court held that the unit of prosecution for continuous sexual abuse was a series of acts of sexual abuse that occurred over an extended period of time against a single complainant. The appellate court concluded that the trial court did not abuse its discretion by concluding the two convictions in the case did not violate the defendant's rights. Accordingly, the judgment was affirmed, reversed and rendered. 

The appellate court concluded that the record did not reflect the appellant presented his complaint on appeal to the trial court and the trial court ruled, or refused to rule, on the issue of damages and attorney fees.
Emmanuel v. Izoukumor
Consumer, Contracts, Damages, Procedure, Torts
Texas 14th Court of Appeals
October 15, 2020
14-19-00361-CV
Charles Spain
Published
The appellant appealed the judgment of the trial court which ruled in favor of appellee and a separate final judgment in the form of an order granting the appellee’s motion to dismiss the appellant’s claims. The appellate court found that the appellant had not preserved a complaint for appellate review on the issue of timely notice of the motion for summary judgment. The appellate court noted that the appellant did not make such a complaint in the trial court in writing, and even if the appellant did raise the issue at the hearing, he was granted relief. The appellate court determined that the appellant’s written request for more time was unsupported by affidavit evidence and he did not obtain a ruling in the trial court. The appellate court concluded that the record did not reflect the appellant presented his complaint on appeal to the trial court and the trial court ruled, or refused to rule, on the issue of damages and attorney fees. Accordingly, the trial court judgments were affirmed.  

The failure of the trial court to comply with Subsection (a)(5) was not a ground for the defendant to set aside the conviction, sentence, or plea.
Abrego v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 08, 2020
14-18-01010-CR
Tracy Christopher
Published
The defendant appealed the judgment of the trial court which convicted him of sexual assault of a child. On appeal, the defendant argued that his conviction must be reversed because his guilty plea was not knowing and voluntary, and because the trial court failed to admonish him that he would have to register as a sex offender. The appellate court noted that the trial court concluded that the record established that the defendant knowingly and voluntarily waived his constitutional rights when he pled guilty. The appellate court found that under Article 26.13(h), any such error was not reversible as the court must substantially comply with Subsection (a)(5). The appellate court concluded that the failure of the trial court to comply with Subsection (a)(5) was not a ground for the defendant to set aside the conviction, sentence, or plea. Accordingly, the judgment of the trial court was affirmed.  

The record in the appeal stood silent as to trial counsel’s trial strategy behind the conduct alleged to constitute ineffective assistance of trial counsel.
Abbott v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 08, 2020
14-18-00685-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted her of possession with intent to deliver a controlled substance in an amount of four grams or more but less than 200 grams. The appellate court noted that the trial court did not violate the defendant's due-process rights by failing to ask her at the plea hearing whether she was satisfied with her trial counsel’s representation or whether she wished to proceed without counsel and represent herself. The appellate court found that the trial court did not violate the defendant's right to a neutral and detached judge by altering the original indictment to be sure that the amendment of the indictment had been effected. The appellate court concluded that the record in the appeal stood silent as to trial counsel’s trial strategy behind the conduct alleged to constitute ineffective assistance of trial counsel. Accordingly, the judgment of the trial court was affirmed. 

The trial court did not err when it refused to consider the extrinsic evidence offered by the defendant because that extrinsic evidence constituted inadmissible parol evidence.
Dayston, LLC v. Brooke
Appellate: Civil, Contracts, Corporations, Evidence, Procedure, Real Property
Texas 11th Court of Appeals
October 08, 2020
11-18-00288-CV
Keith Stretcher
Published
The defendant appealed the judgment of the trial court which granted summary judgment in favor of the plaintiff, declared the agreement void, and ordered the earnest money returned. The appellate court noted that the agreement appeared to contemplate three separate tracts of land in a single conveyance and may contemplate another document, but such document was not “then in existence” at the time the agreement was executed as required under the Texas Supreme Court precedent. The appellate court found that because the conveyance was not sufficiently described in the agreement and because the survey referenced in the agreement did not exist in completed form at the time of execution, the trial court was correct in ruling that the extrinsic evidence offered by the defendant was inadmissible and in declaring that the agreement was void under the statute of frauds. The appellate court concluded that the trial court did not err when it refused to consider the extrinsic evidence offered by the defendant because that extrinsic evidence constituted inadmissible parol evidence. Accordingly, the judgment of the trial court was affirmed.

The appellate court could not, under the circumstances, definitively say that the trial court abused its discretion by not setting the supersedeas bond higher than $1,000.
U.S. Bank Trust, N.A. v. The Freedom Indeed Found.
Appellate: Civil, Banking and Finance, Constitution, Procedure, Real Property
Texas 8th Court of Appeals
October 07, 2020
08-20-00101-CV
Per Curiam
Published
The appellant appealed the judgment of the trial court which ruled in favor of the appellee after the appellee filed a motion to review the trial court’s supersedeas order and required the appellant to pay a higher unspecified amount in order to supersede a default judgment taken against the appellant. The appellate court noted that the appellee, as the movant in the court asking for relief, bore the burden of providing a record upon which the court could make a decision and arguments in support of its position. The appellate court found that the record only contained the order setting the supersedeas bond; it did not contain any of the filings or transcripts made related to the supersedeas proceedings and what was apparently a contested hearing. The appellate court could not, under the circumstances, definitively say that the trial court abused its discretion by not setting the supersedeas bond higher than $1,000. Accordingly, the court denied the appellee’s request for relief.  

Mandamus was an extraordinary remedy that was available only in limited circumstances, and when the record failed to show that the relators acted diligently to protect their rights, relief by mandamus was not available.
In re Hotze
Appellate: Civil, Constitution, Election, Gov't/Administrative, Procedure
The Supreme Court of Texas
October 07, 2020
20-0739
Nathan L. Hecht
Published
The relators appealed the decision of the Governor, seeking a writ of mandamus directing the Texas Secretary of State to conduct the November general election according to the statutory provisions suspended by the Governor’s proclamation. The Supreme Court noted that the Governor issued a proclamation, certifying under the Texas Disaster Act, that the novel coronavirus COVID-19 posed an imminent threat of disaster in all Texas counties. The Supreme Court found that the Governor issued another proclamation, again citing the Act, suspending two provisions of the Texas Election Code as they related to the general election. The Supreme Court concluded that mandamus was an extraordinary remedy that was available only in limited circumstances, and when the record failed to show that the relators acted diligently to protect their rights, relief by mandamus was not available. Accordingly, the relators’ petition for writ of mandamus was denied.  

The appellate court concluded that the trial court correctly found that the plaintiff's allegations were insufficient to overcome the bar of immunity.
Hennsley v. Stevens
Appellate: Civil, Gov't/Administrative, Procedure
Texas 7th Court of Appeals
October 07, 2020
07-18-00346-CV
Lawrence M. Doss
Published
The plaintiff appealed the judgment of the trial court which dismissed the suit under the Texas Whistleblower Act, alleging that the City discriminated against him for reporting illegal activity. On appeal, the plaintiff challenged the grant of the City's motion to dismiss for want of jurisdiction, arguing that the plaintiff's petition failed to state facts bringing the case within the Whistleblower Act’s waiver of governmental immunity and that the trial court, therefore, lacked subject-matter jurisdiction. The appellate court found that with regard to the plaintiff's claim that he was terminated from employment for reporting the chief's alleged tampering with witnesses in the pending criminal trial, the plaintiff sufficiently alleged the first part of showing a waiver of immunity under the Whistleblower Act. The appellate court concluded that the trial court correctly found that the plaintiff's allegations were insufficient to overcome the bar of immunity. Accordingly, the judgment of the trial court was affirmed. 

The Election Code did not authorize an early-voting clerk to send an application to vote by mail to a voter who had not requested one and that a clerk’s doing so resulted in irreparable injury to the State.
State v. Hollins
Appellate: Civil, Election, Gov't/Administrative, Procedure
The Supreme Court of Texas
October 07, 2020
20-0729
Per Curiam
Published
The State appealed the judgment of the trial court which denied the State’s request for a temporary injunction. On appeal, the State alleged that mass mailing applications would be an ultra vires action because the Election Code did not authorize an early voting clerk to send applications to voters who did not affirmatively request one. The Supreme Court noted that the parties immediately entered into a Tex. R. Civ. P. Rule 11 agreement that the respondent would not send applications to voters under 65 until five days after the trial court ruled on the State’s request for a temporary injunction, the State would forgo its request for a temporary restraining order, and the temporary injunction hearing would be set no later than a certain date. The Supreme Court found that the trial court denied the State’s request for a temporary injunction. The Supreme Court concluded that the Election Code did not authorize an early-voting clerk to send an application to vote by mail to a voter who had not requested one and that a clerk’s doing so resulted in irreparable injury to the State. Accordingly, the judgment of the trial court was reversed and remanded. 

The appellate court concluded that the two DWI arrests were not a part of the same “criminal episode” and in light of the undisputed evidentiary record, there was sufficient evidence to support the trial court’s judgment.
Ex Parte Ferris
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
October 02, 2020
05-19-00835-CV
Bill Pedersen, III
Published
The Department appealed the judgment of the trial court after the petitioner filed a petition for expunction, seeking an order to have all records of his arrest for driving while intoxicated (DWI) expunged. On appeal, the Department challenged the trial court's grant of the expunction order. The appellate court noted that an admission of guilt to an offense that did not arise from the same criminal episode as an offense for which the accused was acquitted and for which the accused was charged prior to being arrested did not bar an expunction of records concerning the acquitted offense. The appellate court found that the petitioner's arrest record for the DWI offense was available for expunction. The appellate court concluded that the two DWI arrests were not a part of the same “criminal episode” and in light of the undisputed evidentiary record, there was sufficient evidence to support the trial court’s judgment. Accordingly, the judgment of the trial court was affirmed.   

The record conclusively negated the lynchpin of the petitioner's claim that citation by posting violated the decedent’s due process right to notice of the tax suit.
Mitchell v. Map Res., Inc.
Appellate: Civil, Procedure, Real Property, Tax
Texas 8th Court of Appeals
September 29, 2020
08-17-00155-CV
Gina M. Palafox
Published
The petitioner appealed the judgment of the trial court in a suit arising from a collateral attack on a tax judgment rendered in a tax deficiency suit. On appeal, the petitioner challenged the suit to foreclose on tax liens levied against a multitude of defendants who were individually listed on a spreadsheet which was attached and incorporated by reference to the petition. The appellate court noted that because the trial court’s judgment may be upheld on the ground that the evidence conclusively negated the petitioner's assertion of lack of personal jurisdiction, it need not address whether summary judgment was proper based on any of the affirmative defenses. The appellate court found that the evidence established that, before resorting to citation by posting, the Taxing Authorities exercised diligence by trying to personally serve those defendants for whom an address appeared in the public records. The appellate court further determined that under the petitioners own theory of the case that the Taxing Authorities were aware of the decedent’s P.O. Box address because it appeared in the public record the evidence established that personal service on the decedent was attempted, without success, and then followed with citation by posting. The appellate court concluded that the record conclusively negated the lynchpin of the petitioner's claim that citation by posting violated the decedent’s due process right to notice of the tax suit. Accordingly, the judgment of the trial court was affirmed.  

The appellate court concluded that the trial court did not have a sua sponte duty to consider whether the evidence affirmatively established sudden passion.
Jones v. State
Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
September 29, 2020
03-19-00199-CR
Chari L. Kelly
Published
The defendant appealed the judgment of the trial court which convicted him of the first-degree felony offense of murder. On appeal, the defendant challenged the trial court's sentence to forty years’ imprisonment in the Texas Department of Criminal Justice. The appellate court noted that it considered first the threshold issue of whether the trial court, in fact, made a negative finding as to sudden passion that the court could review for evidentiary sufficiency. The appellate court found that Section 19.02 of the Texas Penal Code provided that the defendant accused of murder may raise at the punishment stage, the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. The appellate court concluded that the trial court did not have a sua sponte duty to consider whether the evidence affirmatively established sudden passion. Accordingly, the judgment of the trial court was affirmed.

Adopting the State’s theory would render article 36.28 a nullity, a toothless provision merely containing two examples of ways in which testimony possibly might be provided to the jury, as opposed to delineating the only two ways the jury was permitted to receive it.
Stredic v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 29, 2020
14-18-00162-CR
Charles Spain
Published
The State appealed the judgment of the trial court, filing a motion asserting that the defendant did not preserve error and the Code of Criminal Procedure allowed the State to act unless the Code specifically prohibited that action. The appellate court granted the motion for rehearing to consider the two issues, finding that while the defendant did not specifically mention Code of Criminal Procedure article 36.28, the specific ground was certainly “apparent from the context” of the defendant's remarks that he was discussing matters within the article’s purview. The appellate court found that the State certainly understood at trial, as it responded with a discussion of the scope of article 36.28, and while the high court’s interpretation of preservation of appellate complaints in criminal proceedings was undeniably stricter than in civil proceedings, Rule 33.1(a)(1)(A)’s “apparent from the context” language still applied. The appellate court concluded that adopting the State’s theory would render article 36.28 a nullity, a toothless provision merely containing two examples of ways in which testimony possibly might be provided to the jury, as opposed to delineating the only two ways the jury was permitted to receive it. Accordingly, the court denied the State’s requested relief.  

The defendant failed to preserve error in the trial court as to his second issue, in which he asserted that the trial court erred in failing to grant the defendant a new trial on the ground that the defendant’s failure to respond to the summary-judgment motions was not intentional.
Stettner v. Lewis & Maese Auction, LLC
Appellate: Civil, Corporations, Procedure
Texas 14th Court of Appeals
September 29, 2020
14-18-00928-CV
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which denied his motion for new trial based on alleged lack of notice of two summary-judgment motions filed by the plaintiff and rendition of summary judgment in favor of the plaintiff. The appellate court noted that the defendant submitted no evidence to the trial court rebutting the presumptions of proper service, receipt, and notice. The appellate court found that in the absence of any evidence rebutting these presumptions, the trial court did not err in denying the part of the motion for new trial in which the defendant sought a new trial on the stated grounds that he did not receive notice of the plaintiff’s summary-judgment motions or their submission. The appellate court concluded that the defendant failed to preserve error in the trial court as to his second issue, in which he asserted that the trial court erred in failing to grant the defendant a new trial on the ground that the defendant’s failure to respond to the summary-judgment motions was not intentional or due to conscious indifference. Accordingly, the judgment of the trial court was affirmed. 

The appellate court agreed with the defendant that the trial court erred in dismissing its appeal because the record established that the defendant did not receive actual or constructive notice from the county clerk’s office of the deadline for paying the costs.
Triple Crown Moving & Storage, LLC v. Ackerman
Appellate: Civil, Damages, Procedure, Torts
Texas 8th Court of Appeals
September 29, 2020
08-19-00264-CV
Jeff Alley
Published
The defendant appealed the judgment of the trial court which dismissed his appeal after the justice of the peace court ruled in favor of the plaintiff in an action seeking damages he allegedly incurred during a move. On appeal, the defendant challenged the trial court's dismissal of his appeal because the trial court found that the defendant had failed to timely pay the costs on appeal as required by Rule 506.1(i) of the Texas Rules of Civil Procedure. The appellate court agreed with the defendant that the trial court erred in dismissing its appeal because the record established that the defendant did not receive actual or constructive notice from the county clerk’s office of the deadline for paying the costs. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings. 

Since the appellant’s common law and statutory mandamus claims were premised on his retaining shareholder status in the appellees, and thus dependent on his prevailing on his declaratory judgment claim, the court must remand them for further proceedings.
Skeels v. Suder
Appellate: Civil, Business, Contracts, Procedure
Texas 2nd Court of Appeals
September 24, 2020
02-18-00112-CV
Wade J. Birdwell
Published
The appellant appealed the judgment of the trial court in an appeal arising from an acrimonious dispute between an incorporated law firm and a departing shareholder primarily concerning the applicability of one of the law firm’s governing resolutions to the firm’s attempted redemption of the departing shareholder’s shares in the absence of a specific document or agreement expressly setting forth the redemption price of those shares. The appellate court noted that neither the first appellee nor the second appellee presented evidence showing that such claims were baseless in law or fact at the time they were filed, considering the appellant's then-current shareholder status. The appellate court found that it must reverse the trial court’s declaratory judgment for the appellees and render a declaratory judgment that the appellee’s attempted redemption of the appellant’s shares was not authorized by the Texas Business Organizations Code and was, therefore, of no effect. The appellate court concluded that since the appellant’s common law and statutory mandamus claims were premised on his retaining shareholder status in the appellees, and thus dependent on his prevailing on his declaratory judgment claim, the court must remand them for further proceedings. Accordingly, the judgment of the trial court was reversed and remanded. 

The appellate court concluded that nothing in the record reflected how the plaintiff detrimentally relied on statements and the plaintiff had the burden to prove the issue and to obtain the requisite findings but failed to do so.
Spicer v. Maxus Healthcare Partners, LLC
Appellate: Civil, Bankruptcy, Contracts, Damages, Health Care, Procedure, Torts
Texas 2nd Court of Appeals
October 01, 2020
02-17-00449-CV
Bonnie Sudderth
Published
The defendant appealed the judgment of the trial court which ruled in favor of the plaintiff on its claims against them and the defendant after a six-week jury trial. On appeal, the defendant challenged the sufficiency of the evidence. The appellate court noted that there was ample evidence, upon which the jury could have found that the defendant had breached both asset purchase agreement (APA) Sections 2.16 and 2.17. The appellate court found that the evidence was sufficient to support the jury’s finding and in the judgment; however, Section 2.16’s plain language said nothing about QuickBooks, per se, and although it did reference the seller’s books and records, it did not define Financial Information to include them. The appellate court concluded that nothing in the record reflected how the plaintiff detrimentally relied on statements and the plaintiff had the burden to prove the issue and to obtain the requisite findings but failed to do so. Accordingly, the judgment of the trial court was affirmed, reversed and remanded.      

The appellate court could not agree with the plaintiff that the trial court erred in concluding the tax did not violate the Import-Export Clause of the United States Constitution or that it erred in granting the government's motion for summary judgment or denying the plaintiff's.
Rekerdres & Sons Ins. Agency, Inc. v. Hegar
Appellate: Civil, Business, Constitution, Gov't/Administrative, Insurance, Tax
Texas 7th Court of Appeals
September 24, 2020
07-19-00209-CV
Patrick A. Pirtle
Published
The plaintiff appealed the judgment of the trial court which granted the motion for partial summary judgment filed by the government and denied its first amended motion for summary judgment. The appellate court noted that the McCarran-Ferguson Act removed any restriction on a state’s power to tax the insurance business and other courts have determined that the McCarran-Ferguson Act left the matter of regulation and taxation of insurance companies to the states. The appellate court found that the assessed taxes like that before the court were not subject to challenge based upon the Commerce Clause. The appellate court could not agree with the plaintiff that the trial court erred in concluding the tax did not violate the Import-Export Clause of the United States Constitution or that it erred in granting the government's motion for summary judgment or denying the plaintiff's. Accordingly, the judgment of the trial court was affirmed. 

Since the plaintiffs failed to satisfy its burden regarding the judicial-communications privilege on the record, the court overruled the plaintiffs' issue regarding section 27.005(d).
Marble Ridge Capital LP v. Neiman Marcus Group, Inc.
Appellate: Civil, Constitution, Corporations, Procedure
Texas 5th Court of Appeals
September 30, 2020
05-19-00443-CV
Ken Molberg
Published
The plaintiffs appealed the judgment of the trial court which denied its amended motion to dismiss the defendants' counterclaims under the Texas Citizens Participation Act (TCPA). On appeal, the plaintiffs challenged the denial of its motion. The appellate court agreed with the defendants that applying the privilege to the plaintiffs’ communications would be an unprecedented expansion of the privilege, one the court found both unwarranted and not in furtherance of the privilege’s underlying goals. The appellate court concluded that since the plaintiffs failed to satisfy its burden regarding the judicial-communications privilege on the record, the court overruled the plaintiffs' issue regarding section 27.005(d). Accordingly, the judgment of the trial court was affirmed. 

The trial court did not abuse its discretion in denying the defendant's motion to withdraw his guilty plea, which was based on the defendant's purported misunderstanding of the range of punishment.
Smith v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 29, 2020
14-19-00097-CR
Frances Bourliot
Published
The defendant appealed the judgment of the trial court which convicted him of several crimes, found enhancement allegations, denied the defendant's motion to withdraw his guilty plea, and sentenced him to 60 years in prison. On appeal, the defendant challenged the judgment of the trial court. The appellate court noted that in making the motion to withdraw the plea, the defendant's trial counsel acknowledged to the court that the court did go over that. The appellate court found that having confirmed the defendant understood the charges against him and the range of possible punishment, the trial court did not abuse its discretion in denying the defendant's motion to withdraw his guilty plea, which was based on the defendant's purported misunderstanding of the range of punishment. Accordingly, the judgment of the trial court was affirmed.    

The trial court did not err in denying the appellant’s motion for new trial, without addressing whether the appellant showed good cause to file a late summary-judgment response.
Johnson v. Harris Cnty.
Appellate: Civil, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
September 29, 2020
14-18-00784-CV
Kem Thompson Frost
Published
The appellant appealed the judgment of the trial court which granted summary judgment, asserting in a single appellate issue that the trial court erred in denying a post-judgment motion in which he asserted that he did not receive notice of the appellees’ summary-judgment motion or of the submission of the motion. The appellate court found that because the appellant did not submit any evidence in the trial court rebutting the presumptions of proper service, receipt, and notice, the trial court did not err in denying the appellant’s motion for new trial, without addressing whether the appellant showed good cause to file a late summary-judgment response. Accordingly, the judgment of the trial court was affirmed. 

The defendant had sufficient time to discuss the potential ramifications of such a plea with his attorney, and the record demonstrated that the defendant voluntarily, knowingly, and intelligently pleaded “guilty” to the charged offense.
King v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
September 23, 2020
10-19-00354-CR
John E. Neill
Published
The defendant appealed the judgment of the trial court which convicted him of evading arrest or detention with a motor vehicle. On appeal, the defendant challenged the trial court's punishment at twenty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice with a $10,000 fine. The appellate court noted that the defendant was represented during the hearing on the motion in limine, and defense counsel informed the trial court that the defendant agreed to everything in the motion in limine. The appellate court found that because the defendant's presence could not have furthered his defense, his presence did not bear a reasonably substantial relationship to his opportunity to defend, and the error was harmless because the court concluded, beyond a reasonable doubt, that it did not affect the outcome of the trial. The appellate court concluded that the defendant had sufficient time to discuss the potential ramifications of such a plea with his attorney, and the record demonstrated that the defendant voluntarily, knowingly, and intelligently pleaded “guilty” to the charged offense. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the appellant did not demonstrate substantial past contact with the children as a matter of law.
In re R.I.
Appellate: Civil, Family, Gov't/Administrative, Juvenile, Procedure
Texas 12th Court of Appeals
September 23, 2020
12-20-00096-CV
James T. Worthen
Published
The appellant appealed the judgment of the trial court which granted the Department’s motion to strike the appellant’s Petition for Adoption of two minor children. The appellate court noted that the record demonstrated that the trial court heard the appellant admit to lying in a sworn affidavit she filed in the previous divorce proceeding and admit to testifying that she lied in the affidavit in a court hearing in the original suit. The appellate court found that because the appellant admitted to previously lying under oath on previous occasions, there would be no need for the trial court to take judicial notice of testimony from the original suit. The appellate court concluded that the appellant did not demonstrate substantial past contact with the children as a matter of law. Accordingly, the judgment of the trial court was affirmed. 

The evidence was legally insufficient to support the trial court’s findings that termination of the petitioner's parental rights was merited under Section 161.001(b)(1), subsections (O) and (P), of the Texas Family Code.
In re J.W.
Appellate: Civil, Gov't/Administrative, Juvenile, Procedure
Texas 6th Court of Appeals
September 25, 2020
06-20-00021-CV
Ralph Burgess
Published
The petitioner appealed the judgment of the trial court which terminated the petitioner's parental rights for failing to comply with the service plan under Section 161.001(b)(1)(O) of the Texas Family Code, constructively abandoning the child and using a controlled substance in a manner that endangered the child's health and safety and failing to complete a court-ordered substance abuse treatment program. On appeal, the petitioner argued that the evidence was legally and factually insufficient to support the trial court’s findings that termination of his parental rights was merited under Section 161.001(b)(1), subsections (N), (O), and (P), of the Texas Family Code and that termination of his parental rights was in the best interest. The appellate court found that since the trial court did not provide the petitioner with a reasonable time to comply with its Additional Temporary Order and because the Department did not provide the petitioner with sufficient time to complete the service plan, the evidence was legally insufficient to support the trial court’s findings that termination of the petitioner's parental rights was merited under Section 161.001(b)(1), subsections (O) and (P), of the Texas Family Code. Accordingly, the judgment of the trial court was reversed and remanded. 

The appellate court concluded that the trial court did not err when it determined that the appellant was not entitled to recover the contract balance.
Dowtech Specialty Contractors, Inc. v. Weinert
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 11th Court of Appeals
September 25, 2020
11-18-00246-CV
Keith Stretcher
Published
The appellant appealed the judgment of the trial court which ordered the appellee to pay the appellant for the additional work that the appellant performed and denied the appellant's request for the contract balance and for interest. The appellate court noted that there was both legally and factually sufficient evidence that the appellant was required by the contract to install the pump control system and that the appellant failed to perform the work, and therefore, the trial court did not err when it denied the appellant's request for the contract balance based on a finding that the appellant did not complete all work as required by the contract. The appellate court found that the appellant did not file a motion for new trial or otherwise object to the trial court’s failure to award prejudgment interest. The appellate court concluded that the trial court did not err when it determined that the appellant was not entitled to recover the contract balance. Accordingly, the judgment of the trial court was affirmed.            

The Department met that burden by proving that the judgment was issued prior to the child's adoption and the mother did not oppose the adoption.
In re H.H.
Appellate: Civil, Family, Gov't/Administrative, Juvenile, Procedure
Texas 6th Court of Appeals
September 25, 2020
06-20-00037-CV
Scott E. Stevens
Published
The mother appealed the judgment of the trial court which terminated the mother’s parental rights after finding that under Section 161.001(b)(M) of the Texas Family Code, her parent-child relationship to her other child was terminated by an Arkansas court based on a finding that her conduct violated Arkansas provisions substantially equivalent to Section 161.001 of the Texas Family Code. On appeal, the mother challenged the termination of her parental rights, arguing that the evidence was legally and factually insufficient to support the trial court’s Ground M finding. The appellate court noted that most Texas courts have determined that the Department met its burden under Ground M by providing certified copies of prior termination judgments meeting the requirements of Ground M without any further showing. The appellate court concluded that the Department met that burden by proving that the judgment was issued prior to the child's adoption and the mother did not oppose the adoption. Accordingly, the judgment of the trial court was affirmed. 

Since the petitioner did not come forward with legally sufficient evidence to support his entitlement to an expunction under any of the applicable provisions in the expunction statute, the trial court erred in granting his motion for an expunction.
In re Expunction of T.D.N.
Criminal, Evidence, Gov't/Administrative, Procedure
Texas 8th Court of Appeals
September 21, 2020
08-19-00164-CV
Jeff Alley
Published
The Department appealed the judgment of the trial court which granted the petitioner's petition for an expunction of criminal records. On appeal, the Department argued that the petitioner did not plead or prove a valid statutory ground for granting the expunction and that the petitioner was not entitled to an expunction of an arrest record that lead to acquittal because he was previously convicted of an offense arising out of the same “criminal episode.” The appellate court noted that because the court had determined that the two offenses did in fact arise from the same criminal episode, the trial court erred in granting the expunction. The appellate court found that the Department’s issue was sustained. The appellate court concluded that since the petitioner did not come forward with legally sufficient evidence to support his entitlement to an expunction under any of the applicable provisions in the expunction statute, the trial court erred in granting his motion for an expunction. Accordingly, the judgment of the trial court was reversed. 

Since the other offenses included in the jury charge carried sentences less than the life without parole sentence imposed on the defendant, the erroneous admission of the extraneous evidence was harmful.
Inthalangsy v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 24, 2020
14-18-00205-CR
Meagan Hassan
Published
The defendant appealed the judgment of the trial court which convicted him of capital murder with the aggravating element being that the murder occurred during the course of the second victim’s second kidnapping. On appeal, the defendant challenged the trial court's sentence to a mandatory term of life imprisonment without the possibility of parole. The appellate court noted that even if the defendant's associate was the actual shooter, the defendant was still charged under the law of parties, and the jury could have reasonably determined that the defendant at least encouraged or aided the associate in the commission of the first victim’s murder. The appellate court found that the evidence was legally sufficient to support every essential element of the offense beyond a reasonable doubt and the trial court abused its discretion when it overruled the defendant's objection under Texas Rule of Evidence 402 to the introduction/admission of evidence of the second victim’s death. The appellate court concluded that since the other offenses included in the jury charge carried sentences less than the life without parole sentence imposed on the defendant, the erroneous admission of the extraneous evidence was harmful. Accordingly the judgment of the trial court was reversed and remanded.  

The defendants had every opportunity to file suit after the deadline and did not do so, and therefore, the defendants did not prove entitlement to the inequitable-conduct exception to the dominant-jurisdiction doctrine.
In re HPGM, LLC
Appellate: Civil, Constitution, Contracts, Procedure
Texas 6th Court of Appeals
September 25, 2020
06-20-00019-CV
Josh Morriss, III
Published
The relators appealed the judgment of the trial court, seeking mandamus relief in a contingency-fee agreement dispute. On appeal, the relators challenged the trial court's denial of its plea in abatement on estoppel grounds. The appellate court noted that when two inherently interrelated suits were brought in different counties, the first-filed suit ordinarily acquired dominant jurisdiction and the second-filed suit should be abated. The appellate court found that the relators’ acquiescence in the procedure precluded it from complaining on appeal that the factual allegations in the defendants' response were not evidence. The appellate court concluded that the defendants had every opportunity to file suit after the deadline and did not do so, and therefore, the defendants did not prove entitlement to the inequitable-conduct exception to the dominant-jurisdiction doctrine. Accordingly, the court conditionally granted the requested relief.  

The appellate court concluded that the petitioner's notice of appeal in the case was timely filed within the extended timetable.
The Nevarez Law Firm, P.C. v. Investor Land Services, L.L.C.
Appellate: Civil, Procedure
Texas 8th Court of Appeals
June 26, 2020
08-20-00094-CV
Gina M. Palafox
Published
The petitioner appealed the judgment of the trial court which denied the petitioner's motion for rehearing, to withdraw the court's Memorandum Opinion and Judgment, and reinstate the appeal. On appeal, the appellate court was asked to consider whether the petitioner timely filed a motion for new trial in the trial court that would serve to extend the appellate timetable for timely filing a notice of appeal. The appellate court found that the electronic filing of the motion for new trial, which was corrected, constituted a valid and timely filed motion for new trial that extended the appellate timetable from thirty days to ninety days from the date of the judgment. The appellate court concluded that the petitioner's notice of appeal in the case was timely filed within the extended timetable. Accordingly, the petitioner's motion was granted.

Since there was no final order denying the defendant’s application for writ of habeas corpus to be appealed, the court lacked jurisdiction to entertain the defendant’s appeal from such order.
Ex Parte Evans
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
September 23, 2020
10-20-00243-CR
Rex D. Davis
Published
The defendant appealed the judgment of the trial court which denied a pretrial writ of habeas corpus and the defendant’s motion to dismiss. The appellate court noted that it had not found any rule or any statutory or constitutional provision that would authorize the defendant’s appeal from the trial court’s interlocutory order denying his motion to dismiss. The appellate court found that the order was not appealable, and the court had no jurisdiction to entertain the defendant’s appeal from the order. The appellate court concluded that since there was no final order denying the defendant’s application for writ of habeas corpus to be appealed, the court lacked jurisdiction to entertain the defendant’s appeal from such order. Accordingly, the court dismissed the appeal for want of jurisdiction.

The State met the requirements of the third prong of the limitations statute, and therefore, the trial court correctly denied relief on the petitioner's pretrial application for writ of habeas corpus.
Ex Parte Campozano
Constitution, Criminal, Evidence, Procedure
Texas 5th Court of Appeals
September 23, 2020
05-19-01237-CR
Amanda L. Reichek
Published
The petitioner appealed the judgment of the trial court which denied relief on his pretrial application for writ of habeas corpus. On appeal, the petitioner contended that the trial court misapplied the limitations statute and concluded incorrectly that the indictment against him was not time barred. The appellate court noted that the record established the State had met the first prong by recovering biological material during the investigation of the offense. The appellate court found that because the statute unambiguously did not require DNA testing take place within any particular time period, the statutory changes addressed the separate problem of untested sexual assault kits, and the cases the petitioner relied upon did not support his position and were distinguishable. The appellate court concluded that the State met the requirements of the third prong of the limitations statute, and therefore, the trial court correctly denied relief on the petitioner's pretrial application for writ of habeas corpus. Accordingly, the judgment of the trial court was affirmed. 

The appellate court concluded that it had no basis for questioning the trial court’s judgment because neither the defense nor the dissent had pointed to any evidence from the disc showing that the untimely disclosure resulted in prejudice.
Hernandez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 22, 2020
14-19-00254-CR
Tracy Christopher
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated assault with a deadly weapon. On appeal, the appellate court was asked to consider whether the evidence was legally sufficient to support the conviction, as well as several interrelated issues arising out of the prosecution’s untimely disclosure of evidence. The appellate court noted that the record did not affirmatively reveal how much time during the trial that the defense had to review the disc, or even if the defense was able to carefully peruse the content of the text messages. The appellate court found that the defense made the sensible judgment under the circumstances to not offer the disc into evidence and then argue in closing statements that the absence of the disc provided grounds for reasonable doubt. The appellate court further determined that the jury was unpersuaded by that argument, and the trial court found no reason for granting a new trial. The appellate court concluded that it had no basis for questioning the trial court’s judgment because neither the defense nor the dissent had pointed to any evidence from the disc showing that the untimely disclosure resulted in prejudice. Accordingly, the judgment of the trial court was affirmed.  

The appellate court concluded that if a court ordered-dismissal of an action under the TCPA, it must award attorney’s fees and costs to the movant.
Sanchez v. Striever
Appellate: Civil, Damages, Gov't/Administrative, Litigation: Personal Injury, Procedure
Texas 14th Court of Appeals
September 22, 2020
14-19-00449-CV
Kevin Jewell
Published
The plaintiff appealed the judgment of the trial court which dismissed his claim for “assault by offensive physical contact” under Texas Rule of Civil Procedure 91a and the Texas Citizens Participation Act (TCPA). On appeal, the plaintiff asserted that dismissal based on rule 91a was error because his claim had a basis in law and fact. The appellate court noted that the plaintiff's claim had a basis in fact because the facts alleged were not such that no reasonable person could believe them. The appellate court found that the defendant had not shown that the plaintiff's claim for assault by offensive physical contact was based on, related to, or in response to the appellee's exercise of the rights of free speech or association. The appellate court concluded that if a court ordered-dismissal of an action under the TCPA, it must award attorney’s fees and costs to the movant. Accordingly, the judgment of the trial court was reversed, vacated, and remanded.

Although article I, section 10 was expressed in mandatory terms as an indispensable feature of the system, the constitutional provision conferred a right to the accused which could not be impaired without his consent, as authorized by the Legislature.
Pacas v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
September 22, 2020
01-18-01016-CR
Peter Kelly
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated assault, a second-degree felony. On appeal, the defendant challenged the trial court's finding of him guilty and assessed punishment at 16 years’ imprisonment for each charge, with the sentences running concurrently. The appellate court noted that when attempting to discern apparent legislative intent, the court necessarily focused its attention on the literal text of the statute in question and attempted to discern the fair, objective meaning of that text at the time of its enactment. The appellate court found that there was no significant textual difference between article I, section 10 of the Texas Constitution and the Sixth Amendment to the United States Constitution that indicated that different standards of protection should be applied to criminal defendants under either constitution. The appellate court concluded that although article I, section 10 was expressed in mandatory terms as an indispensable feature of the system, the constitutional provision conferred a right to the accused which could not be impaired without his consent, as authorized by the Legislature. Accordingly, the judgment of the trial court was modified as affirmed.

There was a reasonable possibility that the text messages obtained from the defendant's phone moved the jury from a state of non-persuasion to one of persuasion on the issue of the defendant's guilt.
Igboji v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 22, 2020
14-17-00838-CR
Meagan Hassan
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated robbery and assessed punishment at 17 years’ confinement. The appellate court noted that in the audio recording, the defendant clearly could be heard refusing to consent to the search of his phone and instead opting to have the detective seize the phone while awaiting a search warrant. The appellate court found that even when viewed in the light most favorable to the trial court’s ruling, the evidence did not support the conclusion that the defendant voluntarily consented to the detective’s seizure of his phone. The appellate further determined that the detective’s warrantless seizure of the defendant's phone did not fall within the exigent-circumstances exception. The appellate court concluded that there was a reasonable possibility that the text messages obtained from the defendant's phone moved the jury from a state of non-persuasion to one of persuasion on the issue of the defendant's guilt. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.  

The appellate court concluded that the trial court erred in denying the appellants’ motions to dismiss all of the appellee’s claims other than its claim for breach of contract brought against the appellant.
Mesquite Services, LLC v. Standard E&S, LLC
Appellate: Civil, Consumer, Contracts, Corporations, Employment, Procedure
Texas 7th Court of Appeals
September 15, 2020
07-19-00440-CV
Judy C. Parker
Published
The appellants appealed the judgment of the trial court which denied, by operation of law, the appellants’ motions to dismiss claims asserted by the appellee. The appellate court noted that the appellee had presented clear and specific evidence sufficient to establish a prima facie case that the appellant breached the non-compete portion of his work agreement by working for the appellant in a competitive position, after reviewing the evidence favorable to the appellee. The appellate court found that as the appellee failed to establish a prima facie case that the appellant used information derived from the appellee's employees to solicit the appellee’s customers, the appellee had not met its burden to show that the commercial speech exemption applied to the appellee’s claims. The appellate court concluded that the trial court erred in denying the appellants’ motions to dismiss all of the appellee’s claims other than its claim for breach of contract brought against the appellant. Accordingly, the judgment of the trial court was affirmed, reversed and remanded.  

The appellate court further determined that the defendant's sentence of imprisonment for life was the maximum.
Macedo v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 15, 2020
14-19-00386-CR
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which convicted him of murdering his wife and sentenced him to life in prison. The appellate court explained that the police offense reports were inadmissible hearsay in criminal cases, and thus, it was inadmissible hearsay in its entirety. The appellate court found that since the defendant timely asserted a hearsay objection to the exhibit and because the State did not establish its admissibility through a witness or by an applicable hearsay exception, the trial court erred in admitting the exhibit. The appellate court further determined that the defendant's sentence of imprisonment for life was the maximum. The appellate court concluded that the error in admitting the exhibit was harmful. Accordingly, the judgment of the trial court was reversed and remanded for a new trial on punishment.  

The Supreme Court concluded that strictly construing the statutory provisions at issue against ineligibility, the appellate court erred in declaring the candidates ineligible and granted their request for mandamus relief.
In re Green Party of Tex.
Constitution, Election, Procedure
The Supreme Court of Texas
September 18, 2020
20-0708
Per Curiam
Published
The democratic candidates appealed the judgment of the trial court, seeking mandamus relief in the appellate court to remove the relators, three Party candidates from the November general election ballot. On appeal, the candidates asserted that the relators were ineligible because they failed to pay the filing fee required by section 141.041 of the Texas Election Code. The Supreme Court noted that a candidate’s name was to be omitted from the ballot if the candidate was declared ineligible on or before the seventy-fourth day before election day. The Supreme Court found that because the deadline to remove a candidate from the ballot due to ineligibility has passed, removal from the ballot was no longer a remedy for the candidates. The Supreme Court concluded that strictly construing the statutory provisions at issue against ineligibility, the appellate court erred in declaring the candidates ineligible and granted their request for mandamus relief. Accordingly, the judgment of the trial court was vacated and remanded.  

The appellate court concluded that the TCPA summary-dismissal procedures were not available to the defendants based on the claims asserted against them.
Kassab v. Pohl
Appellate: Civil, Procedure, Torts
Texas 1st Court of Appeals
September 17, 2020
01-18-01143-CV
Sarah Beth Landau
Published
The defendants appealed the judgment of the trial court which denied their motions to dismiss under the Texas Citizens Participation Act (TCPA). On appeal, the defendants challenged the denial of their three TCPA motions were overruled by operation of law. The appellate court found that there was no error in the denial of all three TCPA motions to dismiss because the commercial-speech exemption applied to all three groups of the defendants. The appellate court could not have analyzed and offered no view on the claims in the suit. The appellate court concluded that the TCPA summary-dismissal procedures were not available to the defendants based on the claims asserted against them. Accordingly, the judgment of the trial court was affirmed and remanded.   

The appellate court concluded that it had jurisdiction over the appeals and there was no ground to support the trial court’s dismissal of the informations based on invalid complaints.
State v. Santillana
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
September 17, 2020
01-20-00276-CR
Sherry Radack
Published
The defendants appealed the judgment of the district court, arguing that the State’s appeals must be dismissed, thereby making final the trial court’s erroneous ruling in their favor on the probable-cause issue. On appeal, the appellate court was asked to consider whether the County District Attorney also had the statutory authority to file a State’s appeal from the inferior courts of the County, specifically, the county criminal courts at law. The appellate court noted that the defendants did not object before trial that the complaints were defective because they did not comply with article 2.04. The appellate court found that because the defendants’ argument regarding the sufficiency of the complaint under article 2.04 was both waived and without merit, the trial court could not have properly dismissed the informations on that basis. The appellate court concluded that it had jurisdiction over the appeals and there was no ground to support the trial court’s dismissal of the informations based on invalid complaints. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.  

The defendant failed to challenge admission of the pen packet on appeal as not comporting with Rule 902(4) and instead framed his argument as an attack on the admission of the pen packet under Rule 902(10).
Dowling v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 15, 2020
14-19-00122-CR
Meagan Hassan
Published
The defendant appealed the judgment of the trial court which convicted him of family violence assault by impeding breath or circulation. On appeal, the defendant challenged the trial court's assessment of the defendant's punishment at 25 years’ confinement. The appellate court noted that reviewing the evidence before the court in the light most favorable to the verdict, the evidence was sufficient to support the jury’s finding that the complainant’s breathing was impeded and that she suffered injuries to her neck, mouth, and face. The appellate court found that the record indicated the trial court admitted the pen packet pursuant to Texas Rule of Evidence 902(4) as offered and argued by the State. The appellate court concluded that the defendant failed to challenge admission of the pen packet on appeal as not comporting with Rule 902(4) and instead framed his argument as an attack on the admission of the pen packet under Rule 902(10). Accordingly, the judgment of the trial court was affirmed.

The plaintiffs' claim challenging the Advisory constituted an ultra vires claim that was not barred by sovereign immunity and the court modified the trial court’s temporary injunction.
Hughs v. Dikeman
Appellate: Civil, Constitution, Election, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
September 08, 2020
14-19-00969-CV
Meagan Hassan
Published
The defendant appealed the judgment of the trial court which granted the plaintiffs' request for a temporary injunction, asserting claims and requesting injunctive relief in connection with Texas Election Code section 141.041 and its accompanying advisory. On appeal, the defendant challenged the trial court's decision to enjoin the defendant from enforcing section 141.041 and the related advisory. The appellate court noted that the plaintiffs failed to plead a viable constitutional claim challenging section 141.041 as necessary to waive the defendant's sovereign immunity. The appellate court found that subject matter jurisdiction over that claim was therefore lacking as a matter of law and the trial court erred by enjoining section 141.041’s enforcement. The appellate court concluded that the plaintiffs' claim challenging the Advisory constituted an ultra vires claim that was not barred by sovereign immunity and the court modified the trial court’s temporary injunction. Accordingly, the judgment of the trial court was affirmed as modified in part, reversed and remanded in part.  

Since there was no factual basis in the record to support a determination that the defendant could pay more than $650 for attorney’s fees, the proper remedy was to reform the trial court’s judgment and the bill of costs by modifying the amount of attorney’s fees to reflect the amount of $650.
Engel v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
September 11, 2020
11-18-00225-CR
Keith Stretcher
Published
The defendant appealed the judgment of the trial court which convicted him of murder, a first-degree felony. On appeal, the defendant challenged the trial court's assessment of punishment at confinement for a term of twenty years in the Institutional Division of the Texas Department of Criminal Justice. The appellate court noted that although the defendant testified to facts that, if believed, may have supported his self-defense claim, other testimony and evidence, including the defendant's recorded statements to the police, supported his conviction for murder. The appellate court found that the evidence of guilt was sufficiently overwhelming such that the state of the evidence did not weigh in favor of a finding of egregious harm. The appellate court further determined that the words spoken by the trial judge in the case did not constitute a comment on the weight of the evidence. The appellate court concluded that since there was no factual basis in the record to support a determination that the defendant could pay more than $650 for attorney’s fees, the proper remedy was to reform the trial court’s judgment and the bill of costs by modifying the amount of attorney’s fees to reflect the amount of $650, rather than $6,500. Accordingly, the judgment of the trial court was modified and affirmed.

The available mechanism for seeking the Libertarians’ removal from the ballot for failure to pay the filing fee was a declaration of ineligibility, and thus, the Election Code did not permit the relators to bypass that deadline by belatedly challenging the Libertarians’ applications.
In re Tex. House Republican Caucus PAC
Appellate: Civil, Constitution, Election, Gov't/Administrative, Procedure
The Supreme Court of Texas
September 05, 2020
20-0663
Per Curiam
Published
The relators appealed the judgment of the trial court, seeking to prevent 44 Libertarian Party candidates from appearing on the general-election ballot due to the Libertarians’ failure to pay the filing fee required by Section 141.041 of the Texas Election Code. On appeal, the relators conceded that the statutory deadline to have the Libertarians removed from the ballot using a declaration of ineligibility passed. The relators further claimed a later deadline applied to their petition, which they described as a challenge to the Libertarians’ ballot applications governed by the deadline in section 141.034. The Supreme Court noted that the Election Code did not authorize the requested relief. The Supreme Court found that the relators invoked deadlines governing challenges to an application for a place on the ballot under chapter 141, but the Libertarian Party candidate did not file such applications. The Supreme Court concluded that the available mechanism for seeking the Libertarians’ removal from the ballot for failure to pay the filing fee was a declaration of ineligibility, and thus, the Election Code did not permit the relators to bypass that deadline by belatedly challenging the Libertarians’ applications. Accordingly, the petition for writ of mandamus was denied  

The appellate court concluded that the trial court abused its discretion in granting the expunction.
In re Expunction of O.A.T.
Criminal, Evidence, Procedure
Texas 8th Court of Appeals
August 31, 2020
08-19-00284-CV
Jeff Alley
Published
The Department appealed the judgment of the trial court which granted the defendant's petition for an expunction of criminal records. On appeal, the appellate court was asked to consider whether the defendant did not plead or prove a valid statutory ground for granting the expunction. The appellate court noted that the Engaging in Organized Criminal Activity (EOCA) indictment to which the defendant pled guilty alleged that he had committed a felony offense arising out of the same transaction for which the defendant was arrested with respect to the dismissed EOCA offense for which he sought expunction. The appellate court found that since the EOCA indictment to which the defendant pled guilty was not dismissed for any of the reasons listed in the expunction statute, that precluded the defendant from receiving an expunction. The appellate court concluded that the trial court abused its discretion in granting the expunction. Accordingly, the judgment of the trial court was reversed. 

The appellate court concluded that the plaintiff was not entitled to an award of attorney fees absent either an award of damages or a contractual provision providing for attorney fees.
Boucher v. Thacker
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 6th Court of Appeals
September 01, 2020
06-19-00055-CV
Scott E. Stevens
Published
The defendant appealed the judgment of the trial court which granted judgment for the plaintiff, awarding him attorney fees and entered a take-nothing judgment against the defendant. On appeal, the defendant sought to retire, but the plaintiff withdrew from the firm before the effective date of the defendant's retirement. The appellate court noted that because the trial court entered a take-nothing judgment on all of the defendant's claims against the plaintiff, the court interpreted the defendant's first two points of error as questioning whether the evidence was factually sufficient to support the trial court’s rejection of his claims. The appellate court found that the evidence was factually sufficient to support the take-nothing judgment and concluded, as a result, both that the defendant was not entitled to retirement or the value of his interest in the firm and the trial court did not err in failing to award damages to the defendant. The appellate court concluded that the plaintiff was not entitled to an award of attorney fees absent either an award of damages or a contractual provision providing for attorney fees. Accordingly, the judgment of the trial court was reversed and affirmed in part.  

The affidavits filed in support of the defendant's motion for summary judgment were not apparently based on hearsay, nor had the plaintiff offered evidence to controvert the contents of those affidavits or support his claim they were made in bad faith.
Wolf v. Ramirez
Appellate: Civil, Bankruptcy, Contracts, Creditor/Debtor, Damages, Evidence, Litigation: Personal Injury, Procedure, Real Property, Torts
Texas 8th Court of Appeals
August 31, 2020
08-19-00147-CV
Yvonne T. Rodriguez
Published
The plaintiff appealed the judgment of the trial court after it filed for Chapter 13 bankruptcy which was dismissed. On appeal, the plaintiff sought the advice of another bankruptcy attorney. The appellate court noted that the plaintiff failed to produce any competent summary judgment evidence that either the trial court, or the court, could consider which would create a genuine issue of material fact regarding the plaintiff's allegations of legal malpractice against the defendant. The appellate court found that the trial court properly rendered summary judgment in favor of the defendant on the plaintiff's legal malpractice claims. The appellate court further determined that the summary judgment evidence supported the trial court's grant of summary judgment in favor of the defendant on the claims against him for breach of fiduciary duty. The appellate court concluded that the affidavits filed in support of the defendant's motion for summary judgment were not apparently based on hearsay, nor had the plaintiff offered evidence to controvert the contents of those affidavits or support his claim they were made in bad faith. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the trial court’s award of the actual damages should be affirmed based on the trial court’s grant of summary judgment on the plaintiff's trespass to try title action.
The High Road on Dawson v. Benevolent & Protective Order of the Elks of the U.S.A.
Appellate: Civil, Constitution, Contracts, Corporations, Damages, Evidence, Gov't/Administrative, Litigation: Personal Injury, Procedure, Real Property, Torts
Texas 14th Court of Appeals
August 31, 2020
14-18-00382-CV
Margaret Poissant
Published
The defendant appealed the judgment of the trial court which granted the plaintiff's motion for summary judgment in an action alleging causes of action for trespass to try title, conversion, unjust enrichment, breach of contract, breach of fiduciary duty, and violations of the Texas Theft Liability Act. On appeal, the parties disputed the ownership of real and personal property. The appellate court noted that the defendant did not allege an underlying tort cause of action necessary to maintain a conspiracy cause of action that the plaintiff “engaged in a conspiracy” to unlawfully appropriate its property. The appellate court found that the judgment did not specify that the trial judge may have intended to award the money for breach of contract, for violations of the Theft Liability Act, and for trespass to try title or for one or two of those three causes of actions. The appellate court concluded that the trial court’s award of the actual damages should be affirmed based on the trial court’s grant of summary judgment on the plaintiff's trespass to try title action. Accordingly, the judgment of the trial court was affirmed.

Since the allegations stated in the plaintiff's petition did not establish that her claims were barred by collateral estoppel or res judicata, the court reversed the trial court’s final judgment dismissing all of the plaintiff's claims.
Reynolds v. Quantlab Trading Partners US, LP
Appellate: Civil, Corporations, Discovery, Procedure, Real Property
Texas 14th Court of Appeals
August 31, 2020
14-18-00746-CV
Margaret Poissant
Published
The plaintiff appealed the judgment of the trial court which dismissed all of the plaintiff's claims, which incorporated previous orders granting the Rule 91a motions to dismiss the defendants. On appeal, the plaintiff challenged the trial court’s denial of her motions to compel discovery from the defendants. The appellate court noted that the record showed that the trial court signed an order denying the plaintiff's motions to compel after the trial court had dismissed the claims against the defendants. The appellate court found that the trial court’s order did not specify its reasons for denying the motions to compel, but the court assumed that the trial court did so because it had already signed orders dismissing all of the plaintiff's claims. The appellate court concluded that since the allegations stated in the plaintiff's petition did not establish that her claims were barred by collateral estoppel or res judicata, the court reversed the trial court’s final judgment dismissing all of the plaintiff's claims. Accordingly, the judgment of the trial court was reversed.

The appellate court concluded that Section 21.16(b) satisfied the strict scrutiny test and was not overbroad.
Ex parte Ellis
Criminal, Evidence, Procedure
Texas 10th Court of Appeals
August 31, 2020
10-17-00047-CR
John E. Neill
Published
The defendant appealed the judgment of the trial court which denied relief under Texas Penal Code section 21.16(b) with the offense of Unlawful Disclosure or Promotion of Intimate Visual Material. On appeal, the defendant filed an Application for Writ of Habeas Corpus arguing that Section 21.16(b) was unconstitutional on its face. The appellate court noted that because Section 21.16(b) was content based on its face, it must apply strict scrutiny rather than intermediate scrutiny. The appellate court found that the privacy interests were compelling, and the statute was narrowly drawn to protect those interests. The appellate court concluded that Section 21.16(b) satisfied the strict scrutiny test and was not overbroad. Accordingly, the judgment of the trial court was affirmed. 

The appellate court concluded that the evidence was sufficient to support the trial court’s deadly weapon findings relating to the drug-possession offenses against the defendant.
Davila v. State
Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
August 31, 2020
03-18-00667-CR
Melissa Goodwin
Published
The defendant appealed the judgment of the trial court which convicted him of possession with intent to deliver a controlled substance, heroin, in an amount of four grams or more but less than 200 grams, and tampering with physical evidence. On appeal, the defendant challenged the trial court's conviction. The appellate court noted that in an open plea to the trial court, the defendant pled guilty to all six offenses. The appellate court found that the defendant failed to demonstrate that he was entitled to relief under the Interstate Agreement on Detainers Act (IADA) because he failed to establish that the IADA was triggered and applied to his cases. The appellate court concluded that the evidence was sufficient to support the trial court’s deadly weapon findings relating to the drug-possession offenses against the defendant. Accordingly, the judgment of the trial court was affirmed.      

The appellate court conditionally granted the relators' petition and lifted the stay order that the court issued to stop the proceedings in the trial court pending its resolution of the parties' dispute.
In re Elara Signature Homes, Inc.
Appellate: Civil, Constitution, Discovery, Procedure
Texas 9th Court of Appeals
September 03, 2020
09-20-00150-CV
Per Curiam
Published
The relators appealed the judgment of the trial court, filing a petition for writ of mandamus. On appeal, the relators challenged the trial court’s order that required them to respond to the plaintiff’s discovery requests a set of requests to produce served on each defendant that asked them to produce diverse financial records. The appellate court noted that given the elements that applied to such claims, the court failed to see how transactions that involved transactions years before the relator built the house, before the plaintiff bought it, and before the plaintiff placed the relators on notice of his claims would be relevant to a claim under the Uniform Fraudulent Transfer Act. The appellate court found that the trial court abused its discretion by granting the plaintiff’s motion to compel. The appellate court conditionally granted the relators' petition and lifted the stay order that the court issued to stop the proceedings in the trial court pending its resolution of the parties' dispute. Accordingly, the relators' petition for mandamus was conditionally granted.  

The appellate court concluded that the plaintiff alleged facts supporting a viable ultra vires claim within the trial court’s subject-matter jurisdiction.
Tex. State Univ. President Trauth v. K. E.
Appellate: Civil, Education, Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
September 04, 2020
03-19-00212-CV
Thomas J. Baker
Published
The defendant appealed the judgment of the trial court which ruled in favor of the plaintiff after the plaintiff challenged the Investigative Panel’s findings and recommendations to the University President, who upheld the findings and recommendations and submitted to the Board of Regents her recommendation that the plaintiff's degree be revoked. The appellate court noted that the plaintiff's dissertation research involved the in-field collection of leaves using a leaf gas analyzer called a LiCor instrument. The appellate court found that the plaintiff's pleadings have alleged an ultra vires claim against the University officials, specifically, that they acted without legal authority when they purported to revoke her degree. The appellate court further determined that the plaintiff's claims did not implicate sovereign immunity, and the trial court properly concluded that it had subject-matter jurisdiction over her claim. The appellate court concluded that the plaintiff alleged facts supporting a viable ultra vires claim within the trial court’s subject-matter jurisdiction. Accordingly, the judgment of the trial court was affirmed. 

Since the trial court did not abuse its discretion in imposing a thirty minute time limit for general voir dire per side, with an additional hour of individual questioning of venire members, the trial court did not abuse its discretion in denying the plaintiff's motion for new trial.
Yanez v. Hernandez
Appellate: Civil, Employment, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
August 31, 2020
08-19-00055-CV
Yvonne T. Rodriguez
Published
The plaintiff appealed the judgment of the trial court which ruled in favor of the defendant in a personal injury action. On appeal, the plaintiff claimed physical, emotional, and lost wage damages. The appellate court noted that the record reflected that line of questioning only comprised about ten of the thirty minutes of the plaintiff's time. The appellate court found that given the straightforward facts of the case, the defendant's admission of liability prior to trial, and considering the jury charge questions, the plaintiff did not meet the bar for adequate use of her time during general voir dire. The appellate court further determined that the trial court abused its discretion by denying his motion for new trial based upon her alleged lack of adequate time to voir dire the venire panel. The appellate court concluded that since the trial court did not abuse its discretion in imposing a thirty minute time limit for general voir dire per side, with an additional hour of individual questioning of venire members, the trial court did not abuse its discretion in denying the plaintiff's motion for new trial. Accordingly, the judgment of the trial court was affirmed.  

The appellate court concluded that the trial court abused its discretion by compelling disclosure of privileged material and the relator did not have an adequate remedy at law.
In re Christus Santa Rosa Healthcare Corp.
Constitution, Gov't/Administrative, Procedure
Texas 4th Court of Appeals
September 02, 2020
04-20-00327-CV
Liza A. Rodriguez
Published
The relator appealed the judgment of the trial court, filing a petition for writ of mandamus asking the trial court to compel the respondent to vacate a portion of his order compelling production of an email that the relator contended was privileged. On appeal, the respondent contended that when she awoke from surgery, it was shared with her that, after surgery, he and the assisting surgeon wrote “scathing emails” to the hospital staff. The appellate court found that the doctor used the respondent’s case as an example, and the individual made the email available to members of the Peer Review Committee for review and consideration. The appellate court noted that according to the individual, the email served as the impetus for a peer review proceeding and the case was subsequently referred to and reviewed and considered by the entire Peer Review Committee. The appellate court concluded that the trial court abused its discretion by compelling disclosure of privileged material and the relator did not have an adequate remedy at law. Accordingly, the court conditionally granted the petition for writ of mandamus.  

The trial court properly determined that the plaintiff's request for Declarations IV and V were barred by sovereign immunity and did not err by dismissing them for lack of subject-matter jurisdiction.
Hartzell v. S. O.
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
September 04, 2020
03-19-00131-CV
Thomas J. Baker
Published
The defendants appealed the judgment of the trial court which ruled in favor of the plaintiff's declaratory and injunctive suit, which prohibited the defendants from holding an internal disciplinary proceeding for the purpose of deciding whether to revoke the plaintiff's doctoral degree in organic chemistry that was conferred by the University. On appeal, the defendants filed a plea to the jurisdiction, which the trial court granted in part and denied in part. The appellate court noted that the plaintiff's pleadings alleged an ultra vires claim against the defendants, specifically, that they acted without legal authority by instituting an internal proceeding to decide whether to revoke her previously conferred degree. The appellate court found that the plaintiff's claims did not implicate sovereign immunity, and the trial court properly concluded that it had subject-matter jurisdiction over her claims. The appellate court concluded that the trial court properly determined that the plaintiff's request for Declarations IV and V were barred by sovereign immunity and did not err by dismissing them for lack of subject-matter jurisdiction. Accordingly, the judgment of the trial court was affirmed. 

The appellate court concluded that the trial court’s order appointing a receiver constituted a rehabilitative receivership, and as such, the trial court was without authority to enter it.
In re Estate of Hallmark
Appellate: Civil, Contracts, Gov't/Administrative
Texas 11th Court of Appeals
August 31, 2020
11-18-00187-CV
John Bailey
Published
The appellant appealed the judgment of the trial court which ruled in favor of the appellee after it instituted the suit as an “ancillary” action to the probate proceeding for the purpose of obtaining a declaratory judgment to declare the Estate’s rights in the partnership. On appeal, the appellant challenged the appellee's assertions that the appellant had engaged in mismanagement in operating the partnership. The appellate court noted that the appellee sought the appointment of a receiver over the partnership. The appellate court found that the appeal arose from the trial court’s order granting the appellee’s request to appoint a receiver. The appellate court further determined that because a Texas partnership was a “domestic entity” under the Texas Business Organizations Code, the receivership provisions set out in that code provided the exclusive statutory basis for appointing a receiver for a Texas partnership. The appellate court concluded that the trial court’s order appointing a receiver constituted a rehabilitative receivership, and as such, the trial court was without authority to enter it. Accordingly, the judgment of the trial court was reversed and remanded.  

Since the allegations stated in the plaintiff's petition did not establish that her claims were barred by collateral estoppel or res judicata, the court reversed the trial court’s final judgment dismissing all of the plaintiff's claims.
Reynolds v. Quantlab Trading Partners US, LP
Appellate: Civil, Corporations, Discovery, Procedure, Real Property
Texas 14th Court of Appeals
August 31, 2020
14-18-00746-CV
Margaret Poissant
Published
The plaintiff appealed the judgment of the trial court which dismissed all of the plaintiff's claims, which incorporated previous orders granting the Rule 91a motions to dismiss the defendants. On appeal, the plaintiff challenged the trial court’s denial of her motions to compel discovery from the defendants. The appellate court noted that the record showed that the trial court signed an order denying the plaintiff's motions to compel after the trial court had dismissed the claims against the defendants. The appellate court found that the trial court’s order did not specify its reasons for denying the motions to compel, but the court assumed that the trial court did so because it had already signed orders dismissing all of the plaintiff's claims. The appellate court concluded that since the allegations stated in the plaintiff's petition did not establish that her claims were barred by collateral estoppel or res judicata, the court reversed the trial court’s final judgment dismissing all of the plaintiff's claims. Accordingly, the judgment of the trial court was reversed.

The appellate court concluded that the evidence was sufficient to overcome the plea to the jurisdiction vis-à-vis the negligent operation of a motor vehicle.
City of El Paso v. Cangialosi
Criminal, Gov't/Administrative, Procedure, Torts
Texas 8th Court of Appeals
August 31, 2020
08-19-00163-CV
Jeff Alley
Published
The defendant appealed the judgment of the trial court which denied its plea to the jurisdiction. On appeal, the defendant challenged the plaintiff's suit, alleging negligence against the City after the police improperly conducted a vehicular pursuit of two suspected house burglars. The appellate court noted that a jury could conclude that driving either 60 mph as did the first officer, or 72 mph as did the second officer, was not a reasonably safe speed for the circumstances. The appellate court found that another undercover officer testified that a speed in excess of 30 mph would “to some degree” not be a “safe speed” because there was a lot of traffic on the roadway. The appellate court expressed no opinion on whether the evidence actually established negligence. The appellate court concluded that the evidence was sufficient to overcome the plea to the jurisdiction vis-à-vis the negligent operation of a motor vehicle. Accordingly, the judgment of the trial court was affirmed.     

Appellate courts have the power to correct and reform a trial court judgment to make the record speak the truth when they have the necessary data and information to do so or made any appropriate order as the law and nature of the case may require.
Malbrough v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
September 01, 2020
01-18-00941-CR
Julie Countiss
Published
The defendant appealed the judgment of the trial court which convicted him of the felony offense of directing the activities of a criminal street gang and assessed his punishment at confinement for sixty years. The appellate court noted that the evidence was legally sufficient to support the defendant's conviction for the offense of directing activities of a criminal street gang. The appellate court found that the evidence was legally sufficient to support the defendant's conviction as a principal actor for the offense of directing activities of a criminal street gang, and thus, the defendant was not harmed by the trial court’s purportedly erroneous instruction to the jury on the law of parties. The appellate court further determined that the indictment did not use the words deadly weapon or allege the use of a deadly weapon per se. The appellate court concluded that appellate courts have the power to correct and reform a trial court judgment to make the record speak the truth when they have the necessary data and information to do so or made any appropriate order as the law and nature of the case may require. Accordingly, the judgment of the trial court was affirmed as modified. 

The appellate court concluded that the question had been mooted by what the defendant had already obtained in discovery through his own efforts.
In re State
Appellate: Civil, Discovery, Gov't/Administrative, Procedure
Texas 8th Court of Appeals
August 31, 2020
08-19-00151-CR
Jeff Alley
Published
The relator filed an application of mandamus, seeking to test the limits to which a trial court could order the State to respond to expert-witness discovery in a criminal case. The appellate court noted that based on the Michael Morton Act’s amendments to Article 39.14 of the Texas Code of Criminal Procedure, the trial court ordered the State to comply with what might be viewed as broad discovery requests. The appellate court found that to challenge that order, the State filed the mandamus action against the respondent, and the few items of discovery that were still outstanding should be produced, but for a different reason than expressed by the trial court. The appellate court further determined that it was also asked to address the thorny question of whether a party must disclose the prior testimonial history of its expert witnesses. The appellate court concluded that the question had been mooted by what the defendant had already obtained in discovery through his own efforts. Accordingly, the mandamus petition was denied.  

The appellate court concluded that the trial court did err in ruling that the corporation’s loss could not be allocated as a matter of law and that the loss should therefore be shared on a pro-rata by-limits basis.
Zurich Am. Ins. Co. v. Certain Underwriters Subscribing To Oee Policy Nrg475535-9-02
Appellate: Civil, Corporations, Insurance, Procedure
Texas 1st Court of Appeals
August 27, 2020
01-19-00184-CV
Gordon Goodman
Published
The appellants appealed the judgment of the trial court which denied their series of summary judgment motions and cross-motions seeking declaratory relief determining which of their policies were in effect at the time of the incident, what those policies covered, and whether the loss should be allocated among them. The appellate court noted that the trial court did not err in declaring, as a matter of law, that the first appellant SPILLS policy provided primary coverage for the corporation’s insurance claim. The appellate court overruled the part of the first appellant’s first issue that contended the trial court erred in failing to hold that the first appellant’s policy’s “other insurance” exclusion made the policy’s coverage excess to the coverage provided by the other applicable policies, and the court overruled the first appellant’s second, fifth, sixth, and seventh issues in their entirety. The appellate court concluded that the trial court did err in ruling that the corporation’s loss could not be allocated as a matter of law and that the loss should therefore be shared on a pro-rata by-limits basis. Accordingly, the judgment of the trial court was partly affirmed, partly reversed and partly remanded.  

Since the trial court could reasonably believe the supervisor’s testimony about the manner she formed her opinions in the defendant’s case, the court overruled the defendant's sole issue.
Gore v. State
Constitution, Criminal, Evidence, Procedure
Texas 9th Court of Appeals
July 15, 2020
09-18-00368-CR
Hollis Horton III
Published
The defendant appealed the judgment of the trial court which convicted her of driving while intoxicated (DWI). On appeal, the defendant claimed that the trial court violated her constitutional rights by allowing a lab supervisor to testify about her interpretation of the results of a gas chromatograph test performed by another scientist who worked in the same lab, seeking to overturn her conviction for DWI. The appellate court noted that the trial court did not abuse its discretion by allowing the supervisor to testify, and before the trial court allowed the supervisor to testify, the trial court conducted a hearing to consider the defendant's objections to the testimony she expected the State to elicit from the supervisor when questioning her in the defendant’s trial. The appellate court found that the supervisor explained she intended to base her testimony on her independent review of the raw data that had been generated by a gas chromatograph the lab it when it tested the defendant’s blood. The appellate court concluded that since the trial court could reasonably believe the supervisor’s testimony about the manner she formed her opinions in the defendant’s case, the court overruled the defendant's sole issue. Accordingly, the judgment of the trial court was affirmed.                                   

The trial court abused its discretion by compelling the relator to produce all documents evidencing reimbursement rates for all private insurers in the request for production and reimbursement rates for all private insurers in an interrogatory.
In re Mem'l Hermann Health Sys.
Appellate: Civil, Constitution, Discovery, Gov't/Administrative, Health Care, Insurance, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
September 01, 2020
14-19-01006-CV
Tracy Christopher
Published
The relators appealed the judgment of the trial court which granted the motion and ordered the first individual to deposit the settlement proceeds into the court’s registry for the use and benefit of the individual in a suit for negligence, negligent entrustment, and gross negligence. On appeal, the relator asked the court to compel the presiding judge to set aside her order overruling the relator's objections to discovery. The appellate court found that the trial court abused its discretion by ordering the relator to produce documents reflecting the relator's reimbursement rates for services not rendered to the first individual in request for production. The appellate court concluded that the trial court abused its discretion by compelling the relator to produce all documents evidencing reimbursement rates for all private insurers in the request for production and reimbursement rates for all private insurers in an interrogatory. Accordingly, the court conditionally granted the petition in part and denied the petition in part.      

The appellate court concluded that the trial court did not err when it denied the defendant's request for a spoliation instruction.
Green v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 01, 2020
14-19-00083-CR
Meagan Hassan
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault and assessed punishment at 35 years’ confinement. On appeal, the defendant asserted that the evidence was legally insufficient to support his conviction, and the trial court erred by denying his request for a jury instruction on spoliation. The appellate court found that a review of alleged jury charge error involved a two-step process examining whether error existed in the charge; and whether sufficient harm resulted from the error to compel reversal. The appellate court concluded that the trial court did not err when it denied the defendant's request for a spoliation instruction. Accordingly, the judgment of the trial court was affirmed.  

The appellate court concluded that the evidence was insufficient regarding the two convictions necessary for enhancement of the defendant's punishment as a habitual offender pursuant to Section 12.42(d).
Guajardo v. State
Criminal, Evidence, Procedure
Texas 10th Court of Appeals
August 10, 2020
10-18-00273-CR
Thomas W. Gray
Published
The defendant appealed the judgment of the trial court which convicted him of possession of a controlled substance with the intent to deliver of four grams or more but less than 200 grams, a first degree felony. The appellate court noted that the evidence was insufficient to support the finding that the offense in the second enhancement occurred after the first conviction became final for purposes of enhancing the defendant's punishment as a matter of law. The appellate court found that since the defendant was entitled to a new trial on punishment, the court did not reach his second issue regarding the error in the judgment, which would ostensibly be corrected in the new judgment after the new trial on punishment. The appellate court concluded that the evidence was insufficient regarding the two convictions necessary for enhancement of the defendant's punishment as a habitual offender pursuant to Section 12.42(d). Accordingly, the judgment of the trial court was reversed and remanded.  

The appellate court concluded that the trial court did err in ruling that the corporation’s loss could not be allocated as a matter of law and that the loss should therefore be shared on a pro-rata by-limits basis.
Zurich Am. Ins. Co. v. Certain Underwriters Subscribing To Oee Policy Nrg475535-9-02
Appellate: Civil, Corporations, Insurance, Procedure
Texas 1st Court of Appeals
August 27, 2020
01-19-00184-CV
Gordon Goodman
Published
The appellants appealed the judgment of the trial court which denied their series of summary judgment motions and cross-motions seeking declaratory relief determining which of their policies were in effect at the time of the incident, what those policies covered, and whether the loss should be allocated among them. The appellate court noted that the trial court did not err in declaring, as a matter of law, that the first appellant SPILLS policy provided primary coverage for the corporation’s insurance claim. The appellate court overruled the part of the first appellant’s first issue that contended the trial court erred in failing to hold that the first appellant’s policy’s “other insurance” exclusion made the policy’s coverage excess to the coverage provided by the other applicable policies, and the court overruled the first appellant’s second, fifth, sixth, and seventh issues in their entirety. The appellate court concluded that the trial court did err in ruling that the corporation’s loss could not be allocated as a matter of law and that the loss should therefore be shared on a pro-rata by-limits basis. Accordingly, the judgment of the trial court was partly affirmed, partly reversed and partly remanded.  

The appellate court concluded that it must reverse the judgment of the trial court and remand the matter to the trial court to reform the judgment to reflect a conviction for the offense of criminal conspiracy to commit possession of a controlled substance.
Estrada v. State
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
August 26, 2020
07-17-00245-CR
Patrick A. Pirtle
Published
The defendant appealed the judgment of the trial court which convicted him of engaging in organized criminal activity and sentenced to seventeen years confinement. On appeal, the court reversed the defendant's conviction because it was based, in part, on the submission of an invalid predicate offense, to-wit: possession of a controlled substance with intent to deliver. The appellate court noted that there was sufficient evidence to support a conviction as to the lesser-included offense of criminal conspiracy, where the felony offense the object of the conspiracy was possession with intent to deliver methamphetamine in an amount greater than 200 grams but less than 400 grams. The appellate court found reformation of the judgment to reflect a conviction for the lesser-included offense of criminal conspiracy to commit possession of a controlled substance, to-wit methamphetamine, in an amount greater than 200 grams but less than 400 grams, to be the appropriate remedy under the facts of the case. The appellate court concluded that it must reverse the judgment of the trial court and remand the matter to the trial court to reform the judgment to reflect a conviction for the offense of criminal conspiracy to commit possession of a controlled substance. Accordingly, the judgment of the trial court was reversed and remanded.           

The remaining information in the search-warrant affidavit, including the report of the finding of the narcotics sitting outside the back porch in plain view and tips that narcotics were being sold from the house, clearly established probable cause to search the entire residence for narcotics.
Rios v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 27, 2020
14-18-00886-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of possession of a controlled substance with intent to deliver. The appellate court noted that viewing the evidence in the light most favorable to the trial court’s ruling, the record evidence supported implied findings by the trial court that the officers discovered the cocaine found in the house on a cooler in the kitchen, as described in the search-warrant affidavit, and that the law enforcement officers did not exceed the scope of a permissible protective sweep during the first phase of the sweep. The appellate court found that under those implied findings, all of the information used to support the search-warrant affidavit was obtained during the first phase of the sweep, and therefore none of that information was obtained as a result of an unreasonable search that violated the Fourth Amendment of the United States Constitution. The appellate court concluded that excluding all information derived from the second part of the sweep, the remaining information in the search-warrant affidavit, including the report of the finding of the narcotics sitting outside the back porch in plain view and tips that narcotics were being sold from the house, clearly established probable cause to search the entire residence for narcotics. Accordingly, the judgment of the trial court was affirmed.    

The appellate court concluded that the testator's will did not support conclusions either that the executor had no legal obligation to sell the stock in accordance with the testator’s wishes, nor that the executor was subject to a mandatory obligation to sell.
In re Estate of Wharton
Appellate: Civil, Business, Contracts, Evidence, Procedure, Real Property, Torts, Wills/Trusts/Probate
Texas 8th Court of Appeals
August 27, 2020
08-20-00002-CV
Michael Massengale
Published
The appellant appealed the judgment of the trial court which found that the executor had no legal obligation to sell the stock and the appellant was not a beneficiary under the will. On appeal, the appellant challenged the dismissal of the claims with prejudice. The appellate court noted that it could not conclude that the testator’s intent that the shares be sold to the appellant was manifested in the will as a mandatory obligation that the executor sell the shares. The appellate court further determined that the appellant’s motion did not establish that the executor owed her any fiduciary duty, nor did it eliminate the possibility that the executor was actually fulfilling her fiduciary duties to the will’s beneficiaries by pursuing a different strategy of distributing the estate. The appellate court concluded that the testator's will did not support conclusions either that the executor had no legal obligation to sell the stock in accordance with the testator’s wishes, nor that the executor was subject to a mandatory obligation to sell. Accordingly, the judgment of the trial court was reversed and remanded.

The appellate court concluded that the record did not show any inadequacy in the defendant's understanding and participation in the proceedings that made the trial fundamentally unfair.
Jaimes v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 27, 2020
14-18-00791-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated assault with a deadly weapon. On appeal, the defendant challenged the trial court's conviction. The appellate court noted that until the defendant's punishment-phase testimony, the trial court would have had no reason to doubt that the defendant was able to understand the proceedings and communicate with others. The appellate court found that under those circumstances, the court could hardly expect the trial court to have taken further action to ensure that the proceedings and the testimony were effectively communicated to the defendant. The appellate court further determined that, to the extent the record showed the need for some accommodation to address the defendant's hearing impairment during the punishment phase of trial, the trial court’s recess served as an appropriate and constitutionally adequate measure to ensure that the defendant could understand and participate in the proceedings. The appellate court concluded that the record did not show any inadequacy in the defendant's understanding and participation in the proceedings that made the trial fundamentally unfair. Accordingly, the judgment of the trial court was affirmed.  

The defendant did not meet their burden to show that the TCPA applied to the plaintiff’s claims, and the trial court did not err when it denied the motion to dismiss by operation of law.
David H. Arrington Oil & Gas Operating, LLC v. Wilshusen
Appellate: Civil, Contracts, Employment, Procedure, Torts
Texas 11th Court of Appeals
September 03, 2020
11-19-00318-CV
Keith Stretcher
Published
The defendant appealed the judgment of the trial court which did not timely rule on its motion to dismiss, and which was denied by operation of law. On appeal, the defendant challenged the plaintiff’s allegations that while he was employed by the defendant, he was promised either an overriding royalty interest (ORRI) in production from certain oil and gas leases or payments equal to an ORRI. The appellate court noted that the defendant’s motion to dismiss was denied by operation of law in its entirety and that the court had jurisdiction over the appeal. The appellate court found that the defendant failed to establish that the plaintiff’s claims were based on, related to, or in response to the defendant’s exercise of the right of association under the TCPA. The appellate court concluded that the defendant did not meet their burden to show that the TCPA applied to the plaintiff’s claims, and the trial court did not err when it denied the motion to dismiss by operation of law. Accordingly, the judgment of the trial court was affirmed and remanded.  

The appellate court concluded that the trial court reversibly erred in finding no waiver and vacating and dismissing the Commission’s decision on that basis.
Hyde v. Harrison Cnty.
Appellate: Civil, Environmental, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
July 30, 2020
14-18-00628-CV
Kem Thompson Frost
Published
The Texas Commission on Environmental Quality (the Commission) appealed the judgment of the trial court which entered an order of vacatur and dismissed the Commission’s final decision in a contested enforcement action against the County based on the trial court’s determination that the County enjoyed governmental immunity as to the enforcement action and the imposition of an administrative penalty under Texas Water Code section 7.051. The appellate court noted that based on the definition of “person,” as used in section 7.051 and the provisions of section 7.067, the Legislature clearly and unambiguously waived the County’s governmental immunity as to the assessment of an administrative penalty under section 7.051. The appellate court concluded that the trial court reversibly erred in finding no waiver and vacating and dismissing the Commission’s decision on that basis. Accordingly, the judgment of the trial court was reversed and remanded.            

The “commercial speech” exemption applied to the plaintiff’s claims against the defendant under the Texas Citizens Participation Act.
Martin v. Walker
Appellate: Civil, Constitution, Criminal, Damages, Procedure, Torts
Texas 10th Court of Appeals
July 29, 2020
10-19-00178-CV
John E. Neill
Published
The defendant appealed the judgment of the trial court which ruled in favor of the plaintiff in an action for damages associated with the defendant’s operation of illegal gambling machines, generally referred to as “eight-liners.” On appeal, the defendant challenged the trial court’s denial of its Texas Citizens Participation Act (TCPA) motion to dismiss. The appellate court noted that the plaintiff’s pleading was sufficient to establish that her lawsuit was based on, related to, or was in response to the defendant’s exercise of his right of free speech. The appellate court found that the evidence and pleadings established that the defendant was primarily in the business of selling or leasing goods or services, gambling services and entertainment through use of the eight-liner machines. The appellate court concluded that the “commercial speech” exemption applied to the plaintiff’s claims against the defendant under the TCPA. Accordingly, the judgment of the trial court was affirmed.                                                                                                                                                            

The trial court’s order increasing the father’s support obligation per month did not constitute an abuse of discretion, and therefore, the trial court did not abuse its discretion in awarding attorney’s fees to the mother.
In re K.M.B.
Appellate: Civil, Family, Juvenile, Procedure
Texas 5th Court of Appeals
July 20, 2020
05-19-00591-CV
Ken Molberg
Published
The father appealed the judgment of the trial court which increased his child support obligation to his two minor children, paid monthly to the children’s mother. The appellate court noted that the trial court properly included the father’s supplement off-base housing expenses and a basic allowance for subsistence as resources under section 154.062 of the family code in calculating his support obligation to two minor children per month. The appellate court found that the trial court followed the statutory requirements for modification under family code section 156.401(a)(2), and the children’s mother was not required to show a material and substantial change in circumstances. The appellate court concluded that the trial court’s order increasing the father’s support obligation per month did not constitute an abuse of discretion, and therefore, the trial court did not abuse its discretion in awarding attorney’s fees to the mother. Accordingly, the judgment of the trial court was affirmed.  

The defendant’s counsel, within thirty days of the date of the opinion, must either file a brief that addressed arguable issues found within the record, or if counsel identified no such arguable issues, file an Anders brief that complied with the requirements of High.
Arevalos v. State
Constitution, Criminal, Evidence, Procedure
Texas 5th Court of Appeals
August 28, 2020
05-19-00466-CR
Bill Whitehill
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of a child under fourteen years of age and sentenced him to fifteen years’ imprisonment. The appellate court noted that the defendant’s counsel filed Anders brief in support of the motion to withdraw, but it did not meet the requirements of an Anders v. California brief as set forth in High and was deficient as to form. The appellate court found that because the court had determined that the filed Anders brief did not fully comply with the Anders requirements, the court could not yet address whether counsel had made a thorough and complete professional evaluation of the record. The appellate court concluded that the defendant’s counsel, within thirty days of the date of the opinion, must either file a brief that addressed arguable issues found within the record, or if counsel identified no such arguable issues, file an Anders brief that complied with the requirements of High. Accordingly, the judgment of the trial court was remanded.

The legislature’s enactment of Loc. Gov’t Section 211.015 recognized the distinction between the public’s right to vote on land-planning issues and a right to challenge individual zoning ordinances when vested property rights were implicated.
Carruth v. Henderson
Appellate: Civil, Constitution, Election, Gov't/Administrative, Health Care, Procedure, Real Property, Zoning
Texas 5th Court of Appeals
July 22, 2020
05-19-01195-CV
David Schenck
Published
The City appealed the judgment of the trial court which granted summary judgment in favor of the plaintiffs in their suit seeking to compel the City to present a citizen’s referendum petition concerning the Plano Tomorrow Comprehensive Plan to the Plano City Council (City Council). On appeal, the City argued that the trial court erred in granting the plaintiffs’ summary judgment and in denying their motion for summary judgment. The appellate court noted that the City met their summary judgment burden on the issue of whether the plaintiffs were required to present the petition to the City Council and, thus, were entitled to a writ of mandamus unless the subject matter of the ordinance had been withdrawn from the field in which the referendum process was operative. The appellate court concluded that the legislature’s enactment of Loc. Gov’t Section 211.015 recognized the distinction between the public’s right to vote on land-planning issues and a right to challenge individual zoning ordinances when vested property rights were implicated. Accordingly, the judgment of the trial court was reversed.  

The failure of the trial court to include an instruction in the charge regarding the defendant’s attendance at the hearing on the protective order did not cause egregious harm.
Wesley v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 21, 2020
14-19-00029-CR
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which convicted him of violating a protective order two or more times within twelve months. The appellate court noted that the trial court’s error was not egregious because the unanimity instruction and the application paragraph correctly tracked the indictment and contained the omitted language. The appellate court found that the error in the abstract portion of the charge was not calculated to injure the defendant’s rights or deprive him of a fair and impartial trial, and the record reflected that the defendant knew the complainant worked at the service station because she waited on the defendant the first time he visited the station. The appellate court concluded that the failure of the trial court to include an instruction in the charge regarding the defendant’s attendance at the hearing on the protective order did not cause egregious harm. Accordingly, the judgment of the trial court was affirmed.  

Since the City failed to carry its burden of proof, the trial court did not err in denying the City’s motion for summary judgment.
City of Houston v. Mejia
Appellate: Civil, Damages, Employment, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
July 21, 2020
14-19-00559-CV
Jerry Zimmerer
Published
The City appealed the judgment of the trial court which denied summary judgment based on governmental immunity from suit, stemming from a personal injury action brought by the plaintiffs to recover damages based on injuries sustained in an automobile accident. The appellate court noted that the summary judgment proof did not support the City’s argument that the sergeant was merely a commuter on her way home from work, as the sergeant’s affidavit reflected that her employer asked her to pick up his City-issued vehicle from the City’s garage so her superior officer would have the vehicle available at the beginning of his shift. The appellate court found that the City failed to meet its burden to conclusively prove that the sergeant was not acting within the scope of her employment at the time of the accident. The appellate court concluded that since the City failed to carry its burden of proof, the trial court did not err in denying the City’s motion for summary judgment. Accordingly, the judgment of the trial court was affirmed.  

The petitioner was entitled to procedural due process, it could not address the constitutional ground for reversal because the petitioner did not raise a due process complaint in the trial court or on appeal.
In re C.H.
Appellate: Civil, Constitution, Gov't/Administrative, Health Care, Procedure
Texas 14th Court of Appeals
July 30, 2020
14-19-00040-CV
Frances Bourliot
Published
The petitioner appealed the judgment of the trial court which ordered the petitioner to be committed for inpatient treatment and to receive psychoactive medication. On appeal, the petitioner challenged the trial court’s denial of the petitioner’s request to be present at the commitment hearing over her objection that denying this request would violate her federal and state constitutional rights to confrontation of the witnesses against her. The appellate court noted that because those constitutional rights applied only to criminal prosecutions and the case involved a civil proceeding, there was no merit in the petitioner’s issues. The appellate court found that involuntary mental health commitment proceedings were civil, not criminal, in nature, and the petitioner did not have a right under article I, section 10 of the Texas Constitution allowing her to be heard telephonically at the hearing on the petition. The appellate court concluded that while the petitioner was entitled to procedural due process, it could not address the constitutional ground for reversal because the petitioner did not raise a due process complaint in the trial court or on appeal. Accordingly, the judgment of the trial court was affirmed.

There was insufficient evidence to support a finding of undue hardship or unnecessary expense for the deposition of the Real Party in Interest to take place outside of the county of suit.
In re Berrenberg
Appellate: Civil, Constitution, Discovery, Procedure
Texas 8th Court of Appeals
July 23, 2020
08-20-00104-CV
Gina M. Palafox
Published
The relator appealed the judgment of the trial court, filing a petition for a writ of mandamus challenging the ruling of the trial judge which granted a motion to quash the relator’s notice to depose the Real Party in Interest. The appellate court noted that the trial court’s quashal order was proper insofar as it cancelled the deposition due to the COVID-19 pandemic but the trial court’s order abused its discretion by ordering the deposition to take place in Fort Worth insofar as it was not supported by sufficient evidence establishing grounds for limitations on otherwise permissible discovery. The appellate court found that by scheduling the Real Party in Interest’s deposition in the county of suit, the relator designated a place which was permitted given his undisputed status as a party of the suit. The appellate court concluded that based on the record, there was insufficient evidence to support a finding of undue hardship or unnecessary expense for the deposition of the Real Party in Interest to take place outside of the county of suit. Accordingly, the court granted mandamus relief in part and denied relief in part.    

The trial court abused its discretion when it granted the plaintiff’s motion for leave to amend his petition and erred when it awarded damages in excess of $200,000.
Murphy v. Arcos
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure
Texas 5th Court of Appeals
July 17, 2020
05-18-01342-CV
David Evans
Published
The defendant appealed the judgment of the trial court which sustained the plaintiff’s Batson challenges to peremptory strikes exercised against prospective jurors and granted the plaintiff’s motion for leave of court to file an amended petition to increase his maximum amount pleaded from $200,000 to conform to the verdict. The appellate court noted that when reviewed based on the record of the third Batson step, the trial court did not abuse its discretion in sustaining the plaintiff’s Batson challenges as to Hispanic prospective jurors. The appellate court found that the trial court did not abuse its discretion by ruling that peremptory strikes of two Hispanics were not constitutional. The appellate court concluded that the trial court abused its discretion when it granted the plaintiff’s motion for leave to amend his petition and erred when it awarded damages in excess of $200,000. Accordingly, the judgment of the trial court was modified and affirmed.      

Viewing the evidence in the light most favorable to the jury’s finding and indulging every reasonable inference that would support it, the evidence was legally sufficient to establish with reasonable certainty the plaintiff’s damages for future losses as a result of the defendant’s actions.
Pura-Flo Corp. v. Clanton
Appellate: Civil, Contracts, Damages, Evidence, Torts
Texas 14th Court of Appeals
August 27, 2020
14-19-00479-CV
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which ruled in favor of the plaintiff in an action asserting breach of contract. The appellate court noted that because the defendant continued to operate under the agreement, the agreement was not terminated and the plaintiff was entitled to seek reasonably certain future losses to place him in the economic position he would have enjoyed had the agreement been performed. The appellate court found that viewing the evidence in the light most favorable to the jury’s finding and indulging every reasonable inference that would support it, the evidence was legally sufficient to establish with reasonable certainty the plaintiff’s damages for future losses as a result of the defendant’s actions. Accordingly, the judgment of the trial court was affirmed.    

The appellate court concluded that the record established that the jury continued to deliberate and did not establish that it rushed to judgment in convicting the defendant.
Valmana v. State
Constitution, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
July 17, 2020
08-18-00084-CR
Gina M. Palafox
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated assault with a deadly weapon. On appeal, the defendant challenged the trial court’s conviction and placement of community supervision for two years. The appellate court noted that a rational juror could have found, beyond a reasonable doubt, that the defendant committed aggravated assault on the victim by striking him with a beer bottle. The appellate court found that a rational juror could have found, beyond a reasonable doubt, that the defendant committed aggravated assault on the victim by striking him with a deadly weapon a bottle that in the manner of its use or intended use was capable of causing death or serious bodily injury. The appellate court further determined that the trial court’s exclusion of the conviction was within the zone of reasonable disagreement. The appellate court concluded that the record established that the jury continued to deliberate and did not establish that it rushed to judgment in convicting the defendant. Accordingly, the judgment of the trial court was affirmed.