Evidence of the sexual assault and of the appellant’s marriage license to the victim’s step-mother, standing alone, did not amount to facts constituting one of the six bigamy prohibitions under Section 25.01
Senn v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
October 25, 2018
02-15-00201-CR
Sue S. Walker
Published
A jury convicted the appellant of prohibited sexual conduct, for which he was sentenced to twenty years’ imprisonment, and of sexual assault, for which he was sentenced to life imprisonment after the jury affirmatively answered a special issue statutorily enhancing his sexual assault conviction from a second-degree felony to a first-degree felony under section 22.011(f) of the Texas Penal Code. The appellate Court found that the State put on evidence only of the appellant’s sexual assault of the victim and his marriage license reflecting his marriage to the victim’s step-mother. There was no evidence that the appellant took, attempted, or intended to take any action involving marrying or claiming to marry the victim or living with victim under the appearance of being married. Evidence of the sexual assault and of the appellant’s marriage license to the victim’s step-mother, standing alone, did not amount to facts constituting one of the six bigamy prohibitions under Section 25.01. Further, based on the evidence presented, no reasonable factfinder could have found beyond a reasonable doubt that the appellant and the victim's relationship constituted bigamy when he sexually assaulted her and the evidence was insufficient to trigger the statutory enhancement for sexual assault under Section 22.011(f). Furthermore, the Court modified the appellant’s sexual assault judgment to reflect that he was convicted of a second-degree felony, but the Court remanded that charge to the trial court for a new trial on punishment so that a factfinder could consider the proper punishment range. 


The family court had exclusive jurisdiction of two matters that affected the minor child, and the arbitration order was void to the extent that it compelled arbitration of those matters
In re Suzanne
Constitution, Family, Real Property
Texas 14th Court of Appeals
October 25, 2018
14-18-00711-CV
Marc W. Brown
Published
The relator wife and her husband were married for more than 20 years and had three children. The relator petitioned for divorce. The Family Court signed a final decree of divorce. The relator's husband challenged the divorce decree to the court to challenge the equalization judgment. The relator filed the suit individually and on behalf of the Trust (the Trust Suit). In that suit, the relator alleged that her husband stole money from entities managed by him but owned, in part, by the relator or the Trust. The trust protector, filed a signed affidavit, which stated that he removed the relator as trustee of the Trust and appointed attorney as trustee in her stead. The relator and her husband participated in mediation with an individual to attempt to resolve all their disputes, and signed a settlement agreement, which reduced the equalization judgment to $8.5 million, provided that the husband purchase certain ownership interests in limited partnerships and stocks owned by the Trust for stipulated values. The court dismissed the husband’s appeal of the divorce decree because he did not file a brief. The relator filed a petition for writ of mandamus in the court. The appellate Court agreed with the relator that the family court had exclusive jurisdiction of two matters that affected the minor child the residence and visitation of the child, and that the arbitration order was void to the extent that it compelled arbitration of those matters. But the trial court had jurisdiction to compel other matters (that do not affect the child) to arbitration. Accordingly, the Court conditionally granted in part and denied in part the petition for writ of mandamus.


The accumulation provision imposed a special limitation with which the appellant did not timely comply
Endeavor Energy Res., L.P. v. Energen Res. Corp.
Appellate: Civil, Contracts
Texas 11th Court of Appeals
October 25, 2018
11-17-00028-CV
John Bailey
Published
The appellee corporation filed the action against the appellant, the limited partnership, alleging that the continuous-development program in the previous lease had lapsed. The appellee asserted that the lease automatically terminated to all “non-dedicated acreage.” The appellant asserted that the well was timely drilled because the appellant had accumulated 227 unused days under the continuous-development program that permitted it to wait 377 days to commence operations on the thirteenth well. The parties filed competing traditional motions for partial summary judgment seeking the trial court’s interpretation of a provision in the continuous-development clause that permitted the appellant to accumulate unused days. The trial court agreed with the appellee's construction of the lease, granted the appellee's motion for partial summary judgment, and denied the appellant's motion. The appellee subsequently filed a supplemental petition asserting supplemental causes of action for declaratory judgment, trespass, and conversion. In its final judgment, the trial court incorporated the partial summary judgment in favor of the appellee. The appellate Court disagreed that “150-day” was only a label in the accumulation provision. The term was used at least seven times, including twice in the accumulation provision. Subsection (d) clarified that the continuous-development program was a “one hundred fifty (150) day continuous development program.” Thus, the term “150-day” was a significant part of the accumulation provision as well as the continuous-development clause. Further, the Court disagreed with the appellant's assertion that the plain, grammatical language of the accumulation provision could be read in a manner other than the appellee's interpretation of it. Accordingly, the accumulation provision imposed a special limitation with which the appellant did not timely comply. Therefore, the trial court did not err by granting the appellee's motion for partial summary judgment and denying the appellant's motion for partial summary judgment. Accordingly, the Court affirmed the judgment of the trial court.


The appellant failed to present legally sufficient evidence of an enforceable agreement between the appellant and the appellee individuals containing the terms the appellant alleged
Arturo Guajardo Individually & Derivatively as a S’holder v. Hitt
Appellate: Civil, Business, Contracts, Damages, Litigation: Personal Injury, Torts
Texas 14th Court of Appeals
October 25, 2018
14-16-01020-CV
Ken Wise
Published
The appellant was one of four shareholders in a credit repair company and obtained a jury verdict in his favor on breach of contract and breach of fiduciary duty claims against the appellees, the other three shareholders in the company. The trial court granted the appellees a judgment notwithstanding the verdict and rendered a final judgment that the appellant take nothing. The appellate Court found that because the appellant failed to present legally sufficient evidence of an enforceable agreement between the appellant and the appellee individuals containing the terms the appellant alleged, the trial court did not err in granting the appellees' motion for JNOV on his breach of contract claim. Absent legally sufficient evidence of an enforceable contract, the appellant was not entitled to recover breach of contract damages or attorney’s fees. Further, the Court could not say the trial court abused its discretion by refusing the appellant's request that he personally recover for the appellee company's damages resulting from the appellees.. Accordingly, the Court affirmed the trial court’s judgment.  


The trial court did not err in refusing to submit a jury question on robbery as a lesser-included offense, when testimony did not conclusively establish whether appellant had a gun on his person
Hamilton v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
October 25, 2018
01-17-00461-CR
Jane Bland
Published
The appellant was indicted for the felony offense of aggravated robbery. A jury found him guilty as charged and sentenced him to 35 years’ confinement. The appellate Court found that unlike the video in Nash v. State, the video did not affirmatively controvert the store associate's testimony that the appellant showed her that he had a gun inside his waistband. It neither confirmed nor negated whether the appellant was armed in the manner that the associate described. Further, the loss-prevention officer’s testimony that she did not see whether the appellant had a firearm likewise did not support a lesser-included offense instruction. A witness’s failure to see something was not affirmative evidence; thus, it could not negate an element of the greater offense. As a result, the trial court did not err in refusing to submit a jury instruction on the lesser-included offense of robbery. Further, the motion did not suggest that the evidence provided in its support was unknown or unavailable to the appellant at the time of trial. The trial court did not abuse its discretion in failing to hold a hearing on the appellant’s motion for new trial. Finally, the trial court did not err in refusing to submit a jury question on robbery as a lesser-included offense. The trial court did not abuse its discretion in failing to hold a hearing on the appellant’s motion for new trial. Accordingly, the trial court's judgment was affirmed.


Because the express easements granted a right of ingress and egress to a portion of and not the entire tract, the judgment declaring that the express easements benefited the entire tract was reversed
Clearpoint Crossing Prop. Owners Ass’n v. Chambers
Appellate: Civil, Real Property
Texas 1st Court of Appeals
October 25, 2018
01-16-00773-CV
Jane Nenninger Bland
Published
In the appeal, the Court was to determine the scope of two express easements and whether landowners may claim those easements to benefit their entire tract. After a jury trial, the trial court rendered a judgment in favor of the appellee landowners, ruling that the express easements provided the entire tract with an unqualified right of access to a public road via the appellant landowners’ private road and parking lot; and an implied easement by necessity gave the same unqualified right of access. The appellate Court observed that the express easements benefited a portion of the tract, and not the entire tract, because they unambiguously limited the land benefitted by describing it. Further, the Court observed that the express easements granting access did not limit that access to uses associated with drilling for oil and gas on the benefited tract. Thus, the Court rejected the appellees’ contention that access was limited to that needed for oil and gas activity. Because the express easements granted a right of ingress and egress to a portion of—and not the entire—tract, the Court reversed the judgment declaring that the express easements benefited the entire tract. Further, with respect to the second contention, challenging the trial court’s finding of an easement by necessity, the Court found that no evidence supported a finding of present necessity. Express easements existed and benefited a portion of the tract, and the remainder of the tract was contiguous with the portion benefited by the express easements. Thus, the Court reversed the judgment granting an implied easement by necessity and remanded.


Omitting mention of the prior blood draws in the probable-cause affidavit supporting the search warrant for the defendant’s blood did not invalidate the warrant.
Islas v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 23, 2018
14-17-00660-CR
Marc W. Brown
Published
The defendant appealed the judgment of the trial court which convicted him of intoxication manslaughter and sentenced him to ten years’ confinement following the trial court’s denial of his motion to suppress evidence of intoxication obtained from a blood draw. On appeal, the defendant challenged the trial court’s denial of his motion to suppress evidence obtained from the blood draw. Specifically, the defendant argued that the affidavit failed to state probable cause because the affiant omitted any reference to the prior warrantless blood draws. The defendant asserted that the affidavit used to obtain the search warrant was misleading, and the evidence obtained in the third blood draw should have been suppressed under Franks v. Delaware. The appellate court found that because the fact omitted was immaterial to the magistrate’s probable-cause determination, it did not need to determine whether the omission was made intentionally, knowingly, or with reckless disregard for the truth. The appellate court noted that the fact that the defendant’s blood already had been drawn was not material to the magistrate’s determination of probable cause. The appellate court concluded that omitting mention of the prior blood draws in the probable-cause affidavit supporting the search warrant for the defendant’s blood did not invalidate the warrant. Accordingly, the judgment of the trial court was affirmed.


Viewing the evidence in the light most favorable to the verdict, the evidence and reasonable inferences were sufficient for a rational fact finder to conclude that the defendant stole the comic books with a fair market value exceeding $200,000.
Deutsch v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 23, 2018
14-17-00227-CR
Martha Hill Jamison
Published
The defendant appealed the judgment of the trial court which convicted him of theft by a public servant in an amount over $200,000 and assessed his punishment at five years’ imprisonment and a $5,000 fine. On appeal, the defendant complained about the sufficiency of the evidence to corroborate accomplice witness testimony, prove the amount of the theft, and establish that the owner of the allegedly stolen property was the person identified in the indictment. The appellate court noted that while opportunity evidence was insufficient on its own to corroborate accomplice-witness testimony, it could be considered in connection with other evidence that tended to connect the accused to the crime. The defendant further maintained that the evidence was insufficient to establish that he stole goods over $200,000 in value. The appellate court concluded that viewing the evidence in the light most favorable to the verdict, the evidence and reasonable inferences were sufficient for a rational fact finder to conclude that the defendant stole the comic books with a fair market value exceeding $200,000. Accordingly, the judgment of the trial court was affirmed.


No rational trier of fact could have found beyond a reasonable doubt that the conduct alleged occurred in a bathroom and that the evidence was legally insufficient to support the defendant’s conviction.
McCombs v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 23, 2018
14-17-00214-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of his two youngest children. On appeal, the defendant challenged the insufficiency of the evidence to support two of the seven convictions, the trial court erred because it did not immediately require the State to make an election connecting six specific acts to six counts in the indictment, and the trial court’s charge to the jury permitted a non-unanimous verdict. The defendant further asserted that the trial court abused its discretion by admitting evidence of extraneous acts of abuse towards his oldest daughter. The appellate court found that based on the review of the record, it could not conclude that the defendant suffered egregious harm based on the charged errors the defendant asserted on appeal. The appellate court concluded that no rational trier of fact could have found beyond a reasonable doubt that the conduct alleged occurred in a bathroom and that the evidence was legally insufficient to support the defendant’s conviction. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.


The defendant did not satisfy her initial burden of establishing by a preponderance of the evidence that the plaintiff’s claims were based on, related to, or in response to protected activity covered by the Texas Citizens Participation Act.
Beving v. Beadles
Appellate: Civil, Damages, Evidence, Procedure, Torts
Texas 2nd Court of Appeals
October 18, 2018
02-17-00223-CV
Mark T. Pittman
Published
The defendant appealed the judgment of the trial court in a dispute involving the Texas Citizens Participation Act (TCPA). On appeal, the appellate court was asked to determine whether the trial court correctly denied the defendant’s TCPA motion to dismiss the third-party action filed against her by the plaintiff. The defendant asserted that the trial court erred by denying her motion to dismiss because she established that the plaintiff’s third-party claims fell within the scope of the TCPA since the plaintiff failed to establish a prima facie case to support his claims by clear and specific evidence. The appellate court found that the plaintiff’s affidavit and deposition testimony was a protected exercise of her right to petition as defined by the TCPA. The appellate court concluded that the defendant did not satisfy her initial burden of establishing by a preponderance of the evidence that the plaintiff’s claims were based on, related to, or in response to protected activity covered by the TCPA. Accordingly, the judgment of the trial court was affirmed and remanded for further proceedings.


Since the defendant was entitled to summary judgment on the plaintiff’s misappropriation claim, the defendant was also entitled to summary judgment on the plaintiff’s derivative conspiracy claim.
Watson v. Talia Heights, LLC
Appellate: Civil, Contracts, Damages, Real Property, Torts
Texas 14th Court of Appeals
October 18, 2018
14-17-00441-CV
William J. Boyce
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in favor of the defendant in a dispute arising from the alleged misappropriation of the plaintiff’s name in connection with certain real estate transactions. On appeal, the defendant at asserted that it was entitled to summary judgment on the plaintiff’s misappropriation claim because the plaintiff could not produce any evidence to show that his name was misappropriated for the value associated with it. The appellate court found that the plaintiff failed to satisfy his summary judgment burden because he did not bring forth any evidence that the defendant misappropriated his name to benefit from the value associated with it. The appellate court noted that the plaintiff’s summary judgment evidence did not show that his name was used to take advantage of his reputation, prestige, social or commercial standing, public interest or other values. The appellate court concluded that since the defendant was entitled to summary judgment on the plaintiff’s misappropriation claim, the defendant was also entitled to summary judgment on the plaintiff’s derivative conspiracy claim. Accordingly, the judgment of the trial court was affirmed.


The judicial-proceedings privilege applied to the defamatory or disparaging statement and the plaintiff failed to meet its initial burden under the Texas Citizens Participation Act to establish a prima facie case for abuse of process, trespass, and conspiracy to commit theft.
Landry’s, Inc. v. Animal Legal Def. Fund
Appellate: Civil, Business, Environmental, Torts
Texas 14th Court of Appeals
October 18, 2018
14-17-00207-CV
Tracy Christopher
Published
The plaintiff appealed the judgment of the trial court which dismissed its suit under the Texas Citizens Participation Act (TCPA), asserting claims in connection with the publication of a notice of intent to sue under the Endangered Species Act. The plaintiff’s complaint also asserted claims for defamation, business disparagement, tortious interference with prospective business relations, abuse of process, trespass, conspiracy to commit each of these torts, and conspiracy to commit theft. On appeal, the plaintiff contended that the TCPA violated the Texas Constitution’s guarantee of the right to a jury trial and its open-courts provision. The appellate court concluded that the judicial-proceedings privilege applied to the allegedly defamatory or disparaging statement as a matter of law, and the plaintiff failed to meet its initial burden under the TCPA to establish by clear and specific evidence a prima facie case for each essential element of their claims of abuse of process, trespass, and conspiracy to commit theft. Accordingly, the judgment of the trial court was affirmed and modified to reduce sanctions.


The associate judge could hear the bench trial on the merits under Government Code section 74.094(a) without need of the authority contemplated by the Family Code’s referral-unless-objected-to provisions.
Townsend v. Vasquez
Family, Procedure
Texas 1st Court of Appeals
October 18, 2018
01-17-00436-CV
Harvey Brown
Published
The mother appealed the judgment of the trial court which granted the father’s request to modify the conservatorship order granting him the exclusive right to determine the child’s domicile. On appeal, the mother contended that her written, pretrial objection to an associate judge precluded the judge in Brazoria County from presiding over the trial on the merits. Specifically, the mother challenged the judge’s authority as an associate judge, a term undefined in the Family Code. The appellate court disagreed with the mother and found that the associate judge could hear the bench trial on the merits under Government Code section 74.094(a) without need of the authority contemplated by the Family Code’s referral-unless-objected-to provisions. The mother further argued that the trial court’s modification order failed to comply with Rule of Civil Procedure 306. The appellate court concluded that Rule 306 required that a judgment state the specific grounds for termination or for appointment of the managing conservator if the suit was one either for termination of the parent-child relationship or a suit affecting the parent-child relationship filed by a governmental entity for managing conservatorship. Accordingly, the judgment of the trial court was affirmed.


The parties’ contract was not subject to the Contract Claims Act because it was not an “agreement for providing goods or services” to the City as provided for in Section 271.151(2)(A).
Merkel v. Copeland
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Torts
Texas 11th Court of Appeals
October 18, 2018
11-16-00323-CV
John M. Bailey
Published
The City appealed the judgment of the trial court which denied its motion for summary judgment and the plea to the jurisdiction in an action where the plaintiffs sued the City for breach of contract based on the City’s alleged breach of the parties’ purchase contract. On appeal, the City asserted that it was immune from suit because the contract involved the City’s performance of a governmental function, the contract was not subject to the Contract Claims Act, and the plaintiffs did not seek the type of damages for which immunity was waived by the Contract Claims Act. The City further contended that, because it was immune from suit, the trial court erred by denying the City’s plea to the jurisdiction and motion for summary judgment. The appellate court found that the City exercised a governmental function when it contracted to dispose of its treated wastewater/effluent by sale, and thus it was immune from suit. The appellate court concluded that the parties’ contract was not subject to the Contract Claims Act because it was not an “agreement for providing goods or services” to the City as provided for in Section 271.151(2)(A). Accordingly, the judgment of the trial court was reversed.


The trial court did not violate the petitioner’s constitutional rights by proceeding in her absence at the hearing which determined that she was a danger to herself and others.
In re K.C.
Appellate: Civil, Constitution, Gov't/Administrative, Health Care
Texas 1st Court of Appeals
October 18, 2018
01-18-00009-CV
Evelyn V. Keyes
Published
The petitioner appealed the judgment of the trial court which granted the State’s application for temporary mental health services and ordered the administration of psychoactive medication to the petitioner. On appeal, the petitioner argued that the trial court erred by waiving her appearance at the hearing on the State’s application over her objection. Specifically, the petitioner argued that the state and federal constitutions provided her the right to face her accusers, and the trial court deprived her of this right by allowing the hearing to proceed in her absence. The appellate court concluded that under the circumstances of the case, in which the trial court found that the petitioner was a danger to herself and others, such that she could not safely be brought to the hearing room, the trial court did not violate the petitioner’s constitutional rights by proceeding in her absence. Accordingly, the judgment of the trial court was affirmed.


The husband could not defeat an enforcement action on the basis that the husband lacked minimum contacts with the state of the enforcing court.
Gesswein v. Gesswein
Family, Procedure
Texas 13th Court of Appeals
October 18, 2018
13-18-00252-CV
Nelda V. Rodriguez
Published
The husband appealed the judgment of the trial court which denied his special appearance in a suit, seeking to enforce a foreign judgment, filed by his former wife. On appeal, the husband argued that the trial court lacked personal jurisdiction over him and, therefore, the court could not confirm an Illinois judgment in favor of the wife. Specifically, the husband attacked personal jurisdiction by contending that a Texas court could not exercise personal jurisdiction over him because he did not have minimum contacts with Texas sufficient to satisfy due process, and there was no pleading or evidence to demonstrate that the wife properly served him with citation. The wife responded that the husband had misapprehended the nature of a suit to demonstrate a foreign judgment and the only issue was whether the issuing court in Illinois properly exercised personal jurisdiction over the husband. The appellate court agreed with the wife and concluded that the husband’s argument that he did not have minimum contact with Texas was incorrect because a defendant could  not defeat an enforcement action on the basis that the defendant lacked minimum contacts with the state of the enforcing court. Accordingly, the judgment of the trial court was affirmed.


The trial court abused its discretion by refusing to permit the defendant to explain testimony elicited by the State about the stipulated sexual assaults which established his status as a repeat sexually violent offender.
In re Commitment of Dunsmore
Appellate: Civil, Criminal, Procedure
Texas 1st Court of Appeals
October 18, 2018
01-16-00925-CV
Michael C. Massengale
Published
The defendant appealed the judgment of the trial court which convicted him of sexual assault and attempted sexual assault following his guilty plea. Thereafter, the State filed a petition to have the defendant civilly committed as a sexually violent predator, which the trial court granted. On appeal, the defendant contended that the trial court erred by excluding testimony of several trial witnesses and by denying his requests to read several of the State’s admissions to the jury. The appellate court concluded that the trial court abused its discretion by refusing to permit the defendant to explain testimony elicited by the State about the stipulated sexual assaults which established his status as a repeat sexually violent offender. The appellate court found that the trial court’s evidentiary errors did not probably cause an improper judgment in the case, as the trial court acted within its discretion when it excluded some of the defendant’s proposed testimonial evidence and when it refused to permit certain admissions to be read to the jury. Accordingly, the judgment of the trial court was affirmed.


The officer’s initial traffic stop on the basis that the appellant was driving a vehicle with a non-activated stoplamp was proper, as appellant’s vehicle was under the statutory width and weight limit
Saenz v. State
Constitution, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
October 17, 2018
08-17-00014-CR
Ann Crawford McClure
Published
The appellant pleaded guilty to a charge of driving while intoxicated and pleaded true to multiple enhancement paragraphs regarding his prior convictions for driving while intoxicated. The trial court found the appellant guilty and sentenced him to twelve years’ confinement. The appellate Court observed that the State presented undisputed evidence that the vehicle the appellant was driving was 72 inches in width and weighed 4,084 pounds. Therefore, because the vehicle the appellant was driving measured less than “2032 MM” in width and weighed less than 10,000 pounds, it was required to have two stoplamps and a high-mounted stoplamp that must activate when braking. Further, the evidence showed that although the left and high-mounted stoplamps were activated when the appellant applied the brakes to his vehicle, the right stoplamp did not activate as required. The officer’s initial traffic stop on the basis that the appellant was driving a vehicle with a non-activated stoplamp was proper. Thus, the trial court did not abuse its discretion in denying the appellant’s motion to suppress evidence. Because the traffic stop was proper, the Court did not address the appellant’s assertion that the taint from an improper stop triggered the Fourth Amendment’s exclusionary rule. Accordingly, the trial court's judgment was affirmed.


The evidence was legally sufficient to justify the jury’s finding that a shank was manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury
Iglesias v. State
Criminal, Evidence, Procedure
Texas 8th Court of Appeals
October 17, 2018
08-16-00311-CR
Ann Crawford McClure
Published
The jury convicted the appellant of the offense of deadly weapon in a penal institution. The appellant pleaded to two enhancement allegations and sought a determination on punishment from the trial court, which sentenced the appellant to 40 years’ confinement. The appellate Court found that in addition to evidence that the appellant was found to have a crafted handle and shank in his possession, the latter of which was described as having been altered to have a very sharp point, and which could be used together, the officer also testified that inmates were not permitted to have writing pens because they could be used as stabbing weapons and could cause serious bodily injury to officers and inmates. The Court found the evidence legally sufficient to justify the jury’s finding that the weapon was “manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.” Further, the record established that the trial court could have reasonably concluded that the appellant’s statement was admissible in evidence for the reasons. The appellant’s statement to officer had inherent probative value regarding whether the appellant intentionally and knowingly possessed the contraband, and the State needed the statement in evidence to establish the appellant’s guilty knowledge regarding possession of the contraband. Finally, the statement did not cause undue delay and was not cumulative of other evidence. At trial, the statement was addressed during two sets of questions and answers; the first occurring during the State’s direct examination, and the other occurring during defense counsel’s cross-examination. Because the trial court did not abuse its discretion in admitting the statement in evidence. Accordingly, the trial court's judgment was affirmed.


The State was not required to prove the appellant's prior escape conviction was a felony under federal law, only that he was subject to possible imprisonment
Fowler v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
October 17, 2018
04-17-00636-CR
Marialyn Price Barnard
Published
The jury found the appellant guilty of the unlawful possession offense. The trial court found the habitual offender enhancements true and assessed punishment at twenty-five years’ confinement. The appellate Court was to review the evidence produced by the State to determine whether it proved the appellant was subject to imprisonment for the federal offense of escape. Further, the federal escape offense was a felony for purposes of the habitual offender enhancement statute. Coupled with the prior conviction for possession of a machine gun, which the appellant conceded was a felony for purposes of the habitual offender statute, the escape conviction subjected the appellant to the rigors of the habitual offender enhancement of two prior, final felony convictions. Furthermore, the appellant was sentenced for the federal escape offense of twelve months’ imprisonment. Thus, he was obviously subject to possible imprisonment for the offense. The State was not required to prove his prior escape conviction was a felony under federal law, only that he was subject to possible imprisonment. Lastly, the Court held the evidence was sufficient to prove the appellant was previously convicted of two felonies that predated the current offense. Accordingly, the judgment was affirmed.


The trial court did not abuse its discretion in admitting any evidence pertaining to the circumstances of the appellant’s arrest
Jackson v. State
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
October 16, 2018
07-18-00140-CR
Patrick A. Pirtle
Published
Pursuant to a plea of guilty before the trial court, the appellant was convicted of possession of a controlled substance in an amount of one gram or more but less than four grams. The appellate Court reviewed the trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Further, the Court could not say the trial court abused its discretion in admitting any evidence pertaining to the circumstances of the appellant’s arrest (encompassing the knives, coin collections, and counterfeit money) or the extraneous offense pertaining to the $450 forged check. The judgment of the trial court attempted to assess attorney’s fees against the appellant. In order to assess attorney's fees against a defendant following conviction, the trial court must determine that the defendant had sufficient financial resources that enabled him to offset in whole or in part the costs of legal services provided. Furthermore, the trial court had no authority to order the defendant to reimburse the Texas Department of Public Safety for lab fees as a part of his sentence, and such fees were not properly the subject of a restitution order under article 42.037(a) of the Texas Code of Criminal Procedure. Moreover, the issue two was sustained, in part, and the judgment of the trial court was reformed to delete any obligation to pay attorney’s fees of $1,800, a Crime Stoppers fee of $50, and restitution to the Texas Department of Public Safety Crime Laboratory of $180. The trial court was ordered to prepare and file a Judgment Nunc Pro Tunc reflecting these reformations and the trial court clerk was ordered to provide a copy of that judgment to the Institutional Division of the Texas Department of Criminal Justice. Accordingly, the trial court's judgment was affirmed.


The evidence did not demonstrate the appellant’s intent to promote or assist in the commission of indecency with a child
Metcalf v. State
Criminal, Evidence, Juvenile, Procedure
Texas 6th Court of Appeals
October 16, 2018
06-17-00211-CR
Ralph Burgess
Published
The jury determined that the appellant was a party to the offense of sexual assault, convicted her of the offense, and assessed a sentence of three years’ imprisonment. The appellant stepfather was convicted of nine counts of sexual assault and three counts of indecency with a child. The appellate Court found that the evidence also demonstrated that many people had expressed their opinions to the appellant that the victim was being mistreated, that the appellant avoided Child Protective Services when they were investigating the reports of abuse, that the appellant herself made excuses for the victim’s injuries, and that the appellant continued to give the murderer unsupervised access to the child. Because the evidence did not show, beyond a reasonable doubt, that the appellant actively encouraged the commission of the offense, was an active participant in its commission, and had actual knowledge of criminal acts committed by the stepfather, the Court found the State’s cited cases distinguishable. Further, the appellant said that she did not believe the stepfather when “he said that it wasn’t anything sexual” and that she kicked him out of the home, though she allowed him to return after providing the appellants child with a whistle and cell phone. Furthermore, the evidence did not demonstrate the appellant’s intent to promote or assist in the commission of indecency with a child, that she knew she was assisting in the commission of the offense. Therefore, applying the Jackson v. Virginia standard did not show that, at the time of the offense, the appellant and the stepfather were acting together to execute a common purpose. Finally, the Court concluded that the second part of the Thornton inquiry was not met. Accordingly, the Court declined to reform the judgment to reflect a conviction of a lesser-included offense, and the Court reversed the trial court’s judgment and render a judgment of acquittal.


Because the plaintiff was not the unit operator, the trial court properly granted summary judgment against the defendant’s contingent claims for breach of contract and gross negligence.
Obo, Inc. v. Apache Corp.
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 14th Court of Appeals
October 16, 2018
14-17-00170-CV
Martha Hill Jamison
Published
The defendant appealed the judgment of the trial court which granted summary judgment in favor of the plaintiff in an action concerning the interpretation and application of the governing agreements for an oil and gas unit. This appeal stemmed from the plaintiff suing the defendant for failure to pay unit operating expenses as required under the agreements. On appeal, the defendant contended that the trial court erred in granting summary judgment against its request for a declaration that the plaintiff could not act as a unit operator because it was not a working interest owner. The defendant further asserted that the trial court erred in awarding judgment because it was not the unit operator, made no affirmative claims, and provided no evidence that it had incurred any expenses. The defendant lastly maintained that the trial court erred in granting summary judgment against the defendant’s counterclaims. The appellate court found that because the plaintiff was not acting as the unit operator but was merely performing operator services pursuant to its contract and the unit governing documents did not prohibit such delegation, the trial court did not err in granting summary judgment against the defendant’s request for a declaration that the plaintiff could not act as the unit operator. The appellate court concluded that because the plaintiff was not the unit operator, the trial court properly granted summary judgment against the defendant’s contingent claims for breach of contract and gross negligence. Accordingly, the judgment of the trial court was affirmed.


The trial court acted within its discretion in denying the defendant’s habeas relief on his equal-protection claim and on his claim that the sheriff abused his discretion.
Ex parte Kulow
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
October 16, 2018
01-18-00467-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which denied his post-conviction application for a writ of habeas corpus filed under Texas Code of Criminal Procedure article 11.09. On appeal, the defendant contended that the trial court erred in denying his habeas application because the sheriff’s decision to change his good-time credit policy after the defendant was confined violated his right to equal protection. The defendant further asserted that he was subjected to unequal treatment when compared to at least three other inmates who were confined after the defendant was incarcerated but who were released prior to the discharge of their full sentences. The defendant maintained that even the sheriff agreed that there was no difference between the defendant and the three inmates who had received good-time credit and, thus, there was no rational basis for denying him good-time credit. The State responded that the trial court did not err in denying the defendant’s writ because the sheriff had the authority to change his policy and the defendant was treated the same as all inmates situated similarly to him. The appellate court concluded that the trial court acted within its discretion in denying the defendant’s habeas relief on his equal-protection claim and on his claim that the sheriff abused his discretion. Accordingly, the judgment of the trial court was affirmed.


A genuine issue of material fact existed concerning whether the appellees abandoned the 2010 acceleration of the loan’s maturity date. Thus, the trial court erred by granting the appellees’ motion for summary judgment on the appellant’s declaratory judgment claim.
Pitts v. Bank of N.Y. Mellon Trust Co.
Appellate: Civil, Banking and Finance, Real Property
Texas 5th Court of Appeals
October 12, 2018
05-17-00859-CV
Lana Myers
Published
The appellant filed the lawsuit seeking declarations that the appellee bank had no right to foreclose because the deed of trust was invalid, void, and unenforceable, that foreclosure was barred by the statute of limitations, and demanded that the cloud on the appellant’s title to the property be removed. The appellant also brought causes of action for fraud and violations of Section 392.304 of the Texas Finance Code for the appellees’ representations that the debt was not barred by limitations, and that they had the legal authority to foreclose on the property. The appellee bank and the appellee company filed a counterclaim against the appellant seeking declaratory judgment that foreclosure on the property was not time barred and that the acceleration was rescinded. The trial court granted the appellees’ motion for summary judgment and ordered that the appellant took nothing on his claims. The appellate court concluded a genuine issue of material fact existed concerning whether the appellees abandoned the 2010 acceleration of the loan’s maturity date. The trial court erred by granting the appellees’ motion for summary judgment on the appellant’s declaratory judgment claim. Because the appellant ’s arguments on appeal did not address all the grounds for summary judgment on the cause of action, he could not show the trial court erred by granting the appellees’ motion for summary judgment. The court affirmed the trial court’s judgment as to the appellant’s cause of action for violations of the Texas Finance Code, but the court otherwise reversed the trial court’s judgment and remanded the cause to the trial court for further proceedings.


The court directed the second county Appraisal District to withdraw and cease from issuing tax assessments to the relators for its piers and other facilities which the court have held to be part of first county.
In re Occidental Chem. Corp.
Constitution, Gov't/Administrative, Tax
The Supreme Court of Texas
October 12, 2018
18-0660
Nathan L. Hecht
Published
The relators owned two commercial piers extending from the mainland of first county into the waters of bay that lie in second county. The first county and second county have each assessed taxes on the relators piers. The first county filed a new Section 72.009 suit in Refugio County trial court to enjoin second county from taxing certain properties. The trial court granted summary judgment for second county. The court of appeals reversed. The Texas Supreme Court found that the Act’s grant of original jurisdiction to the court did not violate Article V, Section 3(a). It gave the Court original, exclusive jurisdiction to consider the facial challenge to the Act’s constitutionality to determine whether mandamus should issue directing the Comptroller to refund taxes. However, the court lacked jurisdiction because the Act did not authorize the court to exercise original jurisdiction over challenges to how the Comptroller assessed, enforced, or collected the franchise tax. The long standing dispute between counties burdened taxpayers with double assessments and multiplying protest litigation. The unique case presented a compelling reason for the court to exercise original jurisdiction. The Court rejected the second county’s contention that Section 72.010 reversed any judgment previously rendered in the boundary litigation. The common law supported treating docks, piers, and similar permanent facilities connected to the mainland as a part of that county. The taxes owed by the relators on its Piers were due to the first county. Accordingly, the court directed the second county Appraisal District to withdraw and cease from issuing tax assessments to the relators for its Piers and other facilities which the court have held to be part of first county.


The trial court’s temporary injunction failed adequately to recite specific reasons supporting the temporary injunction, as required by Rule 683 of the Texas Rules of Civil Procedure.
The Good Shepherd Hosp., Inc. v. Select Specialty Hosp. – Longview, Inc.
Appellate: Civil, Contracts, Procedure, Torts
Texas 6th Court of Appeals
October 11, 2018
06-18-00053-CV
Josh Morriss, III
Published
The defendant appealed the judgment of the trial court which issued a temporary injunction blocking the defendant’s termination of the parties’ purchase sale agreement. On appeal, the defendant asserted that a plain reading of the contracts compelled the conclusions that the lease did not require the defendant to provide any ancillary services, the terms of the agreement specified that the ancillary agreement was superseded by the agreement, the agreement provided for termination without cause on ninety-days’ written notice. The plaintiff counter-responded that the ancillary agreement was in full force because it stated that its terms would be effective until the lease was terminated. The appellate court found that the language of the temporary injunction did not provide the required detail under Rule 683 of the Texas Rules of Civil Procedure. The appellate court concluded that the trial court’s temporary injunction failed adequately to recite specific reasons supporting the temporary injunction, as required by Rule 683 of the Texas Rules of Civil Procedure. Accordingly, the judgment of the trial court was remanded for further proceedings.


Legally sufficient evidence supported the defendant’s conviction, however the trial court’s judgment incorrectly reflected that he was convicted by a jury and that there was no plea bargain agreement.
Swapsy v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
October 11, 2018
06-18-00042-CR
Bailey C. Moseley
Published
The defendant appealed the judgment of the trial court which sentenced him to eight years’ imprisonment and ordered him to pay a fine, but suspended the sentence placing on community supervision for five years following his conviction of unlawful possession of a firearm by a felon. On appeal, the defendant argued that the evidence was legally insufficient to sustain his conviction. The appellate court found that the State did not need to prove that the accused had exclusive possession of the firearm and joint possession was sufficient to sustain a conviction. The appellate court concluded that legally sufficient evidence supported the defendant’s conviction, however the trial court’s judgment incorrectly reflected that he was convicted by a jury and that there was no plea bargain agreement. Accordingly, the judgment of the trial court was affirmed and modified.


The trial court should have granted the relator’s motion to transfer venue to Dallas County and that the trial court’s denial of her motion amounted to a clear and prejudicial error of law.
In re Harding
Appellate: Civil, Oil, Gas, & Mineral, Procedure, Real Property
Texas 6th Court of Appeals
October 11, 2018
06-18-00067-CV
Bailey C. Moseley
Published
The relator challenged the trial court’s order denying her motion to transfer venue in an original mandamus proceeding. On appeal, the appellate court was asked to determine whether the trial court abused its discretion in denying the defendant’s motion to transfer venue to Dallas County under Section 65.023(a) of the Texas Civil Practice and Remedies Code. In their petition, the plaintiff sought injunctive relief and the imposition of a constructive trust on the mineral interest and surface interests of the property, requesting that the relator be prohibited from disposing, secreting or transferring any asset or monies coming from any asset owned or previously owned. The appellate court found that because the plaintiff primarily sought injunctive relief against the relator, Dallas County was the proper venue pursuant to Section 65.023(a). The plaintiff argued that even if the relator proved the primary purpose of this suit was injunctive, venue in Panola County remained proper because when there was more than one county where jurisdiction was mandatory, the plaintiff could choose where to sue. The appellate court concluded that the trial court should have granted the relator’s motion to transfer venue to Dallas County and that the trial court’s denial of her motion amounted to a clear and prejudicial error of law. Accordingly, the relator’s petition for writ of mandamus was conditionally granted and the trial court directed to vacate its order.


The defendant was not entitled to an evidentiary hearing on the State’s contention that the defendant violated the pretrial intervention agreement.
Lee v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
October 11, 2018
11-16-00298-CR
John Bailey
Published
The defendant appealed the judgment of the trial court which found that the defendant violated the terms of the pretrial intervention agreement. On appeal, the appellate court was asked to consider whether a defendant in Texas was entitled to a judgment evidentiary hearing if the State believed that he violated a provision of the pretrial intervention agreement. The defendant argued that the trial court should require the State to put on evidence of the alleged violation of the pretrial intervention agreement. Specifically, the defendant alleged that he was denied due process when the trial court failed to hold an evidentiary hearing and require the State to produce evidence that he violated the pretrial intervention agreement. The appellate court concluded that the defendant was not entitled to an evidentiary hearing on the State’s contention that the defendant violated the pretrial intervention agreement. The appellate court further found that a trial court did not have authority to require the State to keep a defendant on pretrial intervention after the State determined that a defendant violated the agreement. Accordingly, the judgment of the trial court was affirmed.


Section 161.001(c) of the Texas Family Code was inapplicable to the matter and could not serve as a basis for reversal of the trial court’s termination order.
In re of G.R.B
Family, Juvenile, Procedure
Texas 4th Court of Appeals
October 10, 2018
04-18-00271-CV
Marialyn Price Barnard
Published
The mother appealed the judgment of the trial court which terminated the mother’s parental rights to her children. On appeal, the mother contended that the evidence was legally and factually insufficient to support findings that the mother’s parental rights were not terminated based on circumstances set out in section 161.001(c) of the Texas Family Code. The mother maintained that the Department of Family and Protective Services (the Department) was required to prove that termination of her parental rights was not based on evidence that she homeschooled a child, was economically disadvantaged, had been charged with a nonviolent misdemeanor offense, provided or administered low-THC cannabis to a child, or declined immunization for a child. The Department counterargued that section 161.001(c) was inapplicable based on its effective date, and that even if applicable, it was not required to disprove the circumstances set out in section 161.001(c). The appellate court disagreed with the mother and found that section 161.001(c) was inapplicable to this matter and could not serve as a basis for reversal of the trial court’s termination order. Accordingly, the judgment of the trial court was affirmed.


The Court of Criminal Appeals explained the standard to be applied in claims of constitutional error arising from a trial judge prohibiting specific questions in voir dire.
Jacobs v. State 
Constitution, Criminal, Evidence, Procedure 
Texas Court of Criminal Appeals 
October 10, 2018 
PD-1411-16 
Michael E. Keasler
Published 
The defendant was charged with aggravated sexual assault of a child.  He had a prior conviction for a sexual offense against a child.  In voir dire, the defendant wanted to ask the venire members whether, if they knew he had a prior conviction for a “sexual offense,” they could remain impartial in the instant case.  The trial judge did not allow the defendant to describe his prior offense as a “sexual offense,” but allowed him to refer to it as a “felony” or simply an “offense.”  The intermediate court of appeals reversed the trial judge’s ruling, holding that the trial judge violated the defendant’s constitutional rights by denying him the opportunity to ask a proper commitment question.  The Court of Criminal Appeals reversed the intermediate court, concluding that there was no constitutional violation because the trial judge’s voir-dire limitation did not render the defendant’s trial “fundamentally unfair.”


The plaintiff did not show by clear and specific evidence that the defendant acted with malice in drafting an adverse report that was ultimately submitted to the National Practitioner Data Bank.
Batra v. Covenant Health Sys.
Appellate: Civil, Business, Contracts, Health Care, Procedure, Torts
Texas 7th Court of Appeals
October 09, 2018
07-18-00012-CV
Patrick A. Pirtle
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion to dismiss with prejudice pursuant to the Texas Citizens Participation Act. On appeal, the plaintiff challenged the trial court’s failure to issue findings of fact and conclusions of law, and the trial court’s order granting the defendant’s motion to dismiss. Specifically, the plaintiff questioned whether his claims or causes of action regarded a matter of “public concern” that related to the exercise of the right of free speech, he presented clear and specific evidence of a prima facie case for each essential element of his claims, and the defendant established an affirmative defense to any of the claims by a preponderance of the evidence. The appellate court found that in order to avoid dismissal of his defamation claim, the plaintiff was required to provide clear and specific evidence that the defendant acted with actual malice during the peer review process which culminated in the adverse report submitted. The appellate court concluded that the plaintiff did not show by clear and specific evidence that the defendant acted with malice in drafting an adverse report that was ultimately submitted to the National Practitioner Data Bank, and without meeting his burden, the plaintiff’s defamation claim could not survive dismissal. Accordingly, the judgment of the trial court was affirmed.


The mere receipt of campaign funds, in and of itself, without an indication of communication about, or coordination of, the handling of a case, was not a basis for recusal.
AVPM CORP v. CHILDERS
Appellate: Civil, Procedure
Texas 5th Court of Appeals
October 09, 2018
05-17-00372-CV
Carolyn I. Wright
Published
The appellate court found that the Austin Court of Appeals had indicated that where a litigant waited until after the opinion had been released, he must affirmatively explain why he was unable, with reasonable diligence, to inform himself of the grounds for recusal until after the opinion was released. The individual did not explain his failure to file his motion to recuse before the court issued its opinion in the case. Further, the court found that the mere receipt of campaign funds, in and of itself, without an indication of communication about, or coordination of, the handling of a case, was not a basis for recusal. Such contributions did not create even the appearance of impropriety. The individual made no assertion, and there was no basis to assert, that the contributors about which he complained had any input in the outcome of the case. The individual had not provided a good faith basis for a request for recusal, and he neither cited the court to nor acknowledged the governing law. Because the individual's assertions in his motion to recuse Justices were direct attacks on the integrity of the justices of the court and the court as a whole, the court was referring the matter to the Office of General Counsel of the State Bar of Texas. Accordingly, the court denied the Motion to Recuse, referred the individual to the Office of the General Counsel of the State Bar of Texas for possible disciplinary action.


Since the record demonstrated as a matter of law that the appellant failed to exercise due diligence in serving the appellee, the trial court did not err in granting summary judgment based on the running of the statute of limitations.
Milcoun v. Werner Co.
Procedure, Torts
Texas 14th Court of Appeals
October 09, 2018
14-17-00951-CV
Ken Wise
Published
The appellant appealed a summary judgment in favor of the appellee company on the affirmative defense of limitations. The appellant sued the appellee roughly four months before the statute of limitations expired, but he did not obtain service on the appellee until over eighteen months after filing suit. The appellate court observed that the appellant failed to meet his burden in response to the appellee’s summary judgment motion as to the ten-month period because his explanations for making no effort to serve the appellee during the time demonstrate a lack of diligence as a matter of law. Further, the trial court would not have erred by granting summary judgment based on either one or both periods in which the appellant failed to demonstrate due diligence in serving the appellee as a matter of law. Finally, because the record demonstrated as a matter of law that the appellant failed to exercise due diligence in serving the appellee, the trial court did not err in granting summary judgment based on the running of the statute of limitations. Accordingly, the court affirmed the trial court’s judgment.


Given the conflicting evidence, the court could not say that the trial court abused its discretion in denying the application.
Kana Energy Serv., Inc. v. Jiangsu Jinshi Mach. Grp. Co. Ltd.
Business, Contracts, Damages, International, Litigation: Personal Injury, Torts
Texas 14th Court of Appeals
October 09, 2018
14-17-00863-CV
Tracy Christopher
Published
In the case concerning claims, among others, of breach of fiduciary duty and misappropriation of trade secrets, the appellant incorporation challenged the trial court’s denial of its application for a temporary injunction. The appellate court found that because the appellant did not contend that it had a formal or informal fiduciary relationship with the appellee company the trial court did not abuse its discretion in failing to grant the appellant a temporary injunction based on a cause of action for breach of fiduciary duty. Further, because there was conflicting evidence on the elements of the appellant's claim for misappropriation of trade secrets, the trial court did not abuse its discretion in denying the appellant's application for a temporary injunction. Furthermore, the trial court did not abuse its discretion in impliedly finding that the appellant failed to satisfy its burden to (a) prove a cause of action for misappropriation of trade secrets, or (b) establish a probable right to relief. Lastly, given the conflicting evidence, the court could not conclude that the trial court could have reached but one result. Thus, finding no abuse of discretion, the court affirmed the trial court’s ruling.


From the time appellant attempted to take the victim’s motorcycle to the time he pulled the knife on the witness, appellant was engaged in one continuous criminal episode without any intervening events, appellant's conviction of aggravated robbery was affirmed.
Zagone v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 09, 2018
14-17-00763-CR
Martha H. Jamison
Published
Appellant was convicted of aggravated robbery and sentenced to five years in prison. The appellate court found that although the case was procedurally different from Sweed v. State 351 S.W.3d 63 (Tex. Crim. App. 2011), the definition of “immediate” was instructive. However, the facts of the case were distinguishable from those in Sweed. In this case, during the short time from when the witness first confronted appellant to when appellant pulled the knife, appellant had not actually left the site of the attempted theft and continued to be engaged in conversation with the witness. There was no intervening agency such as contemplated by Sweed. Therefore, applying the definition of “immediate” outlined in Sweed did not render the attempted theft and the separate assault offenses. As in Oggletree v. State, 851 S.W.2d 367 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d), from the time appellant attempted to take the victim’s motorcycle to the time he pulled the knife on the witness, appellant was engaged in one continuous criminal episode without any intervening events. Considering all the evidence in the record, a rational jury could conclude that the appellant used the knife against the witness in a threatening manner during an immediate flight from the attempted theft. Accordingly, the judgment was affirmed.


Since chapter 2153 apply to the appellees’ machines regardless of whether they were illegal or unconstitutional, Section 47.01(4)(B)’s constitutionality was irrelevant in the case. The trial court lacked subject-matter jurisdiction over the appellants' declaratory-judgment counterclaim.
Fort Worth v. Rylie
Business, Constitution, Entertainment, Gov't/Administrative, Torts, Zoning
Texas 2nd Court of Appeals
October 04, 2018
02-17-00185-CV
Elizabeth Kerr
Published
The Texas constitution directed the Legislature to pass laws prohibiting lotteries. As a consequence, the Legislature enacted chapter 47 of the Texas Penal Code, which prohibited most forms of gambling in Texas, including owning, manufacturing, transferring, and possessing gambling devices. But so that Texans may experience such fun as maneuvering a mechanical claw barely onto the ear of a coveted stuffed Pikachu only to helplessly watch it drop, at the last moment, to rejoin its piled-up brethren, the penal code expressly excluded from the definition of a gambling device. Relying on the exception—the breadth of which goes well beyond offering harmless amusement at Chuck E. Cheese’s®—the appellee Operators own, buy, sell, lease, maintain, transport, store, and exhibit electronic gaming machines commonly known as eight-liners at various Fort Worth locations. The appellees sued the appellant city and its city manager (the appellants), seeking to have the ordinances declared invalid because they were preempted by, or were in conflict with, state law—in particular, the Texas Occupations Code and the Alcoholic Beverage Code—and they violated the Texas constitution’s substantive-due-course-of-law provisions. The appellants counterclaimed seeking to have the fuzzy-animal exception declared unconstitutional. After both sides moved for summary judgment, the trial court declared portions of the ordinances invalid because they conflict with state law, but denied the remaining requested relief. The appellate court held that the appellees’ machines were skill or pleasure coin-operated machines as defined by the occupations code. Further, because chapter 2153 (and the City’s ordinances) apply to the appellees’ machines regardless of whether they were illegal or unconstitutional, Section 47.01(4)(B)’s constitutionality was irrelevant in the case. The trial court, therefore, lacked subject-matter jurisdiction over the appellants’ declaratory-judgment counterclaim. Furthermore, chapter 2153’s stated purpose of providing comprehensive and uniform statewide regulation of music and skill or coin-operated pleasure machines did not indicate the Legislature’s clear and unmistakable intent to preempt local regulation of such machines wholly. Lastly, section 1, § 4.305(C)(6)(e) of the Zoning Ordinance and section 1, § 20-120(a) of the Licensing Ordinance conflict with, and were therefore preempted by, the alcoholic-beverage code. Accordingly, the judgment was affirmed in part, reversed in part and rendered. 


A writ of prohibition was necessary to protect and enforce the court's jurisdiction and to prevent the trial court from acting without jurisdiction and, further, that the State was without an adequate remedy at law, the court conditionally granted the petition for writ of prohibition.
In re State ex rel. Escamilla
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
October 05, 2018
03-18-00351-CV
Melissa Goodwin
Published
The relator had filed a petition for writs of prohibition and mandamus with the appellate court alleging that the respondent judge was sitting by assignment in the County Court at Law No. 3 of Travis County, Texas, and the 403rd District Court of Travis County, Texas, lacked jurisdiction to conduct proceedings in trial cause number C-1-CR-12-209490, The State of Texas v. David Delacruz, because the State had appealed the trial court’s order granting a new trial in that cause. The State asked the appellate court to direct the respondent to conduct no further proceedings and take no further action until the State’s appeal had concluded by the issuance of a mandate from the court. The appellate court found that having concluded that a writ of prohibition was necessary to protect and enforce the court's jurisdiction and to prevent the trial court from acting without jurisdiction and, further, that the State was without an adequate remedy at law, the court conditionally granted the petition for writ of prohibition and lift the court's May 21, 2018, stay order. Further, the court directed the respondent to refrain from conducting any further proceedings or taking any further action in trial cause numbers C-1-CR-12-209490 and D-1-DC-18-100087 until the State’s appeal in appellate cause number 03-18-00196-CR was concluded by issuance of mandate by the court, as the court’s ruling on the merits of the motion-for-new-trial issue in that appeal would be controlling over that legal issue. The writ of prohibition would issue only if the respondent fails to act per the opinion. Accordingly, the State’s petition for writ of mandamus was denied.


Since Question 8 did not differ in substance from the appellants' requested question, the court could not say the trial court’s failure to submit the appellants’ defect claims in the form of the question requested by the appellants was an error.
Martin v. Cottonwood Creek Constr., LLC
Appellate: Civil, Contracts, Damages, Torts
Texas 10th Court of Appeals
October 03, 2018
10-17-00005-CV
Tom Gray
Published
The appellate court found that because the objection asserted at trial did not comport with the complaint argued on appeal, the second portion of the appellants’ first issue that an improper measure of damages was submitted was not preserved. Further, where a valid express contract covering the subject matter existed, there could be no quantum meruit; and thus, recovery on both was inconsistent. Thus, that there may be no evidence of value as would be necessary for a recovery in quantum meruit was of no consequence. There was no need for the appellee to prove the type of reasonable value as required to recover in quantum meruit. Next, the trial court abused its discretion in issuing an abatement order because the subsection (d) abatement procedure did not apply to the appellants’ counterclaim. Thus, the trial court also abused its discretion in finding that the appellants’ counterclaim was automatically abated and in refusing to lift the abatement in its entirety. Further, because Question 8 did not differ in substance from the appellants' requested question, the court could not say the trial court’s failure to submit the appellants’ defect claims in the form of the question requested by the appellants was an error. Furthermore, the appellant’s Requested The written pleadings did not raise question 8, and the trial court did not err in refusing to submit it. Lastly, the appellants request that, if the Court reversed the damages judgment, the Court also reversed the award of attorney’s fees. Since the Court did not reverse the damages judgment, it did not reverse the attorney’s fees award. Accordingly, the court affirmed the trial court’s judgment.


The trial court abused its discretion in granting the motion to compel as to request for production numbers 21-24 when it ordered the relator to produce text messages from the personal cell phones or mobile devices owned by its employees.
In re Sun Coast Resources, Inc.
Contracts, Employment, Real Property
Texas 14th Court of Appeals
October 04, 2018
14-18-00356-CV
Kevin Jewell
Published
The plaintiffs alleged the following in their First Amended Original Petition. The deceased and his wife lived on the property where the incident occurred. Situated on the property were three above-ground 500-gallon tanks for storing diesel and gasoline, which the deceased used to store fuel for operating various equipment in maintaining his property. The plaintiffs filed suit against the relator corporation and alleged causes of action for negligence and gross negligence, including claims of negligent hiring, training, supervision, and retention of the relator's driver. The appellate court found that the trial court abused its discretion by ordering the production of the personnel files of the individuals. The relator had no adequate remedy by an appeal for these errors. The court conditionally granted the petition as to the portion of the May 29 order compelling production of documents responsive to a request for production number 17 as to the individuals and the court denied the petition as to the other identified employees. Further, the trial court abused its discretion in granting the motion to compel as to request for production numbers 21-24 when it ordered the relator to produce text messages from the personal cell phones or mobile devices owned by its employees. Because the relator had no adequate remedy by an appeal for this error, the court conditionally granted the petition as to this portion of the May 29 order. Furthermore, the court denied in part and conditionally grant in part the petition for writ of mandamus. The court directed the trial court to vacate the parts of its May 29 order that the court had found in the opinion to constitute an abuse of discretion. Finally, the relator also complained that the respondent violated the court’s stay of all proceedings in the trial court by setting the case for trial starting on October 1, 2018, and in other respects. The relator had filed a motion to enforce our stay orders. As Respondent had since vacated the orders relators alleged violated the court's stay, the court denied the relator’s motion as moot. Finally, the court was confident the trial court would act per the opinion. The writ of mandamus should issue only if the trial court failed to do so.


The juvenile court did not err in failing to stay the proceedings and order a mental examination of the juvenile because the record did not establish probable cause to believe that the juvenile was unfit to proceed.
In re H.C.
Constitution, Criminal, Juvenile, Procedure
Texas 6th Court of Appeals
October 03, 2018
06-18-00006-CV
Ralph Burgess
Published
The juvenile appealed the judgment of the juvenile court which determined that the juvenile engaged in delinquent conduct by committing theft of property and placed her on twelve months’ probation in the custody of her great-grandmother. Subsequently, the juvenile took her grandmother’s vehicle without permission and violated the conditions of her probation. The juvenile court entered an order modifying its disposition by committing the juvenile to the care, custody, and control of the Texas Juvenile Justice Department for an indeterminate period of time. On appeal. the juvenile contended that the juvenile court erred in failing to order a medical or psychiatric inquiry into her competency to proceed with the modification hearing, and by failing to stay the proceedings in order to have her examined to determine whether she had an intellectual disability. The juvenile also maintained that she received ineffective assistance of counsel at trial. The appellate court disagreed with the juvenile and found that the juvenile court did not err in failing to stay the proceedings and order a mental examination of the juvenile because the record did not establish probable cause to believe that the juvenile was unfit to proceed. The appellate court concluded that the juvenile did not show that her trial counsel’s performance was deficient. Accordingly, the judgment of the juvenile court was affirmed.


The criminal appellate court found that the defendant’s attorneys did not perform the deficiently for failing to raise a shackling issue.
Ex Parte Chavez
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
October 03, 2018
WR-68,051-03
Sharon Keller
Published
The defendant appealed the judgment of the trial court which allowed the defendant’s ankles to be shackled at trial, claiming that the two jurors saw him in the shackles during the punishment stage. On appeal, the defendant contended that his rights to due process and a fair trial were denied because he was shackled during trial. The defendant also asserted that his trial and appellate attorneys were ineffective for various related reasons. The State responded that it offered a facially plausible reason for placing the defendant in the shackles in that his recent attempted escape warranted it. The criminal appellate court found that the trial court committed no error because the State proffered a legitimate, uncontested reason for shackling the defendant, the trial court ordered the placement of a barrier to block the jury from seeking the shackles, defense counsel expressed satisfaction with the trial court’s remedy, and a barrier was constructed that appeared to be effective. The criminal appellate court further found that the defendant’s attorneys did not perform the deficiently for failing to raise a shackling issue. Accordingly, the judgment of the trial court was affirmed.


When a defendant waived the right to have a jury determine guilt or innocence and admitted or did not contest guilt, the defendant did so under the law existing at the time of the plea.
Briggs v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
October 03, 2018
PD-1359-17
Bert Richardson
Published
The defendant appealed the judgment of the appellate court which reversed the trial court’s decision to deny the defendant’s motion for a new trial following her conviction of intoxication manslaughter of a peace officer. In her motion, the defendant claimed that her plea was involuntary because case law decided after she pled would have changed her mind, and she would have exercised her right to a jury trial. On appeal, the defendant argued that the trial court failed to rule on the issues presented, the defendant’s plea was not voluntary because it was induced by misrepresentations of the law, and the trial court’s findings regarding exigent circumstances were not supported by the record. The criminal appellate court found that a knowing and intelligent guilty or no-contest plea did not require that all advice offered by the defendant’s trial lawyer withstand retrospective examination in a post-conviction hearing. The criminal appellate court concluded that the appellate court erred because when a defendant waived the right to have a jury determine guilt or innocence and admitted or did not contest guilt, the defendant did so under the law existing at the time of the plea. Accordingly, the judgment of the appellate court was reversed.


The defendant’s offenses alleged in the original indictments did not toll limitations for the offenses alleged in the amended indictments.
Marks v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
October 03, 2018
PD-0549-17
Sharon Keller
Published
The defendant appealed the judgment of the appellate court which affirmed the trial court’s conviction of the defendant for accepting employment as a security officer to carry a firearm without a security officer commission. On appeal, the criminal appellate court was asked to consider whether the original indictments tolled the running of limitations for the amended indictments. The defendant contended that the trial court erred to allow the State to amend the indictments, arguing that the amended indictments charged a different offense than that alleged in each of the corresponding original indictments, so the State was required to obtain new indictments. The defendant further maintained that he was harmed by the amendments because the statute of limitations had run for the new offenses. The State counterargued that each original and amended indictment alleged the same statutory offense and also targeted the same conduct. The criminal appellate court agreed with the appellate court and concluded that the offenses alleged in the original indictments did not toll limitations for the offenses alleged in the amended indictments. Accordingly, the judgment of the appellate court was affirmed.


Rule 21c required that unless the inclusion of sensitive data was required by law, a document containing sensitive data, including credit card numbers, could not be filed with the trial court unless that data was redacted
Houle v. Capital One Bank (USA), N.A.
Banking and Finance, Damages
Texas 8th Court of Appeals
September 28, 2018
08-16-00234-CV
Ann Crawford McClure
Published
The following was a traditional summary judgment case arising from alleged non-payment of a credit card account. The appellant challenged the trial court’s grant of summary judgment in favor of the appellee bank. The appellate Court found that no genuine issue of material fact existed as to any element of the appellee’s causes of action against the appellant. Moreover, with limited exceptions, Rule 21c required that unless the inclusion of sensitive data was required by statute, court rule, or administrative regulation, a document containing sensitive data, including credit card numbers, could not be filed with the trial court unless that data was redacted. The rule required that sensitive data be redacted by using the letter X in place of each omitted digit or character or by other means specified therein. The redaction of the appellant’s credit cards account data from the records attached to the individual’s affidavit in compliance with Rule 21c did not raise a genuine issue of material fact as to any element of Capital One’s breach of contract and account stated claims. The trial court did not abuse its discretion in granting summary judgment in favor of the appellee. Accordingly, the Court affirmed the judgment.


The promissory note that was acquired by the husband during marriage in exchange for his interest in property that was also acquired during marriage was presumptively considered community property
Attaguile v. Attaguile
Family, Procedure
Texas 8th Court of Appeals
September 28, 2018
08-16-00222-CV
Gina M. Palafox
Published
The appellant challenged the trial court’s division of marital property, arguing that the trial court improperly characterized a community property asset as being the separate property of the appellee. The appellate Court found that the Memphis Avenue property was the parties’ community property based on the inception of title doctrine, and the appellee’s use of separate property funds to help pay off the Original Note on the property would not alter the characterization of the property itself. When the parties sold the Memphis Avenue property to the purchaser during the course of their marriage, the note that the purchaser gave to the parties, as husband and wife, was community property as well. Based on the record. the Court concluded that the trial court’s error in mischaracterizing the purchaser Note (note) was not harmless, and that a remand was necessary to allow the trial court to make a new just and equitable division of the parties’ community property, taking into consideration the proper characterization of the note. Further the Court found that the appellant did not provide the Court with evidence of relevant factors such as child care expenses needed to maintain gainful employment, additional amounts she believed were necessary to adequately provide for the child, or other evidence establishing the child’s needs would not be met taking into consideration the circumstances of both parents. Therefore, the Court concluded that the trial court did not abuse its discretion by failing to deviate from the statutory guidelines. Accordingly, the judgment was partly affirmed, partly reversed and remanded.


Appellees could not proceed against the appellant, as the appellees’ claims complained about the appellant employee actions and not particular rules or statutes
El Paso Indep. Sch. Dist. v. McIntyre
Appellate: Civil, Constitution, Criminal, Employment, Gov't/Administrative
Texas 8th Court of Appeals
September 28, 2018
08-11-00329-CV
Yvonne T. Rodriguez
Published
The appellant district initiated truancy related criminal charges against the appellees and three of their children under the then existing mandatory school attendance statute. The district attorney eventually dropped the charges. The appellees had a pending 42 U.S.C. Section 1983 action that claimed the appellant violated their constitutional rights in how its employees inquired about their homeschooling curriculum, and later initiated criminal charges against them. Before the appellate Court was the question of whether the appellees stated a claim for declaratory and injunctive relief sufficient to overcome the appellant’s governmental immunity. The appellate Court found that the appellant’s pleadings stated it had no intention of instituting new truancy cases or criminal proceedings against the appellees. The administrator’s testimony focused only on the criminal charges. Neither disclaimer addressed inquiries short of criminal charges. The appellant did not concede that any improper inquiries were made, nor did it suggest it had altered its policy or practice in confirming whether a homeschool was providing a bona fide education or not. Further, because the appellees’ claims at their core complained about the appellant employee actions, and not particular rules or statutes, the Court concluded they could not proceed against the appellant. The Court therefore sustained the appellant’s second issue and dismissed the claim for future injunctive relief with prejudice. 


The El Paso court’s issuance of the anti-suit temporary injunction did not constitute an abuse of that court’s discretion, as that court was authorized to issue a temporary injunction to protect its dominant jurisdiction
Encore Enters., Inc. v. Borderplex Realty Trust
Appellate: Civil, Contracts, Damages, Procedure
Texas 8th Court of Appeals
September 28, 2018
08-17-00153-CV
Yvonne T. Rodriguez
Published
The accelerated interlocutory appeal arose from a race to the courthouse. The winner of that race, the appellees (trust and company), obtained an anti-suit injunction from an El Paso trial court that precluded litigation of several claims in a later filed Dallas lawsuit. The loser of the race, the appellant companies, raised several procedural and substantive challenges to the anti-suit injunction. The appellate Court found that the fraud allegations in the Dallas lawsuit intertwined with the same conditions precedent that formed the basis of the El Paso litigation. Fraud and contract claims can share a logical relationship depending on the facts at issue, and they did in the case at bar. The two suits met the same transaction or occurrence element under TEX.R.CIV.P. 97(a). Further, the El Paso trial court could have found that at least some of the trustees could be indemnified by Borderplex, and that the Dallas suit was a suit against Borderplex. Next, the El Paso trial court did not abuse its discretion by entering a temporary injunction before the Dallas court ruled on a plea in abatement. Further, the trial court did not abuse its discretion in finding as a factual matter that Borderplex would suffer a probable, imminent and irreparable injury if the injunction did not issue. Lastly, the argument did not change the Court's resolution of the issue because the Court looked to the subject matter of the respective suits. Accordingly, the judgment was affirmed. 


The trial court made an equal division between the parties and the appellant has not carried her burden of showing that the equal division of the marital property was manifestly unjust and unfair
Barton v. Barton
Appellate: Civil, Courts, Procedure, Real Property
Texas 8th Court of Appeals
September 28, 2018
08-15-00110-CV
Ann Crawford McClure
Published
The appellant and the appellee were married in 2007, and the appellee filed for divorce in 2014. The appellee had been in the dairy business since 1983. The trial court entered agreed temporary orders which provided that the appellant would receive the proceeds from the milk store in lieu of spousal support. The court granted her judgment against the appellee in the amount of $33,024.75 to equalize the division of the community estate and to resolve her claims for reimbursement. The appellant challenged the trial court’s division of property incident to divorce. The appellate Court found that the trial court did not make any express findings on the appellant’s claims for reimbursement of the community for the payment of ad valorem taxes on the appellee’s separate real property and for payments on loans to acquire equipment, livestock, feed, and to build improvements for the Dairy. The appellant did not request additional findings from the trial court. Thus, the appellant waived her complaints related to those reimbursement claims. Further, it was clear from a reading of the record and the findings of fact and conclusions of law that the trial court was presented with evidence regarding community property, including but not limited to the property listed in Finding of Fact, and the trial court awarded the items it found to be community property. The appellant could have requested that the trial court make an additional finding setting forth all items of community property, but she failed to do so. Thus, she has waived her complaint regarding the incompleteness of the finding. Furthermore, the trial court determined that the community property awarded to the appellee and the benefit to his separate property had a total value of $108,365, but when the amount of the judgment in favor of the appellant was deducted, the appellee’s total community property award was $75,340.25. Thus, the trial court made an equal division between the parties. The appellant did not carry her burden of showing that the equal division of the marital property was manifestly unjust and unfair. Accordingly, the trial court's judgment was affirmed.


The appellants failed to show the agreement committed all disputes to arbitration, and thus no presumption arose that the parties intended to have an arbitrator determine arbitrability
Encore Enters., Inc. v. Borderplex Realty Trust
ADR, Appellate: Civil, Contracts, Procedure, Real Property
Texas 8th Court of Appeals
September 28, 2018
08-17-00134-CV
Yvonne T. Rodriguez
Published
The appellants held five properties that were in various stages of development as multi-family apartments. The appellees supposedly had access to available capital. The lawsuit arose from an agreement between the appellants and the appellees. The suit sought a declaration that the appellees was under no obligation to close, that the appellants was not entitled to recover damages, and that the appellees’ performance was excused by the appellants’ material breach of the Contribution Agreement and/or promissory estoppel. The appellate Court found that the appellees failed to meet its burden to show waiver, and the Court rejected its claim that any arbitration rights were waived. The appellants’ construction unnecessarily contorted the structure of Article 8 of Contribution Agreement, and under Delaware law the Court could not apply a construction that subverted the parties intended plan or scheme. Further, the Court declined to draw any inferences from the red-lined draft for two reasons. The Court had no need to refer to parol evidence unless the agreement was ambiguous, a finding that neither the trial court nor the Court has made. The Contribution Agreement had a joint drafting clause that precluded any inference from the authorship of any provision. Thus, the appellants’ arguments regarding Section 9.12 of agreement were unappealing. Furthermore, the appellants failed to show the agreement committed all disputes to arbitration, and thus no presumption arose that the parties intended to have an arbitrator determine arbitrability. Generally, a plaintiff’s timely filed amended pleading supersedes all previous pleadings and becomes the controlling petition in the case regarding theories of recovery. The appellees’ amended pleading superseded and replaced its prior pleading. Thus, the Court declined to consider the superseded pleading. Accordingly, the Court affirmed the decision of the trial court and remanded the case for further proceedings.


The trial court erred by granting the motion for substituted service, as the certified process server affidavit was legally insufficient
In re M.M.M.A.
Family, Procedure
Texas 8th Court of Appeals
September 28, 2018
08-16-00020-CV
Ann Crawford McClure
Published
The following was a restricted appeal by the appellant from a default judgment granting the child’s suit to modify the parent-child relationship. The appellate Court observed that the Government Code defined “affidavit” as a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office. A certified process server’s affidavit satisfied the statutory definition, but it failed to positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant’s personal knowledge. Because the affidavit was legally insufficient, the trial court erred by granting the motion for substituted service. Accordingly, the Court reversed the default judgment and remanded.


By its enactment of Section 311.034, the Texas Legislature had mandated that all statutory prerequisites to suit against governmental entities were jurisdictional
Sims v. Madisonville
Civil Rights, Employment, Gov't/Administrative, Procedure
Texas 8th Court of Appeals
September 28, 2018
08-15-00113-CV
Ann Crawford McClure
Published
The appellant filed a Whistleblower Act suit against the appellees. The trial court granted the appellees plea to the jurisdiction on the basis of limitations. The appellate Court in Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 514-15 (Tex. 2012), determined that the employee was required to file a complaint under the Texas Commission on Human Rights Act (TCHRA) within 180 days of the date the employee was informed of the alleged discriminatory pay decision. The Court then considered whether the untimely filing of suit was a jurisdictional bar to suit, and observed that by its enactment of Section 311.034, the Texas Legislature had mandated that all statutory prerequisites to suit against governmental entities were jurisdictional. The Court's sister courts repeatedly concluded that an affirmative defense of limitations under the Whistleblower Act could not be raised in a plea to the jurisdiction but must be raised and proved in summary judgment proceedings. Because the trial court erred in granting the appellees plea to the jurisdiction based on the affirmative defense of limitations, the Court sustained the appellant's sole issue on appeal. Accordingly, the judgment was reversed and remanded.


The reporter’s record demonstrated that the appellant did not raise Rule 401 or 403 objections when the State offered the handwritten notes into evidence
Kelso v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
September 28, 2018
06-17-00183-CR
Josh Morriss, III
Published
The county jury found the appellant guilty of indecency with a child by contact. The appellant was sentenced to three years’ imprisonment and was ordered to pay $413.00 in court costs. The appellate Court found that there was no evidence that the appellant's husband intended and was prepared to carry out any threat of death or serious bodily injury immediately at the time that the appellant committed the offenses, or that the appellant’s actions required a split-section decision as contemplated by the immediacy requirement. Further, at best, the evidence showed the appellant engaged in the acts based on her generalized fear of what might occur if she refused. However, more than a generalized fear of harm was required to raise the issue of imminent harm. Furthermore, a party must first present to the trial court a timely objection stating the specific grounds for the desired ruling if not apparent from the context. Also, the trial court must have ruled on the objection, either expressly or implicitly. The reporter’s record demonstrated that the appellant did not raise Rule 401 or 403 objections when the State offered the handwritten notes into evidence, and nothing suggested that the trial court considered the arguments now raised by the appellant on appeal. Lastly, the Court had already determined that the appellant was not entitled to an instruction on these defensive issues because there was no evidence that the victim’s sexual abuse was required to prevent imminent death or serious bodily injury to herself or another. Accordingly, the Court affirmed the trial court’s judgment.


In contrast to a search of the arrestee’s person and immediately associated object, a search of the area within the arrestee’s immediate control must be supported by something more than just a lawful arrest
State v. Drury
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
September 27, 2018
02-17-00273-CR
Bill Meier
Published
In an appeal from the trial court’s order sustaining the appellee motion to suppress, the Court considered whether an object searched by police was “immediately associated” with the appellee and whether police were capable of conducting a valid search incident to arrest when the search was justified by neither officer safety nor evidence preservation. The appellate Court found that the officer observed the appellee holding the tin can when she opened the closet door, she retrieved the tin can from the floor immediately after placing handcuffs on the appellee, and she immediately searched the container, first in the appellee’s presence and again after putting him in a patrol car. Though obviously not identical, the Court believed the tin can was more akin to the bags in Curry v. State and Johnson v. State and the container in United States v. Nichols, than to a form of luggage or other untypical object legally incapable of immediate association with an arrestee. The Court agreed with the State that the tin can was immediately associated with the appellee. Further, in contrast to a search of the arrestee’s person and immediately associated object, a search of the area within the arrestee’s immediate control must be supported by something more than just a lawful arrest. The trial court identified those justifications in Chimel v. California, where it defined the area within an arrestee’s “immediate control” to mean the area from within which he might gain possession of a weapon or destructible evidence. Finally, having determined that the tin can was immediately associated with the appellee, the officer needed no additional, “Chimel” justification beyond the lawful arrest to search the tin can and the trial court erred by suppressing the contents of the tin can. Accordingly, the Court reversed the trial court’s order granting the appellee’s motion to suppress and remand the cause to the trial court for further proceedings.


Any error in the trial court’s admission of appellant's sisters’ testimony was harmless; thus, the trial court’s judgment was affirmed
Perez v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
September 27, 2018
02-17-00226-CR
Bonnie Sudderth
Published
A jury found the appellant guilty of two counts of aggravated sexual assault and three counts of indecency by contact against two of his grandchildren. The trial court sentenced him to two life sentences for the aggravated sexual assault convictions and three consecutive twenty-year sentences for the indecency convictions. The appellate Court observed that having held that section 2 of article 38.37 Tex. Code Crim. Proc. Ann. was constitutional, the Court overruled the appellant’s point. Further, the appellant's sisters both testified of the appellant’s abuse of them when they were children. Physical evidence and a timely report to the authorities were not required to support a conviction for sexual assault or indecency with a child. Their testimony alone was sufficient to place the trial court’s ruling in the zone of reasonable disagreement. Next, the trial court’s error in admitting the appellant's sisters' testimony to the extraneous offenses did not have a substantial or injurious effect on the jury’s verdict and did not affect the appellant’s substantial rights. Finally, an expert witness’s testimony was sufficiently linked to the facts of the case. The trial court acted within its discretion by allowing her testimony. Accordingly, the Court affirmed the trial court’s judgment.


The trial court did not err by denying the City’s plea to the jurisdiction because the City failed to conclusively prove how the collision occurred between the plaintiff and the City’s employee.
Beaumont v. Mahmood
Appellate: Civil, Employment, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 9th Court of Appeals
September 27, 2018
09-18-00145-CV
Hollis Horton III
Published
The City appealed the judgment of the trial court which denied its plea to the jurisdiction in an action where the plaintiff claimed that he was injured when his vehicle struck the manhole created by a City employee. In his complaint, the plaintiff claimed that the employee was in the course and scope of his employment with the City when the collision occurred, and the City negligently secured the manhole to the truck before the collision occurred. On appeal, the City challenged the trial court’s jurisdiction over the plaintiff’s case under section 101.025 of the Tort Claims Act, which allowed a plaintiff to sue a governmental entity for damages if the requirements in the Act applied to the plaintiff’s claim. The City argued that the evidence conclusively established that no nexus existed between its truck, the manhole, and the collision. The appellate court concluded that the trial court did not err by denying the City’s plea to the jurisdiction because the City failed to conclusively prove how the collision occurred. The City further found that under Texas law, a private person who loaded equipment on a truck must use reasonable care in doing so to prevent an unreasonable risk of harm to other motorists who would be affected if the load was inadequately secured. Accordingly, the judgment of the trial court was affirmed.


The term “stock” in section 38.001(6) did not include pet dogs, and thus, the plaintiff was not entitled to attorney’s fees pursuant to the Texas Civil Practice and Remedies Code.
Palfreyman v. Gaconnet
Appellate: Civil, Damages, Procedure, Torts
Texas 14th Court of Appeals
September 27, 2018
14-17-00472-CV
Martha Hill Jamison
Published
The plaintiff appealed the judgment of the trial court which awarded actual damages for the untimely deaths of two of her dogs while they were boarded by the defendant, but which denied her attorney’s fees incurred in pursuing the case. On appeal, the appellate court was asked to determine whether companion animals, pet dogs, could be considered “stock” for purposes of awarding attorney’s fees pursuant to Texas Civil Practice and Remedies Code section 38.001(6) in lawsuits concerning their injury or death. The plaintiff argued that the attorney’s fees were recoverable for the loss of her dogs because the animals constituted “stock” under section 38.001(6) of the Civil Practice and Remedies Code. Specifically, the plaintiff asserted that none of the common usage definitions accurately conveyed the meaning intended in the statute, and she offered the following definition: “stock” meant “any living species of plant, animal or organism that [was] owned, controlled, or possessed by a person or legally recognized entity, that was or is cultivated or selected to a generally accepted standard, and for the specific intent of having a cognizable purpose or personal benefit.” The appellate court disagreed with the plaintiff and concluded that the term “stock” in section 38.001(6) did not include pet dogs, and thus, the plaintiff was not entitled to attorney’s fees pursuant to the Texas Civil Practice and Remedies Code. Accordingly, the judgment of the trial court was affirmed.


The father’s handwritten note did not constitute an admission of paternity and it was insufficient to preclude summary termination of his parental rights under Section 161.002(b)(1).
In re O.R.M.
Family, Procedure
Texas 8th Court of Appeals
September 26, 2018
08-18-00058-CV
Ann Crawford McClure
Published
The father appealed the judgment of the trial court which terminated his parental rights to his children and appointed the Department of Family and Protective Services (the Department) as the permanent managing conservator of the children. On appeal, the father challenged the trial court’s evidence as factually and legally insufficient to support termination of his parental rights under Section 161.002. Specifically, the father contended that he made an informal admission of paternity sufficient to avoid summary termination of his parental rights. The appellate court noted that the trial court properly concluded by clear and convincing evidence that the father, after being served with citation, did not respond by timely filing an admission of paternity or by filing a counterclaim for paternity or for voluntary paternity to be adjudicated under Chapter 160 of the Texas Family Code before the final hearing in the case. The father further maintained that the record demonstrated that he nevertheless claimed paternity of the children in writing and this was sufficient to prevent summary termination of his parental rights. The appellate court concluded that the father’s handwritten note did not constitute an admission of paternity and it was insufficient to preclude summary termination of his parental rights under Section 161.002(b)(1). Accordingly, the judgment of the trial court was affirmed.


The State’s indictment did not fail for lack of specificity as to the manner or means, the notice requirement was met, and the trial court erred in quashing the indictment.
State v. Zuniga
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
September 27, 2018
13-14-00316-CR
Nelda V. Rodriguez
Published
The State appealed the judgment of the trial court, which quashed its count of the indictment alleging that the defendant tampered with physical evidence, following a remand from the criminal appellate court. On remand, the State contended that the indictment that tracked the language of the tampering statute provided sufficient notice. Specifically, the State asserted that the use of “substance” clearly conveyed the same meaning as charging a “thing,” and the indictment narrowed down the unknown substance to something that the defendant allegedly altered, destroyed, or concealed in an apparent attempt to impair its validity or availability as evidence in a drug investigation. The State further maintained that the indictment did not need to allege how the defendant altered, destroyed, or concealed the unknown substance in order to provide sufficient notice because the additional identifiers should be sufficient for the indictment to pass muster. The defendant counterargued that her indictment was inadequate to provide notice of the specific offense charged because it tracked the language of the tampering statute, language that did not describe a criminal act. The appellate court concluded that the State’s indictment did not fail for lack of specificity as to the manner or means, that the notice requirement was met, and the trial court erred in quashing the indictment. Accordingly, the judgment of the trial court was reversed and remanded.


The trial court erred in denying the relator’s motion to compel and abate, as the real parties in interest failed to carry their burden to establish that the relator waived the appraisal clause and presented no other viable argument to refusal the motion to compel appraisal.
In re Acceptance Indem. Ins. Co.
Appellate: Civil, Contracts, Damages, Insurance, Procedure, Real Property, Tax, Torts
Texas 4th Court of Appeals
September 26, 2018
04-18-00231-CV
Marialyn Price Barnard
Published
The relator appealed the judgment of the trial court which denied its motion to compel appraisal and abate in the underlying dispute over the amount of loss sustained by the real parties in interest with regard to overhead, profits, and taxes. This appeal stemmed from the real parties in interest (the insured) filing suit against the relator, alleging breach of contract and numerous extra-contractual claims. On appeal, the relator contended that absent a showing of illegality or waiver, the appraisal clause must be enforced. Specifically, the relator argued that the trial court erred in denying the motion to compel appraisal and abate because the real parties in interest failed to establish waiver or prejudice. The appellate court found that the real parties in interest failed to establish waiver and prejudice resulting from the waiver. The real parties in interest maintained that even if appraisal was appropriate, the relator breached the insurance policy by not paying the overhead, profit, and taxes, thereby discharge it from complying with any further contractual provisions. The appellate court concluded that the trial court erred in denying the relator’s motion to compel and abate, as the real parties in interest failed to carry their burden to establish that the relator waived the appraisal clause and presented no other viable argument to refusal the motion to compel appraisal. Accordingly, the relator’s petition for writ of mandamus was conditionally granted but its motion to stay the proceedings was denied.


Because strict compliance regarding an option to purchase was required, the tenant’s failure to exercise an option in a timely manner rendered it ineffectual.
Weaver v. H.E. Lacey, Inc.
Appellate: Civil, Contracts, Landlord and Tenant, Procedure, Real Property
Texas 6th Court of Appeals
September 26, 2018
06-18-00023-CV
Josh Morriss, III
Published
The tenant appealed the judgment of the trial court which ruled that a holdover tenant had no right to possess and no interest in the leased property and which awarded the landlord a no-evidence and traditional motion for summary judgment. On appeal, the appellate court was asked to determine whether a tenant could exercise a first option of refusal to purchase the leased real estate for a stated purchase price after the lease agreement had expired. The tenant argued that the lease agreement gave him a preemptive right of first refusal. The landlord conceded that the tenant exercised the option by tendering the earnest money contract and paying earnest money. The tenant further argued that the terms of the lease, including the option to purchase, survived with him as a holdover tenant. The appellate court disagreed with the tenant and found that the lease revealed no apparent intent to extend the purchase option beyond the lease term. The appellate court concluded that because strict compliance regarding an option to purchase was required, the tenant’s failure to exercise an option in a timely manner rendered it ineffectual. Accordingly, the judgment of the trial court was affirmed.


The trial court erred by granting the defendant’s summary judgment because the defendant, as a matter of law, owed a duty to either warn or make safe the hole it created by removing the utility pole.
Arredondo v. Techserv Consulting and Training, Ltd.
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Real Property, Torts
Texas 4th Court of Appeals
September 26, 2018
04-17-00609-CV
Irene Rios
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s traditional and no-evidence motions for summary judgment in an action alleging claims for negligence, negligence per se, and gross negligence. This appeal stemmed from the plaintiff’s fall into a hole, where she alleged that the defendant possessed the easement and created a defect on the easement when they removed the pole and failed to fill the hole or otherwise warn of its existence.  On appeal, the plaintiff contended the existence of genuine issues of material fact as to each challenged element of her claims precluded summary judgment. Specifically, the plaintiff argued that she brought a viable negligence claim against the defendant, and that even if she did not, she presented evidence raising a fact issue as to a premises liability claim. The defendant counterargued that the plaintiff misunderstood the distinction between ordinary negligence and premises liability, and that the plaintiff’s claim sounded in premises liability, not ordinary negligence. The appellate court found that the plaintiff’s allegations against the defendant sounded in ordinary negligence and not premises liability. The appellate court concluded that the trial court erred by granting the defendant’s summary judgment because the defendant, as a matter of law, owed a duty to either warn or make safe the hole it created by removing the utility pole. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.


An appeal of an order granting shock probation was independent of an appeal from adjudication and formal sentencing, and general notice of an appeal did not act as a place holder notice for any appealable order that came from the trial court’s actions thereafter.
Smith v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 26, 2018
PD-0514-17
David C. Newell
Published
The defendant appealed the judgment of the appellate court which dismissed his appeal from the trial court’s grant of his motion for shock of probation. The appellate court reasoned that the defendant’s appeal must be dismissed for failure to file a separate notice of appeal after the order granting shock probation. This appeal stemmed from the defendant’s guilty plea to family violence assault by chocking and the trial court’s deferred adjudication and placement of the defendant on community supervision for five years. On appeal, the criminal appellate court was asked to determine whether a defendant, who filed a timely notice of appeal from a judgment adjudicating his guilt and was later placed on shock community supervision, complaining on appeal about a condition of that community supervision must also file a new notice of appeal. The criminal appellate court found that under the plain language of Rule 27.1(b), a notice filed after an adjudication but before sentencing was effective to perfect an appeal. However, the criminal appellate court concluded that an appeal of an order granting shock probation was independent of an appeal from adjudication and formal sentencing, and general notice of an appeal did not act as a place holder notice for any appealable order that came from the trial court’s actions thereafter. Accordingly, the judgment of the appellate court was affirmed.


Both parties were bound by the valuations set by the appraisers establishing mutuality, and the relator retained the right to deny coverage and the real party in interest retained the right to sue.
In re Acceptance Indem. Ins. Co.
Appellate: Civil, Constitution, Contracts, Insurance, Procedure, Tax
Texas 4th Court of Appeals
September 26, 2018
04-18-00232-CV
Marialyn Price Barnard
Published
The relator appealed the judgment of the trial court which denied its motion to compel appraisal and abate in the underlying dispute over the amount of loss sustained by the real party interest with regard to overhead, profits, and taxes. On appeal, the relator contended that absent a showing of waiver, which mandated a showing of prejudice, the appraisal clause must be enforced. The relator argued that the trial court erred in denying the motion to compel appraisal and abate because the real party in interest failed to establish waiver or prejudice. The real party in interest responded that appraisal was not proper in the case and that the relator waived its right to invoke appraisal and it was prejudiced thereby. The appellate court noted that the relator invoked the appraisal clause before an impasse was ever reached, and since it did so, no reasonable construction of the record supported the existence of an impasse before the date. The real party in interest further maintained that appraisal was not required because the relator improperly used the appraisal clause as a litigation tactic to extinguish the real party in interest’s constitutional right to a jury trial on the amount and damages.  The appellate court concluded that both parties were bound by the valuations set by the appraisers establishing mutuality, and the relator retained the right to deny coverage and the real party in interest retained the right to sue. Accordingly, the relator’s petition for writ of mandamus was conditionally granted.


The trial court did not err merely by considering the defendant’s motion for summary judgment during the discovery period because, although the motion was filed during that period, it did not hear the motion until after the expiration of the period set out in the docket control order.
Chamie v. Mem’l Hermann Health Sys.
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
September 25, 2018
14-17-00354-CV
Martha Hill Jamison
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s no-evidence summary judgment motion in a slip-and-fall, personal injury action. On appeal, the plaintiff contended that the trial court erred in granting summary judgment because he presented more than a scintilla of evidence to support the challenged element of his claims and the defendant’s motion was filed prematurely. The appellate court disagreed with the plaintiff and found that the record demonstrated that the plaintiff did not file any evidence in response to the defendant’s no-evidence motion for summary judgment, much less any evidence that the defendant’s conduct caused the plaintiff’s alleged injuries, and thus, the trial court did not err in granting the motion. The plaintiff further asserted that the trial court erred in granting summary judgment because the defendant’s motion was filed prematurely, as it was filed before the discovery deadline was set in the court’s docket control order. The appellate court concluded that the trial court did not err merely by considering the defendant’s motion for summary judgment during the discovery period because, although the motion was filed during that period, the trial court did not hear the motion until after the expiration of the period set out in the docket control order. Accordingly, the judgment of the trial court was affirmed.


Under the plain language of the applicable statutes, the father timely requested a de novo hearing before the trial court, and the trial court reversibly erred in denying the hearing request.
In re R.A.O.
Family, Procedure
Texas 14th Court of Appeals
September 25, 2018
14-17-00043-CV
Kem Thompson Frost
Published
The father appealed the judgment of the trial court which granted the mother’s petition to modify the parent-child relationship, denied his request for a de novo hearing,  and denied his request for a new trial. On appeal, the father challenged the associate judge’s decision that increased his child-support obligations and made that increase retroactive. Further, the father argued that the trial court erred in denying his request for a de novo hearing under Family Code section 201.1042(b). The mother responded that the trial court agreed that the deadline in Family Code section 201.051(a) applied to the parties’ situation. The appellate court found that under Texas Rules of Appellate Procedure 44.1(a), a trial-court error required reversal if the error probably caused the rendition of an improper judgment. The appellate court concluded that under the plain language of the applicable statutes, the father timely requested a de novo hearing before the trial court, and the trial court reversibly erred in denying the hearing request. Accordingly, the judgment of the trial court was reversed and remanded.


Because the plaintiff failed to file her complaint under oath within 180 days after the alleged unlawful employment practice occurred, the University properly asserted a plea to the jurisdiction and the plea should have been granted.
Univ. of Tex. at El Paso v. Isaac
Appellate: Civil, Civil Rights, Education, Employment, Gov't/Administrative, Procedure
Texas 8th Court of Appeals
September 19, 2018
08-16-00268-CV
Gina M. Palafox
Published
The University appealed the judgment of the trial court which denied its plea to the jurisdiction asserting that the plaintiff had not exhausted her administrative remedies in an action for unlawful discrimination under the Texas Commission on Human Rights Act. On appeal, the University argued that the trial court erred in not dismissing the case for lack of jurisdiction based on the plaintiff having filed an unsworn intake questionnaire with the Equal Employment Opportunity Commission (EEOC), as opposed to a writing made under oath as required by the Act. The University contended that the filing of a sworn complaint was a statutory prerequisite to filing an age discrimination suit against a governmental employer. The appellate court noted that based on the doctrine of sovereign immunity, governmental entities were generally immune from suit unless the Texas Legislature provided for a waiver of immunity. The appellate court concluded that because the plaintiff failed to file her complaint under oath within 180 days after the alleged unlawful employment practice occurred, the University properly asserted a plea to the jurisdiction and the plea should have been granted. Accordingly, the judgment of the trial court was reversed.


The trial court did not abuse its discretion by finding that the officer’s brief search of the cell phone to determine ownership was authorized by the car search warrant, and thus, the subsequent search warrants were not tainted by an illegal warrantless search.
Drayton v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 20, 2018
14-17-00452-CR
Ken Wise
Published
The defendant appealed the judgment of the trial court which convicted him of capital murder and sentenced the defendant to life imprisonment without parole. On appeal, the defendant challenged his conviction, contending that the trial court erred by denying his motion to suppress evidence obtained from the warrant searches of several cell phones and historical cell site data. Specifically, the defendant argued that the officer conducted an illegal warrantless search of the cell phone by opening it to determine ownership, and this unconstitutional search tainted the subsequent search warrants for data on each phone. The State counterargued that the officer legally searched the cell phone under the authority of the car search warrant because the warrant authorized the defendant to seize documents, which could be stored on a cell phone. The appellate court concluded that the trial court did not abuse its discretion by finding that the officer’s brief search of the cell phone to determine ownership was authorized by the car search warrant, and thus, the subsequent search warrants for the cell phones’ data and historical cell site information were not tainted by an illegal warrantless search. Accordingly, the judgment of the trial court was affirmed.


The parties agreed to waive their right to appeal the trial court’s judgment as to any issue regarding interest or attorney’s fees and that the agreement was enforceable.
Emerson v. Emerson
Appellate: Civil, Contracts, Family, Procedure
Texas 14th Court of Appeals
September 20, 2018
14-17-00064-CV
Kem Thompson Frost
Published
The wife appealed the judgment of the trial court which denied her motion for a new trial following the execution of a final judgment based on the parties’ agreed settlement in the underlying divorce proceeding. On appeal, the appellate court was asked to consider whether the parties entered into an enforceable agreement under Texas Rule of Civil Procedure 11 to waive the right to appeal. The wife argued that the trial court’s attempt to extract an agreement to waive appeal violated public policy because the trial court promised to be fair only if the wife waived her right to appeal, and that the wife did not consent to waiving her property right to interest. The wife further contended that the trial court dictated the terms of the agreement and the husband waived his right to request that the court enforce the Rule 11 agreement because the husband did not cross-appeal and amend his pleadings to allege that the wife breached the settlement agreement. The appellate court found that the parties entered into a Rule 11 agreement in which they expressly waived their respective rights to appeal the trial court’s rulings on the wife’s request for attorney’s fees and interest. The appellate court concluded that the parties agreed to waive their right to appeal the trial court’s judgment as to any issue regarding interest or attorney’s fees and that the agreement was enforceable. Accordingly, the judgment of the trial court was affirmed.


If the defendant was acquitted of one count and convicted of another based on the same evidence in a single trial, the defendant could not rely on the inconsistent verdicts to attack the defendant’s conviction.
Hernandez v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 19, 2018
PD-1049-16
Barbara Parker Hervey
Published
The defendant appealed the judgment of the appellate court which affirmed the trial court’s conviction of the defendant for aggravated assault with a  deadly weapon and family-violence assault by strangulation. The appellate court ruled that the evidence was insufficient to sustain the aggravated-assault-with-a-deadly-weapon conviction. Thereafter, the defendant filed a motion for rehearing, which the trial court ultimately sentenced the defendant to seven years’ confinement and placed him on community supervision for ten years. On appeal, the defendant argued that the court violated his due process and double jeopardy rights on original submission by incorrectly applying the hypothetically-correct-jury-charge doctrine. The defendant asserted that the court relied on Johnson v. State to hold that the manner and means alleged were immaterial to the legal sufficiency analysis. The criminal appellate court found that assuming that the State had to prove two offenses, under Johnson, the variance between the manner-and-means alleged in the aggravated-assault-with-a-deadly-weapon count and the proof at trial was only an immaterial non-statutory allegation. The criminal appellate court concluded that if the defendant was acquitted of one count and convicted of another based on the same evidence in a single trial, the defendant could not rely on the inconsistent verdicts to attack the defendant’s conviction. Accordingly, the judgment of the appellate court was affirmed.


The defendant’s waiver of his right to appeal was valid because the State’s waiver of its right to a jury trial was sufficient consideration to render the defendant’s waiver knowing and intelligent.
Carson v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 19, 2018
PD-0205-17
David C. Newell
Published
The defendant appealed the judgment of the appellate court which affirmed the trial court’s conviction of the defendant for assault on a public servant and bail jumping. Thereafter, the defendant agreed to waive his right to appeal if the State agreed to waive its right to a jury trial. On appeal, the defendant argued that his waiver of appeal was invalid and that the trial judge was biased against him because the trial court had considered the unproven extraneous offense allegations in the State’s 404(b) notice. The criminal appellate court was asked to determine whether the State gave consideration for the defendant’s waiver of his right to appeal. The State maintained that its waiver of its right to a jury trial was sufficient consideration and, therefore, the defendant’s waiver of his right to appeal was valid. The criminal appellate court concluded that the defendant’s waiver of his right to appeal was valid because the State’s waiver of its right to a jury trial was sufficient consideration to render the defendant’s waiver knowing and intelligent. Accordingly, the judgment of the appellate court was reversed and remanded to address whether an exception to the waiver rules applied.


Because the evidence was sufficient to support the appellant’s conviction, the court of appeals reversed the acquittal.
Ingerson v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 19, 2018
PD-1445-16
Barbara Parker Hervey
Published
The Texas Court Of Criminal Appeals found that the lie to another romantic interest, the trip to Granbury to drop off the clothes that he wore the night of the murders for dry cleaning, his avoidance of the police, his comment to his friend, and his suspicious lack of phone activity following her murder support a rational inference of guilt together with the actual circumstances of the murders. While each circumstance of guilt considered in isolation was insufficient to prove that the appellant murdered the victims, when all of the evidence was viewed in the light most favorable to the verdict, and the court considered the cumulative force of all the admitted evidence and reasonable inferences that could be drawn therefrom, the court concluded that the evidence was sufficient to support the verdict. Accordingly, the court reversed the judgment of the court of appeals and remanded.


Since the appellant’s sentence was not illegal, the court reversed the judgment of the appellate court.
Wood v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 19, 2018
PD-1100-17
Bert Richardson
Published
The appellant appealed her conviction and sentence, alleging five points of error. Finding the appellant’s life sentence to be an illegal sentence, the appellate court reversed the appellant’s conviction for attempted capital murder and ordered the trial court to adjudge the appellant guilty of attempted murder. The case was remanded to the trial court to hold a new sentencing hearing. The State petitioned the Texas Court of Criminal Appeals to review the decision of the appellate court. The Texas Court of Criminal Appeals found that an indictment charging a consummated offense must properly charge all of the elements of that offense. But an indictment charging an attempted offense was not fundamentally defective for failure to allege the constituent elements of the offense attempted. Further, the indictment in the case properly charged attempted capital murder. It logically followed, then, that the appellant’s agreement to plead to the allegations in the indictment was an agreement to plead to the offense of attempted capital murder. Thus, the appellant’s life sentence, which fell within the punishment range for attempted capital murder, was not an illegal sentence. Accordingly, the court reversed the judgment of the appellate court and remanded the case to the appellate court to address the appellant’s remaining points of error.


A trial court’s characterization of a mistrial as a sua sponte act did not preclude the State from carrying its burden on the issue of defendant’s consent to a mistrial.
Ex Parte Garrels
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 19, 2018
PD-0710-17
Michael E. Keasler
Published
The defendant appealed the judgment of the appellate court which affirmed the trial court’s ruling which found that the defendant impliedly consented to the trial judge’s mistrial order. On appeal, the State argued that the defendant’s application should be denied because the trial judge’s mistrial order was supported by manifest necessity or because, by failing to object when given an adequate opportunity to do so, the defendant had implied consented to the mistrial. The defendant responded that, although she did not expressly object to the mistrial, the relief she requested from the outset of her discovery-related objection was not to abort, but rather to proceed with, the trial. The criminal appellate court found that the defendant had a constitutional right to have her fate determined before the first trier of fact, and the trial judge violated this right by ordering a mistrial over her objection. The criminal appellate court noted that although consent could be implied from the totality of the circumstances, it was not supported by the record-based evidence. The criminal appellate court concluded that a trial court’s characterization of a mistrial as a sua sponte act did not preclude the State from carrying its burden on the issue of defendant’s consent to a mistrial. Accordingly, the judgment of the appellate court was reversed and remanded.


The fine assessed by the jury could be properly imposed upon the defendant despite the trial judge’s failure to orally pronounce it.
Ette v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 19, 2018
PD-0538-17
Elsa Alcala
Published
The defendant appealed the judgment of the appellate court which upheld the trial court’s imposition of a fine assessed as part of his punishment for misapplication of fiduciary property. On appeal, the criminal appellate court was asked to determine if the trial court had no authority to alter a jury’s lawful verdict on punishment, and whether the sentences, including fines, must be orally pronounced in a defendant’s presence. The defendant argued that the jury’s fine should be deleted from the judgment since it was not orally pronounced by the trial judge. The criminal appellate court concluded that the judicially created rule giving precedence to the oral pronouncement over the written judgment could not supplant the jury’s lawful verdict on punishment that had been correctly read aloud in a defendant’s presence in court. The criminal appellate court found that the trial court’s judgment could properly impose the fine against the defendant despite the failure to orally pronounce it. Accordingly, the judgment of the appellate court was affirmed.


The exemption provided by section 1001.062 of the Occupation Code did not apply under the facts of the underlying case and the plaintiff was required to file a Certificate of Merit in compliance with section 150.002(b) with its complaint.
Ronald R. Wagner & Co. LP v. Apex Geoscience, Inc.
Appellate: Civil, Contracts, Procedure, Torts
Texas 7th Court of Appeals
September 11, 2018
07-18-00068-CV
Patrick A. Pirtle
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion to dismiss the complaint under section 150.002(e) of the Texas Civil Practice and Remedies Code. This appeal stemmed from the plaintiff’s action against the defendant alleging breach of contract, fraudulent inducement, negligence, negligent misrepresentation, gross negligence, and breach of implied warranty. On appeal, the plaintiff argued that the trial court abused its discretion in dismissing its causes of action claiming it was exempt from filing a Certificate of Merit. Specifically, the plaintiff asserted that it did not believe a Certificate of Merit was required to be filed with its lawsuit based on the exemption. The appellate court found that based on a plain reading of the applicable statutes, the exemption provided by section 1001.062 of the Occupation Code did not apply under the facts of the underlying case and the plaintiff was required to file a Certificate of Merit in compliance with section 150.002(b) with its complaint. The appellate court concluded that the plaintiff’s failure to do so authorized the trial court to dismiss the suit pursuant to section 150.002(e) of the Texas Civil Practice and Remedies Code. Accordingly, the judgment of the trial court was affirmed.


The father was denied the right to appointed counsel, did not waive his right to counsel, and was effectively denied any method of meaningful participation at any of the critical stages of the case or at the beginning of the trial.
In re A. J.
Constitution, Family, Procedure
Texas 12th Court of Appeals
September 10, 2018
12-18-00074-CV
Brian Hoyle
Published
The father appealed the judgment of the trial court which terminated his parental rights based on a finding that the father engaged in one or more of the acts or omissions necessary to support parental right termination. On appeal, the father argued that he was deprived of his right to counsel and challenged the sufficiency of the evidence to support the trial court’s termination order. Specifically, the father contended that the trial court committed reversible error by failing to advise him of his right to court-appointed counsel, to bring him before the court prior to the final hearing, and to appoint him an attorney until the case was nine days short of the dismissal deadline. The appellate court found that the father was denied the right to appointed counsel, did not waive his right to counsel, and was effectively denied any method of meaningful participation at any of the critical stages of the case or at the beginning of the trial. The appellate court concluded that the father was denied procedural due process. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The plaintiff’s claims were within the scope of the valid forum-selection clause and enforcement would not be unreasonable, unjust, contrary to a strong public policy of Texas, or seriously inconvenient for trial.
Horie v. Law Offices of Art Dula
Appellate: Civil, Contracts, Courts, Procedure, Wills/Trusts/Probate
Texas 14th Court of Appeals
September 18, 2018
14-17-00171-CV
Tracy Christopher
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment dismissing the case against the defendant due to a forum-selection clause providing for exclusive jurisdiction in the courts of the Isle of Man. On appeal, the plaintiff argued that the forum-selection clause did not apply because the parties seeking to enforce it either were not signatories or signed in a capacity different from the capacity in which they were sued. The appellate court found that under the plain language and defined terms of the contract, the forum-selection clause applied to the claims against these individuals regardless of capacity. The appellate court concluded that the claims were within the scope of the valid forum-selection clause and enforcement would not be unreasonable, unjust, contrary to a strong public policy of Texas, or seriously inconvenient for trial. Accordingly, the judgment of the trial court was affirmed.


Based on the conflicting evidence presented at trial, the trial court was within its discretion to find that the defendant’s psychosis was caused by benzodiazepine withdrawal and not his earlier head injury.
Afzal v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
September 14, 2018
06-17-00228-CR
Josh Morriss, III
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated assault of a public servant and aggravated assault and sentenced him to thirty years’ imprisonment and twenty years’ imprisonment, to run concurrently. On appeal, the defendant challenged the legal and factual sufficiency of the trial court’s rejection of his insanity defense. Specifically, the defendant maintained that the trial court’s rejection of his insanity defense was flawed because the trial court ignored the overwhelming evidence that the defendant’s psychosis was a result of a head injury that he suffered less than four months before the incident, not a benzodiazepine withdrawal, and it was error for the trial court to find that the defendant’s insanity defense was barred by Section 8.01(b) of the Texas Penal Code. The appellate court found that based on the conflicting evidence presented at trial, the trial court was within its discretion to find that the defendant’s psychosis was caused by benzodiazepine withdrawal and not his earlier head injury. The defendant further maintained that the trial court erred by holding that the defendant’s insanity defense was barred by Section 8.01(b) of the Texas Penal Code. The appellate court concluded that the evidence did not preponderate to such an extent in the defendant’s favor that the trial court’s rejection of his affirmative defense of insanity was so against the great weight and preponderance of the evidence as to be manifestly unjust. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that, as a matter of law, the family’s tort case and the divorce proceeding were not the same case or matter in controversy.
In re P.K.
Appellate: Civil, Courts, Family, Procedure
Texas 2nd Court of Appeals
September 13, 2018
02-17-00213-CV
Mark T. Pittman
Published
The father appealed the judgment of the administrative law judge which denied the father’s motion to disqualify the trial court judge in proceedings to modify the parent-child relationship. On appeal, the father argued that the presiding administrative judge erred in denying his motion to disqualify, asserting that the question at issue was whether the divorce case and the case alleging intentional infliction of emotional distress were to be considered the same matter in controversy. Specifically, the father challenged only the failure to disqualify the trial court judge and did not argue that the judge needed to be recused. The father further alleged that the trial court judge had to disqualify because according to the Texas Supreme Court, the prior divorce proceeding was the same matter in controversy as the modification and enforcement proceedings before the trial court judge. The appellate court disagreed with the father and concluded that, as a matter of law, the family’s tort case and the divorce proceeding were not the same case or matter in controversy. Accordingly, the judgment of the trial court was affirmed.


Although the State produced two witnesses at trial, and only one witness provided testimony that the defendant’s testimony was false, the evidence was insufficient to support the defendant’s conviction for aggravated perjury.
Goswick v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
September 13, 2018
11-16-00274-CR
John Bailey
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated perjury and assessed his punishment at confinement for ten years in the Institutional Division of the Texas Department of Criminal Justice and ordered that his sentence run consecutively with the defendant’s previously imposed sentence. On appeal, the defendant contended that there was insufficient evidence under Article 38.18 to support his conviction and the trial court erred in assessing attorney’s fees. Specifically, the defendant argued that the State failed to present evidence of the falsity of his statement by more than one witness, as required by Article 38.18(a). The State counterargued that it was not required to present more than one witness pursuant to Article 38.18(b) to testify about the falsity of the defendant’s statement because it presented evidence that the defendant gave inconsistent statements. The appellate court concluded that although the State produced two witnesses at trial, and only one witness provided testimony that the defendant’s testimony was false, the evidence was insufficient to support the defendant’s conviction for aggravated perjury. Accordingly, the judgment of the trial court was reversed.


The evidence was sufficient for a rational jury to conclude that the defendant touched the minor’s breast on three occasions and that the conduct of touching the breasts was done with the intent to arouse or gratify the sexual desire of a person.
Arroyo v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 12, 2018
PD-0797-17
Sharon Keller
Published
The State appealed the judgment of the appellate court which reversed the trial court’s conviction of the defendant of indecency with a child and acquitted him. On appeal, the criminal appellate court was asked to review the legal sufficiency of the evidence to support a finding of guilt. On appeal, the State contended that Nelson’s holding was outmoded because it preceded the Jackson v. Virginia sufficiency standard and because it preceded significant changes to the indecency-with-a-child statute. The State further argued that modern dictionary definitions treated “breast” and “chest” as synonymous.  The criminal appellate court agreed with the State and found that the evidence was sufficient for a rational jury to conclude that the defendant touched the minor’s breast on three occasions and that the conduct of touching the breasts was done with the intent to arouse or gratify the sexual desire of a person. Accordingly, the judgment of the appellate court was reversed.


Only evidence that a person portrayed himself as a member of a criminal association could be relevant to the person’s character in sentencing even if the State could not show that he was actually a member of any such association.
Beham v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 12, 2018
PD-0638-17
Michael E. Keasler
Published
The State appealed the judgment of the appellate court which reversed the defendant’s conviction of aggravated robbery and sentence, finding that the law-enforcement expert’s testimony regarding gang activity was irrelevant. On appeal, the criminal appellate court was asked to determine whether the trial court erred in admitting opinion testimony that the defendant was holding himself out as a gang member, and if so, whether the admission was harmful. The defendant argued that the testimony’s probative value of the evidence was outweighed by the risk of unfair prejudice, and the trial judge should have taken this objection into careful consideration. The criminal appellate court found that it was still the law that when the State intended to put on evidence of a defendant’s membership in an organization or group, that it must also make some showing of the group’s violent or illegal activities for the evidence to remain relevant to sentencing. The criminal appellate court concluded that only evidence that a person portrayed himself as a member of a criminal association could be relevant to the person’s character in sentencing even if the State could not show that he was actually a member of any such association. Accordingly, the judgment of the appellate court was reversed and remanded.


The trial court did not abuse its discretion in denying the cross-appellants’ request for an attorney’s fees under section 37.009 of the civil practice and remedies code.
Severs v. Mira Vista Homeowners Ass'n, Inc.
Appellate: Civil, Contracts, Damages, Litigation: Personal Injury, Real Property
Texas 2nd Court of Appeals
September 06, 2018
02-16-00157-CV
Mark T. Pittman
Published
The Court of Appeals found that the record supported that the ACC frequently streamlines its approval process for construction that was not “new” construction. Therefore, nothing concerning the ACC’s decision to waive certain approval procedures was arbitrary, capricious, or discriminatory, and the appellants failed to produce evidence to sufficiently rebut the presumption of reasonableness. Further, the court's review of the CCRs and Guidelines likewise did not reveal an agreement to enter into a fiduciary relationship. Thus, the record supported the trial court’s conclusion that no fiduciary relationship existed between the appellee and the appellants. The appellee was not an appropriate defendant for that private nuisance action and, even if it were, the alleged loss-of-view harm was routinely rejected by Texas courts when it was used as the basis for a private nuisance claim, the trial court did not err in granting summary judgment. Furthermore, the appellee was the prevailing party, and the appellants were the nonprevailing party under the CCRs, so the appellee should be entitled to recover their reasonable attorney’s fees from the appellants. The cross-appellants were not a prevailing party as a result of the judgment in favor of the appellee. Finally, the trial court did not abuse its discretion in denying the cross-appellants’ request for an attorney’s fees under section 37.009 of the civil practice and remedies code. Accordingly, the judgment was partly affirmed, partly reversed and remanded.


 

Given the absence of verification, a statement that the signature was made under penalty of perjury, and the name of the person authorized to serve, there was no strict compliance with the demands of Rule 107.
Nguyen v. Lopez
Appellate: Civil, Bankruptcy, Creditor/Debtor, Procedure
Texas 7th Court of Appeals
September 05, 2018
07-15-00128-CV
Brian Quinn
Published
The debtor appealed the judgment of the bankruptcy court which entered a default judgment in favor of the creditor following a bankruptcy stay. On appeal, the debtor argued that the lack of proper service of citation and the insufficiency of the evidence underlying the damages awarded to the creditor were improper. Specifically, the debtor maintained that she was not served with citation and thus the trial court never acquired personal jurisdiction over her. The creditor counterargued that the service return filed with the bankruptcy court stated that the creditor was served at her business address and the service return served as prima facie evidence of valid service. The appellate court found that strict compliance with the Texas Rules of Civil Procedure did not occur here because the return of service must include the name of the person who served or attempted to serve the process, and the process server left spaces blank on the “Officer’s Return.” The appellate court concluded that given the absence of verification, a statement that the signature was made under penalty of perjury, and the name of the person authorized to serve, there was no strict compliance with the demands of Rule 107. Accordingly, the judgment of the bankruptcy court was reversed and remanded.


Since the plaintiff failed to proffer evidence that he was treated less favorably than similarly situated persons who were female or younger, the trial court properly granted summary judgment in favor of the defendant.
Remaley v. TA Operating LLC
Appellate: Civil, Civil Rights, Discovery, Employment, Procedure
Texas 14th Court of Appeals
August 28, 2018
14-16-00511-CV
William Boyce
Published
The plaintiff appealed the judgment of the trial court which granted a no-evidence and traditional summary judgment in favor of the defendant on his employment-related claims for gender and age discrimination under the Texas Commission on Human Rights Act (the Act). This appeal stemmed from the termination of the plaintiff’s employment as the general manager of a restaurant. On appeal, the plaintiff contended that the trial court erred by granting no-evidence and traditional summary judgment on his claims for gender and age discrimination, and in denying his motion to compel seeking documents pertaining to adverse treatment of other male managers who were terminated and replaced by females. The appellate court concluded that in order to demonstrate a prima facie case of employment discrimination based on alleged disparate treatment arising from his disciplinary termination, the plaintiff had to proffer evidence that he was treated less favorably than similarly situated persons who were female or younger, and because he proffered no evidence on this essential element of his prima facie case, the trial court properly granted summary judgment in favor of the defendant. Accordingly, the judgment of the trial court was affirmed.


Since letters written by the appellant to the court met the requirements of a pro se answer, the appellant was entitled to 45-days’ notice under the rules, and a default judgment entered without such notice was in error.
Rodriguez v. Marcus
Courts, Procedure
Texas 8th Court of Appeals
August 30, 2018
08-15-00252-CV
Yvonne T. Rodriguez
Published
The appellee corporation sued two individuals and their companies for breach of contract. One of the individuals attempted to file documents on the behalf of the companies, but was told he could not because corporations needed to be represented by attorneys. A permanent injunction was entered in the appellee’s favor. The appellee thereafter went into receivership, and the receiver filed a plea and intervention and named appellant as a third-party defendant.  Upon the receiver’s motion, a default judgment was entered against all defendants. The appellant challenged the trial court’s entry of default judgment against him. The appellate court found that two letters sent to the court by the appellant were not in the standard form of an answer, but nonetheless met the requirements to qualify as a pro se answer. Thus, the appellant was entitled to 45-days’ notice pursuant to Rule 245. The trial court’s failure to comply with the notice requirements was a violation of fundamental due process. The proper remedy was to set aside the default judgment because it was ineffectual. Accordingly, the court reversed the trial court’s judgment and remanded the cause for a new trial. 


Since the claimant did not allege facts to establish or demonstrate actual notice of a parking lot defect, and the defect was not a traffic sign, signal, or warning device, his claim was dismissed.
Texas Facilities Comm’n v. Speer
Gov't/Administrative, Torts
Texas 3rd Court of Appeals
August 31, 2018
03-17-00244-CV
Bob Pemberton
Published
Appellee brought a trip-and-fall lawsuit against appellant commission after the appellee tripped over a cable in a parking lot maintained by the appellant. The appellant filed a plea to jurisdiction, which was denied, and the appellant filed an interlocutory appeal. The pivotal issue concerned the duty element the appellee had to prove to bring a negligence claim against the appellant under the applicable waiver of sovereign immunity provided in the Tort Claims Act (TTCA). The appellate court found that the parking lot cable was not a traffic sign, signal, or warning device under the TTCA. Thus, the appellant’s duty to the appellee was limited to that owed by a private landowner to a licensee with respect to an ordinary premises defect, and required proof that the appellant had actual notice of an unreasonably dangerous condition presented by the cable barrier. The appellee’s petition did not allege facts to establish or demonstrate the appellant's actual notice. Accordingly, the court reversed the trial court’s order denying the appellant’s plea to the jurisdiction and rendered judgment dismissing the appellee’s claim.


The record in the case failed to establish that the appellant was responsible for inducing error in the jury charge, such that it would be inequitable to allow him to rely on the same error as the basis for his appeal.
Alvarez v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
August 30, 2018
01-16-00407-CR
Michael C. Massengale
Published
The appellant was indicted for the offense of assault on a public servant. At trial, the jury charge authorized the jury to convict the appellant of the offense of assault on a public servant, as charged by the indictment, or of the offense of resisting arrest. The jury only found the appellant guilty of resisting arrest. The trial court sentenced him to a suspended sentence of one year in jail, and it placed him on community supervision for two years. The appellate court found that the record did not show who, if anyone, requested that the trial judge give the resisting-arrest instruction. After the close of testimony, the court asked each side if it had received the trial court’s charge and whether there were any objections. The appellant did not object to the resisting-arrest instruction, and the State had no objections to the charge. Further, the record in the case failed to establish that the appellant was responsible for inducing error in the jury charge, such that it would be inequitable to allow him to rely on the same error as the basis for his appeal. Lastly, the court were unpersuaded that the record demonstrated that the appellant invited the error. Accordingly, the judgment was affirmed.    


Appellant’s motion to suppress the surveillance video found on a seized computer hard drive should have been granted, and because that evidence strongly implicated the appellant, the trial court’s admission of it had a substantial and injurious effect or influence in determining jury’s verdict
Foreman v. State
Constitution, Criminal, Evidence
Texas 14th Court of Appeals
August 31, 2018
14-15-01005-CR
Marc W. Brown
Published
A jury found the appellant guilty of aggravated robbery and aggravated kidnapping, and the trial court assessed 50 year sentences to run concurrently. The appellate court affirmed the judgment of the trial court in previous opinion. The appellant argued in a single issue that the trial court should have granted his motion to suppress surveillance video evidence found on a computer hard drive pursuant to a search warrant because the warrant’s supporting affidavit did not establish probable cause. The appellate court granted reconsideration en banc, and concluded that the trial court erred in denying the appellant’s motion to suppress the surveillance video found on the seized computer hard drive. The warrant affidavit failed to set forth facts sufficient to establish probable cause that surveillance video or surveillance equipment would be located at the place to be searched. Further, because that evidence strongly implicated the appellant, the court concluded that the trial court’s error had a substantial and injurious effect or influence in determining the jury’s verdicts and the trial court’s sentences. The court withdrew and vacated its prior opinion. Accordingly, the court reversed the trial court’s judgments and sentences and remanded for further proceedings consistent with the opinion.              


Because the decedent ’s own personal-injury claim against the appellant County was barred by his failure to give the notice required by the Tort Claims Act, the appellee’s wrongful-death claim, which was derivative of the decedent’s claim was likewise barred.
Jefferson Cty. v. Farris
Procedure, Torts
Texas 1st Court of Appeals
August 31, 2018
01-17-00493-CV
Michael C. Massengale
Published
Appellee widow brought a wrongful death and survival action against various county defendants, alleging that her late husband was exposed to asbestos in the county courthouse and annex, and he subsequently died from mesothelioma. The appellant county brought an interlocutory appeal from the denial of its plea to the jurisdiction. The appellate court found that the deceased husband’s own personal-injury claim against the county was barred by his failure to give the notice required by the Tort Claims Act within six months of his last exposure. Since the widow’s wrongful-death claim was derivative of her husband’s claim, it was likewise barred. Accordingly, the court rendered judgment dismissing her widow’s against the appellant.


A claim under the color of the Expedited Declaratory Judgments Act that would directly declare a customer liable for breaching its water-sale contract through its refusal to pay increased rates lied beyond the proper scope of that statute.
The Cities of Conroe v. Paxton
Appellate: Civil, Contracts, Environmental, Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
August 31, 2018
03-16-00785-CV
Robert Harrison Pemberton
Published
The Cities individually appealed the judgment of the trial court, seeking mandamus petitions arising from a single underlying trial-level action that was initiated under the color of the Expedited Declaratory Judgments Act by the San Jacinto River Authority (respondent). The appellate court was asked to ascertain the extent of similar limitations on a statute that authorized a form of declaratory relief to resolve legal uncertainty, but with greater impact on the procedural framework that would ordinarily govern a civil action. On appeal, the Cities challenged whether the respondent’s claims were within the Act, accusing the respondent of contriving tactical litigation advantage by dressing in the Act’s guise contract claims that properly lied beyond the statute. The appellate court concluded that a claim under the color of the Act that would directly declare a customer liable for breaching its water-sale contract through its refusal to pay increased rates lied beyond the proper scope of that statute. The appellate court found that seeking in rem declarations regarding the legality and validity of the water-sales contracts and rates did not implicate government immunity and could be brought in the county’s venue. Accordingly, the judgment of the trial court was reversed in part and affirmed in part.


The appellate court concluded that the relators failed to show that the trial court, based on the record, abused its discretion in denying their motion to compel a physical examination of the plaintiff.
In re Sanchez
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
August 31, 2018
01-17-00399-CV
Terry Jennings
Published
The relators appealed the judgment of the trial court, seeking a writ of mandamus challenging the trial court’s order denying their motion to compel a physical examination of the plaintiff. This appeal stemmed from the plaintiff filing suit to recover damages for injuries he allegedly sustained in a vehicle collision. On appeal, the relators argued that the trial court abused its discretion in denying their motion because the plaintiff had designated his medical providers as expert witnesses to testify with respect to his disputed medical condition and an examination was the least intrusive method to obtain medical evidence in a battle of the expert witnesses. The appellate court found that the decision whether to grant the relators’ motion for a physical examination was within the trial court’s discretion. The appellate court concluded that the relators failed to show that the trial court, based on the record, abused its discretion in denying their motion to compel a physical examination. Accordingly, the judgment of the trial court was affirmed.


The juvenile court’s determinations to transfer the case to the criminal trial court were supported by legally and factually sufficient evidence, and it did not abuse its discretion by certifying the juvenile to stand trial as an adult.
In re C.R.
Criminal, Juvenile, Procedure
Texas 1st Court of Appeals
August 31, 2018
01-18-00185-CV
Michael C. Massengale
Published
The juvenile appealed the judgment of the juvenile court which transferred the case to the criminal trial court. On appeal, the juvenile challenged the legal and factual sufficiency of the evidence to support the juvenile court’s findings of probable cause that he committed the alleged offenses and that the welfare of the community required criminal proceedings. Specifically, the juvenile maintained that the sufficiency of the evidence was lacking to support the determination that because of the seriousness of the offenses alleged or his background, the welfare of the community required criminal proceedings. The appellate court disagreed with the juvenile and found that the trial court’s determination of probable cause that the defendant committed aggravated robbery was supported by legally and factually sufficient evidence. The appellate court concluded that the juvenile court’s determinations were supported by legally and factually sufficient evidence, and it did not abuse its discretion by certifying the juvenile to stand trial as an adult. Accordingly, the judgment of the juvenile court was affirmed.


The appellate court concluded that the Texas Construction Trust Fund Act was a remedial statute that should be given a broad construction, however the court was not free to rewrite the statutory language of the Act, as it must be corrected by the legislature, not the courts.
Dakota Util. Contractors, Inc. v. Sterling Commercial Credit, LLC
Appellate: Civil, Contracts, Corporations, Gov't/Administrative, Procedure, Torts
Texas 13th Court of Appeals
August 30, 2018
13-16-00538-CV
Rogelio Valdez
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s summary judgment motion in an action alleging that the defendant misapplied construction trust funds. On appeal, the plaintiff contended that the defendant was a trustee who was liable for the misapplication of construction funds. The defendant responded that it was exempt from liability under the Texas Construction Trust Fund Act. The plaintiff further maintained that since the legislature did not specifically include factoring companies in the list of people and entities exempted from the Act, the court must find that the legislature intended for the Act to apply to factoring companies. The appellate court found that the defendant did not possess liability as a trustee pursuant to the Act under the circumstances presented. The appellate court concluded that the Act was a remedial statute that should be given a broad construction, however the court was not free to rewrite the statutory language of the Act, as it must be corrected by the legislature, not the courts. Accordingly, the judgment of the trial court was affirmed.


While the contract allowed the defendant to terminate the agreement with or without cause, it also required him to provide forty-eight hours’ notice in writing of his intent to terminate, which he failed to do so.
De Avila v. Espinoza Metal Bldg. & Roofing Contractors
Appellate: Civil, Contracts, Procedure, Torts
Texas 8th Court of Appeals
August 29, 2018
08-15-00283-CV
Yvonne T. Rodriguez
Published
The defendant appealed the judgment of the trial court which rendered judgment against him for breach of contract. On appeal, the defendant claimed that there was legally and factually insufficient evidence to support the trial court’s finding that he was in breach of contract when he evicted the plaintiff from the job site before the contract was fulfilled because he was free to terminate the agreement at his convenience. The defendant asserted that the evidence clearly established the plaintiff breached the contract before the defendant’s alleged breach. The appellate court disagreed with the defendant and found that because more than a scintilla of evidence was provided to show that the defendant wrongfully prevented the plaintiff’s performance under the contract, and that the defendant did not comply with the notice provision, the trial court’s finding that the defendant was in breach of contract was supported by legally sufficient evidence. The appellate court concluded that while the contract allowed the defendant to terminate the agreement with or without cause, it also required him to provide forty-eight hours’ notice in writing of his intent to terminate. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the trial court did not err in admitting the plaintiff’s evidence of the change in the fair market value of the remainder of its acre tracts that resulted from the State’s taking of the parcels.
State v. Gleannloch Commercial Dev., LP
Appellate: Civil, Constitution, Damages, Gov't/Administrative, Procedure, Real Property
Texas 1st Court of Appeals
August 30, 2018
01-16-00427-CV
Terry Jennings
Published
The State appealed the judgment of the trial court which entered judgment in favor of the plaintiff, awarding condemnation damages for real property. On appeal, the State contended that the evidence was legally insufficient to support the jury’s award of remainder damages to two tracts of real property, and the trial court erred in admitting evidence regarding non-comparable sales, admitting evidence of non-comparable remainder damages, and excluding an expert’s opinion that one of the pertinent tracts of land suffered no remainder damages. The appellate court found that the evidence was legally and factually sufficient to support the jury’s award of remainder damages because it was supported by more than a scintilla of evidence. The appellate court concluded that the trial court did not err in admitting the plaintiff’s evidence of the change in the fair market value of the remainder of its acre tracts that resulted from the State’s taking of the parcels. Accordingly, the judgment of the trial court was affirmed.


The defendant’s stipulation of guilt, his judicial confession, and the evidence presented at the sentencing hearing were sufficient evidence to support the trial court’s judgment under article 1.15 of the Code of Criminal Procedure.
Galindo v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
August 30, 2018
01-17-00419-CR
Michael C. Massengale
Published
The defendant appealed the judgment of the trial court which convicted him of cruelty to non-livestock animals and a deadly-weapon allegation and sentenced him to five years in prison. On appeal, the defendant contended that the evidence was legally insufficient to support the deadly-weapon finding, and his sentence was therefore void. The appellate court noted that the evidence supported a finding that the defendant threatened human bystanders with the knife that he also used to injure a dog. The State responded that the defendant pled true to the deadly-weapon allegation, and the affirmative finding on that issue was made by a jury. The State also asserted that the facts were distinguishable because in Prichard there was no indication that any human was in danger, or that any human other than Prichard was present when he killed the dog. The defendant further maintained that he was entitled to challenge the sufficiency of the evidence to support the deadly-weapon finding. The appellate court found that the defendant did not offer any argument as to why his use of the knife in either version of events supported by the evidence did not constitute use or exhibition of a deadly weapon against a human. The appellate court concluded that the defendant’s stipulation of guilt, his judicial confession, and the evidence presented at the sentencing hearing were sufficient evidence to support the trial court’s judgment under article 1.15 of the Code of Criminal Procedure. Accordingly, the judgment of the trial court was affirmed.


The plaintiffs presented more than a scintilla of probative evidence to raise a genuine issue of material fact on all four elements of their claim, and thus, the trial court erred in granting a no-evidence motion for summary judgment on their tortious interference claim.
Moore v. Bushman
Appellate: Civil, Contracts, Procedure, Real Property, Torts
Texas 14th Court of Appeals
August 30, 2018
14-16-00986-CV
John Donovan
Published
The plaintiffs appealed the judgment of the trial court which granted summary judgment in favor of the defendants in an action alleging invasion of privacy, tortious interference with a contract, abuse of process, and civil conspiracy. On appeal, the plaintiffs asserted that the defendant instructed the individual to install a video camera pointed directly at the plaintiffs’ residence solely for the purpose to intrude into their personal lives and to spy on their private affairs. The appellate court found that because the plaintiffs did not meet their burden to present more than a scintilla of probative evidence to raise a genuine issue of material fact as to the first element, the trial court properly granted summary judgment on their invasion of privacy claim. The plaintiffs further alleged that the grant of summary judgment on their tortious interference with a contract claim was improper. The appellate court concluded that the plaintiffs presented more than a scintilla of probative evidence to raise a genuine issue of material fact on all four elements of their claim, and thus, the trial court erred in granting a no-evidence motion for summary judgment on their tortious interference claim. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.


The trial court did not err in granting the City’s motion for summary judgment because the employee did not pursue administrative relief for the discrete employment acts for which he sought damages in the underlying action.
Wernert v. Dublin
Appellate: Civil, Civil Rights, Employment, Gov't/Administrative, Procedure
Texas 11th Court of Appeals
August 30, 2018
11-16-00104-CV
Bailey
Published
The employee appealed the judgment of the trial court which granted the City’s motion for summary judgment in an action where the employee alleged that the City discriminated and retaliated against him because of his physical disability. In its motion for summary judgment, the City alleged that the employee failed to pursue requisite administrative remedies prior to filing suit, and the employee failed to establish a prima facie case for his discrimination and retaliation claims. On appeal, the employee asserted that the Equal Employment Opportunity Commission (EEOC) investigation was pending at the time that the City required him to use his accumulated leave and at the time that the City terminated him. The appellate court found that the employee was required to pursue administrative relief for each of the discrete acts even though they were related to the factual basis of his previous charge. The appellate court concluded that the district court did not err in granting the City’s motion for summary judgment because the employee did not pursue administrative relief for the discrete employment acts for which he sought damages in the underlying action. Accordingly, the judgment of the trial court was affirmed.


The trial court erred in excluding the testimony of the billing department employee because it was harmful.
Primoris Energy Serv. Corp. v. Myers
Appellate: Civil, Contracts, Damages, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
August 30, 2018
01-16-00631-CV
Terry Jennings
Published
The defendant appealed the judgment of the trial court which entered judgment in favor of the plaintiff in his suit for negligence. On appeal, the defendant contended that the trial court erred in admitting evidence of medical expenses, the evidence was factually insufficient to support the jury’s proportionate responsibility findings, and the evidence was legally and factually insufficient to support the jury’s negligence finding against the defendant and the damages it awarded to the plaintiff for future physical impairment and future pain. Specifically, the defendant argued that because it was equally plausible that the spotters acted reasonably and cleared the area before the plaintiff drove up, the inference that the spotters acted negligently in performing their duties was rendered no evidence by the equal inference rule. The appellate court disagreed with the defendant and found that the evidence was legally and factually sufficient to support the jury’s negligence finding against the defendant. The defendant further maintained that the trial court erred in admitting and excluding certain evidence regarding the billing practices at the hospital because it was relevant to the reasonableness of the plaintiff’s medical expenses. The appellate court concluded that the trial court erred in excluding the testimony of the billing department employee because it was harmful. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.


The City failed to show that the trial court erred in granting summary judgment because judicial efficiency did not weigh against requiring the City to file a separate petition for writ of mandamus.
Houston v. G.L.
Criminal, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
August 30, 2018
14-16-00982-CV
Kem Thompson Frost
Published
The City appealed the judgment of the trial court which ordered the City’s police department to delete all records concerning the internal-affairs investigation into the conduct that formed the basis of the criminal proceeding. On appeal, the City asserted that it did not have to prove the three ordinary elements for bill-of-review relief because the City was not properly served with notice of the plaintiff’s expunction request, notice of an expunction hearing, or notice of the expunction order. The appellate court found that the City did not show that notice to the City was required, and therefore, even if the City had raised the no-notice line of cases in its summary-judgment response, these cases would not apply because there was no failure to give a required notice that might justify departure from the ordinary three elements for bill-of-review relief. The City further contended that only part of the expunction order was void—the part in which the trial court addressed the internal-affairs-investigation records. The appellate court concluded that the City failed to show that the trial court erred in granting summary judgment because judicial efficiency did not weigh against requiring the City to file a separate petition for writ of mandamus. Accordingly, the judgment of the trial court was affirmed.


Because the expert reports were not required to contain expert opinions on the specific temporal issues, the experts and accompanying CVs were not inadequate for failing to establish a qualification to provide an unnecessary opinion.
Puppala v. Perry
Appellate: Civil, Damages, Evidence, Health Care, Procedure, Torts
Texas 1st Court of Appeals
August 30, 2018
01-17-00898-CV
Harvey Brown
Published
The defendant doctor appealed the judgment of the trial court which denied his motion to dismiss the plaintiff’s health care liability claims for failure to serve adequate expert reports. On appeal, the defendant contended that the trial court abused its discretion in denying his motion to dismiss the plaintiff’s claims because the opinion of the plaintiff’s two experts were not qualified to offer causation opinions. Specifically, the defendant asserted that the expert reports did not contain enough factual assertions, reducing the experts’ opinions to assumption untied to the specific facts of the case, and the reports were deficient because they did not contain facts about stand-alone radiology centers’ ability to perform MRIs under sedation. The appellate court found that the experts adequately tied their causation opinion to the facts and explained how and why the alleged breach of the standard of care proximately caused the plaintiff’s permanent injuries. The appellate court concluded that because the expert reports were not required to contain expert opinions on the specific temporal issues, the experts and accompanying CVs were not inadequate for failing to establish a qualification to provide an unnecessary opinion. Accordingly, the judgment of the trial court was affirmed.


The symbolic or expressive conduct proscribed by section 37.12 was not the type of communication protected by the First Amendment.
Ex parte Sauder
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
August 30, 2018
01-17-00467-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which denied his application for a writ of habeas corpus following his conviction of false identification as a peace officer under Penal Code section 37.12. On appeal, the defendant argued that Texas Penal Code section 37.12, prohibiting false identification as a peace officer, was facially unconstitutional. The defendant asserted that the trial court erred in denying him relief because section 37.12 was unconstitutionally overbroad as written and void under the First Amendment to the Constitution, and unconstitutionally vague in violation of the Fourteenth Amendment. The appellate court noted that when the government regulated speech based on its substantive content, the usual presumption of constitutionally afforded legislative enactments was reversed. The defendant further maintained that although section 37.12 did not address actual speech, the conduct outlined in that section was symbolic or expressive conduct that implicated the First Amendment. The appellate court concluded that the symbolic or expressive conduct proscribed by section 37.12 was not the type of communication protected by the First Amendment. Accordingly, the judgment of the trial court was affirmed.


The trial court did not abuse its discretion in awarding the wife’s attorney’s fees pursuant to Family Code section 156.005.
Kelsall v. Haisten
Appellate: Civil, Family, Procedure
Texas 1st Court of Appeals
August 30, 2018
01-17-00389-CV
Evelyn V. Keyes
Published
The husband appealed the judgment of the trial court which awarded statutory attorney’s fees and costs to the wife for defending the husband’s frivolously-filed modification petition. On appeal, the husband argued that the trial court no longer had jurisdiction over the case when it issued the order, and that the trial court abused its discretion in finding that his modification petition was filed frivolously. The husband acknowledged that an affirmative claim for attorney’s fees could be found in an answer but claimed that the language in the wife’s answer failed to sufficiently plead a claim because it did not reference a statute that provided for attorney’s fees and did not explain the basis of her entitlement to relief. The appellate court found that the wife’s answer did identify Family Code section 156.005 as the statutory basis for her claim, both directly and by implication. The appellate court concluded that the trial court did not abuse its discretion in awarding the wife’s attorney’s fees pursuant to Family Code section 156.005. Accordingly, the judgment of the trial court was affirmed.


Because the plaintiff submitted no evidence on these claims in response to their pending motions and the trial court did not err in denying the plaintiff’s motion for continuance, the trial court did not err in granting no-evidence summary judgment on the conspiracy and theft claims.
Dauz v. Valdez
ADR, Appellate: Civil, Family, Procedure, Real Property
Texas 1st Court of Appeals
August 30, 2018
01-15-00831-CV
Harvey Brown
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment to the defendants in an action involving a variety of legal theories related to two real estate transactions. On appeal, the plaintiff argued that the trial court’s summary judgments were improper and that the trial court erred in denying her post-judgment motion to join the plaintiff’s husband as a party. The plaintiff challenged the application of res judicata, asserting that the trial court record did not contain the entire arbitration record, including her demand for arbitration and any exhibits introduced, and that the arbitrator’s award was incomprehensible. The plaintiff asserted that arbitration was not a convenient forum for resolution of those claims. The appellate court found that because the plaintiff submitted no evidence on these claims to the trial court in response to their pending motions and the trial court did not err in denying the plaintiff’s motion for continuance to seek evidence, the trial court did not err in granting no-evidence summary judgment on the conspiracy and theft claims. The appellate court concluded that the trial court erred to the extent that it granted summary judgment to the defendants based on collateral estoppel because the arbitrator made no such findings regarding the defendants. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded for further proceedings.


The plaintiff established taxpayer standing but it was limited to maintaining an action solely to challenge proposed illegal expenditures.
Perez v. Turner
Appellate: Civil, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
August 30, 2018
01-16-00985-CV
Evelyn V. Keyes
Published
The plaintiff appealed the judgment of the trial court which granted the plea to the jurisdiction filed by the City dismissing the plaintiff’s claims, seeking a judgment declaring that the drainage fee ordinance invalid. On appeal, the plaintiff argued that she had standing to assert a legal claim for reimbursement for wrongfully collected drainage charges that she paid under duress under the purportedly invalid city ordinance, and the named individual defendants did not have governmental immunity from her claims based on their enforcement of the invalid city ordinance. The plaintiff further alleged that the City’s governmental immunity from her declaratory and injunctive relief claims were waived by the statutory requirement that the City be joined as a necessary party to her claims asserting the unconstitutionality and/or the illegality of specific city ordinances. The appellate court found that the trial court lacked subject-matter jurisdiction over any claims dependent on the Charter Amendment’s having been declared void, and thus, it properly dismissed those claims based on the City’s plea to the jurisdiction. The appellate court concluded that the plaintiff established taxpayer standing but it was limited to maintaining an action solely to challenge proposed illegal expenditures. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.


Any failure of the plaintiff to provide summary judgment evidence that it presented its claim to the defendant did not bar the plaintiff from recovering attorney’s fees in light of the contractual provision in the debt agreement allowing for recovery of such fees.
Fortitude Energy, LLC v. Sooner Pipe LLC
Banking and Finance, Bankruptcy, Contracts, Creditor/Debtor, Damages, Torts
Texas 1st Court of Appeals
August 30, 2018
01-17-00501-CV
Evelyn Keyes
Published
The defendant appealed the judgment of the trial court which granted the plaintiff’s summary judgment motion in an action where the plaintiff sued the defendant for breach of contract. On appeal, the defendant contended that the trial court failed to rule on the parties’ objections to summary judgment evidence, and the trial court, in granting summary judgment, ignored the defendant’s amended answer. The defendant further asserted that because the defendant acquired all of the rights under their contact in the bankruptcy proceedings, this acquisition negated the validity of their contract or, alternatively, created a fact issue regarding whether that contract was valid and enforceable. The appellate court found that the trial court impliedly overruled the parties’ objection to the summary judgment evidence and considered all of the evidence presented to it in making its ultimate summary judgment ruling. The appellate court concluded that any failure of the plaintiff to provide summary judgment evidence that it presented its claim to the defendant did not bar the plaintiff from recovering attorney’s fees in light of the contractual provision in the debt agreement allowing for recovery of such fees. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.


The plaintiffs presented more than a scintilla of evidence raising a fact-issue regarding whether their primary residence and shed violated the covenants.
Ammerman v. The Ranches of Clear Creek Cmty. Ass’n, Inc.
Appellate: Civil, Contracts, Discovery, Procedure, Real Property
Texas 1st Court of Appeals
August 30, 2018
01-17-00015-CV
Evelyn Keyes
Published
The plaintiffs appealed the judgment of the trial court which rendered summary judgment in favor of the homeowners’ association in an action alleging breach of contract and other violations of the applicable restrictive covenants. On appeal, the plaintiffs argued that the trial court erred in granting summary judgment dismissing the plaintiffs’ claims on statute of limitations grounds because the plaintiffs presented some evidence raising a fact issue regarding when their cause of action for breach of the covenants and a declaratory judgment against the association accrued and when they could have discovered their cause of action. The plaintiffs contended that the trial court erred in granting summary judgment dismissing their claims on the ground that the association had conclusively proved that it did not violate the relevant restrictive covenants because it presented some evidence that the association acted arbitrarily and capriciously in approving the building plans. The appellate court found that the association established that it was entitled to summary judgment on limitations grounds with respect to the plaintiffs’ claims that they violated the covenants, as the plaintiffs failed to raise a genuine issue of material fact regarding when their cause of action for breach accrued or on the application of the discovery rule. The appellate court concluded that the plaintiffs presented more than a scintilla of evidence raising a fact-issue regarding whether their primary residence and shed violated the covenants. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.


The appellate court concluded that the trial court properly granted summary judgment to the claimant and that neither the claimant nor the carrier were entitled to judgment as a matter of law.
Zurich Am. Ins. Co. v. Diaz
Appellate: Civil, Gov't/Administrative, Insurance, Torts, Workers' Compensation
Texas 14th Court of Appeals
August 30, 2018
14-17-00295-CV
Tracy Christopher
Published
The insurer appealed the judgment of the trial court which granted the claimant relief after ruling on a set of cross-motions for summary judgment and held that the carrier untimely raised the statutory bar, or in the alternative, that the claimant established good cause for filing her claim after the one-year deadline. The appellate court was asked to determine whether the trial court properly dismissed certain claims against an administrative agency and its commissioner for lack of jurisdiction, and whether the claimant could recover death benefits on behalf of her late husband who died several weeks after suffering an on-the-job injury. On appeal, the claimant claimed that the insurer failed to comply with rule 132.17. The appellate court found that rule 132.17 governed the denial, dispute, and payment of death benefits, and nothing in the rule tolled the deadline to file a claim should the carrier fail to comply. The appellate court concluded that the trial court properly granted summary judgment to the claimant and that neither the claimant nor the carrier were entitled to judgment as a matter of law. Accordingly, the judgment of the trial court was reversed and remanded for additional proceedings.


A limited liability company was subject to general jurisdiction in the state in which its nerve center was located, and therefore, the trial court did not abuse its discretion in granting the company’s special appearance and dismissing the claims against the company.
Ascentium Capital LLC v. Hi-Tech The Sch. of Cosmetology Corp.
Appellate: Civil, Contracts, Corporations, Procedure
Texas 14th Court of Appeals
August 30, 2018
14-17-00880-CV
Tracy Christopher
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s special appearance and dismissed the claims against it due to lack of general jurisdiction. On appeal, the plaintiff argued that the defendant was subject to personal jurisdiction in the state of its principal place of business because documents filed with the Florida Department of State identified Texas as the defendant’s principal address or principal place of business. The appellate court found that there was some evidence to support the trial court’s implied finding that the defendant’s nerve center was not in Texas because it purchased Florida assets and negotiated the purchase in Florida, and thus, the trial court reasonably could find that the defendant’s principal place of business was not in any one of those three states. The appellate court concluded that a limited liability company was subject to general jurisdiction in the state in which its nerve center was located, and therefore, the trial court did not abuse its discretion in granting the company’s special appearance and dismissing the claims against the company. Accordingly, the judgment of the district court was affirmed.


The complainant’s testimony established the elements of the offense and was sufficient to support the defendant’s conviction, and no egregious error had been shown based on the prosecutor’s conduct or the jury charge.
Vernon v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
August 30, 2018
01-16-00645-CR
Michael C. Massengale
Published
The defendant appealed the judgment of the trial court which convicted him of indecency with a child and sentenced him to 12 years in prison. On appeal, the defendant challenged the sufficiency of the evidence to support his conviction, claiming that his lawyer rendered ineffective assistance. The defendant further alleged other errors that were not preserved at the trial, such as prosecutorial misconduct that denied him a fair trial and a jury charge that failed to require a unanimous verdict. Specifically, the defendant maintained that no rational factfinder could believe beyond a reasonable doubt that the complainant had been touched illegally on any one occasion because she testified that she was confused about when and in whose presence the offenses occurred. The appellate court concluded that the complainant’s testimony established the elements of the offense and was sufficient to support the defendant’s conviction, and no egregious error had been shown based on the prosecutor’s conduct or the jury charge. Accordingly, the judgment of the trial court was affirmed.


The defendant could not establish that his conviction rested on evidence based on conduct that was introduced during a trial because the defendant pled guilty to the offense before he was tried, and thus, his confession rested on his judicial confession.
Ex Parte Shroff
Constitution, Criminal, Evidence, Procedure
Texas 9th Court of Appeals
August 29, 2018
09-18-00066-CR
Hollis Horton III
Published
The defendant appealed the judgment of the trial court which denied his article 11.072 application seeking a writ of habeas corpus following his conviction of soliciting a minor with the intent to engage in sexual contact by using electronic mail. On appeal, the defendant contended that, because it was unclear if his conviction rested on an overly broad interpretation of the online solicitation statute, the trial court should have awarded him a new trial. The defendant asserted that because it was not clear that he was not convicted under the later-narrowed represented portion of the online solicitation statute, he was entitled to a new trial. The appellate court found that the defendant could not establish that his conviction rested on evidence based on conduct that was introduced during a trial because the defendant pled guilty to the offense before he was tried, and thus, his confession rested on his judicial confession and not on any evidence that was introduced during a trial. The appellate court concluded that the defendant failed to establish that he was entitled to relief. Accordingly, the judgment of the trial court was affirmed.


The plaintiff produced evidence sufficient to raise a genuine issue of material fact as to all of the challenged, essential elements of his negligence claim based on the defendant’s violation of the stock law provisions of chapter 143 of the Texas Agriculture Code.
Garcia v. Pruski
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Torts
Texas 4th Court of Appeals
August 29, 2018
04-17-00632-CV
Patricia O. Alvarez
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s traditional and no-evidence motion for summary judgment in a personal injury case arising out of an automobile accident. On appeal, the plaintiff argued that the trial court erred by granting the defendant’s motion for summary judgment because he produced some evidence raising a genuine issue of material fact as to the challenged elements of his negligence claims against the defendant. The appellate court was asked to determine whether the plaintiff produced evidence sufficient to raise a genuine issue of material fact with regard to the challenged elements of his negligence claims. Specifically, the plaintiff asserted that the defendant was negligent by failing to properly restrain and restrict the bull within a fenced area on his property, by failing to prevent the bull from gaining access to and wandering onto the state highway, and for violating chapter 143 of the Texas Agriculture Code. The appellate court concluded that the plaintiff produced evidence sufficient to raise a genuine issue of material fact as to all of the challenged, essential elements of his negligence claim based on the defendant’s violation of the stock law provisions of chapter 143 of the Texas Agriculture Code. Accordingly, the judgment of the trial court was affirmed in pat and reversed and remanded in part.


The City had sovereign immunity from the claims made in the suit by the plaintiff, however the new position of assistant to the director of the fire department was a “fire fighter” position that must be classified.
San Antonio v. Int’l Ass’n of Fire Fighters
Appellate: Civil, Damages, Employment, Gov't/Administrative, Procedure
Texas 4th Court of Appeals
August 29, 2018
04-17-00450-CV
Luz Elena D Chapa
Published
The City appealed the judgment of the trial court which declared that it violated Chapter 143 of the Texas Government Code by creating a new non-classified position in the fire department and filling it with a non-civil-service employee, enjoining them from maintaining the non-classified position, and awarding the plaintiff attorney’s fees. The appellate court was asked to determine whether the assistant to the director was a “fire fighter” within the meaning of Chapter 143 such that the position must be classified. On appeal, the City argued that the plaintiff failed to meet its summary judgment burden to establish that the position performed any of the functions listed in section 143.003(4)(A). The appellate court concluded that the City had sovereign immunity from the claims made in the suit, however the new position of assistant to the director of the fire department was a “fire fighter” position that must be classified. The appellate court found that the officials were not immune from the award of attorney’s fees in an ultra vires action under the Uniform Declaratory Judgment Act. Accordingly, the judgment of the trial court was affirmed.


The trial court erred in ordering forfeiture of principal and interest under the note because the Texas Constitution did not create an independent cause of action for forfeiture.
Paull & Partners Inv., LLC v. Berry
Appellate: Civil, Constitution, Procedure, Real Property
Texas 14th Court of Appeals
August 28, 2018
14-17-00519-CV
J Brett Busby
Published
The appellants challenged the judgment of the trial court which declared the appellees’ conveyance to the appellants a prohibited “pretended sale” under Article XVI, Section 50(c) of the Texas Constitution. The appellate court was asked to determine whether the trial court properly declared a general warranty deed void under the Texas Constitution’s homestead provisions, and whether it properly ordered forfeiture of all principal and interest owed under a promissory note. On appeal, the appellants contended that the trial court erred in granting summary judgment for the appellees. The appellate court concluded that the appellees did not establish as a matter of law their right to summary judgment because they did not conclusively establish both a lack of intent to vest title and a condition of defeasance, the two requirements for a pretended sale. The appellate court concluded that the trial court erred in ordering forfeiture of principal and interest under the note because the Texas Constitution did not create an independent cause of action for forfeiture. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The trial court did not fail to find that a document was intentionally fabricated for purposes of litigation because the plaintiff was caught manufacturing evidence related to damages.
Pressil v. Gibson
Appellate: Civil, Damages, Employment, Health Care, Procedure, Torts
Texas 14th Court of Appeals
August 28, 2018
14-17-00517-CV
Tracy Christopher
Published
The plaintiff appealed the judgment of the trial court which struck his pleadings and rendered a take-nothing judgement against him after finding that the plaintiff fabricated evidence in support of his economic damages. This appeal stemmed from the breach-of-fiduciary-duty allegations in which the plaintiff sued his former attorney, alleging that the publicity the attorney garnered for the plaintiff’s underlying healthcare liability claim caused the plaintiff to suffer mental anguish and to lose a potentially lucrative employment opportunity. On appeal, the plaintiff argued that the trial court abused its discretion in imposing death-penalty sanctions because there was no evidence or finding that the evidence was intentionally fabricated for the purposes of litigation rather than recreated for a legitimate purpose, the trial court failed to adequately consider lesser sanctions that would have sufficed, and the fabricated document was unrelated to the core elements of the plaintiff’s breach-of-fiduciary-duty claim. The appellate court concluded that the trial court did not fail to find that a document was intentionally fabricated for purposes of litigation because the plaintiff was caught manufacturing evidence related to damages. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the evidence was legally insufficient to support the judgment against the defendants for negligent nuisance and the related injunction.
Gulledge v. Wester
Appellate: Civil, Damages, Procedure, Real Property, Torts
Texas 1st Court of Appeals
August 28, 2018
01-17-00488-CV
Harvey Brown
Published
The defendants appealed the judgment of the trial court which permanently enjoined them from finishing construction of a second story deck on their boathouse after two neighbors complained that the tall structure would block their water views. On appeal, the defendants contended that there was legally and factually insufficient evidence to support the nuisance claim and injunction, and the injunction was broader than the pleadings and evidence permitted. The defendants maintained that a view impairment could not support a nuisance claim. The plaintiffs alleged that Crosstex left the issue of whether a nuisance existed to the jury. The appellate court found that it was unnecessary for it to determine whether Texas law, post-Crosstex, erected a bright-line barrier against all view-impairment nuisance claims because there was legally insufficient evidence of a substantial inference that unreasonably affected the plaintiffs’ use and enjoyment of their land. The appellate court concluded that the evidence was legally insufficient to support the judgment against the defendants for negligent nuisance and the related injunction. Accordingly, the judgment of the trial court was reversed and rendered.


The appellate court concluded that the defendant waived any error in the trial court’s failure to suppress the evidence on the defendant’s identity.
McCoslin v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 28, 2018
14-17-00489-CR
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which convicted him of the offense of indecent exposure. On appeal, the defendant sought to set aside his conviction on the grounds that the trial court should have granted either his motion to quash the charging instrument for insufficient notice or his motion to suppress evidence relating to the defendant’s identity. The defendant contended that the State did not obtain leave to amend the original information, as required by article 28.10 of the Code of Criminal Procedure, so the second information was void. The State responded that the defendant waived any complaint about the charging instrument’s sufficiency by not timely asserting it in the trial court. The appellate court concluded that the defendant waived any error in the trial court’s failure to suppress the evidence on the defendant’s identity. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that there was sufficient evidence from which the jury reasonably could find that the defendant was stopped with cocaine within 1,000 feet of the park.
Graves v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 28, 2018
14-17-00145-CR
Marc W. Brown
Published
The defendant appealed the judgment of the trial court which convicted him of possession of cocaine between one and four grams and found in a special issue that the defendant committed the offense in a drug-free zone. On appeal, the defendant argued that the evidence was legally insufficient to support the finding that he possessed cocaine in a drug-free zone. Specifically, the defendant contended that the State did not present legally sufficient evidence that the park contained at least three pieces of playground equipment, the park was open to the public, and the defendant was within 1,000 feet of the park when he stopped. The appellate court found that the testimony constituted sufficient evidence that the park contained at least three play stations because nothing in the drug-free zone enhancement statute required the State to prove the presence of three or more play stations using any particular kind of evidence. The appellate court concluded that there was sufficient evidence from which the jury reasonably could find that the defendant was stopped with cocaine within 1,000 feet of the park. Accordingly, the judgment of the trial court was affirmed.


The trial court’s denial of the homeowners’ association’s request for money damages under these circumstances was not so contrary to the overwhelming weight of the evidence that was clearly wrong and unjust.
S-G Owners Ass’n, Inc. v. Sifuentes
Appellate: Civil, Damages, Evidence, Procedure, Real Property
Texas 1st Court of Appeals
August 28, 2018
01-17-00258-CV
Michael C. Massengale
Published
The homeowners’ association appealed the judgment of the trial court, seeking to recover past-due maintenance fees and to foreclose on a lien against the home to satisfy the debt. On appeal, the homeowners’ association challenged the factual sufficiency of the evidence to support the take-nothing judgment. The homeowners’ association asserted that because it was undisputed at trial that the defendant owed and failed to pay past-due maintenance assessments, it was entitled to judgment on the debt for the past-due assessments, accrued interest and late charges, and costs incurred in attempts to collect on the debt. The appellate court found that the homeowners’ association had the burden of proof at trial to prove a breach of the applicable deed restriction, as well as the amount it sought to recover, and based on the record, the evidence presented at trial did not compel a finding in the homeowners’ association’s favor. The appellate court concluded that the trial court’s denial of the homeowners’ association’s request for money damages under these circumstances was not so contrary to the overwhelming weight of the evidence that was clearly wrong and unjust. Accordingly, the judgment of the trial court was affirmed.


The evidence supported the trial court’s determination that the petitioner was incapacitated, continued to suffer from multiple physical and mental conditions as a result of the traumatic brain injuries sustained in the accident, and was unable to manage his financial affairs.
In re Guardianship of Mark Scott Croft
Appellate: Civil, Health Care, Litigation: Personal Injury, Procedure
Texas 14th Court of Appeals
August 28, 2018
14-17-00248-CV
William J. Boyce
Published
The petitioner appealed the judgment of the trial court which dismissed his application for restoration of capacity to manage his estate. The trial court determined that the petitioner was not eligible to be restored to full legal capacity because he suffered from multiple mental conditions. On appeal, the petitioner challenged the trial court’s dismissal of his restoration application and asserted that the trial court’s order did not conform with statutory requirements. The petitioner asserted that each witness and the documentary evidence all concluded that he was no longer incapacitated. The appellate court found that the evidence supported the findings of fact and a determination that the petitioner was an incapacitated person as defined by statute because he was an adult who, because of a physical or mental condition, was substantially unable to manage his own financial affairs. The appellate court concluded that the evidence supported the trial court’s determination that the petitioner was incapacitated, continued to suffer from multiple physical and mental conditions, disorders, and challenges as a result of the traumatic brain injuries sustained in the accident, and was unable to manage his financial affairs. Accordingly, the judgment of the trial court was affirmed.


Because the trial court dismissed the defendant’s claim as frivolous under section 14.003 without holding an evidentiary hearing, the appellate court could affirm the trial court’s ruling only if the defendant’s claim had no arguable basis in law.
Dove v. State
Appellate: Civil, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 28, 2018
14-17-00682-CV
John Donovan
Published
The defendant appealed the judgment of the trial court which dismissed his suit under Chapter 14 of the Texas Civil Practice and Remedies Code following his conviction for sexual assault. On appeal, the defendant alleged that the State filed a motion to seal exculpatory evidence in his criminal case, that the State moved to seal the record so that he could not prove his innocence and sought damages. The State moved to dismiss pursuant to Chapter 14, asserting various grounds as to why the trial court should dismiss the defendant’s claim as frivolous under section 14.003(a)(2). The appellate court found that because the trial court dismissed the defendant’s claim as frivolous under section 14.003 without holding an evidentiary hearing, the appellate court could affirm the trial court’s ruling only if the defendant’s claim had no arguable basis in law. The appellate court concluded that under the Heck doctrine, the defendant’s claim was based on an indisputably meritless legal theory, therefore, the trial court did not err in dismissing the defendant’s claim as frivolous. Accordingly, the judgment of the trial court was affirmed.


Even if a party could intervene in a lawsuit at any time, the trial court still could strike the intervention for a proper reason or grant summary judgment dismissing the claims asserted in the intervention because the statute of limitations barred the claims.
Reyes v. Guandique
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
August 23, 2018
14-16-00946-CV
Kem Thompson Frost
Published
The intervenor appealed the judgment of the trial court which granted the defendants’ summary judgment motion against the intervenors based on the statute of limitations in a vehicular-accident case. On appeal, the intervenor asserted that the statute of limitations did not apply to claims asserted by an intervenor and that, even if the statute applied, courts should treat the intervenor’s claims as having been filed when the plaintiff filed suit. The appellate court noted that when two people claim an interest in a single claim, and one of them timely filed suit, the other’s intervention in the suit outside the limitations period to protect that claimant’s interest related back to the timely filed suit and was not barred by limitations. The intervenor further claimed that the statute of limitations did not bar his claims because the intervenor’s intervention was a new suit that was different from the claim originally pled but was not based upon or an outgrowth of a new, distinct, or different transaction or occurrence. The appellate court disagreed with the intervenor and concluded that even if a party could intervene in a lawsuit at any time, the trial court still could strike the intervention for a proper reason or grant summary judgment dismissing the claims asserted in the intervention because the statute of limitations barred the claims. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the parties’ arbitration agreement was enforceable, except for the provision eliminating punitive damages.
Ridge Natural Res., L.L.C. v. Double Eagle Royalty, L.P.
ADR, Appellate: Civil, Contracts, Damages, Oil, Gas, & Mineral, Real Property, Torts
Texas 8th Court of Appeals
August 24, 2018
08-17-00227-CV
Yvonne T. Rodriguez
Published
The plaintiff appealed the judgment of the trial court which denied its motion to compel arbitration in an action where the parties fought for title to a disputed royalty interest in minerals, asserting that their respective interest was transferred to them at different times by a non-party. On appeal, the plaintiff contended that the trial court erred by denying its motion to compel arbitration because the parties were subject to an arbitration agreement that dealt with the claims at issues, and the defendant’s unconscionability defenses either should have been resolved by the arbitrator or else failed on the merits even if they were cognizable by the trial court. The appellate court disagreed with the plaintiff and discerned no contract formation challenge on the record, and thus the issue of contract formation was not before the court. The appellate court found that by allowing for the enforcement of an exemplary damages cap in arbitration would contravene the public policy purpose underpinning Section 43.001 and thereby thwart the Legislature’s will. The plaintiff further alleged that the conflict in arbitral rules selection rendered this arbitration agreement substantively unconscionable. The appellate court concluded that the arbitration agreement was enforceable, except for the provision eliminating punitive damages. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The appellate court concluded that the plaintiff failed to raise a valid takings claim under the Texas Constitution and the trial court’s grant of the defendants’ plea to the jurisdiction was proper.
Younger v. El Paso Cnty. Emergency Serv. Dist. No. 2
Appellate: Civil, Constitution, Gov't/Administrative, Procedure, Real Property
Texas 8th Court of Appeals
August 24, 2018
08-15-00333-CV
Yvonne T. Rodriguez
Published
The plaintiff appealed the trial court’s grant of the defendants’ plea to the jurisdiction in her suit for takings claim under the Texas Constitution and the Private Real Property Rights Preservation Act. On appeal, the plaintiff contended that the trial court should not have granted the defendants’ plea to the jurisdiction because the district made her property unmarketable when it refused to sign her replacement deed, thus constituting a taking under both the Texas Constitution and the Act. The plaintiff asserted that the trial court should not have granted the defendants’ plea to the jurisdiction because the county made her property unmarketable when it lost her original deed, failed to record it, and failed to acquire a replacement deed, thus constituting a taking under both the Texas Constitution and the Act. The appellate court found that the trial court’s grant of the defendants’ plea to the jurisdiction was proper because the district’s decision not to sign the replacement deed could not be the grounds on which a valid takings claim rested. The appellate court concluded that the plaintiff failed to raise a valid takings claim under the Texas Constitution and the trial court’s grant of the defendants’ plea to the jurisdiction was proper. Accordingly, the judgment of the trial court was affirmed.


The nature of the alleged taking was not one that left open the possibility that the property could be developed some other way, thereby precluding a final decision on the type and intensity of the development.
Crowley v. Ray
Appellate: Civil, Constitution, Gov't/Administrative, Real Property, Torts
Texas 2nd Court of Appeals
August 23, 2018
02-17-00409-CV
Bill Meier
Published
The City appealed the judgment of the trial court which awarded attorneys’ fees after summarily disposing of the plaintiff’s claim for declaratory relief in an action stemming from the plaintiff’s efforts to develop a residential subdivision in the City. On appeal, the City argued that the trial court lacked subject-matter jurisdiction over the plaintiff’s inverse-condemnation claim because the claim was unripe, because the plaintiff failed to exhaust administrative remedies, because the City was immune from suit, and because the claim failed as a matter of law. The appellate court disagreed with the City and found that the nature of the alleged taking was not one that left open the possibility that the property could be developed some other way, thereby precluding a final decision on the type and intensity of the development. The appellate court concluded that the plaintiff’s inverse-condemnation claim was not unripe for lacking a final decision by the City because the City’s decision on the minimum finished floor elevation was definitive, sufficiently formal, and one with which the City certainly excepted compliance. Accordingly, the judgment of the trial court was affirmed.


Because the plaintiff established a prima facie case for breach of contract against the defendants, and the defendants failed to establish by a preponderance of the evidence any defense to those claims, the trial court properly ruled as to those contract claims.
Porter-Garcia v. The Travis Law Firm, P.C.
Appellate: Civil, Contracts, Employment, Procedure
Texas 1st Court of Appeals
August 23, 2018
01-17-00203-CV
Jennifer Caughey
Published
The defendants appealed the judgment of the trial court which denied their motions to dismiss claims for breach of contract, fraud, and violations of the Theft Liability Act brought by their former employer, the plaintiff. On appeal, the defendants contended that the trial courts erred by failing to dismiss these claims under the Texas Citizens Participation Act. Specifically, the defendant maintained that the plaintiff’s claims were based on, related to, or were in response to their exercise of their right to petition. The plaintiff counterargued that the Act was inapplicable to its claims and it filed a meritorious lawsuit for a demonstrable injury that in no way impacted or discouraged the defendants’ constitutional rights to petition the government. The appellate court concluded that the Act applied, and because the plaintiff established a prima facie case for breach of contract against the defendants, and the defendants failed to establish by a preponderance of the evidence any defense to those claims, the trial court properly ruled as to those contract claims. Accordingly, the judgment of the trial court was reversed in part and affirmed in part.


The appellate court found that the wife failed to present any evidence regarding the market value of the home and she did not show that anyone was interested in renting the property.
Vara v. Vara
Family, Procedure
Texas 8th Court of Appeals
August 22, 2018
08-17-00101-CV
Gina M. Palafox
Published
The wife appealed the judgment of the trial court which denied her petition to enforce the property division in the decree of divorce. On appeal, the wife contended that the trial court erred by denying her motion for default judgment because her petition to enforce stated a valid claim for liquidated damages under a written instrument. Specifically, the wife alleged that the husband violated the original decree of divorce because she was not allowed to remain in the marital residence until closing, and she did not agree to the sales price for which the home was sold. The wife further maintained that the trial court should have entered a default judgment in her favor because the amount of damages arising from the husband’s alleged non-compliance with the provisions related to the sale of the marital residence could be accurately calculated from the original divorce decree. The appellate court found that the wife failed to present any evidence regarding the market value of the home and she did not show that anyone was interested in renting the property. The appellate court concluded that given the lack of evidence of damages, the trial court did not abuse its discretion by denying the wife’s motion for default judgment. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the Commissioner erred by dismissing the former employee’s petition for review on the ground that he lacked jurisdiction.
Tex. Comm’r of Educ. v. Solis
Appellate: Civil, Contracts, Education, Employment, Procedure
Texas 3rd Court of Appeals
August 22, 2018
03-18-00245-CV
Scott K. Field
Published
The Texas Commissioner of Education (the Commissioner) appealed the judgment of the trial court which reversed the Commissioner’s decision to dismiss for lack of jurisdiction an administrative appeal brought by the former employee, in which she challenged the nonrenewal of her employment contract with the school district. On appeal, the Commissioner asserted that it properly dismissed the former employee’s petition for review for failure to exhaust administrative remedies and the trial court erred by reversing the Commissioner’s decision. The appellate court disagreed with the Commissioner and found that section 7.057(c)’s reference to the record developed at the district level and substantial evidence review meant that section 7.057 appeals were limited to review of school district board of trustees’ decisions that were made in the context of a grievance proceeding. The Commissioner further argued that the former employee failed to properly preserve her argument about the term status of her contract. The appellate court concluded that the Commissioner erred by dismissing the former employee’s petition for review on the ground that he lacked jurisdiction. Accordingly, the judgment of the trial court was affirmed.


The plaintiff was not entitled to summary judgment based on the doctrine of ferae naturae because the plaintiff was bitten by a spider in an artificial structure and knew or should have known of an unreasonable risk of harm posed by the spiders on the property.
McCall v. Hillis
Appellate: Civil, Procedure, Real Property, Torts
Texas 4th Court of Appeals
August 22, 2018
04-17-00410-CV
Marialyn Price Barnard
Published
The defendant appealed the judgment of the trial court which rendered summary judgment in favor of the plaintiff in a premises liability action. On appeal, the defendant contended that the trial court erred in granting summary judgment in favor of the plaintiff, asserting that the plaintiff failed to prove as a matter of law that he owed no duty to the plaintiff based on the doctrine of ferae naturae. Specifically, the defendant maintained that he did not owe the plaintiff a duty to make the property safe or to warn of the existence of spiders on the property. The appellate court noted that under the doctrine of ferae naturae, a property owner was not generally liable for harm caused by indigenous wild animals on his property. The appellate court found that based on the summary judgment evidence produced by the defendant and viewing it in the light most favorable to the defendant, the plaintiff failed to establish as a matter of law an absence of a duty to warn or make safe under the doctrine of ferae naturae. The appellate court concluded that the plaintiff was not entitled to summary judgment based on the doctrine of ferae naturae because the plaintiff was bitten by a spider in an artificial structure and knew or should have known of an unreasonable risk of harm posed by the spiders on the property. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


Because the plaintiff’s claims arose from the City’s actions in responding to an emergency call or reacting to an emergency situation, they were barred by section 101.055(2) of the Texas Tort Claims Act, and thus, the trial court erred by not granting the City’s plea to the jurisdiction.
San Antonio v. Smith
Appellate: Civil, Gov't/Administrative, Procedure, Torts
Texas 4th Court of Appeals
August 22, 2018
04-17-00572-CV
Karen Angelini
Published
The City appealed the judgment of the trial court which denied its plea to the jurisdiction based on governmental immunity in an action where the plaintiff asserted negligent activity, premises liability, and gross negligence claims. On appeal, the plaintiff claimed that governmental immunity did not apply here because the activities that formed the basis of his claims were proprietary in nature. The appellate court found that because immunity from suit defeated a trial court’s subject-matter jurisdiction, it could be raised in a plea to the jurisdiction. The City contended that the trial court erred in denying its plea to the jurisdiction because even if immunity was waived under the Texas Tort Claims Act, the undisputed evidence established that the “emergency exception” to any waiver of immunity barred the plaintiff’s claims. The appellate court concluded that because the plaintiff’s claims arose from the City’s actions in responding to an emergency call or reacting to an emergency situation, they were barred by section 101.055(2) of the Act, and thus, the trial court erred by not granting the City’s plea to the jurisdiction. Accordingly, the judgment of the trial court was reversed and remanded.


The evidence was both legally and factually sufficient to establish a firm conviction in the mind of the trial court that termination of the defendant’s parental rights was in the child’s best interest.
In re A.R.O.
Family, Procedure
Texas 8th Court of Appeals
August 14, 2018
08-18-00025-CV
Ann Crawford McClure
Published
The mother appealed the judgment of the trial court which terminated her parental rights as to her daughter and appointed the Department of Family and Protective Services (the Department) as the permanent managing conservator of the child. On appeal, the mother attacked the legal and factual sufficiency of the evidence supporting the four predicate termination grounds found by the trial court under Section 161.001(b)(1), and the evidence supporting the best interest findings made under Section 161.001(b)(2). The appellate court noted that only one predicate finding under Section 161.001(b)(1) was necessary to support a judgment of termination when there was also a finding that termination was in the child’s best interest. The appellate court found that the trial court properly found by clear and convincing evidence that the mother engaged in conduct, or knowingly placed the child with persons who engaged in conduct, that endangered the physical or emotional well-being of the child. The appellate court concluded that the evidence was both legally and factually sufficient to establish a firm conviction in the mind of the trial court that termination of the defendant’s parental rights was in the child’s best interest. Accordingly, the judgment of the trial court was affirmed.


The trial court evidence was legally sufficient to establish the plaintiff’s interest in the disputed parcel and to establish the correct location of the boundary line between the adjoining properties.
Heredia v. Zimprich
Appellate: Civil, Contracts, Procedure, Real Property
Texas 8th Court of Appeals
August 14, 2018
08-15-00327-CV
Ann Crawford McClure
Published
The defendants appealed the judgment of the trial court which rendered judgment in favor of the plaintiff on his trespass to try title claim and establishing the boundary between the parties’ adjoining properties. On appeal, the defendants challenged the validity of the Correction Deed they signed, asserting that it was invalid because there were no facial imperfections in the original warranty deed or in the defendants’ chain of title, the defendants did not agree to the Correction Deed, there was no mutual mistake which caused a defect or imperfection in the original warranty deed, and a correction deed could not be used to convey an additional, separate parcel of land not conveyed in the original deed. The appellate court disagreed with the defendants and found that the evidence supported the trial court’s determination that the defendants signed the Correction Deed, and they acquiesced to the change in the metes and bounds by signing a subdivision plat and a deed of trust containing the same metes and bounds of their property. The appellate court concluded that the trial court evidence was legally sufficient to establish the plaintiff’s interest in the disputed parcel and to establish the correct location of the boundary line between the adjoining properties. Accordingly, the judgment of the trial court was affirmed.


The trial court did not err in granting summary judgment as to the plaintiff’s Prompt Payment Act Claims because the insurer’s construction of the statute did not undermine the public policy interest in holding an insurer liable for statutory interest.
Marchbanks v. Liberty Ins. Corp.
Appellate: Civil, Contracts, Damages, Insurance, Procedure
Texas 14th Court of Appeals
August 23, 2018
14-17-00004-CV
Kem Thompson Frost
Published
The plaintiff appealed the judgment of the trial court which summarily dismissed its claims under the Prompt Payment of Claims Act. The appellate court was asked to determine whether the trial court erred in granting summary judgment on the ground that the insurer’s full and timely payment based on an appraisal award precluded the insured from recovering on the claims as a matter of law. On appeal, the plaintiff asserted that the insurer committed the alleged violations before invoking the appraisal process and that neither the appraisal award nor the insurer’s payment based on the appraisal award extinguished the insurer’s liability for the pre-appraisal violations. The appellate court noted that under section 542.060(a)’s unambiguous language, to establish a right to recover the eighteen-percent interest and reasonable attorney’s fees under the prompt-pay statute, the claimant must show that a claim was made under an insurance policy, the insurer was liable for the claim, and the insurer failed to follow one or more sections of the prompt-payment statute with respect to the claim. The appellate court concluded that the trial court did not err in granting summary judgment as to the plaintiff’s Prompt Payment Act Claims because the insurer’s construction of the statute did not undermine the public policy interest in holding an insurer liable for statutory interest when it underpaid a claim and later invoked appraisal. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the defendant’s contacts were insufficient as a matter to support the exercise of general personal jurisdiction.
Momentum Eng’g, LLC v. Tabler
Appellate: Civil, Constitution, Contracts, Creditor/Debtor, Procedure, Torts
Texas 14th Court of Appeals
August 23, 2018
14-18-00002-CV
Tracy Christopher
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for special appearance in an action where the plaintiff alleged that the defendant was a Houston resident and used the defendant corporation as a sham to perpetrate fraud or that the corporation was the alter ego. The appellate court was asked to determine whether a foreign limited liability company was subject to general jurisdiction in a Texas court based on the company’s history of purchasing supplies from Texas vendors for shipment overseas and on the Texas residency of a member of the company. On appeal, the plaintiff argued that the two categories of contacts that the defendant had with Texas were sufficient to support the trial court’s exercise of general jurisdiction. The plaintiff contended that the defendant’s history of purchasing goods and freight-shipping services from Texas companies, and the defendant’s meeting in Houston to find out if a Texas company was interested in selling assets abroad, were so continuous and systematic as to render the defendant “at home” in Texas. The appellate court found that these contacts were insufficient to support general jurisdiction and no evidence supported the imputation of the individual co-defendants’ contacts to the company. The appellate court concluded that the defendant’s contacts were insufficient as a matter to support the exercise of general personal jurisdiction. Accordingly, the judgment of the trial court was reversed.


The appellate court concluded that the trial court did not err in admitting the testimony because it was limited by the fact that the jury was informed that the charges had been reduced and little information regarding the underlying facts were adduced.
In re Commitment of Grice
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 23, 2018
14-17-00439-CV
Martha Hill Jamison
Published
The defendant appealed the judgment of the trial court which civilly committed him as a sexually violent predator and directed a partial verdict that the defendant was a repeat sexually violent offender. On appeal, the defendant contended that the trial court erred in overruling his Texas Rule of Evidence 705 objection to certain evidence of past charged crimes and granting a partial directed verdict on the issue of whether the defendant was a repeat sexually violent offender. Specifically, the defendant asserted that the probative value of the evidence in question was outweighed by its prejudicial effect. The appellate court found that the trial court’s decision was within the zone of reasonable disagreement and, even if the trial court had erred, the error would be harmless. The defendant further maintained that the State’s expert testified that he did not rely on the charges in question because he had so little information about them, therefore, the testimony was of limited probative value. The appellate court concluded that the trial court did not err in admitting the testimony because it was limited by the fact that the jury was informed that the charges had been reduced and little information regarding the underlying facts were adduced. Accordingly, the judgment of the trial court was affirmed.


The plaintiffs’ authorization form did not toll the statute of limitations applicable to the defendants’ health care liability because the plaintiffs failed to list two categories of health care providers relevant to their health care liability claims.
Galloway v. Atrium Med. Ctr.
Appellate: Civil, Health Care, Procedure, Torts
Texas 14th Court of Appeals
August 23, 2018
14-17-00265-CV
William J. Boyce
Published
The plaintiffs appealed the judgment of the trial court which granted the defendants’ summary judgment motions and found that the plaintiffs’ claims were barred by the applicable two-year statute of limitations. On appeal, the plaintiffs asserted that the trial court erred in granting the defendants’ motions for summary judgment because the authorization form mailed with the plaintiffs’ pre-suit notice substantially complied with statutory requirements and tolled the applicable statute of limitations. The plaintiffs maintained that the trial court had no basis to retroactively apply the additional cases cited in the defendants’ second joint motion for consideration. The appellate court noted that a plaintiff could toll the two-year limitations period for 75 days by mailing to the defendant written notice of the plaintiff’s health care liability claim and an authorization form for the release of protected health information. The appellate court concluded that the plaintiffs’ authorization form did not toll the statute of limitations applicable to the defendants’ health care liability because the plaintiffs failed to list two categories of health care providers relevant to their health care liability claims. Accordingly, the judgment of the trial court was affirmed.


The ancillary judge misapplied the law by finding that the Firefighters Association showed a substantial likelihood of a violation of Election Code section 255.003.
In re Turner
Appellate: Civil, Constitution, Election, Gov't/Administrative
Texas 14th Court of Appeals
August 23, 2018
14-18-00649-CV
Ken Wise
Published
The relators filed a petition for writ of mandamus asking the appellate court to compel the ancillary judge to vacate his temporary restraining order restraining relators from displaying on municipal websites or other municipally funded media platforms any audio, video, or transcribed versions of the City’s Budget and Fiscal Affairs Committee meeting. On appeal, the Firefighters Association contended that statements opposing the Charter Amendment were allegedly made at the meeting and that those statements constituted “political advertising,” and by making the video available for public viewing on the City’s website violated Election Code section 255.003 because public funds were being used “for political advertising.” The appellate court found that the Ethics Advisory Opinion No. 456 was correct in that section 255.003 was not intended to inhibit discussion of matters pending before a governmental body, when a city council held a meeting to discuss pending matters attendant to whether to place an issue before voters. The appellate court concluded that the ancillary judge misapplied the law by finding that the Firefighters Association showed a substantial likelihood of a violation of Election Code section 255.003. Accordingly, the relators’ petition was conditionally granted.


The rule governing no-evidence motions for summary judgment provided that the movant had no burden to produce evidence, and that burden was borne by the defendants who failed to meet that burden.
Nelson v. Go Green, LLC
Appellate: Civil, Procedure, Real Property
Texas 14th Court of Appeals
August 23, 2018
14-17-00571-CV
Tracy Christopher
Published
The defendants appealed the judgment of the trial court which granted the plaintiff’s no-evidence summary-judgment motion against them in their defense of limitations under the ten-year adverse-possession statute. On appeal, the defendants argued that the trial court excluded critical evidence, that they were denied discovery or that the opposing party or their own counsel spoliated evidence, and that they were given inadequate notice of the summary-judgment hearing. Specifically, the defendants contended that the trial court did not consider a text message and an affidavit, both of which were part of the defendants’ response to the plaintiff’s traditional motion for final summary judgment on their suit to quiet title. The appellate court found that because neither the defendants produced evidence sufficient to raise a genuine issue of material fact as to each challenged element of their limitations defense, the trial court did not err in granting partial summary judgment against them on that issue. The appellate court concluded that the rule governing no-evidence motions for summary judgment provided that the movant had no burden to produce evidence, and that burden was borne by the defendants who failed to meet that burden. Accordingly, the judgment of the trial court was affirmed.


The trial court adequately inquired into the alleged conflict of interest between the defendant and her counsel and was not required to make a further inquiry.
Orgo v State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 23, 2018
14-17-00253-CR
Martha H. Jamison
Published
The defendant appealed the judgment of the trial court which convicted her of sexual assault of a child and sexual performance of a child and assessed her punishment at 20 years’ incarceration for each of the sexual-assault offenses and 12 years’ incarceration for sexual-performance-of-a-child offense. On appeal, the defendant contended that the trial court erred in failing to conduct a hearing or otherwise adequately inquire regarding whether there was a conflict of interest between the defendant and her trial counsel. The defendant further alleged that the trial court coerced her into stating that she was satisfied with defense counsel’s strategy by threatening her with trial on a fourth charged offense if she did not indicate satisfaction with counsel. The appellate court disagreed with the defendant and found that the trial court adequately inquired into the alleged conflict of interest between the defendant and her counsel and was not required to make a further inquiry. Accordingly, the judgment of the trial court was affirmed.


The actual existence of the victim’s daughter was not an element of the offense of attempted sexual assault, and therefore, the fact that the victim’s daughter was fictious did not render the evidence insufficient.
Crawford v. State
Criminal, Evidence, Procedure
Texas 13th Court of Appeals
August 23, 2018
13-17-00383-CR
Leticia Hinojosa
Published
The defendant appealed the judgment of the trial court which convicted him of attempted sexual assault of a child and sentenced him to confinement for six years and placed him on community supervision for five years. On appeal, the defendant sought reversal and rendition of a judgment of acquittal on the grounds that the evidence was legally insufficient to sustain his conviction because the evidence failed to establish beyond a reasonable doubt that he did an act that amounted to more than mere preparation, and the State offered no evidence that a child was the object of the sexual assault that he purportedly attempted. The appellate court found that the jury could have reasonably inferred that the defendant intended to engage in the sexual activity he described and that the defendant’s actions amounted to more than mere preparatory conduct to engage in the offense. The defendant further argued that the penal statutes at issue required the existence of an actual child and because the victim’s daughter was fictitious, the evidence was legally insufficient. The appellate court concluded that the actual existence of the victim’s daughter was not an element of the offense of attempted sexual assault, and therefore, the fact that the victim’s daughter was fictious did not render the evidence insufficient. Accordingly, the judgment of the trial court was affirmed.


The geographical area restricted in the original covenant not to compete was not reasonable and imposed a greater restraint than was necessary to protect the plaintiff’s goodwill and other business interests.
Ortega v. Abel
Appellate: Civil, Business, Contracts, Damages, Evidence, Torts
Texas 1st Court of Appeals
August 23, 2018
01-16-00415-CV
Laura Carter Higley
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion to reform the covenant and awarded the plaintiff only injunctive relief in the final judgment in an action alleging breach of a covenant not to compete, tortious interference with the covenant, and conspiracy to interfere with and conceal the breach of the covenant. On appeal, the plaintiff argued that the trial court erred by reforming the covenant and by failing to include the jury’s damages award in the final judgment. The plaintiff asserted that one of the provisions the trial court modified was not a restraint trade. The appellate court found that prohibiting the defendant from owning or operating a grocery store in a defined area for a defined time unless he offered the plaintiff the right to be a partner in the business was a restraint on that trade. The plaintiff further alleged that the defendant’s testimony did not justify applying the 3-mile radius to only the five stores sold. The appellate court concluded that there was legally and factually sufficient evidence to support the trial court’s determination that the geographical area restricted in the original covenant not to compete was not reasonable and imposed a greater restraint than was necessary to protect the plaintiff’s goodwill and other business interests. Accordingly, the judgment of the trial court was affirmed.


Because the temporary orders and complaints about temporary permanency hearings were superseded and rendered moot by a final termination judgment, the reporter’s record of the lost preliminary hearings were not necessary to the appeal’s resolution.
In the interest of J.G and J.G children
Juvenile, Procedure
Texas 12th Court of Appeals
August 22, 2018
12-18-00111-CV
Per Curiam
Published
The mother appealed the judgment of the trial court which terminated her parental rights to her children. The appellate court was asked to determine whether the mother was entitled to a new trial because portions of the reporter’s record were destroyed during the hurricane. On appeal, the mother argued that the reporter’s record for the preliminary or permanency hearings lost in the hurricane could not be replaced by the parties’ agreement or by the trial court, and that she was entitled to a new trial. The Department of Family and Protective Services (the Department) contended that the preliminary hearings were not necessary to the appeal’s resolution, and that any complaints regarding temporary hearings or orders were rendered moot by a final termination judgment. The appellate court noted that the mother had the burden to demonstrate that the missing portions of the reporter’s record was necessary to the resolution of her appeal. The appellate court concluded that because the temporary orders and complaints about temporary permanency hearings were superseded and rendered moot by a final termination judgment, the reporter’s record of the lost preliminary hearings were not necessary to the appeal’s resolution. Accordingly, the judgment of the trial court was affirmed.


Because the plaintiff provided no evidence to explain every lapse in its efforts or period of delay in effecting service, the trial court did not err by entering judgment and dismissing the plaintiff’s claims against the defendant based on her limitations defense.
Budget Rent A Car Sys., LLC v. Valadez
Appellate: Civil, Procedure, Torts
Texas 14th Court of Appeals
August 21, 2018
14-17-00235-CV
Martha Hill Jamison
Published
The plaintiff appealed the judgment of the trial court which held that the plaintiff had not exercised due diligence in serving the defendant with the suit and entered a take-nothing judgment against it. The plaintiff’s suit arose from the defendant’s involvement in a vehicle collision with one of the plaintiff’s rental vehicles. On appeal, the plaintiff contended that the trial court erred by holding that it did not use due diligence in obtaining service on the defendant. Specifically, the plaintiff asserted that Texas courts have found diligence in cases involving significantly fewer efforts in securing service than the efforts in this case and periods of time longer than the shorter length of time demonstrated here. The appellate court found that the evidence was not legally sufficient to support the trial court’s findings of fact. The appellate court concluded because the plaintiff provided no evidence to explain every lapse in its efforts or period of delay in effecting service, the trial court did not err by entering judgment and dismissing the plaintiff’s claims against the defendant based on her limitations defense. Accordingly, the judgment of the trial court was affirmed.


Under the Texas Workers’ Compensation Act’s plain terms, the decedent was an employee of the defendant and entitled to coverage under the Act because the summary judgment evidence established that the defendant employed at least three people to work on the ranch.
Rodriguez v. Waak
Appellate: Civil, Employment, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
Texas 1st Court of Appeals
August 21, 2018
01-17-00755-CV
Evelyn V. Keyes
Published
The plaintiffs appealed the judgment of the trial court which granted summary judgment to the defendant, holding that the plaintiffs’ claims were barred by the Farm Animal Activities Act. The plaintiffs’ appeal arose out of its suit to recover damages for their decedent’s personal injuries and death, specifically asserting that the defendant was negligent by failing to provide proper safety equipment and failing to adequately warn the decedent of dangers existing on the premises. On appeal, the plaintiffs argued that the trial court erred by determining that their claims were waived by the Act’s waiver of liability, and that the decedent was not a “participant” in a farm animal activity, but an employee of the defendant. The plaintiffs further maintained that they raised at least a fact issue as to whether the defendant was exempt from the application of the Texas Workers’ Compensation Act and was required to maintain workers’ compensation insurance for its employees and did not. The appellate court found that the decedent was not a participant in a farm animal activity at the time of his death and that, therefore, the Act did not bar the plaintiffs’ claims. The appellate court concluded that under the Texas Workers’ Compensation Act’s plain terms, the decedent was an employee of the defendant and entitled to coverage under the Act because the summary judgment evidence established that the defendant employed at least three people to work on the ranch. Accordingly, the judgment of the trial court was reversed and remanded.


The trial court did not err in granting summary judgment on the plaintiffs’ extra-contractual claims because the insurance policy providing coverage and payment was made once the parties completed the appraisal process established by the policy.
Biasatti v. Guideone Nat’l Ins. Co.
Appellate: Civil, Contracts, Insurance, Procedure, Real Property, Torts
Texas 7th Court of Appeals
August 16, 2018
07-17-00044-CV
Judy C. Parker
Published
The plaintiffs appealed the judgment of the trial court which granted summary judgment in favor of the defendant in an action where the plaintiffs alleged contractual and extra-contractual claims against the defendant related to an insurance coverage dispute that arose after the plaintiffs’ property was damaged during a storm. On appeal, the plaintiffs asserted that the trial court erred by dismissing its claims. The defendant counterargued that the plaintiffs could not succeed on its contract claim because the defendant promptly paid the appraisal award, and that, without a viable contract claim, the plaintiffs’ other claims must also fail. Specifically, the plaintiffs maintained that when an appraisal determined that the insurer significantly underpaid the amount of the loss when it made its claims decision, the defendant had necessarily breached the contract as a matter of law. The appellate court found that the trial court properly granted summary judgment as to the plaintiffs’ claim for breach of contract. The appellate court concluded that the trial court did not err in granting summary judgment on the plaintiffs’ extra-contractual claims because the insurance policy providing coverage and payment was made once the parties completed the appraisal process established by the policy. Accordingly, the judgment of the trial court was affirmed.


Because the defendant’s juvenile pre-delinquency adjudication hearing release was based on the capital murder case, Texas constitution, article I, section 11b did not support the trial court’s decision to deny bail in the aggravated robbery case
Ex parte McIntyre
Constitution, Criminal, Evidence, Juvenile, Procedure
Texas 2nd Court of Appeals
August 16, 2018
02-18-00163-CR
Per Curiam
Published
The defendant appealed the judgment of the trial court which denied his pretrial application for a writ of habeas corpus requesting that reasonable bail be set in his pending case for capital murder, aggravated robbery, and aggravated assault with a deadly weapon. On appeal, the defendant argued that the trial court abused its discretion by denying the relief requested in his application for a pretrial writ of habeas corpus and by holding him without bail in the two underlying felony cases in the county. The appellate court found that a trial court could deny bail under Texas constitution, article I, section 11b if a person who was accused in Texas of a felony, was released on bail pending trial, had his bail subsequently revoked for a violation of a condition of release, and was found to have violated conditions that related to the safety of a victim or the safety of the community. The State argued that extraordinary circumstances existed authorizing the trial court to deny bail in the aggravated robbery case. The appellate court concluded that because the defendant’s juvenile pre-delinquency adjudication hearing release was based on the capital murder case, Texas constitution, article I, section 11b did not support the trial court’s decision to deny bail in the aggravated robbery case. Accordingly, the judgment of the trial court was affirmed in par and reversed in part and remanded for further proceedings.


The defendant’s prosecution was barred by double jeopardy because the allowable unit of prosecution for the aggravated assaults with which the defendant was charged was each victim, not each discharge of the firearm.
Marson v. State
Constitution, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
August 16, 2018
11-16-00209-CR
Jim R. Wright
Published
The defendant appealed the judgment of the trial court which denied his special plea and convicted him of aggravated assault of a public servant and assessed punishment at confinement for life and a $10,000 fine. The appellate court was asked to determine whether double jeopardy barred prosecution for the offense of aggravated assault of a public servant when the accused had already been convicted of the same offense in an adjacent county. On appeal, the defendant argued that he was prosecuted twice for the same two offenses in violation of the Double Jeopardy Clause of the Fifth Amendment. The State responded that double jeopardy did not bar the defendant’s prosecution because the defendant committed multiple offenses of aggravated assault of each complainant because he fired numerous shots in their direction and each shot was the result of a separate impulse. The State further urged the appellate court to hold that each time the defendant pulled the trigger, he was committing a separate impulse. The appellate court concluded that the defendant’s prosecution was barred by double jeopardy because the allowable unit of prosecution for the aggravated assaults with which the defendant was charged was each victim, not each discharge of the firearm. Accordingly, the judgment of the trial court was vacated.