There was legally sufficient evidence to support the defendant’s conviction as a principal actor in the capital murder of the child, and any error in charging the jury on the law of parties was harmless.
Washington v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 20, 2018
14-17-00595-CR
Marc W. Brown
Published
The defendant appealed the judgment of the trial court which convicted him of capital murder. On appeal, the defendant argued that the evidence was legally insufficient to support that he intentionally or knowingly caused the death of the child, and the trial court abused its discretion by permitting the introduction of statements that the defendant’s girlfriend made to police. The defendant further asserted that the admission of such evidence violated his rights under the Confrontation Clause, and the trial court erred by instructing the jury on the law of parties because there was insufficient evidence that the defendant was guilty as the principal or as a party. The appellate court disagreed with the defendant and found that the evidence, viewed in the light most favorable to the verdict, was legally sufficient to permit a rational jury to convict the defendant of the capital murder, and that the State presented substantial evidence of the defendant’s guilt, which tended to corroborate the statements made to the police. The appellate court concluded that there was legally sufficient evidence to support the defendant’s conviction as a principal actor in the capital murder of the child, and any error in charging the jury on the law of parties was harmless. Accordingly, the judgment of the trial court was affirmed.
The trial court erred by excluding the evidence of the decedent’s mental illness and drug use, and there was no evidence to support the finding that the alleged negligence of the employer in training the driver proximately caused the collision.
JBS Carriers, Inc. v. Washington
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
December 21, 2018
17-0151
Phil Johnson
Published
The defendant appealed the judgment of the appellate court which affirmed the trial court’s decision, finding the defendant’s negligence as the proximate cause and death of the decedent’s collision. On appeal, the Supreme Court was asked to consider whether the trial court abused its discretion by excluding evidence of the pedestrian's mental illness and the fact that she had alcohol and drugs in her system at the time of the collision, and whether the defendant-employer could be held directly liable for the death based on a negligent training theory. The defendant argued that the evidence of the decedent’s mental health, prescription medication use, and drug and alcohol use was relevant to the issue of her negligence. The plaintiff-family counterargued that the trial court did not abuse its discretion in excluding the evidence because its probative value was low and the danger of unfair prejudice was high. The Supreme Court concluded that the trial court erred by excluding the evidence of the decedent’s mental illness and drug use, and there was no evidence to support the finding that the alleged negligence of the employer in training the driver proximately caused the collision. Accordingly, the judgment of the appellate court was reversed and remanded for further proceedings.
Texas Business and Commerce Code section 4.406 precluded the petitioner’s attempt to hold his bank liable for the losses because the deposit agreements between the parties did not alter this outcome.
Compass Bank v. Calleja-Ahedo
Banking and Finance, Business, Contracts, Procedure
The Supreme Court of Texas
December 21, 2018
17-0065
James D Blacklock
Published
The petitioner appealed the judgment of the appellate court which affirmed the trial court’s decision in favor of the respondent-bank in an action where the petitioner sought to recover the stolen funds from his bank account as the result of the petitioner’s identity being stolen. On appeal, the Supreme Court was asked to consider whether the petitioner or his bank must suffer the financial consequences of the theft. The respondent argued that the exceptions in section 4.406 required the petitioner to bear the loss under the circumstances. The Supreme Court noted that the petitioner failed for over a year to look for missing bank statements or inquire about the status of his account, rather than monitor his account as contemplated by section 4.406 of the Texas Business and Commerce Code. The Supreme Court concluded that section 4.406 precluded the petitioner’s attempt to hold his bank liable for the losses because the deposit agreements between the parties did not alter this outcome. Accordingly, the judgment of the appellate court was reversed.
Because the parties agreed to have the arbitrator decide issues of arbitrability, the appellate court erred in determining that the dispute was one that could not be arbitrated.
RSL Funding, LLC v. Newsome
ADR, Appellate: Civil, Contracts, Gov't/Administrative, Insurance, Litigation: Personal Injury, Procedure
The Supreme Court of Texas
December 21, 2018
16-0998
John P. Devine
Published
The petitioners appealed the judgment of the appellate court which affirmed the trial court’s decision to deny their motion to compel arbitration in a dispute over the transfer of a payee’s structured-settlement-payment rights to another. On appeal, the petitioners contended that the appellate court impermissibly decided arbitrability itself in the face of a valid arbitration clause that explicitly assigned arbitrability disputes to the arbitrator. The respondent maintained that the arbitration clause was inapplicable because this dispute must be decided by a court due to the bill of review and Structured Settlement Protection Act context. The Supreme Court concluded that because the parties agreed to have the arbitrator decide issues of arbitrability, the appellate court erred in determining that the dispute was one that could not be arbitrated. Accordingly, the judgment of the appellate court was reversed and remanded with instructions to grant the motion to compel arbitration.
The Texas Medical Liability Act’s emergency-medical-care provision applied to claims arising from emergency medical care provided in a hospital's obstetrical unit regardless of whether the patient was first evaluated or treated in a hospital emergency department.
Tex. Health Presbyterian Hosp. of Denton v. D.A.
Appellate: Civil, Health Care, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
December 21, 2018
17-0256
Jeffrey S. Boyd
Published
The defendant-doctor appealed the judgment of the appellate court which held that the Texas Medical Liability Act did not require the plaintiffs to prove willful and wanton negligence in its medical negligence action. On appeal, the defendant asserted that the plaintiffs could not recover based on claims asserting ordinary negligence, rather the claims arose from the provision of emergency medical care in a hospital obstetrical unit, they could only recover by proving that the doctor acted with willful and wanton negligence. The Supreme Court disagreed with the appellate court’s conclusion that the plaintiffs’ proposed construction was reasonable, and based on section 74.153's text and context, the doctor offered the only reasonable construction. The Supreme Court concluded that the Texas Medical Liability Act’s emergency-medical-care provision applied to claims arising from emergency medical care provided in a hospital's obstetrical unit regardless of whether the patient was first evaluated or treated in a hospital emergency department. Accordingly, the judgment of the appellate court was reversed.
The Supreme Court concluded that only one of the several allegations against the county official constituted an enforcement action, and the State's sovereign immunity did not protect it from the county official's claim for appellate costs.
State ex rel. Best v. Harper
Appellate: Civil, Election, Gov't/Administrative, Procedure, Tax
The Supreme Court of Texas
December 21, 2018
16-0647
Jeffery Brown
Published
The State appealed the judgment of the appellate court which reversed the trial court’s decision to deny the respondent’s motion to dismiss, finding that the Texas Citizens Participation Act (TCPA) applied to the State’s removal action and that the State failed to establish a prima facie case for removal. On appeal, the State conceded that the candidate’s failed reelection bid rendered its removal petition moot, however, it asserted that the issue whether the appellate court properly ordered the trial court to award the candidate’s costs, attorney's fees, and sanctions under the TCPA was not moot. The Supreme Court agreed with the candidate that the request for an award of attorney's fees and sanctions under the TCPA presented an issue that was separate from the request for removal, and that this separate issue survived the mootness that would otherwise prevent it from addressing the underlying claim. The Supreme Court found that this suit to remove a county official from elected office under chapter 87 of the Texas Local Government Code was a legal action under the TCPA, however, the TCPA did not apply when a government attorney brought an enforcement action in the State's name. The Supreme Court concluded that only one of the several allegations against the county official constituted an enforcement action, and the State's sovereign immunity did not protect it from the county official's claim for appellate costs. Accordingly, the judgment of the appellate court was affirmed.
The law firm failed to establish conclusively its right to judgment as a matter of law on each affirmative defense of collateral estoppel, waiver, and release.
Wilson v. Fleming
Appellate: Civil, Contracts, Ethics, Procedure, Professional Responsibility, Torts
Texas 14th Court of Appeals
December 21, 2018
14-17-00223-CV
Kevin Jewell
Published
The plaintiffs appealed the judgment of the trial court which granted summary judgment in favor of the law firm in an action claiming that the law firm breached contractual and fiduciary duties. On appeal, the plaintiffs argued that the law firm submitted no competent summary judgment evidence, and that the trial court's consideration of objectionable evidence was an abuse of discretion. The plaintiffs further contended that the law firm failed to prove conclusively its entitlement to judgment on the merits of each asserted affirmative defense of collateral estoppel, waiver, and release. The appellate court found that the law firm made no attempt in its motion for summary judgment to rebut the presumption of invalidity or unfairness by demonstrating that the plaintiffs’ releases were fair and reasonable, it did not raise its arguments in the trial court, and a motion for traditional summary judgment must stand or fall on its own merit. The appellate court concluded that the law firm failed to establish conclusively its right to judgment as a matter of law on each affirmative defense of collateral estoppel, waiver, and release. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.
There was no requirement in the Family Code that the Department make an additional request at the bench trial for termination of the mother’s parental rights on the specific grounds alleged in its petition.
In re D.A.Z.
Family, Procedure
Texas 8th Court of Appeals
December 21, 2018
08-18-00124-CV
Ann Crawford McClure
Published
The mother appealed the judgment of the trial court which terminated the parental rights to her child after the Department received a report that the mother was pregnant and using methamphetamine. On appeal, the mother challenged the legal and factual sufficiency of the evidence supporting the best interest finding. The appellate court noted that parental rights could be involuntarily terminated through proceedings brought under Section 161.001 of the Texas Family Code, and under this provision, the petitioner must establish one or more of the statutory acts or omissions enumerated as grounds for termination, and prove that termination was in the best interest of the children. The appellate court found that pursuant to the Holley factors, the evidence was both legally and factually sufficient to establish a firm conviction in the mind of the trial court that termination of the mother’s parental rights was in the child’s best interest. The mother further asserted that there was a variance between the trial court's oral pronouncement at trial and the final termination order. The appellate court concluded that there was no requirement in the Family Code that the Department make an additional request at the bench trial for termination on the specific grounds alleged in its petition. Accordingly, the judgment of the trial court was affirmed.
The jurisdictional evidence did not establish that the guarantor was the corporation’s alter ego or that he purposefully availed himself of the privilege of conducting activities within Texas.
Wilmington Trust, N.A. v. Su
Appellate: Civil, Contracts, Corporations, Creditor/Debtor, Litigation: Commercial, Procedure, Wills/Trusts/Probate
Texas 14th Court of Appeals
December 21, 2018
14-17-00382-CV
J Brett Busby
Published
The bank appealed the judgment of the trial court which granted the special appearance and dismissed the bank’s lawsuit against the guarantor in an action seeking to collect on a guaranty. On appeal, the bank challenged the trial court’s dismissal, arguing that the guarantor had substantial purposeful contacts with Texas because he was the alter ego of the debtor-corporation, and that the guarantor personally had numerous purposeful contacts with Texas that were connected with the operative facts of the guaranty litigation. The guarantor counterargued that the appellate court should affirm the trial court's dismissal because he did not purposefully avail himself of the protections offered by Texas law and courts. The appellate court disagreed with the bank and found that beyond the evidence of stock ownership, the bank did not point to any other evidence in the record demonstrating that the guarantor actually exercised atypical control over the day-to-day internal operations of the corporation. The appellate court concluded that the jurisdictional evidence did not establish that the guarantor was the corporation’s alter ego or that he purposefully availed himself of the privilege of conducting activities within Texas, thereby invoking the benefits and protections of Texas laws. Accordingly, the judgment of the trial court was affirmed.
The appellate court concluded that the employees correctly asserted that they were entitled to attorneys' fees, costs, sanctions, and possibly expenses, related to the dismissal of the employer’s claims.
Gaskamp v. WSP USA, Inc.
Appellate: Civil, Damages, Employment, Torts
Texas 1st Court of Appeals
December 20, 2018
01-18-00079-CV
Laura Carter Higley
Published
The employees appealed the judgment of the trial court which denied their motion to dismiss the employer’s lawsuit alleging misappropriation of its trade secrets and confidential information. On appeal, the employees argued that the two-sentence verification to the employer’s amended petition did not satisfy their evidentiary burden in response to the employees’ motion to dismiss. The employees further asserted that they met their burden to show that the Texas Citizens’ Participation Act (TCPA) applied to the employer’s claims, and that the trial court erred in not awarding attorneys' fees against the employer after it failed to file a response to their motion to dismiss. The employees also maintained that the employer did not present clear and specific evidence sufficient to state a prima facie case as to each of its claims. The appellate court noted that a party that relied only on its pleadings did so at its own risk of being found not to have satisfied its TCPA burden under the circumstances of the case, but the Act did not require parties to always offer evidence in addition to the pleadings. The appellate court concluded that the employees correctly asserted that they were entitled to attorneys' fees, costs, sanctions, and possibly expenses, related to the dismissal of the employer’s claims. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded.
Because the plaintiffs established by clear and specific evidence a prima facie case for each essential element of each of their claims, the trial court correctly denied the defendants’ motion to dismiss.
Universal Plant Serv., Inc. v. Dresser-Rand Group, Inc.
Appellate: Civil, Constitution, Contracts, Damages, Employment, Evidence, Procedure, Torts
Texas 1st Court of Appeals
December 20, 2018
01-17-00555-CV
Evelyn V. Keyes
Published
The defendants appealed the judgment of the trial court which denied their motion to dismiss the plaintiffs’ suit alleging causes of action for misappropriation of trade secrets, unlawful computer access, conversion, theft, and breach of contract. On appeal, the defendants argued that the trial court erred in holding that the Texas Citizens Participation Act (TCPA) did not apply to the plaintiffs’ claims against it, and that the trial court erred in denying the defendants’ motion to dismiss because the plaintiff failed to establish by clear and specific evidence a prima facie case for each element of each claim. The defendants further maintained that trial court abused its discretion in imposing a spoliation presumption against the defendants because the plaintiff failed to establish the essential elements of spoliation. The plaintiffs counterargued that the defendants’ motions to dismiss were properly denied because the record demonstrated that the plaintiff showed by clear and specific evidence a prima facie case for each essential element of each of its claims. The appellate court agreed with the plaintiffs and found that they met their burden of making a prima facie case on the breach-of-contract and state and federal misappropriation-of-trade-secrets claims. The appellate court concluded that because the plaintiffs established by clear and specific evidence a prima facie case for each essential element of each of their claims, the trial court correctly denied the defendants’ TCPA motion to dismiss. Accordingly, the judgment of the trial court was affirmed.
The property owner presented no contradictory evidence, and that the trial court awarded these amounts to the predecessor in interest in the final judgment, therefore, legally and factually sufficient evidence supported the amounts awarded to the predecessor in interest in the final judgment.
Fenlon v. Harris Cnty.
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Tax
Texas 1st Court of Appeals
December 20, 2018
01-17-00877-CV
Evelyn V. Keyes
Published
The property owner appealed the judgment of the trial court which entered judgment in favor of the County, ordering foreclosure of their tax liens on the property owner’s subject property. On appeal, the property owner contended that legally and factually insufficient evidence supported the trial court's finding of the base tax to which the predecessor in interest was entitled, and that legally and factually insufficient evidence supported the finding that the predecessor in interest had a valid tax lien. The property owner further asserted that legally and factually insufficient evidence supported the award of penalties and interest, that the award of attorney's fees to the predecessor in interest was unreasonable and excessive, and that legally and factually insufficient evidence supported the finding that the property owner was personally liable for the amounts awarded in the judgment. The appellate court noted that the predecessor in interest submitted evidence demonstrating the outstanding principal balance under the note, that the penalties and interest that had accrued on the principal balance, and that the attorney's fees had incurred. The appellate court concluded that the property owner presented no contradictory evidence, and that the trial court awarded these amounts to the predecessor in interest in the final judgment, therefore, legally and factually sufficient evidence supported the amounts awarded to the predecessor in interest in the final judgment. Accordingly, the judgment of the trial court was affirmed.
The trial court correctly granted summary judgment in the administrator’s favor on limitations grounds regarding the claims for breach of fiduciary duty and fraud by nondisclosure because the beneficiaries were on inquiry notice of their potential claims.
Brown v. Arenson
Appellate: Civil, Consumer, Discovery, Torts, Wills/Trusts/Probate
Texas 1st Court of Appeals
December 20, 2018
01-17-00515-CV
Michael C. Massengale
Published
The beneficiaries appealed the judgment of the trial court which granted the independent administrator of their father’s estate, in an action seeking an accounting and alleging causes of action for fraud by nondisclosure, negligent misrepresentation, breach of fiduciary duty, professional negligence, and violation of the Deceptive Trade Practices Act. On appeal, the beneficiaries contended that the trial court erred by granting summary judgment in the administrator’s favor because genuine issues of material fact precluded summary judgment, in that their claims did not accrue when they received their inheritance checks because the administrator breached his fiduciary duties by failing to make a full disclosure of all material facts. The beneficiaries further claimed that the discovery rule and the doctrine of fraudulent concealment deferred accrual of their causes of action. The appellate court noted that the beneficiaries made no arguments in the appeal to explain why a movant's affidavit would be entirely inadmissible because it conflicted in some particulars with a prior deposition. The appellate court found that the injury alleged by the beneficiaries was not inherently undiscoverable, and the discovery rule did not apply. The appellate court concluded that the trial court correctly granted summary judgment in the administrator’s favor on limitations grounds regarding the claims for breach of fiduciary duty and fraud by nondisclosure because the beneficiaries were on inquiry notice of their potential claims at the time they reached the age of majority and received their inheritance checks. Accordingly, the judgment of the trial court was affirmed.
Section 13.2475 of the Texas Water Code violated the general constitutional prohibition against local laws that regulate the affairs of a city.
Tyler v. Liberty Utilities (Tall Timbers Sewer) Corp.
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
December 20, 2018
01-17-00745-CV
Michael C. Massengale
Published
The City appealed the judgment of the trial court which ordered a declaratory judgment that Section 13.2475 of the Texas Water Code was unconstitutional. On appeal, the City contended that Section 13.2475 was authorized by Article I, Sections 17(d) and 26 as exceptions to the constitutional prohibition of local laws. The City asserted that Section 13.2475 was not prohibited under Article III, Section 56(a) because the statute's subject matter was not included among the specific topics for which local or special laws were prohibited, and even if the statute was a local law for purposes of Article III, Section 56, it was not unconstitutional because it was otherwise authorized by Article I, Section 17(d), which authorized the Legislature to control privileges and franchises, and Section 26, which prohibited monopolies. The appellate court found that Section 13.2475 of the Texas Water Code violated the general constitutional prohibition against local laws that regulate the affairs of a city. The appellate court concluded that the constitutional provisions that generally authorized legislative control over privileges and franchises and that generally prohibited perpetuities and monopolies did not authorize this local law. Accordingly, the judgment of the trial court was affirmed.
Article 62.0551(a) did not burden substantially more speech than was necessary to further the State's legitimate interests, and thus, the defendant failed to establish that the statute was facially unconstitutional as substantially overbroad in violation of the First Amendment.
Ex Parte Dennis Lee Odom
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 20, 2018
01-18-00169-CR
Harvey Brown
Published
The defendant appealed the trial court’s denial of his pretrial application for writ of habeas corpus challenging Article 62.0551(a)'s reporting requirements as a facially unconstitutional violation of the First Amendment right to freedom of speech. This appeal stemmed from the defendant’s conviction as a sex offender and charge of failing to report online identifiers. The appellate court was asked to consider the defendant’s constitutional challenge to the Texas Sex Offender Registration Program's requirement that convicted sex offenders register internet identifiers, whereby the defendant asserted that Article 62.0551 was unconstitutional on its face because it resulted in an impermissible prior restraint on speech and was overbroad when considering the State's interest in preventing crime. The appellate court noted that since Article 62.0551(a)'s reporting requirement burdened constitutionally protected speech, it was required to pass First Amendment scrutiny. The appellate court concluded that Article 62.0551(a) did not burden substantially more speech than was necessary to further the State's legitimate interests, and thus, the defendant failed to establish that the statute was facially unconstitutional as substantially overbroad in violation of the First Amendment. Accordingly, the judgment of the trial court was affirmed.
Since the plaintiffs sufficiently segregated their attorney's fees, the trial court did not err in awarding them attorney's fees as it did pursuant to Article 581-33(D)(7) of the Texas Securities Act.
Kubbernus v. Ecal Partners, Ltd.
Appellate: Civil, Contracts, Procedure, Securities, Torts
Texas 1st Court of Appeals
December 20, 2018
01-16-00174-CV
Terry Jennings
Published
The defendants appealed the judgment of the trial court which rendered judgment in favor of the plaintiffs in their suit alleging securities violations under the Texas Securities Act, breach of contract, breach of fiduciary duty, and fraud. On appeal, the defendants contended that the evidence was insufficient to support the jury's findings in favor of the plaintiffs on their claims for securities violations and attorney's fees under the Act, certain plaintiffs could not bring suit under the Act, and certain plaintiffs’ securities-violations claims were barred by the Act’s statute of repose. The appellate court found that the plaintiffs were not required to prove causation as an element of their claims for securities violations under the Act. The appellate court concluded that since the plaintiffs sufficiently segregated their attorney's fees, the trial court did not err in awarding them attorney's fees as it did pursuant to Article 581-33(D)(7). Accordingly, the judgment of the trial court was affirmed.
The homeowner did not show that the improper refusal of a single payment to the lender excused all the subsequent payments not made under the loan.
Mulvey v. U.S. Bank N.A.
Appellate: Civil, Banking and Finance, Creditor/Debtor, Procedure, Real Property
Texas 8th Court of Appeals
December 19, 2018
08-17-00186-CV
Ann Crawford McClure
Published
The homeowner appealed the judgment of the trial court which granted summary judgment in favor of the lender, which foreclose on property securing a home equity loan. On appeal, the appellate court was asked to consider whether the homeowner presented some evidence supporting one or more of his asserted affirmative defenses. The homeowner contended that he raised some evidence in support of several affirmative defenses to any default under the note, and the lender did not conclusively disprove those defenses. The appellate court noted that the trial court could have properly concluded that the homeowner did not raise a material fact issue on a statute of limitations defense. The appellate court found that the homeowner failed to raise a genuine issue of material fact on his illegality defense because his summary judgment proofs did not raise an illegality defense under the Texas Constitution. The appellate court concluded that the homeowner did not show that the improper refusal of a single payment to the lender excused all the subsequent payments not made under the loan. Accordingly, the judgment of the trial court was affirmed.
The trial court was within its discretion to admit the detective’s testimony under Rule 403 because there was no clear disparity between the degree of prejudice of the offered evidence and its probative value.
Beham v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
December 19, 2018
06-16-00094-CR
Jack Carter
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated robbery and sentenced him to twenty-five years’ imprisonment. On appeal, the defendant contended that the detective’s testimony that he was holding himself out to be a gang member should have been excluded pursuant to Rule 403 of the Texas Rules of Evidence, which allowed relevant evidence to be excluded if its probative value was substantially outweighed by the danger of unfair prejudice. The appellate court noted that while character and reputation evidence may be prejudicial, it was not unfairly prejudicial because it was unlikely to irrationally impact the jury. The appellate court found that the State's need for this evidence at punishment was minimal because the photographs, showing the defendant with guns, large amounts of cash, and illegal drugs, had already been admitted, and they allowed the State to argue and the jury to infer that the defendant was a gun-toting drug dealer who deserved a longer sentence. The appellate court concluded that the trial court was within its discretion to admit the detective’s testimony under Rule 403 because there was no clear disparity between the degree of prejudice of the offered evidence and its probative value. Accordingly, the judgment of the trial court was affirmed.
The criminal appellate court concluded that assuming it was error to deny the jury instruction on felony deadly conduct, the defendant was not harmed by any such error in the trial court's charge.
Braughton v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 19, 2018
PD-0907-17
Elsa Alcala
Published
The defendant appealed the judgment of the appellate court which found that the evidence was legally sufficient to uphold the defendant’s murder conviction and that there was no harmful error in the jury charge due to the omission of a lesser-included offense instruction on felony deadly conduct. On appeal, the defendant claimed that he shot the victim because he reasonably believed the use of such force was immediately necessary to protect himself and his father against the victim’s attempted use of deadly force. The criminal appellate court found that, viewing the evidence in the light most favorable to the verdict and deferring to the jury's credibility determinations, the evidence supported a rational jury's rejection of the defendant’s self-defense and defense of third person claims, and thus the evidence was legally sufficient to uphold his conviction for murder. The criminal appellate court concluded that assuming it was error to deny the jury instruction on felony deadly conduct, the defendant was not harmed by any such error in the trial court's charge. Accordingly, the judgment of the appellate court was affirmed.
The trial court abused its discretion by granting the real parties in interests’ motion for leave to designate the "unknown gunman" as a responsible third party, and that the relator had no adequate remedy by appeal.
In re Echols
Appellate: Civil, Constitution, Litigation: Personal Injury, Procedure
Texas 5th Court of Appeals
December 19, 2018
05-18-01226-CV
Elizabeth Ann Lang-Miers
Published
The relator filed a petition for writ of mandamus with the appellate court, seeking that it direct the trial court to vacate its order allowing the designation as untimely. On appeal, the relator contended that the trial court clearly abused its discretion by permitting real parties in interest to designate an unknown criminal as a responsible third party without complying with the requirements of section 33.004(j), Texas Civil Practice and Remedies Code. The real parties in interest responded, arguing that the trial court correctly interpreted section 33.004(j). The relator further maintained that 60 days after answering a lawsuit was insufficient time for a defendant to conduct discovery to determine if a criminal met the definition of a responsible third party. The appellate court found that the trial court abused its discretion by granting the real parties in interests’ motion for leave to designate the "unknown gunman" as a responsible third party, and that the relator had no adequate remedy by appeal. The appellate court concluded that the relator’s writ would issue only if the trial court failed to comply with the appellate court’s order. Accordingly, the relator’s writ was conditionally granted.
The record failed to support the appellate court’s conclusion that the defendant suffered "some" harm from the trial court's failure to instruct the jury that it must be unanimous with respect to which of the victim’s orifices was penetrated.
French v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 19, 2018
PD-0038-18
Kevin Patrick Yeary
Published
The State appealed the judgment of the appellate court which reversed the defendant’s conviction for aggravated sexual assault of a child, finding that the trial court erred in not giving a unanimity instruction to the jury as to which orifice the defendant penetrated with his sexual organ. On appeal, the State argued that the defendant failed to preserve error by not leveling an appropriate objection to the jury charge at trial, and the defendant did not suffer any level of harm as a result of the trial court's jury charge. The defendant counterargued that the jury charge ran afoul of the juror unanimity requirement because it did not require the jury to agree as to which orifice the defendant contacted and/or penetrated. The criminal appellate court concluded that the record failed to support the appellate court’s conclusion that the defendant suffered "some" harm from the trial court's failure to instruct the jury that it must be unanimous with respect to which of the victim’s orifices was penetrated. Accordingly, the judgment of the appellate court was reversed and remanded for further proceedings.
The record did not support the defendant’s affirmative defenses of fraud/equitable estoppel and the record contained no evidence supporting the trial court's finding that the law firm made any false representations to the defendant in the breach of contract action.
Wyde v. Francesconi
Appellate: Civil, Contracts, Damages, Procedure, Professional Responsibility, Torts
Texas 5th Court of Appeals
December 19, 2018
05-17-01333-CV
David L. Bridges
Published
The law firm appealed the judgment of the trial court which awarded it damages based on the defendant’s breach of contract for legal services. On appeal, the law firm challenged the trial court’s award because the evidence did not support the trial court's findings of fact and conclusions of law regarding the defendant’s affirmative defenses of failure to mitigate damages and fraud/equitable estoppel, the damages award was unreasonable, arbitrary, and capricious in light of evidence establishing damages, and to the extent the trial court awarded attorney's fees to the law firm as the prevailing party in the underlying family lawsuit, such award was not supported by the record and was not the proper basis for calculating damages in this case. The appellate court found that the trial court erroneously concluded as a matter of law that the law firm had a duty to mitigate its damages. The appellate court concluded that the record did not support the defendant’s affirmative defenses of fraud/equitable estoppel and the record contained no evidence supporting the trial court's finding that the law firm made any false representations to the defendant in the breach of contract action. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded for a new trial on damages.
The magistrate failed to maintain the requisite neutrality required by section 51.095 of the Texas Family Code when it engaged in the actual questioning of the juvenile.
In re B.B.
Criminal, Evidence, Juvenile, Procedure
Texas 4th Court of Appeals
December 19, 2018
04-18-00108-CV
Sandee Bryan Marion
Published
The State appealed the judgment of the trial court which granted the juvenile’s motion to suppress, asserting the trial court erred in concluding the magistrate's actions violated section 51.095. The appellate court was asked to consider whether section 51.095 of the Texas Family Code, which set forth the requirements for obtaining written statements from juveniles, was violated when the magistrate who administered the statutory warnings and determined the voluntariness of the juvenile's statement engaged in the actual questioning of the juvenile. On appeal, the juvenile argued that the trial court properly concluded section 51.095 was violated because the magistrate assumed the role of agent for the police rather than that of a neutral and disinterested magistrate. The appellate court agreed with the juvenile and found that given the magistrate's role under section 51.095 and the need to strictly comply with the detailed and explicit procedures set forth in section 51.095, the questioning by the magistrate violated section 51.095. The appellate court noted that Section 51.095 only provided for questioning by peace officers or attorneys representing the state for purposes of obtaining the juvenile's statement and only after the juvenile was warned about the right to have an attorney appointed to counsel with the juvenile before and during questioning. The appellate court concluded that the magistrate failed to maintain the requisite neutrality required by the statute. Accordingly, the judgment of the trial court was affirmed.
The defendant’s counsel's brief contained bare, conclusory statements and failed to satisfy the uniform requirements for Anders’ briefs.
In re N.F.M.
Constitution, Evidence, Family, Procedure
Texas 4th Court of Appeals
December 19, 2018
04-18-00475-CV
Luz Elena D Chapa
Published
The defendant appealed the judgment of the trial court which sought to strike the brief he filed pursuant to Anders v. California. The appellate court noted that the defendant was present at trial and was presumptively aware of what transpired, and therefore the Anders’ brief did not assist the defendant in determining whether to file a pro se brief. The appellate court found that the defendant’s counsel's brief contained bare, conclusory statements and failed to satisfy the uniform requirements for Anders’ briefs. The appellate court concluded that the Anders’ briefing requirements that applied uniformly in criminal and juvenile appeals also applied in termination appeals, and since the defendant’s counsel's Anders’ brief did not satisfy the uniform Anders’ briefing requirements, counsel’s requested relief from the order striking his Anders’ brief must be denied. Accordingly, the defense counsel’s request for relief was denied.
There was no conflict between a statute providing the topics about which a licensed professional was qualified to testify as an expert and the certificate of merit statute including an additional requirement to provide expert testimony in that instance.
Kayne Anderson Capital Advisors, L.P. v. Hill & Frank, Inc.
Appellate: Civil, Contracts, Procedure
Texas 1st Court of Appeals
December 18, 2018
01-18-00544-CV
Laura Carter Higley
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion to dismiss the action alleging faulty design and construction of a pool at the top of a parking garage. On appeal, the plaintiff argued that the trial court erred by granting the defendant’s motion to dismiss. Specifically, the plaintiff asserted that the defendant’s license as an engineer satisfied the requirement of having the same professional license due to recent changes in the Texas Occupations Code concerning work that could be performed either by a licensed engineer or licensed architect. The plaintiff further reasoned that, because the Legislature allowed either an engineer or an architect to provide expert opinion concerning their overlapping zones of work and because the work at issue in this suit fell within that zone, the Legislature intended to allow either engineers or architects to prepare certificates of merit in this situation. The appellate court disagreed with the plaintiff and found that regardless of what other qualifications he had to testify on the subject forming the basis of the suit, the plaintiff did not have the same professional license or registration as the defendant. The appellate court concluded that there was no conflict between a statute providing the topics about which a licensed professional was qualified to testify as an expert and the certificate of merit statute including an additional requirement to provide expert testimony in that instance. Accordingly, the judgment of the trial court was affirmed.
The plaintiff’s parol-evidence and legal-conclusion objections failed because, even if the trial court erred in not striking the challenged statement as hearsay, such error was harmless.
Holland v. Mem’l Hermann Health Sys.
Appellate: Civil, Constitution, Contracts, Damages, Evidence, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
December 18, 2018
01-17-00107-CV
Terry Jennings
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in favor of the defendant in her suit against it for premises liability. On appeal, the plaintiff contended that the trial court erred in granting the defendant summary judgment. Specifically, the plaintiff asserted that the defendant’s representative lacked personal knowledge to testify about the purpose of the sixth amendment to the lease because it was based solely on his use of the word "belief,” which the plaintiff argued that the belief alone was insufficient. The plaintiff further maintained that the defendant’s representative’s testimony was inadmissible because it constituted a legal conclusion and parol evidence. The appellate court disagreed with the plaintiff and found that the representative did not testify as to whether the defendant owed a duty to the plaintiff, rather he only testified, within his personal knowledge as Senior Vice-President and Chief Facility Services Officer for Memorial Hermann, as to which entity was responsible for maintaining the roadway at issue. The appellate court concluded that the plaintiff’s parol-evidence and legal-conclusion objections failed because, even if the trial court erred in not striking this challenged statement as hearsay, such error was harmless as it was cumulative in light of the lease agreements and the other admissible testimony regarding the roadway at issue. Accordingly, the judgment of the trial court was affirmed.
The evidence was insufficient to support the trial court's division of the community estate and confirmation of the petitioner’s separate property.
Cohen v. Bar
Constitution, Family, Procedure
Texas 1st Court of Appeals
December 18, 2018
01-18-00082-CV
Evelyn V. Keyes
Published
The respondent appealed the judgment of the trial court which awarded the petitioner a default divorce, divided the community estate, and confirmed separate property rendered in favor of the petitioner. On appeal, the respondent argued that the trial court erred in rendering a default divorce decree because it did not have personal jurisdiction over him as a nonresident defendant, he did not receive service of process in violation of his due process rights, and it abused its discretion in dividing the community estate and confirming certain property as the petitioner’s separate property. The appellate court noted that since the respondent could not point to any error in the service or return of citation that was apparent on the face of the record, the trial court's default judgment did not deprive him of due process on this basis. The appellate court concluded that the evidence was insufficient to support the trial court's division of the community estate and confirmation of the petitioner’s separate property. Accordingly, the judgment of the trial court was reversed and remanded.
The appellate court concluded that the defendant was not egregiously harmed by the absence of a unanimity jury instruction.
Torres v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 18, 2018
01-17-00499-CR
Russell Lloyd
Published
The defendant appealed the judgment of the trial court which convicted him of continuous sexual abuse of a young child, aggravated sexual assault of a child, and indecency with a child, and sentenced him to imprisonment. On appeal, the defendant argued that the child victim's underwear and DNA analysis of it should not have been admitted into evidence because the State failed to reliably authenticate the underwear since the first two links in the chain of custody were not established by the victim and her mother. The defendant further asserted that the jury charge erroneously allowed for a non-unanimous verdict on the aggravated-sexual-assault-of-a-child count, and the jury charge erroneously allowed for a non-unanimous verdict on the indecency-with-a-child count. The appellate court noted that the factfinder evaluated the credibility of testimony and believed the mother’s testimony when she identified that underwear as that given to her by the victim on the day after the defendant’s last act of abuse. The appellate court found that the defendant offered no evidence of tampering or of a breach in the chain other than attacks on witness credibility, and therefore, the trial court did not abuse its discretion in admitting the victim’s underwear into evidence. The appellate court concluded that the defendant was not egregiously harmed by the absence of a unanimity jury instruction. Accordingly, the judgment of the trial court was affirmed.
The trial court abused its discretion by signing a default judgment in direct contradiction of the Texas Election Code.
In re Bishop
Appellate: Civil, Election, Gov't/Administrative, Procedure, Torts
Texas 5th Court of Appeals
December 17, 2018
05-18-01333-CV
David L. Bridges
Published
The relators appealed the decision of the trial court, seeking a writ of mandamus directing the trial court to vacate the default judgment which declared the candidate for justice of the peace ineligible for the office because she was purportedly not a resident of the district, that the trial court's jurisdiction over the matter was moot due to the election schedule. This appeal stemmed from the underlying lawsuit originated by another candidate for justice of the peace challenged the eligibility of her opponent, seeking a declaratory judgment and injunctive relief. The appellate court noted that by granting a default judgment, the trial court failed to comply with the mandatory statutory provision prohibiting a default judgment in an election contest. The appellate court found that the trial court abused its discretion by signing a default judgment in direct contradiction of the Texas Election Code. The appellate court concluded that the default judgment was void and the relator need not show there was no adequate remedy by appeal. Accordingly, the relators’ petition was conditionally granted.
The alleged defects in the trial court’s temporary orders did not invalidate the final termination order, as it was supported by expert witness testimony and it included the necessary Indian Child Welfare Act findings.
In re A.M.
Family, Procedure, Tribal
Texas 8th Court of Appeals
December 14, 2018
08-18-00105-CV
Ann Crawford McClure
Published
The biological mother appealed the judgment of the trial court which terminated the parental rights to her child. This appeal arose out of the Texas Department of Family and Protective Services (the Department) involvement based on allegations of neglectful supervision, drug use, and mental health issues. On appeal, the mother argued that the termination order must be reversed and the case dismissed based on violations of the Indian Child Welfare Act (ICWA). The mother alleged that the Department violated ICWA because it failed to provide formal notice to the Tribe of the emergency ex parte hearing conducted by the trial court, and that the emergency order entered on that date did not include the findings required by Section 1912(d) and (e). The appellate court found that the requirements of Section 1912(a), (d), and (e) did not apply to the emergency removal of the child because of Section 1922's directive that nothing in ICWA should prevent the emergency removal of an Indian child when necessary to prevent imminent physical damage or harm to the child. The appellate court concluded that the alleged defects in the temporary orders did not invalidate the final termination order, as it was supported by expert witness testimony and it included the necessary ICWA findings. Accordingly, the judgment of the trial court was affirmed.
The evidence admitted at the disposition hearing, viewed in the light most favorable to the challenged finding, was legally sufficient to show that the Department made reasonable efforts to prevent or eliminate the need to remove the juvenile from his home.
In re V.L.T.
Criminal, Gov't/Administrative, Juvenile, Procedure
Texas 8th Court of Appeals
December 14, 2018
08-17-00209-CV
Ann Crawford McClure
Published
The juvenile appealed the judgment of the trial court which committed him to the custody of the Texas Juvenile Justice Department for failing to attend trauma counseling sessions and for assault causing bodily injury while under intensive supervision probation. On appeal, the juvenile argued that the evidence was insufficient to support the trial court's finding that reasonable efforts had been made to prevent or eliminate the need for his removal from home and to make it possible for him to return home. Specifically, the juvenile asserted that there was no evidence of any reasonable efforts to keep him in his home and eliminate the need for his removal. The appellate court found the evidence admitted at the disposition hearing, viewed in the light most favorable to the challenged finding, was legally sufficient to show that the Department made reasonable efforts to prevent or eliminate the need to remove the juvenile from his home. The appellate court concluded that the trial court did not abuse its discretion in modifying the disposition because the evidence was both legally and factually sufficient to support the challenged finding. Accordingly, the judgment of the trial court was affirmed.
The relator had the right to withhold these communications from disclosure and assert its claim that the documents were protected by the attorney-client and work product privileges.
In re: WHC, LLC
Appellate: Civil, Constitution, Discovery, Employment, Procedure, Workers' Compensation
Texas 8th Court of Appeals
December 14, 2018
08-18-00088-CV
Ann Crawford McClure
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus against the trial court judge, challenging his order requiring the relator to disclose documents which were protected by the attorney-client privilege. On appeal, the relator contended that the trial court clearly abused its discretion by concluding that the withheld documents were not privileged and ordering the relator to disclose the documents to the moving party. The moving party responded that the relator did not specifically plead the privileges it claimed were applicable to the in camera documents. The appellate court noted that in these communications, the relator’s attorneys were providing status reports about the progress of the case and presenting their evaluation and analysis of the pending litigation. The appellate court found that it could be readily determined from the documents that the attorney-client and work product privileges were applicable and protected the documents from compelled disclosure. The appellate court concluded that the relator had the right to withhold these communications from disclosure and assert its claim that the documents were protected by the attorney-client and work product privileges. Accordingly, the relator’s petition was conditionally granted.
The defendants did not conclusively establish the exclusive remedy defense afforded by Section 408.001(a) of the Texas Workers' Compensation Act.
Reveles v. OEP Holdings, LLC
Appellate: Civil, Litigation: Personal Injury, Torts, Workers' Compensation
Texas 8th Court of Appeals
December 14, 2018
08-16-00073-CV
Gina M. Palafox
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in favor of the defendants in a suit alleging negligence based on injuries sustained. On appeal, the plaintiff challenged the order granting summary judgment in favor of the defendants based on the exclusive remedy defense, arguing that they failed to establish each element of the affirmative defense as a matter of law. Specifically, the plaintiff maintained that the defendants failed to conclusively prove that they were his co-employers because they offered no evidence that the defendant was a license holder. The appellate court found that the defendants offered evidence conclusively proving that the defendant was a license holder under the Staff Leasing Services Act. The appellate court concluded that the defendants did not conclusively establish the exclusive remedy defense afforded by Section 408.001(a) of the Texas Workers' Compensation Act. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.
The clerk's failure to send notice of judgment in a timely manner deprived the employer of the opportunity to attack the judgment by filing a motion for new trial or other post-judgment motions, and his failure constituted an error on the face of the record.
Camoco, LLC v. Terrazas
Appellate: Civil, Employment, Procedure, Workers' Compensation
Texas 8th Court of Appeals
December 13, 2018
08-17-00029-CV
Yvonne T. Rodriguez
Published
The employer appealed the judgment of the trial court which granted a default judgment against it for a retaliatory firing. On appeal, the employer argued that default judgment was improper because the return of citation did not strictly comply with Texas Rules of Civil Procedure 107(b)(8) in that the return failed to identify the manner of delivery of service. The employer further asserted that the default judgment should be reversed due to the clerk's failure to immediately notify it of the rendition of judgment, as required by Texas Rules of Civil Procedure 306a(3), and the vague testimony of the employee was legally and factually insufficient to prove causation and damages. The appellate court found that authority held that the manner of delivery of service or attempted service was not satisfied by merely stating that a person "was served" or that citation was delivered "by serving" a particular person. The appellate court concluded that the clerk's failure to send notice of judgment in a timely manner deprived the employer of the opportunity to attack the judgment by filing a motion for new trial or other post-judgment motions, and his failure constituted an error on the face of the record. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.
The defendant was not entitled to a lesser-offense instruction on manslaughter because there was no reasonable interpretation of the evidence that would allow a jury to rationally find that the defendant acted only recklessly when she stabbed the victim.
Ritcherson v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 12, 2018
PD-0021-17
Barbara Parker Hervey
Published
The defendant appealed the judgment of the trial court which convicted her of murder and sentenced her to 25 years’ confinement. The criminal appellate court was asked to determine whether the defendant was entitled to a lesser-included offense instruction on manslaughter during her second murder trial. On appeal, the defendant argued that the trial court erred when it did not instruct the jury on manslaughter. The State counterargued that the criminal appellate court should overrule Saunders v. State because it was poorly reasoned. The criminal appellate court noted that if the jury took the witness’s use of the word "reflex" literally, its only option was to acquit the defendant because a jury could not infer intent from a reflexive reaction, and a reflexive reaction did not constitute a voluntary act as contemplated by Section 6.01(a). The defendant further contended that the evidence was susceptible to different interpretations because the defendant stabbed the victim only once, with a knife of indeterminate size, under circumstances which would support a reasonable conclusion that she acted without deliberation, and in response to provocation. The criminal appellate court concluded that the defendant was not entitled to a lesser-offense instruction on manslaughter because there was no reasonable interpretation of the evidence that would allow a jury to rationally find that the defendant acted only recklessly when she stabbed the victim. Accordingly, the judgment of the trial court was affirmed.
If an officer held an objectively reasonable belief that an evidence-destroying medical treatment was about to take place, the Fourth Amendment did not command him to wait until the treatment was mere moments away before he could act.
State v. Garcia
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 12, 2018
PD-0344-17
Michael E. Keasler
Published
The defendant caused a severe car crash. On the scene of the crash, the defendant appeared to be intoxicated. The defendant was transported to a nearby hospital to have his injuries evaluated, and some police officers went with him. At the hospital, the police saw a nurse about to give the defendant an I.V. But a doctor came into the defendant’s room and, at the defendant’s insistence, canceled the I.V. Thereafter, the police took the defendant’s blood without a warrant. The defendant moved to suppress the blood evidence, and the State claimed “exigent circumstances” in response—the argument being that, if the defendant had received an I.V., evidence of his intoxication would have been effectively destroyed. So, the State argued, the police simply had no time to obtain a warrant in light of the hazard posed by the I.V. The trial judge disagreed, suppressing the blood evidence. The trial judge found that, at the time of the search, the officers were aware that the defendant was not at risk of receiving an I.V. The court of appeals reversed the trial judge, but the Court of Criminal Appeals reversed the court of appeals and affirmed the trial judge. The Court of Criminal Appeals held that the trial judge did not abuse his discretion in resolving a matter of disputed fact—whether the officers were aware that the defendant was not going to receive I.V. The Court of Criminal appeals held that the trial court’s finding in this regard, if “inscrutable,” had at least some support in the record. As such, there was no abuse of discretion.
A discharge for "untruthfulness" within the meaning of Section 1701.452(b)(3) included a discharge for material omissions, therefore, the trial court did not err in affirming the order that the petitioner was not entitled to have the termination report changed.
Stacks v. Burnet Cnty. Sheriff’s Office
Appellate: Civil, Employment, Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
December 12, 2018
03-17-00752-CV
Cindy Olson Bourland
Published
The petitioner appealed the judgment of the trial court which affirmed the administrative law judge’s order denying his petition to correct the sheriff’s office report to reflect an honorable or general discharge from his position as a deputy sheriff. On appeal, the petitioner argued that the omissions from the report and affidavit did not amount to "untruthfulness." The sheriff’s office counterargued that omitting facts could render an otherwise-true representation misleading. The appellate court noted that in applying its common meaning, a discharge for untruthfulness included a discharge for omitting material information or facts that rendered a statement misleading or deceptive. The petitioner further raised a practical objection, that including material omissions within the definition of untruthfulness would endanger confidential informants, and alleging that such a holding would result in police officers erring on the side of disclosing confidential informants in their reports, thus increasing the risk that defendants would learn their identity in discovery. The appellate court concluded that a discharge for "untruthfulness" within the meaning of Section 1701.452(b)(3) included a discharge for material omissions, therefore, the trial court did not err in affirming the order that the petitioner was not entitled to have the termination report changed. Accordingly, the judgment of the trial court was affirmed.
The criminal appellate court concluded that, pursuant to Moore v. Texas and Ex parte Moore, no further record development or fact findings were needed and that the applicant was not entitled to relief.
Ex parte Wood
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 12, 2018
WR-45,746-02
Sharon Keller
Published
The applicant appealed the judgment of the trial court, filing a subsequent application claiming that he was exempt from the death penalty due to intellectual disability and that due process required that he be given tools and a hearing to more fully establish his intellectual-disability claim. Thereafter, the applicant filed a suggestion that the criminal appellate court reconsider his application on its own initiative. The criminal appellate court noted that sometimes it allows an applicant to put on new evidence on remand when there was no reason or opportunity to put on the relevant evidence earlier, however, there was no reason to allow the applicant to put on new evidence. The criminal appellate court found that a remand to allow the opportunity to further develop the evidence was simply unwarranted. The criminal appellate court concluded that, pursuant to Moore v. Texas and Ex parte Moore, no further record development or fact findings were needed and that the applicant was not entitled to relief. Accordingly, the applicant’s request for relief was denied.