The Texas Court of Criminal Appeals noted that separate offenses were not included offenses. Further, the appellant’s two proposed lesser-included offenses were separate from the charged offense; he could have been prosecuted for all three.
Hernandez v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 29, 2021
PD-0790-20
Mary Lou Keel
Published
At his trial for aggravated sexual assault of a child, the appellant unsuccessfully sought jury instructions on lesser offenses of indecency with a child. The appellate court reversed the trial court’s ruling and ordered a new trial. The Texas Court of Criminal Appeals noted that separate offenses were not included offenses. Further, the appellant’s two proposed lesser-included offenses were separate from the charged offense; he could have been prosecuted for all three. Consequently, he was not entitled to the lesser-included offense instructions he requested, and the trial court did not err to deny the request. Accordingly, the court reversed the judgment of the appellate court and affirmed the judgment of the trial court.  


The Texas Court of Criminal Appeals found that some statutory county courts have jurisdiction over official-misconduct misdemeanors (concurrent with the trial court) and that the statutory county court was one of those courts.
Roland v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 29, 2021
PD-0035-21
Sharon Keller
Published
The appellant pled no contest to official oppression, a Class A misdemeanor. The appellate court held that the county court at law had no jurisdiction over the case because trial courts and criminal district courts have exclusive jurisdiction over misdemeanors involving official misconduct. The Texas Court of Criminal Appeals found that some statutory county courts have jurisdiction over official-misconduct misdemeanors (concurrent with the trial court) and that the statutory county court was one of those courts. The appellate court erred in concluding otherwise. Accordingly, the court reversed the judgment of the appellate court and affirmed the judgment of the trial court.  


The appellate court concluded that the trial court did not abuse its discretion by denying the appellant's motion to suppress. Further, the court held that the appellant was not entitled to a Castle Doctrine instruction.
Crawford v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
September 29, 2021
04-20-00220-CR
Patricia O. Alvarez
Published
In the appeal from an enhanced felony conviction of Injury to the Elderly causing serious bodily injury and an affirmative finding of a deadly weapon, the appellant argued that the trial court erred in denying his motion to suppress incriminating statements and committed reversible error by refusing to allow a Castle Doctrine instruction. The appellate court concluded that the trial court did not abuse its discretion by denying the appellant's motion to suppress. Further, the court held that the appellant was not entitled to a Castle Doctrine instruction. Accordingly, the court overruled the appellant's issues on appeal and affirmed the judgment of the trial court.  


The appellant did not show he would likely not have been convicted absent the State’s conduct.
Vitela v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
September 29, 2021
04-19-00737-CR
Patricia O. Alvarez
Published
In the appeal from a consolidated guilty verdict for one count of criminally negligent homicide and one count of aggravated assault, the appellant argued that the trial court abused its discretion 1) by denying his motion to suppress evidence of his car’s “black box” event data recorder, 2) by allowing the State’s expert witnesses to testify and admitting black box evidence after a Daubert hearing, and 3) committed reversible error by denying a request for a mistrial due to improper closing statements by the prosecutor. He also argued that the evidence against him was legally insufficient to support a conviction for criminally negligent homicide. The appellate court noted that the trial court did not abuse its discretion by admitting the appellant's black box as evidence after determining that the appellant abandoned his car and lacked standing to challenge the evidence seized from it. Further, the trial court did not abuse its discretion by allowing the State’s crash investigators to testify regarding their investigation and on their reading of the crash data from the black box. The appellant did not show he would likely not have been convicted absent the State’s conduct. Accordingly, the court affirmed the judgment of the trial court.  


The appellate court declined to consider the appellant’s second issue regarding whether the trial court should have struck the warden's affidavit under the sham-affidavit rule because neither party relied on it.
Flores v. Tex. Dep't of Criminal Justice
Appellate: Civil, Civil Rights, Employment, Litigation: Personal Injury
Texas 8th Court of Appeals
September 28, 2021
08-20-00050-CV
Yvonne T. Rodriguez
Published
The appellant, a former employee of the appellee department, filed discrimination and retaliation claims under the Texas Commission on Human Rights Act (TCHRA), after she was terminated in 2013 on the day she returned from authorized leave under the Family Medical Leave Act. The appellant’s lawsuit alleged the appellee committed unlawful employment practices against her because of a disability in violation of the Texas Labor Code. The appellate court noted that the appellant failed to meet her initial prima facie burden to plead facts showing a claim for retaliation because none of the facts pleaded, nor evidence relied upon, satisfy the Act’s requirement that the activity must alert the employer to the possibility of discrimination. Further, as an issue not previously considered on appeal in the case, the law of the case doctrine did not preclude the court's review of it in the appeal. The appellate court declined to consider the appellant’s second issue regarding whether the trial court should have struck the warden's affidavit under the sham-affidavit rule because neither party relied on it in analyzing whether the appellant’s request for accommodation was a protected activity. Accordingly, the judgment of the trial court dismissing the appellant’s claims was affirmed.  


The court’s evaluation of the Barker factors leads the court to conclude that the delay did not violate the appellee’s constitutional right to a speedy trial.
State v. Lopez
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 29, 2021
PD-1291-18
Bert Richardson
Published
The appellee spent 112 days in jail on a felony charge pursuant to Texas Penal Code Section 22.04(a) that was reduced after 85 days to a Class A misdemeanor pursuant to Texas Penal Code Sections 22.01(a)(3) and 22.01(c)(1). After the trial court granted the appellee’s motion for speedy trial and dismissed the case, the State appealed. The appellate court upheld the trial court’s dismissal. The Texas Court of Criminal Appeals observed that the State used its discretion to dismiss a felony charge and instead file a Class A misdemeanor charge against the appellee. A visiting trial judge ordered a competency evaluation that for reasons that were not clear on the record failed to take place between July 20 and August 8. When counsel for the appellee moved for speedy trial, the State announced ready in front of the second visiting judge. But the second visiting judge then stated the appellee was incompetent, and rather than staying the case, which was statutorily required, went on to dismiss it. The limited record before us shows that the appellee was incarcerated for 112 days, but is void of any support for the trial court’s implied finding that the delay here violated the appellee’s constitutional right to a speedy trial. The court’s evaluation of the Barker factors leads the court to conclude that the delay did not violate the appellee’s constitutional right to a speedy trial. Accordingly, the court reversed the decision of the appellate court and remanded to the trial court for further proceedings.  


Because the record showed that the test results were uncontroverted and indicates that the defense could not in fact controvert those results, any error in failing to submit the 0.15 allegation to the jury was harmless beyond a reasonable doubt.
Van Do v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 29, 2021
PD-0556-20
Sharon Keller
Published
The appellant was charged by information with driving while intoxicated (DWI). The jury returned a guilty verdict and was released from service. The appellate court reformed the conviction from Class A misdemeanor DWI to Class B misdemeanor DWI and remanded the case for a new punishment hearing. The Texas Court of Criminal Appeals held that when the State read the charging instrument, the appellant was on notice that the State had failed to read an allegation that the appellant believed to be an element of the offense. If the allegation was in fact an element, then the State’s reading of the charging instrument was defective, and the appellant could have objected at that time. Having failed to do so, he forfeited any error in connection with the State’s failure to read the allegation at the guilt stage of trial. Next, even applying the standard of harm that favors the appellant the most, that the error be shown to be harmless beyond a reasonable doubt the error was harmless. Furthermore, although due process protects the right not to be convicted on proof of less than the elements of the crime, that right was not at issue because the appellant was found to have committed all of the elements of Class A misdemeanor DWI, and he was not subject to the Class A misdemeanor punishment range until he was found to have committed the aggravating element needed to invoke that punishment range. Accordingly, the court reversed the judgment of the appellate court and remanded the case.  


The appellants did not demonstrate how the petition was legally groundless, filed for an improper purpose, filed in bad faith, or for purposes of harassment, and thus, the court could not conclude the trial court abused its discretion in denying the appellants’ motion for sanctions.
Wenger v. Flinn
Damages, Torts
Texas 4th Court of Appeals
September 29, 2021
04-20-00236-CV
Luz Elena D Chapa
Published
The appellants appealed the trial court’s judgment that dismissed the action seeking to remove them from public office, but failed to award them sanctions and damages. The appellate court observed that a dispute about the facts and the District Attorney’s ultimate decision not to pursue the charges did not mean the petition was groundless when it was filed. Moreover, the petition asserted multiple grounds for removal in addition to those based on the arrest warrants. The trial court therefore did not abuse its discretion in denying the motion for sanctions that asserted the petition was groundless and not warranted by existing law. Further, the appellants failed to overcome the presumption of good faith or carry their burden of showing how they were entitled to sanctions because of the appellees’ actions. The appellants did not demonstrate how the petition was legally groundless, filed for an improper purpose, filed in bad faith, or for purposes of harassment, and thus, the court could not conclude the trial court abused its discretion in denying the appellants’ motion for sanctions. Accordingly, the court affirmed the trial court’s judgment and dismissed the cross-appeal.    


Because resolution of the issue regarding the appellants’ legal authority to construct solid waste landfill facilities on the disputed tracts depends on disputed facts, the trial court erred in granting summary judgment on the issue.
Rancho Viejo Cattle Co., Ltd. v. ANB Cattle Co., Ltd.
Corporations, Real Property
Texas 4th Court of Appeals
September 29, 2021
04-20-00143-CV
Irene Rios
Published
The case stemmed from competing motions for summary judgment concerning the authority to build certain improvements on the surface estates of Surveys 112 and 2366 (the disputed tracts). The appellants challenged the trial court’s declaratory judgment in favor of the appellee company, regarding the parties’ respective rights to the disputed tracts. The trial court declared the appellants has no legal authority to use the disputed tracts as solid waste landfill facilities without the authorization and consent of the appellee. The appellate court affirmed the trial court’s judgment in part, upholding summary judgment in favor of the appellee on its declaratory judgment claim that the appellee was a cotenant in the surface estates of the disputed tracts, Surveys 112 and 2366. However, the trial court’s judgment declared as fiduciaries of the appellee, the appellants have no legal authority to impair, inhibit, or destroy the appellee’s ability to obtain its share of the contemplated benefits from the surface use of Surveys 112 and 2366, in the development of the mineral estates. Finally, the trial court’s judgment declared the appellants have no legal authority to use Surveys 112 and 2366, as sites for solid waste landfill facilities without the appellee’s authorization and consent. Because resolution of the issue regarding the appellants’ legal authority to construct solid waste landfill facilities on the disputed tracts depends on disputed facts, the trial court erred in granting summary judgment on the issue. Accordingly, the judgment was affirmed in part; reversed and rendered in part, reversed and remanded in part.  


Because the court held that the appellee did not prove the element, as a consequence, she failed to carry her summary judgment burden.
McEndree v. Volke
Torts
Texas 11th Court of Appeals
September 23, 2021
11-19-00351-CV
W. Stacy Trotter
Published
The appeal arose from a dispute between the appellant, and the appellee, regarding the management of the Trust, of which the appellant was the trustee and the appellee was the beneficiary. The appellee sued the appellant for breach of fiduciary duty on various grounds. The appellee moved for summary judgment, relying in part on deemed admissions that resulted from the appellant’s failure to respond to the appellee’s requests for admissions. The trial court granted the appellee’s motion. The appellate court held that the appellee failed to establish that the appellant acted in flagrant bad faith or callous disregard for the applicable rules when he failed to respond to the appellee’s merits-preclusive requests for admissions. In the context, flagrant bad faith or callous disregard was a necessary element of the appellee’s summary judgment burden. Because the court held that the appellee did not prove the element, as a consequence, she failed to carry her summary judgment burden. Accordingly, the court reversed the judgment of the trial court and remanded the cause.  


The appellate court concluded that a licensed engineer’s affidavit complied with section 150.002(a)(2).
Certain Underwriters at Lloyd’s of London Subscribing to Policy No. NAJL05000016-H87, v. Mayse & Associates, Inc.
Appellate: Civil, Procedure, Torts
Texas 13th Court of Appeals
September 23, 2021
13-20-00377-CV
Nora L. Longoria
Published
The appeal was a consolidated interlocutory appeal from the trial court’s granting of an engineer’s and architect’s motions to dismiss with prejudice under Chapter 150 of the Texas Civil Practice and Remedies Code. On appeal, the appellant argued that the trial court erred in granting the appellee company’s motion to dismiss because the appellee company, through its litigation conduct, waived its right to seek dismissal under section 150.002 of the Civil Practice and Remedies Code; and (2–3) the appellant’s engineer’s expert affidavit (referred to as a certificate of merit) satisfied section 150.002(a)(2), (a)(3). The appellate court determined that a licensed engineer’s affidavit satisfied section 150.002(a)(3), and a licensed architect’s affidavit did not satisfy section 150.002(a)(3). Finally, while the appellee company directed the court to paragraph six of the City of Rockport Building Inspection Department Plan Submittal Procedures, which in pertinent part required all plans submitted for approval shall have a structural engineer seal for wind load requirements, or shall include a letter from the engineer, to support its argument that a licensed engineer did not qualify, the record revealed that the City acknowledged that the State Board regulated the practice of engineering. The appellate court concluded that a licensed engineer’s affidavit complied with section 150.002(a)(2). Accordingly, the judgment was affirmed, reversed and remanded.  


The appellate court conditionally granted the relator's requested relief and directed the trial court to vacate that portion of its temporary order.
In re Walser
Gov't/Administrative, Juvenile
Texas 4th Court of Appeals
September 22, 2021
04-21-00291-CV
Lori I. Valenzuela
Published
In the original proceeding, the relator asserted the trial court abused its discretion by (1) allowing a hearing to go forward in violation of Family Code Section 156.006(b) and (2) imposing a geographic restriction on relator’s right to designate the children’s primary residence. The appellate court held that the trial court abused its discretion by holding a hearing on the real party in interest's petition after determining his affidavit did not satisfy the requirements of Section 156.006(b–1). Further, the court abused its discretion in rendering a temporary order that had “the effect of creating a geographic area . . . within which a conservator must maintain the children’s primary residence . . ..” The appellate court conditionally granted the relator's requested relief and directed the trial court to vacate that portion of its temporary order. Accordingly, the court conditionally granted the petition for writ of mandamus.  


The criminal appellate court agreed with the appellate court that the appellant was entitled to an acquittal.
Biggers v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 22, 2021
PD-0309-20
Jesse McClure
Published
The State charged the appellant with possession of a Penalty Group 4 controlled substance (codeine) in an amount over 400 grams. The appellant was also charged with tampering with physical evidence, but that conviction was not at issue in the proceeding. During the State’s case-in-chief, the State proffered testimony from a chemist regarding the contents of the two items seized from the cupholders in the appellant’s vehicle: a Sprite bottle and a Styrofoam cup. The chemist testified that both items “had a similar odor to cough syrup or something of the like” and that both contained “an unspecified amount of codeine and promethazine.” On appeal, the appellant argued that, at best, the State only established the mere presence of promethazine, and that by failing to prove the level of concentration of codeine in the substances possessed by the appellant, as required by the statute, the State failed to establish an essential element of the offense. The criminal appellate court found that because the evidence was insufficient to prove that the appellant possessed Penalty Group 4 codeine but was not negated beyond a reasonable doubt as required for Penalty Group 1 codeine, the court held that he did not possess Penalty Group 1 codeine. The criminal appellate court agreed with the appellate court that the appellant was entitled to an acquittal. Accordingly, the court affirmed the decision of the appellate court.  


The trial court abused its discretion in forcing the appellant to submit to a bench trial.
Sanchez v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 22, 2021
PD-0593-20
Kevin P. Yeary
Published
The appellant was convicted of the offense of continuous sexual assault of a child, and the trial court thereafter assessed his punishment at life in the penitentiary and a $5,000 fine. The criminal appellate court noted that the appellant ultimately did not accept the State’s plea offer in the first place. But a defendant who executed a jury waiver in anticipation of a negotiated guilty plea, and then balked at executing the plea and immediately sought the reinstatement of his right to a jury trial, should be no less entitled to have his wish respected than the defendant who went through with the guilty plea and only later sought to withdraw from both the plea itself and the attendant jury-trial waiver. The criminal appellate court found that the appellant should be no more bound by his earlier jury-trial waiver than the defendant who accepted but then reneged upon a bargained-for guilty plea, at least not when he immediately made it clear that he no longer wished to be bound by the jury-waiver. The trial court abused its discretion in forcing the appellant to submit to a bench trial. Accordingly, the court reversed the court of appeals’ judgment and remanded.  


Based on the issues highlighted by the appeal, it may be prudent for appellate courts to review their current practice of modifying incorrect judgments in criminal cases.
Shumate v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
September 20, 2021
05-20-00197-CR
Leslie Lester Osborne
Published
The appellant appealed the trial court’s “judgment adjudicating him guilty” of “aggravated sexual assault of a child.” After a hearing on the State’s motion to revoke his community supervision, the trial court found that the appellant violated the conditions of his community supervision and sentenced him to five years of imprisonment. The appellate court held that the issues one through six were decided in the appellant’s favor, and the cross issue was decided in the State’s favor. Further, in light of the procedural history of the case, the court believed the better course was to remand the case to the trial court with instructions to correct the judgment instead of the court's modifying the judgment. Furthermore, based on the issues highlighted by the appeal, it may be prudent for appellate courts to review their current practice of modifying incorrect judgments in criminal cases. Accordingly, the trial court’s judgment was reversed and remanded with instructions for the trial court to enter a corrected judgment consistent with the opinion.  


The appellant lessors were free to grant a subsequent lease of Section 2 to another lessee, and they were justified in demanding that the appellee provide and record a release of Section 2, pursuant to their obligation to do so under Paragraph 13(e) of the lease.
Tier 1 Res. Partners v. Del. Basin Res. LLC
Contracts, Real Property
Texas 8th Court of Appeals
September 20, 2021
08-20-00060-CV
Gina M. Palafox
Published
The oil-and-gas dispute questioned whether a group of identical leases automatically terminated as to one section of land at the end of the leases’ primary term. The appellants include twelve appellant-lessors of mineral interests covering two sections of land, and the appellant company, an unrelated third-party Lessee who entered a group of subsequent leases upon termination of the section at issue (collectively, the appellants). The appellee company (the appellee) was the original Lessee of the group of leases at issue, and all parties moved for summary judgment, and the trial court granted the appellee’s motion. The appellants challenged the trial court’s interpretation of the relevant lease provisions. The appellate court observed that the clear and unambiguous language of Paragraph 11 could be harmonized with the description of two separate, non-contiguous tracts of land in Paragraph 1. Further, the appellee’s lease of Section 2 automatically terminated. The appellant lessors were free to grant a subsequent lease of Section 2 to another lessee, and they were justified in demanding that the appellee provide and record a release of Section 2, pursuant to their obligation to do so under Paragraph 13(e) of the lease. Accordingly, the judgment was reversed and remanded.  


The appellate court concluded that because the appellant did not file its subrogation lien claim within four years after the date the debt was accelerated, it was time-barred.
PNC Mortgage v. Howard
Appellate: Civil, Banking and Finance, Contracts, Creditor/Debtor, Procedure, Real Property
Texas 5th Court of Appeals
September 17, 2021
05-17-01484-CV
Amanda L. Reichek
Published
The appellees purchased a home in 2003 with two purchase-money mortgages. Two years later, the appellees refinanced those mortgages and executed a new note and deed of trust on the property. The appellant bank did not initiate foreclosure proceedings against the appellees until more than five years after the note was accelerated. In response to the appellant’s claim for foreclosure, the appellees asserted various affirmative defenses, including the statute of limitations. Under section 16.035 of the Texas Civil Practice and Remedies Code, a suit for foreclosure of a real property lien must be brought within four years after the cause of action accrues. The appellate court noted that although Kone v. Harper and Hays v. Spangenberg contain language that the right to enforce a subrogation lien should extend for as long as the right to collect on the refinancing note, both cases were decided decades before the legislature enacted section 16.035 of the civil practice and remedies code which created a four-year limitations period for lien claims separate from the four-year limitations period for suits on a debt. The appellate court determined that the appellant could not, in the name of equity, had more rights than the party to which it was subrogated, and those rights were subject to the same defenses the borrower would have had against the original lender. The appellate court concluded that because the appellant did not file its subrogation lien claim within four years after the date the debt was accelerated, it was time-barred. Accordingly, the judgment was affirmed.


The court concluded that the evidence was legally and factually sufficient to establish a firm conviction in the mind of the trial court that termination of the appellant's parental rights was in the best interest of the children.
In re E.C.R.
Gov't/Administrative, Juvenile
Texas 7th Court of Appeals
September 17, 2021
07-21-00099-CV
Judy C. Parker
Published
The appellant mother appealed two final orders terminating her parental rights to three children. The appellate court found that the trial court properly extended its jurisdiction when it orally rendered its pronouncement before the dismissal deadline of June 15. Further, the court held that the trial court had jurisdiction when the case was tried on April 14, 2021, as the trial court entered a subsequent order extending the dismissal date to May 10, 2021, pursuant to the Twenty-Ninth Emergency Order. Lastly, the court concluded that the evidence was legally and factually sufficient to establish a firm conviction in the mind of the trial court that termination of the appellant's parental rights was in the best interest of the children. Accordingly, the judgment of the trial court terminating the appellant's parental rights was affirmed.  


The Supreme Court concluded that the decretal language was not lacking, and the order was final.
In re Jones
Family, Real Property, Torts
The Supreme Court of Texas
September 17, 2021
20-0439
Per Curiam
Published
The Incapacitated Person, an elderly woman suffering from dementia, was the subject of a guardianship contest among her daughters, and the probate court found that an Incapacitated Person was totally incapacitated and appointed the respondent as her permanent guardian. On appeal, the petitioners petitioned for equitable and statutory bills of review to void several prior probate court orders based on extrinsic fraud, due-process violations, noncompliance with the rules of evidence, and violations of various Texas Estates Code provisions. The Supreme Court found that the order disposed of all claims and parties, stated it was a final order, and declared that the legal effect of granting the motions to dismiss was the dismissal of the Bill of Review filed in the case. The Supreme Court concluded that the decretal language was not lacking, and the order was final. Accordingly, the court reversed the appellate court’s judgment dismissing the appeal for want of jurisdiction.  


The criminal appellate court concluded that each incident of driving described the unit of prosecution for the offense at issue, not the presence of each child.
Ex parte Cook
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 15, 2021
WR-91, 503-01
Sharon Keller
Published
The applicant pled guilty to two counts of driving while intoxicated with a child passenger under 15 years of age, under Texas Penal Code Section 49.045. Both counts arose from the same driving incident, with each count alleging a different child. After pleading true to enhancements, the applicant was sentenced to ten years on each count, to run concurrently. The applicant filed a pro se application for a writ of habeas corpus, alleging that conviction on both counts violated double jeopardy. The habeas court agreed with the applicant and recommended that the criminal appellate court vacate the second count. The criminal appellate court found that the circumstance element in the case—presence of a child under age 15—did not describe the focus of the offense. Rather, the focus, for unit of prosecution purposes, was the act of driving while intoxicated. The criminal appellate court concluded that each incident of driving described the unit of prosecution for the offense at issue, not the presence of each child. Accordingly, the court vacated the judgment of conviction for count two.  


The criminal appellate court reversed the judgment of the appellate court and remanded the case to the appellate court for a harm analysis under Almanza v. State.
Rodriguez v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 15, 2021
PD-1130-19
Mary Lou Keel
Published
The appellant was charged with murder, and at trial he requested jury instructions on the defenses of necessity, self-defense, and defense of a third person. The trial court denied his request, and he was convicted of murder. The appellate court affirmed on grounds that the appellant failed to satisfy the confession-and-avoidance doctrine. The criminal appellate court found that the appellant satisfied confession and avoidance notwithstanding his assertion that he unintentionally fired the gun because his testimony impliedly supported the charged conduct. The criminal appellate court reversed the judgment of the appellate court and remanded the case to the appellate court for a harm analysis under Almanza v. State. Accordingly, the judgment was reversed and remanded.  


The criminal appellate court concluded that the appellate court erred in failing to follow LaPointe and in analyzing harm without first remanding the case to the trial court to correct its error and develop the record necessary to determine harm.
Villafranco v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 15, 2021
PD-0488-20
Mary Lou Keel
Published
The jury found the appellant guilty of aggravated sexual assault, attempted indecency with a child, and indecency with a child by exposure. The trial court assessed concurrent sentences of twenty-five years for aggravated sexual assault and ten years for each indecency offense. The appellate court affirmed the trial court, concluding that the appellant did not show harm. The criminal appellate court noted that a Rule of Evidence 412 adversarial hearing was a critical stage of trial, and the appellant’s right to counsel was not forfeited by inaction alone. Further, because the trial court’s error was limited to the Rule 412 hearing, and that error could be corrected by the trial court, abatement was the proper remedy. The appellate court should have followed LaPointe v. State and remanded the case to the trial court for a retrospective hearing on the Rule 412 issue. The criminal appellate court concluded that the appellate court erred in failing to follow LaPointe and in analyzing harm without first remanding the case to the trial court to correct its error and develop the record necessary to determine harm. Accordingly, the appellant’s appeal was abated and the case was remanded to the trial court for a retrospective hearing on the Rule 412 issue.


The criminal appellate court concluded that it had a fair assurance that the details of the offense in the police report did not influence the jury or had but slight effect.
Macedo v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 15, 2021
PD-1053-20
Sharon Keller
Published
At the punishment stage of the appellant’s trial, a police report regarding an extraneous offense was admitted into evidence over a hearsay objection. Although the judgment convicting the appellant of that extraneous offense was also admitted into evidence, the police report was the only item of evidence that included details of the offense. The criminal appellate court found that it was true that the prosecutor emphasized the evidence of biting and suggested that it showed that the appellant was particularly angry and vicious. But the prosecutor also emphasized the continuous use and ever present threat of the horse whip. The criminal appellate court determined that without the details, the jury would have been left to imagine what happened during that offense, and given the horse-whip testimony and the prior threat with the gun, the jury could have imagined the extraneous offense to be even worse than it was. The criminal appellate court concluded that it had a fair assurance that the details of the offense in the police report did not influence the jury or had but slight effect. Accordingly, the court reversed the judgment of the appellate court and affirmed the judgment of the trial court.  


Because the appellees failed to provide clear and specific evidence of a prima facie case for each cause of action alleged, the trial court erred in denying the appellant’s motion to dismiss in its entirety by operation of law.
Yu v. Koo
Appellate: Civil, Criminal, Damages, Evidence, Gov't/Administrative, Procedure, Torts
Texas 8th Court of Appeals
September 14, 2021
08-20-00098-CV
Yvonne T. Rodriguez
Published
The appellant appealed the trial court’s denial by operation of law of her motion to dismiss under the Texas Citizen’s Participation Act (“TCPA”). The appellant claimed that the initial lawsuit brought by the appellees was based on or in response to her right to the exercise of free speech, because their claims for defamation and intentional infliction of emotional distress (“IIED”) were made following her report to the police of being sexually assaulted by the appellee husband. Later-filed claims for conversion and unjust enrichment, according to the appellant, were filed in response to her right to petition when she filed a motion to dismiss, and thus also should be dismissed under the TCPA. The appellate court noted that the appellant satisfied her burden of showing by a preponderance of the evidence the TCPA applies to the appellees’ conversion and unjust enrichment claims as being filed in response to her right to petition. Further, the court did not find that statements the appellant purportedly made regarding her opinions on the appellee wife's intelligence involve matters of public concern, and thus the court were unpersuaded that they involve the appellant’s right of free speech. The appellate court concluded that because the appellees’ claims implicated the TCPA as being based on or in response to the appellant’s right of free speech and/or her right to petition, and because the appellees failed to provide clear and specific evidence of a prima facie case for each cause of action alleged, the trial court erred in denying the appellant’s motion to dismiss in its entirety by operation of law. Accordingly, the court reversed and rendered in part and remanded the remaining claims to the trial court for further proceedings consistent with the opinion.  


The criminal appellate court concluded that the State failed to meet its burden of proof on the waiver, and thus, the trial court did not abuse its discretion in so finding.
State v. Lujan
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 15, 2021
PD-0244-19
Mary Lou Keel
Published
The trial court suppressed two of the appellee’s three recorded, custodial statements, and the State appealed those rulings. The appellate court upheld the suppression of one of the statements. The criminal appellate court noted that Bible v. State claimed on appeal that the trial court erred to admit those four confessions because the warnings that preceded them were not worded exactly as prescribed by Tex. Code Crim. P. art. 38.22, and the warnings given in one of them, State’s Exhibit 4, omitted several of the required warnings. The criminal appellate court found that it would not matter how recent the warnings were, or whether the interrogators or the topics were the same if, as found by the trial court, the appellee was misled to believe that her in-car statement would not be used against her. The criminal appellate court concluded that the State failed to meet its burden of proof on the waiver, and thus, the trial court did not abuse its discretion in so finding. Accordingly, the judgment was affirmed and remanded.


The criminal appellate court concluded that the deadly conduct was a valid as a rational alternative to the charged aggravated assault, and thus, the appellate court erred by holding to the contrary.
Simms v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 15, 2021
PD-1248-19
Michelle Slaughter
Published
The appellant was convicted of aggravated assault for causing a fatal head-on car accident. The appellant was found guilty and, finding two enhancement paragraphs to be true, the jury sentenced him to 45 years’ imprisonment. The criminal appellate court noted that the appellant was not entitled to the instruction on deadly conduct, the appellate court reasoned that his reckless speeding alone, coupled with the undisputed proof of the complainant’s serious bodily injury, necessarily meant that the elements of aggravated assault were established. Further, given the existence of those fact questions which were properly left to the jury, the appellate court erred by presuming that the appellant’s speeding alone necessarily caused the complainant’s serious bodily injury, when the evidence raised the possibility of an intervening circumstance the appellant involuntarily falling asleep or dozing off. The criminal appellate court concluded that the deadly conduct was a valid as a rational alternative to the charged aggravated assault, and thus, the appellate court erred by holding to the contrary. Accordingly, the judgment was reversed and remanded.


The criminal appellate court concluded that the appellate court should have addressed cognizability as a threshold issue before reaching the merits of the claim.
Ex parte Couch
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
September 15, 2021
PD-0349-21
Per Curiam
Published
The appellant was charged in four separate cause numbers with money laundering under Penal Code Section 34.02(a)(4). The appellant filed a pretrial application for writ of habeas corpus sought dismissal of the indictments on the ground that section 34.02(a)(4) was facially unconstitutional because “by forbidding the mere intent to finance or invest funds intended to further the commission of criminal activity,” it created a “thought crime” under the First, Eighth, and Fourteenth Amendments. The criminal appellate court noted that even if the challenged portion of the statute were struck as facially unconstitutional, it may be that only those corresponding portions of her indictments would need to be struck, and the prosecution could at least theoretically proceed on the other allegations. The criminal appellate court concluded that the appellate court should have addressed cognizability as a threshold issue before reaching the merits of the claim. Accordingly, the judgment was vacated and remanded.


The appellate court concluded that the trial court did not err in instructing the jury on aggravated assault by recklessly causing serious bodily injury.
Martinez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 14, 2021
14-20-00136-CR
Frances Bourliot
Published
The appellant appealed his conviction for aggravated assault of a member of his household, causing serious bodily injury with a deadly weapon. The appellate court found that the jury’s guilty finding was supported by legally sufficient evidence, the appellant had not demonstrated on the record that he received ineffective assistance of counsel, the trial court did not abuse its discretion in admitting photographic evidence. The appellate court concluded that the trial court did not err in instructing the jury on aggravated assault by recklessly causing serious bodily injury. Accordingly, the court affirmed the judgment of the trial court.  


Based on the appellant’s statements to the police coupled with the resulting investigation and disruption to son’s daily routine due to the supervised visits and separation from the appellee, the appellee met his TCPA burden.
Bibby v. Bibby
Constitution, Family, Real Property
Texas 1st Court of Appeals
September 14, 2021
01-21-00007-CV
Sarah Beth Landau
Published
The case involved two parents who were co-guardians of their incapacitated adult son. The appellee applied to remove the appellant as co-guardian of their son. The appellant moved for dismissal under the 2019 version of the Texas Citizens Participation Act (TCPA), and the trial court denied the appellant’s TCPA motion to dismiss. On appeal, the appellant challenged the trial court’s order denying her TCPA motion. The appellate court held that the appellee’s removal application seeks legal relief in the form of a statutory remedy under section 1230.052 of the Estates Code. Further, the appellee filed the removal application based on or in response to the appellant’s filing of the police report with the League City Police Department. If the probate court’s denial of the appellant’s motion to dismiss was based on a conclusion that the TCPA did not apply, the trial court erred. The appellate court concluded that based on the appellant’s statements to the police coupled with the resulting investigation and disruption to son’s daily routine due to the supervised visits and separation from the appellee, the appellee met his TCPA burden. Accordingly, the court denied the appellee’s motion to dismiss the appeal and the court affirmed the trial court’s order.  


The trial court did not err, finding that the Rule 404(b) instruction submitted in the jury charge was unnecessary, but nevertheless harmless because any limitation to the consideration of the evidence was error against the State and the appellant was therefore in no position to complain.
Popp v. State
Constitution, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
September 09, 2021
08-19-00298-CR
Yvonne T. Rodriguez
Published
The appellant appealed his conviction for capital murder, for which he received an automatic life sentence with the possibility of parole. The appellate court noted that based on the court's review of the record, the court held that even if the appellant could somehow show the indictment was defective for failure to allege the specific theories of culpability on which the jury was charged, his substantial rights were not prejudiced. The appellate court found that the trial court did not err, finding that the Rule 404(b) instruction submitted in the jury charge was unnecessary, but nevertheless harmless because any limitation to the consideration of the evidence was error against the State and the appellant was therefore in no position to complain. The appellate court determined that even if the appellant could somehow show the trial court erred, the court found the exclusion of the evidence did not violate his substantive rights nor did the evidence form such a vital portion of the case that its exclusion effectively precluded the appellant from presenting his defense. Accordingly, the court affirmed the trial court’s judgment.  


The totality of the facts and circumstances in the case demonstrate intentional conduct on the appellee’s part that was so inconsistent with claiming the right to dismissal under Section 150.002 as to establish its intent to waive the right to dismissal.
Gonzalez v. Momentum Design & Constr., Inc.
Appellate: Civil, Litigation: Personal Injury, Torts
Texas 8th Court of Appeals
September 09, 2021
08-19-00004-CV
Gina M. Palafox
Published
The case arose from claims for personal injuries to the appellant, which he alleged were caused by the appellee company (the appellee). The appellant’s claims were based on the alleged negligent design, construction, and installation of a fiberglass cover at his place of work. The appellee sought and obtained dismissal of the appellant’s claims on the grounds that the appellant failed to attach a certificate of merit to his petition, pursuant to Section 150.002 of the Texas Civil Practice and Remedies Code (Section 150.002). The appellate court noted that as the plaintiff in an action for damages against a covered professional arising out of the provision of professional services, the appellant was required to file a certificate of merit. The trial court did not err in concluding that Section 150.002 applied, and the trial court ruled that the appellee did not waive its right to seek dismissal. The appellate court concluded that the totality of the facts and circumstances in the case demonstrate intentional conduct on the appellee’s part that was so inconsistent with claiming the right to dismissal under Section 150.002 as to establish its intent to waive the right to dismissal. Accordingly, the court reversed the trial court’s order of dismissal and remanded the case.  


The appellate court noted that because the parties cross moved for summary judgment, the court must determine whether the summary judgment evidence established that substantial evidence supported the appellee commission's decision.
Green v. Tex. Workforce Comm'n
Appellate: Civil, Employment, Gov't/Administrative
Texas 1st Court of Appeals
September 09, 2021
01-20-00727-CV
Sarah Beth Landau
Published
The appellant appealed the trial court’s ruling granting summary judgment to her employer, the appellees, the company and the commission after the appellee commission denied her claim for unemployment benefits. The appellate court noted that because the parties cross moved for summary judgment, the court must determine whether the summary judgment evidence established that substantial evidence supported the appellee commission's decision. Further, the court held that the trial court did not err in determining that the appellee commission's decision was not unreasonable, arbitrary, or capricious. The appellate court determined that the appellant knew the individual would be traveling internationally, and the trial court could have reasonably concluded that the appellant abandoned her appellee company's job without good cause connected with her work because she missed three scheduled shifts, speculated that the appellee company had fired her, and filed a claim for unemployment benefits before speaking with her employer after she had returned from vacation. Accordingly, the court affirmed the trial court’s judgment.            


The appellate court found no abuse of discretion in the trial court’s decision to declare the appellant a vexatious litigant.
In re Estate of Pandozy
Appellate: Civil, Damages, Real Property, Wills/Trusts/Probate
Texas 6th Court of Appeals
September 03, 2021
06-20-00104-CV
Scott E. Stevens
Published
The appellant appealed the trial court’s order finding that she was a vexatious litigant. The appellate court noted that the court found no abuse of discretion in the trial court’s conclusion that there was no reasonable probability that the appellant would prevail in the litigation. Further, because the evidence showed that the appellant commenced or maintained five litigations that were finally determined adversely to her in the seven years before the filing of the vexatious litigant motion, the trial court did not abuse its discretion in finding that the first child met the second requirement. The appellate court found no abuse of discretion in the trial court’s decision to declare the appellant a vexatious litigant. Accordingly, the court affirmed the trial court’s vexatious litigant order.  


The appellate court concluded that the trial court did not lose jurisdiction and the Decree of Termination was not void.
In re P.Z.F.
Family, Juvenile
Texas 5th Court of Appeals
September 02, 2021
05-21-00161-CV
Erin A. Nowell
Published
The appellant appealed from the trial court’s Decree of Termination that terminated, his parental rights to, a child. The appellate court observed that the only reasonable interpretation of the docket entry was that the trial court extended the dismissal date in accordance with section 263.401(b) of the family code, applying the supreme court’s analysis in G.X.H. The appellate court determined that the trial court reset the dismissal date, which was fewer than 180 days from the date of the other order. The appellate court concluded that the trial court did not lose jurisdiction and the Decree of Termination was not void. Accordingly, the court affirmed the trial court’s Decree of Termination.  


The appellate court found that the search warrant was for a separate offense supported by separate probable cause, and construing Article 18.01(d) in the manner advocated by the appellant would lead to absurdities the Legislature could not have intended.
Megwa v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
September 02, 2021
02-19-00386-CR
Bonnie Sudderth
Published
In the following case, the evidence that the appellant was running a “pill mill,” that was, a pharmacy that fills fraudulent prescriptions, led a jury to convict her of one count of delivery of a controlled substance (hydrocodone, 28 grams or more but less than 200 grams), a second-degree felony, and one count of diversion of a controlled substance (alprazolam), a third-degree felony. The jury assessed the appellant's punishment at 15 years’ and 10 years’ confinement, respectively, and a $10,000 fine for each offense, and the trial court entered judgment and set her sentences to run concurrently. The appellate court noted that the record reflected that the individual was not a confidential informant; instead, she was an identified controlled-buy witness, and her credibility was not an issue in determining probable cause to support the warrant’s issuance when the affidavit contained independent facts that corroborated her information. The appellate court found that the search warrant was for a separate offense supported by separate probable cause, and construing Article 18.01(d) in the manner advocated by the appellant would lead to absurdities the Legislature could not have intended. Accordingly, the court overruled the appellant's sole issue and affirmed the trial court’s judgment.  


The appellate court concluded that the appellant has not met its initial burden of showing by a preponderance of the evidence that the appellees' lawsuit was based on or in response to the appellant's exercise of its right to speak freely or petition.
Union Pac. R.R. Co. v. Chenier
Appellate: Civil, Damages, Gov't/Administrative, Litigation: Personal Injury, Real Property, Torts
Texas 1st Court of Appeals
September 02, 2021
01-21-00073-CV
Sarah Beth Landau
Published
The appellant sought dismissal of certain claims under the current version of the Texas Citizens Participation Act (TCPA), and the trial court denied the appellant's TCPA motion to dismiss, concluding that the dispute failed to invoke TCPA protections. In the interlocutory appeal, the appellant challenged the trial court’s denial of its TCPA motion. The appellate court noted that the appellant's reference to alleged communications about false representations to the appellees failed to “draw an adequate connection to invoke the TCPA under the amended language.” Those alleged communications merely “relate to” the appellees claims. The court must presume that the Legislature intended its removal of the phrase “relates to” to limit the TCPA’s reach, and the appellant has failed to establish its applicability there. The appellate court concluded that the appellant has not met its initial burden of showing by a preponderance of the evidence that the appellees' lawsuit was based on or in response to the appellant's exercise of its right to speak freely or petition. Accordingly, because the court concluded that the appellees sued the appellant based on or in response to its failure to act, not its communications, thus, the court affirmed the judgment.  


The appellate court sustained the State’s issue on appeal to the extent that it complained of the trial court’s determination that the continued detention of the appellee until the canine unit arrived at the scene was “per se” unreasonable.
State v. Martinez
Constitution, Criminal, Evidence, Procedure
Texas 11th Court of Appeals
September 02, 2021
11-20-00144-CR
W. Stacy Trotter
Published
The appellee was arrested, and later indicted by a grand jury, for possession of a controlled substance, namely Tetrahydrocannabinol (THC), other than marihuana, in an amount of less than one gram. The appellee filed a motion to suppress and contended that the actions taken by law enforcement personnel in seizing THC from the vehicle that he had operated on that date violated his Fourth Amendment rights, which the trial court granted the appellee’s motion. The appellate court noted that the officer developed reasonable suspicion that other criminal activity, independent of the purpose of the traffic stop, was afoot or had occurred; because of the officer’s reasonable suspicion, the continued detention of the appellee was justified; and the officer's actions or conduct did not unreasonably or unduly delay or prolong the extended duration of the traffic stop. The appellate court held that the trial court erred when it concluded that the continued detention of the appellee until the canine unit arrived at the scene was “per se” unreasonable. The appellate court sustained the State’s issue on appeal to the extent that it complained of the trial court’s determination that the continued detention of the appellee until the canine unit arrived at the scene was “per se” unreasonable. Accordingly, the court reversed the trial court’s order granting the appellee’s motion to suppress and remanded the cause to the trial court for further proceedings consistent with the opinion.  


The appellate court found that the trial court did not err in denying the appellant’s plea to the jurisdiction and motion for summary judgment on the appellee’s discrimination claims.
Metro. Transit Auth. of Harris Cnty. v. Douglas
Civil Rights, Gov't/Administrative
Texas 14th Court of Appeals
September 02, 2021
14-19-00714-CV
Frances Bourliot
Published
The appellant appealed the trial court’s denial of its motion for summary judgment and plea to the jurisdiction in the appellee’s gender discrimination and retaliation lawsuit. In her lawsuit, the appellee alleged that the appellant’s police department did not promote her to the rank of captain because of her gender and that the department retaliated against her for filing a complaint and the present lawsuit. On appeal, the appellant contested the trial court’s denial of the appellant’s subsequent plea to the jurisdiction and motion for summary judgment, which challenged the existence of jurisdictional facts. The appellate court noted that the burden shifted to the appellant to articulate a legitimate, nondiscriminatory reason for the employment decision. The burden shifted back to the appellee to present evidence either that the stated reason was a pretext for discrimination or that even if the reason was true, discrimination was also a motivating factor for the failure to promote her. The appellate court found that the trial court did not err in denying the appellant’s plea to the jurisdiction and motion for summary judgment on the appellee’s discrimination claims. Accordingly, the court affirmed the trial court’s denial of the appellant’s combined motion for summary judgment and plea to the jurisdiction.  


The appellate court found that the trial court erred in failing to submit jury instructions on kidnapping and felony murder.
Chavez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 02, 2021
14-19-00351-CR
Frances Bourliot
Published
A jury found the appellant guilty of capital murder as a party to the offense by intentionally causing complainants’ deaths while committing or attempting to commit kidnapping of complainants. The appellate court noted that there was some evidence from which the jury could find that the appellant committed only the lesser included offenses of kidnapping or felony murder. On the record, the jury could have believed the individual’s testimony that the group decided to kidnap the complainants but disbelieved his testimony that the appellant was involved in a plan to kill them. The appellate court found that the trial court erred in failing to submit jury instructions on kidnapping and felony murder, and because the potential penalty for kidnapping or felony murder was less than the automatic life sentence imposed for capital murder, the court concluded that the appellant suffered some harm from the error in the charge. Accordingly, the court reversed the judgment of the trial court and remanded for further proceedings.  


The appellate court concluded that because the judgment was not superseded, the trial court did not err when it released funds to the appellee's attorney to satisfy the attorney’s fees award.
Dolgener v. Dolgener
Family, Juvenile
Texas 14th Court of Appeals
August 31, 2021
14-19-00645-CV
Margaret Poissant
Published
The appellant appealed a protective order entered in favor of her husband. The appellate court noted that having reviewed the record as a whole, the court could not conclude that a finding of family violence against the appellee was so weak or so against the great weight and preponderance of the evidence that it was clearly wrong and unjust, and therefore, the evidence was factually sufficient to support a finding that the appellant committed family violence against the appellee. The appellate court found that the evidence was factually sufficient to support a finding that the appellant committed family violence against the son, and Section 85.021(3) of the Family Code allowed the trial court to make a provision for “possession of and access to a child of a party if the person receiving possession of or access to the child is a parent of the child.” The appellate court determined that given that evidence, the court could not say the trial court acted arbitrarily or unreasonably or without reference to guiding rules or principles in awarding exclusive possession of the children to the appellee and ordering the appellant's possession be supervised. The appellate court concluded that because the judgment was not superseded, the trial court did not err when it released funds to the appellee's attorney to satisfy the attorney’s fees award. Accordingly, the court affirmed the trial court’s judgment.  


The Supreme Court determined that the City Charter forbade the remainder of the respondent's revisions to the petitioned caption because those revisions were not necessary to bring the petitioned caption into compliance with the law.
In re Petricek
Constitution, Election, Gov't/Administrative
The Supreme Court of Texas
September 01, 2021
21-0693
Rebeca Huddle
Published
A group of voters in the city petitioned the city council for a proposed ordinance that, according to the petition, would establish minimum standards for the Austin Police Department “to enhance public safety and police oversight, transparency and accountability.” Rather than adopt the proposed ordinance, the council chose to place it before the voters for approval at the next general election. On appeal, the relator, an Austin voter and one of the signers of the petition, brought the mandamus proceeding challenging the council’s chosen ballot language. The Supreme Court found that the relator was entitled to relief, in part, and while the court agreed with the relator’s contention that the Austin City Charter required the respondents to place the petitioned caption on the ballot verbatim if it complied with the law, the court recognized that the respondents retained discretion to modify that caption if the respondents determined the caption did not. The Supreme Court concluded that the respondents correctly determined that the caption’s omission of the ordinance’s financial impact amounted to a violation of state law, requiring that the caption be modified. The Supreme Court determined that the City Charter forbade the remainder of the respondent's revisions to the petitioned caption because those revisions were not necessary to bring the petitioned caption into compliance with the law. Accordingly, the court conditionally granted mandamus relief and directed the council to revise the ballot language for “Proposition A." 


The appellate court concluded that the appellant did not explain how the absence of the requested findings prevented him from making either of those challenges on appeal.
Phillips v. Phillips
Family
Texas 14th Court of Appeals
August 31, 2021
14-19-00618-CV
Charles Spain
Published
The appellant challenged the protective order rendered by the trial court in favor of the appellee. The appellate court held that because the order was based on the allegations of abuse directed towards a spouse, the appellant was entitled to appellate review. The appellate court noted that the appellant’s argument that the appellee filed her application in the wrong court was otherwise not a matter of fundamental error, and the appellant never timely challenged venue or dominant jurisdiction in the trial court, nor did he seek to transfer the application to the 246th District Court. The appellate court concluded that the appellant did not explain how the absence of the requested findings prevented him from making either of those challenges on appeal. Accordingly, the court affirmed the trial court’s final protective order as challenged on appeal.  


The appellate court concluded that the contempt warning portion of the trial court’s order was void and stricken from the judgment.
Jones v. Coppinger
Business, Contracts, Real Property, Torts
Texas 8th Court of Appeals
August 31, 2021
08-20-00040-CV
Jeff Alley
Published
The appellant and her deceased ex-husband were ordered to sell their primary residence pursuant to a divorce decree. They agreed to retain the appellee, a licensed real estate agent, to serve as their listing agent. On appeal, the appellant challenged the trial court's grant of the appellee’s motion for summary judgment, dismissing all four causes of action, and further granted the appellee’s request for an award of attorney’s fees and costs pursuant to the parties’ contract. The appellate court noted that the appellant failed to come forward with sufficient summary judgment evidence to raise a question of fact on the damage element of any of her causes of action. The appellate court determined that since the appellant failed to come forward with sufficient summary judgment evidence to support any of her damages claim for the four causes of action, the trial court properly granted summary judgment on all four causes. The appellate court concluded that the contempt warning portion of the trial court’s order was void and stricken from the judgment. Accordingly, the court had stricken provisions from the attorney’s fee order, but affirmed the trial court’s judgment in all other respects.  


The appellate court concluded that the appellants have not shown that the trial court erred in rendering a take-nothing judgment as to their counterclaim.
Hegar v. Xerox Corp.
Gov't/Administrative, Tax, Transportation
Texas 14th Court of Appeals
August 31, 2021
14-19-00358-CV
Randy Wilson
Published
In the following franchise-tax dispute, the taxable entity paid franchise taxes under protest and brought suit, asserting that the franchise tax rate applicable to the entity during Report Years 2008 and 2009 was 0.5% rather than 1.0%. The appellants, the comptroller and the attorney general counterclaimed, asserting that the taxable entity’s cost-of-good-sold deduction should have been less than the amounts reported by the entity in each of those years. The trial court ruled in the taxable entity’s favor on its claims and ordered that the appellants take nothing on their counterclaims. The appellate court noted that the appellants have not shown that the trial court erred in concluding for each report year that the total revenue from the appellee's activities in wholesale trade was greater than the total revenue from the appellee's activities in trades other than the wholesale trades. The appellate court determined that the appellants have not shown that the trial court erred in determining that the applicable franchise tax rate for the appellee during the Time Period at Issue was 0.5% rather than 1.0%. The appellate court concluded that the appellants have not shown that the trial court erred in rendering a take-nothing judgment as to their counterclaim. Accordingly, the court affirmed the trial court’s judgment.  


The appellate court concluded that, as a matter of law, the appellee supplier was not entitled to judgment against the appellant based on the appellee supplier's fraud claim.
CCC Grp., Inc. v. Enduro Composites, Inc.
Appellate: Civil, Business, Contracts, Damages, Litigation: Personal Injury, Torts
Texas 14th Court of Appeals
August 31, 2021
14-19-00204-CV
Randy Wilson
Published
The appellant, a general contractor, appealed the trial court’s money judgment against the appellant and in favor of the appellee subcontractor and the appellee supplier based on a jury verdict in favor of the appellee subcontractor on its claim for breach of the subcontract and in favor of the appellee supplier on its claim for breach of a joint check agreement between the appellant and the appellees. The appellate court noted that the court sustained the part of the appellant's first issue in which the appellant asserted that the court should reverse the trial court’s judgment against the appellant on the appellee supplier's breach-of-contract claim based on the failure of the trial evidence to conclusively prove that the appellant waived the Complete Invoices Condition, and the legal insufficiency of the trial evidence to support a finding that the Complete Invoices Condition occurred. The appellate court concluded that, as a matter of law, the appellee supplier was not entitled to judgment against the appellant based on the appellee supplier's fraud claim. Accordingly, the judgment was affirmed in part and reversed and rendered in part.  


The appellate court concluded that the appellant failed to establish its defense that the appellees sued the wrong party when it impleaded the appellant into the lawsuit.
Scott v. Project Rose MSO, LLC
Appellate: Civil, Business, Contracts, Damages, Gov't/Administrative, Torts
Texas 12th Court of Appeals
August 30, 2021
12-20-00246-CV
James T. Worthen
Published
The hospital preemptively filed suit against the appellees, including claims for breach of the Consultant Agreement, a declaratory judgment that it had not breached the Consultant Agreement, and a request to wind up the first appellee company's business. The appellees filed a counterclaim against Texas Spine and Joint and added third-party claims against several third-party defendants, including the appellant. On appeal, the appellant challenged the trial court’s denial of its Texas Citizens Participation Act (TCPA) motion to dismiss the counterclaim against it filed by the appellees. The appellate court noted that the TCPA applies to the appellees counterclaim, and that the appellees failed to satisfy its burden to make a prima facie case as to its promissory estoppel/detrimental reliance and quantum meruit causes of action as part of its counterclaim against the appellant. Accordingly, the appellant was entitled to at least some amount and measure of attorney’s fees under the TCPA. The appellate court found that the appellees were largely successful in demonstrating that its causes of action were either exempt from the TCPA or satisfying its burden of making a prima facie case on most of its causes of action. The appellate court concluded that the appellant failed to establish its defense that the appellees sued the wrong party when it impleaded the appellant into the lawsuit. Accordingly, the judgment was affirmed in part and reversed and remanded in part.  


The appellate court agreed with the appellant that the trial court lacked authority to render judgment on his bill of review because the presiding judge did not hear the evidence on which she purported to render judgment.
Weiss v. Eichner
Appellate: Civil, Constitution, Gov't/Administrative
Texas 14th Court of Appeals
August 31, 2021
14-19-00849-CV
Charles Spain
Published
The appellant challenged the trial court’s reconsideration of an interlocutory order granting his bill of review and rendition of judgment dismissing his bill of review, arguing in two issues that the trial court lacked authority or power to take those actions. The appellate court noted that the trial court had the authority to reconsider its prior interlocutory order. The appellate court agreed with the appellant that the trial court lacked authority to render judgment on his bill of review because the presiding judge did not hear the evidence on which she purported to render judgment. Accordingly, the court reversed the judgment of the trial court and remanded the case to the trial court for further proceedings.  


Since the appellant’s plea to the jurisdiction was only a procedural hurdle, the court made no conclusion regarding whether the merits of the appellee’s claim would satisfy the requisite notice and reasonableness standards under Section 101.060(a)(2) of the TTCA.
Texas v. Shook
Gov't/Administrative, Litigation: Personal Injury, Torts
Texas 1st Court of Appeals
August 31, 2021
01-19-00656-CV
Amparo Guerra
Published
The appellant appealed the judgment of the trial court in a personal injury action, asking the appellate court to determine whether the conduct alleged fell within the waiver of governmental immunity in the Texas Tort Claims Act (TTCA). The appellee and his wife sued, alleging that its negligence and a premises defect caused the injuries the appellee sustained when he struck a tollway gate arm while riding his motorcycle on a Houston-area tollway. The trial court denied the appellant’s plea to the jurisdiction based on governmental immunity. The appellate court found that the appellee’s cause of action was properly classified as a premises defect claim, and not one based on the use or condition of tangible property. The appellate court determined that because the appellant’s plea to the jurisdiction was only a procedural hurdle, the court made no conclusion regarding whether the merits of the appellee’s claim would satisfy the requisite notice and reasonableness standards under Section 101.060(a)(2) of the TTCA. Accordingly, the judgment was affirmed, reversed and remanded.  


The trial court reasonably concluded that the appellants did not establish the existence of a valid arbitration agreement, accordingly, it did not abuse its discretion in refusing to compel arbitration.
CC Rest., L.P. v. Olague
ADR, Civil Rights, Contracts, Employment
Texas 8th Court of Appeals
August 27, 2021
08-19-00285-CV
Yvonne T. Rodriguez
Published
The appellants filed a Motion to Compel Arbitration, and the trial court denied the motion and the appeal ensued. The appellate court noted that in the Agreement, there was no mutual promise to arbitrate between the appellants and the appellee. Further, the appellants did not give the appellee anything of value, besides continuing at-will employment and payment, in exchange for her agreement to arbitrate future disputes. The appellate court found that the purported agreement to arbitrate failed for lack of consideration. The appellate court concluded that the trial court reasonably found that the appellants did not establish the existence of a valid arbitration agreement. Accordingly, it did not abuse its discretion in refusing to compel arbitration, and thus, the court affirmed the trial court’s ruling.      


The appellate court determined that a defendant was given credit on his sentence for the time that he has spent in jail for the case from the time of his arrest and confinement until his sentence by the trial court.
Sledge v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
August 26, 2021
05-19-01398-CR
David Schenck
Published
The appellant was tried before a jury and found guilty of possession with intent to deliver heroin, possession with intent to deliver cocaine, and unlawful possession of a firearm by a felon. The first two offenses were enhanced by his status as a habitual offender and the use of a firearm during a drug offense, while the third offense was enhanced only by his status as a habitual offender. He was sentenced to twenty-eight years’ confinement in each case, with the sentences to run concurrently. The appellate court observed that there was no conceivable trial strategy to justify failing to object to the State’s deadly weapon and habitual offender allegations at the appellant’s second trial. The appellate court concluded the appellant established the first Strickland prong of deficient performance by his trial counsel. The appellate court determined that a defendant was given credit on his sentence for the time that he has spent in jail for the case from the time of his arrest and confinement until his sentence by the trial court. The appellate court modified the judgment in the heroin case. Accordingly, as modified, the court affirmed the trial court’s judgments of conviction and reversed and remanded for a new punishment hearing in all three cases.  


The appellate court concluded that the trial court did not abuse its discretion in admitting evidence of an extraneous offense, and any error in admitting disciplinary records was harmless under the facts of the case.
Thomas v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 26, 2021
14-19-00685-CR
Frances Bourliot
Published
The appellant appealed his conviction for continuous violence against a family member. The appellate court noted that on its face, Article 38.371 did not violate the Due Process Clauses of the Fifth and Fourteenth Amendments. The appellate court concluded that the trial court did not abuse its discretion in admitting evidence of an extraneous offense, and any error in admitting disciplinary records was harmless under the facts of the case. Accordingly, the court affirmed the judgment of the trial court.  


The appellate court found that viewing the evidence in the light favorable to the verdict, the evidence was legally sufficient to support the jury’s finding that the appellant should have discovered the appellees alleged wrongful conduct.
Sullivan v. Pound
Appellate: Civil, Contracts, Damages, Torts
Texas 4th Court of Appeals
August 25, 2021
04-20-00230-CV
Irene Rios
Published
The appellant filed suit against the appellees for breach of contract, promissory estoppel, unjust enrichment, common law fraud, fraudulent inducement, breach of fiduciary duty, and negligent misrepresentation. The case was tried before a jury, and the jury found in favor of the appellant on her claims for promissory estoppel, breach of fiduciary duty, and negligent misrepresentation and awarded her damages. The appellant filed a motion to disregard the jury’s answers to question 18, arguing the date determined by the jury was not supported by the evidence. The trial court denied the appellant's motion to disregard the jury finding, determined the appellant's causes of action were barred by the applicable statutes of limitations, and rendered a take-nothing judgment on all her claims. The appellate court found that viewing the evidence in the light favorable to the verdict, the evidence was legally sufficient to support the jury’s finding that the appellant should have discovered the appellees alleged wrongful conduct. Accordingly, the judgment of the trial court was affirmed.


The appellate court determined that the trial court had personal jurisdiction over the appellant, and it properly overruled the appellant’s special appearance.
Cirrus Design Corp. v. Berra
Business, Torts
Texas 4th Court of Appeals
August 25, 2021
04-20-00399-CV
Irene Rios
Published
The appellant was a Minnesota-based aircraft manufacturer, which sued for products liability in Texas, after one of its planes was involved in a fatal crash in Bexar County, Texas. The appellant filed a special appearance, which the trial court denied. The appellate court observed that the appellant’s activities in Texas justify the conclusion that it could reasonably anticipate being called into a Texas court. The court concluded that the appellant purposefully availed itself of the privilege of conducting activities in Texas. Further, both of the appellee’s theories of liability that the appellant originally designed and manufactured a defective plane and that the appellant distributed defective parts for installation and use in the appellee’s plane arose out of or relate to the appellant’s Texas activities. The appellate court determined that the trial court had personal jurisdiction over the appellant, and it properly overruled the appellant’s special appearance. Accordingly, the trial court’s order denying the appellant’s special appearance was affirmed.


The appellate court exercised its inherent power to sever or strike those unconscionable provisions and rendered the remaining Arbitration Agreement legally valid.
Casa Ford, Inc. v. Warner
ADR, Appellate: Civil, Civil Rights, Contracts, Damages, Employment, Torts
Texas 8th Court of Appeals
August 23, 2021
08-20-00089-CV
Yvonne T. Rodriguez
Published
Arguing that the arbitration agreement at issue was valid and the employee's age discrimination claim fell within the agreement, the appellant appealed the trial court’s order denying its motion to stay proceedings and compel arbitration. The appellate court noted that the attorneys’ fees provisions in the Arbitration Agreement were substantively unconscionable. The appellate court found that because the Arbitration Agreement contained nonessential provisions which, in contravention of the appellee's statutory remedies, unconditionally mandate that each party pay its own attorneys’ fees, the court exercised its inherent power to sever or strike those unconscionable provisions and rendered the remaining Arbitration Agreement legally valid. Accordingly, the court reversed the trial court’s judgment, sever the two attorneys’ fees provisions from the Arbitration Agreement, and remanded with instructions to the trial court to enter an order consistent with the opinion.  


The appellate court exercised its inherent power to sever or strike those unconscionable provisions and render the remaining Arbitration Agreement legally valid.
Casa Ford, Inc. v. Armendariz
ADR, Civil Rights, Contracts
Texas 8th Court of Appeals
August 23, 2021
08-20-00084-CV
Yvonne T. Rodriguez
Published
Arguing that the arbitration agreement at issue was valid and the appellee’s age discrimination claim fell within the agreement, the appellant appealed the trial court’s order denying its motion to stay proceedings and compel arbitration. The appellate court observed that the appellant met its initial burden to show, and the appellee did not dispute, that an arbitration agreement exists and the appellee’s age discrimination claim lies within its parameters. Further, the court found the attorneys’ fees provisions in the Arbitration Agreement were substantively unconscionable. The appellate court found that given the public policy favoring arbitration, severing the invalid clauses rather than invalidating the entire Arbitration Agreement was the appropriate judicial action when severance did not take from the main purpose of the agreement. Finally, because the Arbitration Agreement contains nonessential provisions which, in contravention of the appellee’s statutory remedies, unconditionally mandate each party pay its own attorneys’ fees, the court exercised its inherent power to sever or strike those unconscionable provisions and render the remaining Arbitration Agreement legally valid. Accordingly, the court upheld the Arbitration Agreement but strike the two attorneys’ fees provisions, reversed the trial court’s ruling and remanded.  


The appellate court concluded that the record showed the appellee did not seek summary judgment regarding the appellant’s class claims and did not address those claims in any way, and therefore, summary judgment was improper as to those claims.
Arce v. Am. Nat'l Ins. Co.
Contracts, Insurance
Texas 7th Court of Appeals
August 24, 2021
07-19-00362-CV
Patrick A. Pirtle
Published
The appellant appealed the judgment of the trial court, which granted summary judgment in favor of the appellee on her claims for breach of contract and violations of the Texas Insurance Code, as well as her claim for recovery of attorney’s fees and class action claims. The appellate court observed that the appellant’s cause of action itself was predicated on the issuance of an insurance policy and the payment of a premium. The appellate court determined that even if the trial court did err in admitting the summary judgment evidence, the court found such error would be harmless. The appellee was not entitled to summary judgment for another reason, and the undisputed summary judgment evidence showed the appellee asserted rescission well beyond the ninety-day period set forth in section 705.005 of the Code. The appellate court concluded that the record showed the appellee did not seek summary judgment regarding the appellant’s class claims and did not address those claims in any way, and therefore, summary judgment was improper as to those claims. Accordingly, the court reversed the judgment of the trial court and remanded the cause.  


The appellate court concluded that the trial court erred in granting the appellee’s motion for partial summary judgment on his counterclaim and reversed that portion of the final judgment.
Gilbert v. Kalman
Contracts, Insurance
Texas 8th Court of Appeals
August 19, 2021
08-20-00001-CV
Jeff Alley
Published
The appellants were the personal representatives of the estate of the deceased. The appellants commenced the action against the appellee seeking recovery on a promissory note, seeking recovery for unpaid legal fees he claims that the deceased owed him. The appeal arose from summary judgments rendered by the trial court in favor of the appellee on his counterclaim for recovery of attorney’s fees and against the appellants on their claim for the promissory note. The appellate court observed that the affidavit was fairly part of the response that the trial court should have considered in resolving the motion for partial summary judgment. Nor would the requests for admission, even if deemed, preclude its consideration. The appellants did nothing more than refer to the appellee’s own evidence, as distinct from offering their own responsive evidence. The appellate court concluded that the trial court erred in granting the appellee’s motion for partial summary judgment on his counterclaim and reversed that portion of the final judgment. Accordingly, the judgment was affirmed, reversed and remanded.  


The appellate court found that under the plain language of Texas Government Code Section 839.101, a former judge sitting by assignment did not “currently hold a judicial office.”
Employees Ret. Sys. of Tex. v. Lowy
Constitution, Employment, Ethics, Gov't/Administrative
Texas 3rd Court of Appeals
August 19, 2021
03-20-00428-CV
Darlene Byrne
Published
The appellant appealed the trial court’s judgment in favor of the appellee reversing an administrative decision by the appellant's Executive Director. The appellate court noted that the appellee was not eligible to retire under the plain language of the statute, the court need not consider the trial court’s other determinations: that the Executive Director improperly adopted the appellant's staff’s proposed findings of fact or conclusions of law because they did not meet the required standards under the Administrative Procedures Act, relied on improper or untimely argument and evidence, or relied on grounds not included in the appellant's notice of hearing or motion for summary disposition. The appellate court found that under the plain language of Texas Government Code Section 839.101, a former judge sitting by assignment did not “currently hold a judicial office.” Accordingly, the court reversed the trial court’s judgment and rendered judgment affirming the appellant's Executive Director’s order that the appellee did not hold a judicial office, and thus was not eligible to retire on that date under Section 839.101(a)(1).      


The respondent abused his discretion by granting the RPIs’ motion for net worth discovery, having determined that no evidence supported a finding of substantial likelihood of success on the merits of an exemplary damages claim.
In re Bella Corp.
Constitution, Damages, Real Property, Torts
Texas 12th Court of Appeals
August 18, 2021
12-21-00090-CV
Brian Hoyle
Published
The Real Parties in Interest (RPIs) sued the relators for trespass to real property, unjust enrichment, private nuisance, negligence, negligence per se, and aiding and abetting based on allegations that the relators allowed their customers to test drive vehicles and parked on the RPIs’ neighboring land, and showcased merchandise on the RPIs’ land without permission. They sought a temporary injunction, a permanent injunction, and damages, including exemplary damages. The RPIs subsequently amended their petition to allege that the relators installed a commercial wash pit that drained wastewater onto the RPIs’ property. The relators filed the original proceeding to challenge the respondent’s order granting net worth discovery. The appellate court found that the respondent abused his discretion by granting the RPIs’ motion for net worth discovery, having determined that no evidence supported a finding of substantial likelihood of success on the merits of an exemplary damages claim. Accordingly, the court conditionally granted the relators’ petition for writ of mandamus.  


The appellate court concluded that because he had not satisfied that burden, the court found no abuse of discretion in the bail amount ordered by the trial court.
Ex parte Estrada
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 19, 2021
14-20-00758-CR
Kevin Jewell
Published
The appellant brought the appeal from the trial court’s habeas corpus judgments, in association with setting bail at a combined $900,000 for three offenses and with considering a written summary of allegations authored by a detective who was not available to give testimony at his bail hearing. The appellate court observed that the trial court did not violate any of the appellant’s Confrontation Clause rights by admitting or considering the detective’s written factual summary at the appellant’s bail hearing. Further, the appellant has significant ties to the area. He has lived in Texas his entire life and has lived in Houston for years, and the trial court rightfully could have accounted for these circumstances in setting the appellant’s bail at a high amount. Further, the court acknowledges the ability to make bail factor did not itself demonstrate the trial court set an excessive bail amount, nor did it demonstrate the bail amount was otherwise unreasonable. The appellate court concluded that because he had not satisfied that burden, the court found no abuse of discretion in the bail amount ordered by the trial court. Accordingly, the court affirmed the trial court’s habeas corpus judgments.  


Because the trial court erred in denying the appellant’s special appearance, the court sustained the appellant’s sole issue, reversed the trial court’s order, and remanded.
Yahsi v. Visor Muhendislik Insaat Turizm Gida Ve Mekanik Taahhut Ticaret Ltd.
Courts, Torts
Texas 14th Court of Appeals
August 19, 2021
14-19-00406-CV
Randy Wilson
Published
The appellant brought the interlocutory appeal from the trial court’s order denying his special appearance in a lawsuit filed against him by the appellee company and the second appellee company, whose sole member was the appellee company. The appellate court noted that the evidence was legally insufficient to support an implied finding that a substantial connection exists between the appellant’s purposeful contacts with Texas and the operative facts of the litigation. To the extent the trial court concluded it could properly exercise personal jurisdiction over the appellant based on specific jurisdiction, the trial court erred. The trial court erred in impliedly determining that it could properly exercise personal jurisdiction over the appellant based on specific and general jurisdiction. Because the trial court erred in denying the appellant’s special appearance, the court sustained the appellant’s sole issue, reversed the trial court’s order, and remanded.  


Viewing the evidence in the light most favorable to the prosecution, a rational factfinder could have reasonably concluded the appellant's intoxication caused the decedent’s death and the injuries to his passengers.
Olalde v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
August 18, 2021
04-20-00197-CR
Luz Elena D Chapa
Published
The appellant appealed her convictions for intoxication manslaughter and intoxication assault. The appellate court noted that viewing the evidence in the light most favorable to the prosecution, a rational factfinder could have reasonably concluded the appellant's intoxication caused the decedent’s death and the injuries to his passengers. The appellant's lone point of error was therefore overruled. Accordingly, the court affirmed the judgments.


The appellate court concluded that because the appellant was not a consumer under the DTPA, the court overruled the appellant’s sole issue on appeal and affirmed the trial court’s judgment.
Miller v. Kim Tindall & Associates, LLC
Business, Consumer, Torts
Texas 4th Court of Appeals
August 18, 2021
04-20-00471-CV
Luz Elena D Chapa
Published
The appellant sued the appellee, alleging Deceptive Trade Practices Act (DTPA) claims. In a plea to the jurisdiction, the appellee argued the appellant was not a consumer under the DTPA. The appellee produced evidence in support of the plea, and the appellant responded with his own evidence. After a hearing, the trial court granted the appellee’s plea to the jurisdiction and rendered a final judgment dismissing the appellant’s claims. The appellate court found that the appellant asserted only DTPA claims against the appellee, and only consumers may allege DTPA claims. The appellate court concluded that because the appellant was not a consumer under the DTPA, the court overruled the appellant’s sole issue on appeal and affirmed the trial court’s judgment.  


The trial court very clearly abused its discretion by issuing the TRO, and the defendants have no adequate appellate remedy.
In re Abbott
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
The Supreme Court of Texas
August 17, 2021
21-0667
James D Blacklock
Published
The plaintiffs in the suit were members of the Texas House of Representatives who denied the House a quorum by fleeing the state. They fled the state to escape the jurisdiction of the House, whose internal rules provided that absent members may be “arrested” and their attendance “secured and retained.” The plaintiffs sued the Governor and the Speaker of the House in Travis County trial court, seeking an injunction prohibiting their arrest, which granted an ex parte temporary restraining order (TRO) prohibiting the defendants from compelling the plaintiffs’ attendance by arrest or other confinement or restraint for the next fourteen days. The Supreme Court found that the court were provided with no reason to doubt that the framers of the court's constitution understood article III, Section 10 to operate just as it has been understood to operate in the many decades since its ratification—to authorize each chamber to compel the attendance of absent members, by physical compulsion if necessary. The court declined the plaintiffs’ invitation to undermine that foundational authority, which had long been embedded in the very structure of the court's government. The trial court very clearly abused its discretion by issuing the TRO, and the defendants have no adequate appellate remedy. Accordingly, the petition for writ of mandamus was conditionally granted, and the trial court was directed to immediately rescind the TRO.  


The trial court’s interlocutory order denying the appellants’ plea to the jurisdiction was merged into the final judgment, and the appellants did not properly perfect an appeal from that final order, thus, the court concluded that the court lacked jurisdiction to hear the appeal.
City of Brady v. Scott
Appellate: Civil, Criminal, Evidence, Gov't/Administrative, Procedure
Texas 8th Court of Appeals
August 16, 2021
08-20-00155-CV
Jeff Alley
Published
The case began with the seizure of $11,452 in cash by the appellant department from the appellee’s home. Many years later, the appellee filed a petition in the trial court pursuant to article 47.01a of the Texas Code of Criminal Procedure, to determine who owned the $11,452 in cash (hereinafter the Chapter 47 petition). Chapter 47 details a procedure for a trial court judge to determine the right of possession to property that was alleged to have been stolen. The appellant city and the appellant department (collectively referred to as the appellants) filed a plea to the jurisdiction, which the trial court denied in the same order in which it entered a final judgment granting the appellee’s Chapter 47 petition, finding that he had a superior right to the money. The appellants thereafter filed an interlocutory appeal from the trial court’s order denying its plea to the jurisdiction. The appellate court observed that the trial court’s interlocutory order denying the appellants’ plea to the jurisdiction was merged into the final judgment, and the appellants did not properly perfect an appeal from that final order, thus, the court concluded that the court lacked jurisdiction to hear the appeal. Accordingly, the appellants’ appeal was dismissed.  

 


The appellate court remanded the case to the trial court with instructions.
State v. Martinez
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 12, 2021
14-20-00255-CR
Meagan Hassan
Published
The appellee was charged by information with misdemeanor driving while intoxicated. The State appealed the county criminal court at law’s sua sponte dismissal of the charges brought against the appellee. The appellate court noted that because the district attorney timely filed a notice of appeal from the county criminal court at law’s judgment, the court's jurisdiction was properly invoked. Further, because neither party had the opportunity to raise or develop the issues in the trial court before the complaint was dismissed, and the case proceeded to appeal, further development of the record was necessary to determine the viability of both the State’s article 21.22 contention and the appellee’s article 2.04 contention. The appellate court remanded the case to the trial court with instructions. Accordingly, the court reversed the trial court’s order dismissing the charges against the appellee and remanded the case for further proceedings consistent with the opinion.      


The appellate court concluded that even if it was admissible, the note was insufficient to show jury misconduct, and there were no other grounds that would support granting the motion.
State v. Gallien
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
August 12, 2021
01-19-00882-CR
Richard Hightower
Published
A jury found the appellee guilty of the offense of aggravated robbery. After the jury could not agree on a sentence, the trial court granted a mistrial for the punishment phase. The appellee later filed a motion for mistrial and a motion for new trial for the guilt-innocence phase. The appellee supported the motions with a juror’s note that had been given to the trial court during the punishment phase. The trial court granted the motion for mistrial for the guilt to innocence phase as well. The appellate court noted that because the order was functionally indistinguishable from an order granting a motion for new trial, the court had jurisdiction over the appeal. Further, the court agreed with the State that granting the motion based on the juror’s note was an abuse of discretion because the note was inadmissible under Texas Rule of Evidence 606(b). The appellate court concluded that even if it was admissible, the note was insufficient to show jury misconduct, and there were no other grounds that would support granting the motion. Accordingly, the court reversed the trial court’s order granting a mistrial for the guilt-innocence phase of trial and remanded the case to the trial court for further proceedings.  


The appellate court determined that the evidence was legally and factually sufficient to demonstrate purposeful availment under a stream of commerce-plus theory, the claims brought by the appellees related to the appellant’s contacts with Texas.
Fed. Corp., Inc. v. Truhlar
Business, International, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
August 10, 2021
08-16-00095-CV
Yvonne T. Rodriguez
Published
The appellant, a Taiwanese manufacturer, sold tires to two wholesale distributors in the United States, one in California, the other in Mississippi. After it was sued, the appellant filed a special appearance, contending the subject tire was sold in Taiwan, and it was a Taiwanese company with no contacts in Texas, and therefore, specific jurisdiction could not stand because mere placement in the stream of commerce and foreseeability was not enough to uphold the trial court’s finding of specific jurisdiction. The appellate court found that that findings of fact may be made in a special appearance proceeding; further, if a finding was unchallenged, it was binding upon the court unless there was no evidence to support that finding or the opposite was established as a matter of law. The appellate court determined that the appellees did not allege general jurisdiction applied to this case, and the evidence did not support a general jurisdiction finding. The appellate court determined that the evidence was legally and factually sufficient to demonstrate purposeful availment under a stream of commerce-plus theory, the claims brought by the appellees related to the appellant’s contacts with Texas, and traditional notions of fair play and substantial justice were not offended by the exercise of jurisdiction in the case. Accordingly, the court affirmed the trial court’s judgment.  


The evidence collectively was sufficient to support each element of the offense, and the appellant did nothing to suggest the trial court’s ruling was clearly erroneous, or that any additional argument could have been mounted below to arrive at a different outcome.
Zhao v. State
Constitution, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
August 09, 2021
08-19-00311-CR
Jeff Alley
Unpublished
A jury convicted the appellant of two counts of prostitution and sentenced her to 30 days confinement for each count, which the trial court suspended to impose consecutive terms of six months’ community supervision. The appellate court noted that the trial court’s application of Rule 701 to any particular situation was reviewed for an abuse of discretion. Given that the victim was in the room with the appellant, could see her facial expressions and hear her words, he had a rational basis to form an opinion of her outward manifestations of confusion. The appellate court determined that the evidence collectively was sufficient to support each element of the offense, and the appellant did nothing to suggest the trial court’s ruling was clearly erroneous, or that any additional argument could have been mounted below to arrive at a different outcome. Accordingly, the judgment of conviction was affirmed.  


The appellate court determined that since the trial court erred in refusing to enter a QDRO in the format required by the Texas County & District Retirement System.
In re Denning
Appellate: Civil, Family, Procedure
Texas 14th Court of Appeals
August 10, 2021
14-19-00646-CV
Frances Bourliot
Published
The defendant appealed the judgment of the trial court, which denied her motion for entry of a qualified domestic relations order (QDRO) filed after the trial court signed a final divorce decree dissolving her marriage to the plaintiff and enforcing the parties mediated settlement agreement (MSA). The appellate court found that the trial court erred in refusing to enter a QDRO in compliance with Texas County & District Retirement System (TCDRS) regulations, expressed as a percentage of the accumulated contributions that accrued during the marriage. The appellate court determined that since the trial court erred in refusing to enter a QDRO in the format required by TCDRS. Accordingly, the trial court’s judgment was reversed and remanded.    


The appellate court concluded that the appellant failed to carry his summary-judgment burden by failing to identify which evidence created a fact issue on which challenged elements of his cause of action against the appellee.
Watanabe v. Summit Path Partners, LLC
Employment, Litigation: Personal Injury, Torts
Texas 1st Court of Appeals
August 10, 2021
01-19-00302-CV
Peter Kelly
Published
The appellant was injured in an assault in a parking lot, and he sued his employers as well as the owner and the operator of the parking lot. The appellees filed multiple motions for summary judgment, and the trial court granted take-nothing summary judgment in favor of each of the appellees. The appellate court noted that a reasonable jury could infer that the appellee retained control over the premises at issue during the hours that the appellee individual did not use the premises for his parking business. The summary-judgment evidence did not conclusively negate the appellee company’s control over the premises. The appellate court found that there was evidence sufficient to create a genuine question of material fact about whether the appellant’s assault was foreseeable. Next, the court held that the appellant was an implied licensee when he went to the premises and at the time of the assault, and there was no evidence that the appellee owed or breached a duty to the appellant in light of the summary-judgment evidence. The appellate court concluded that the appellant failed to carry his summary-judgment burden by failing to identify which evidence created a fact issue on which challenged elements of his cause of action against the appellee. Accordingly, the court affirmed the judgment of the trial court.  


The appellate court concluded that the evidence was insufficient to support the jury’s finding that complainant suffered serious bodily injury, but sufficient to support a finding on the elements of aggravated assault.
Garcia v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 10, 2021
14-19-00086-CR
Frances Bourliot
Published
The appellant challenged his conviction for first degree aggravated assault on a family member resulting in serious bodily injury. The trial court assessed his punishment at 35 years in prison. The appellate court found that there was insufficient evidence to support the jury’s finding that complainant’s injuries created a substantial risk of death or caused death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. The evidence was insufficient to support the appellant’s conviction for aggravated assault on a family member resulting in serious bodily injury. Further, the court concluded that the evidence and the jury’s findings were sufficient to support a conviction under the lesser-included offense of second-degree aggravated assault. The appellate court concluded that the evidence was insufficient to support the jury’s finding that complainant suffered serious bodily injury, but sufficient to support a finding on the elements of aggravated assault. Accordingly, the trial court’s judgment was reversed and remanded.      


Since the plaintiffs failed to show that RPI claims were foreclosed as a matter of law as was required by Rule 91a, the court found that the trial court did not abuse its discretion in denying the plaintiffs' Rule 91a motion to dismiss.
In re Shire PLC
Appellate: Civil, Gov't/Administrative, Procedure, Torts
Texas 6th Court of Appeals
August 06, 2021
06-21-00016-CV
Ralph Burgess
Published
In the trial court, the real party in interest (RPI) company, brought a qui tam action under the Texas Medicaid Fraud Prevention Act (TMFPA) against the plaintiff companies. The plaintiffs moved the trial court to dismiss the action under Rule 91a of the Texas Rules of Civil Procedure. The trial court denied the motion, and the plaintiffs filed the petition for a writ of mandamus, asking the appellate court to compel the trial court to grant its motion to dismiss. The appellate court found that because the plaintiffs failed to show that RPI claims were foreclosed as a matter of law as was required by Rule 91a, the court found that the trial court did not abuse its discretion in denying the plaintiffs' Rule 91a motion to dismiss. Accordingly, the court denied the plaintiffs' petition for a writ of mandamus.  


The State’s argument was in direct response to the appellant’s assertions during closing argument, and the trial court did not abuse its discretion in overruling the appellant’s objection because the argument made by the prosecution did not “inject new and harmful facts into the case.”
Monroy v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
August 05, 2021
11-19-00257-CR
W. Bruce Williams
Published
The appellant was convicted of continuous sexual abuse of a child under fourteen years of age and sentenced to forty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. The appellate court noted that the jury was free to resolve any conflicts in the evidence based on the perceptions of the victim, an eight-year-old child who gave consistent event testimony, and the victim's testimony alone was sufficient to support a conviction for continuous sexual abuse of a child. Further, the trial court did not abuse its discretion when it permitted the witness to testify as an outcry witness. The appellate court concluded that the State’s argument was in direct response to the appellant’s assertions during closing argument, and the trial court did not abuse its discretion in overruling the appellant’s objection because the argument made by the prosecution did not “inject new and harmful facts into the case” and was not “extreme or manifestly improper.” Accordingly, the court affirmed the judgment of the trial court.  


The trial court did not abuse its discretion in overruling the motion for a 180-day extension, and any error in admitting drug test results was rendered harmless by substantially similar testimony admitted without objection.
In re D.R.
Family, Gov't/Administrative, Juvenile
Texas 6th Court of Appeals
August 05, 2021
06-21-00019-CV
Scott E. Stevens
Published
In a suit brought by the appellee, the trial court terminated appellant’s parental rights to her children on three grounds specified in Section 161.001, subsections (b)(1)(D), (O), and (P), of the Texas Family Code. The appellate court found that the evidence was sufficient to support the trial court’s Ground D finding and its conclusion that terminating the appellant’s parental rights was in the children’s best interests. The appellate court determined that the appellant’s complaint about statutory hearings was moot, the trial court did not abuse its discretion in overruling the motion for a 180-day extension, and any error in admitting drug test results was rendered harmless by substantially similar testimony admitted without objection. Accordingly, the court affirmed the trial court’s judgment.


The appellate court modified the order of dismissal to delete the assessment of court costs against the County Attorney in his individual and official capacities.
State v. Whaley
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
August 04, 2021
04-20-00253-CR
Patricia O. Alvarez
Published
The State appealed an order dismissing a misdemeanor complaint against the appellee for want of prosecution. On appeal, the State agued that the trial court erred by dismissing the complaint without notice or a hearing, and for assessing court costs. The appellate court found that because the State moved to dismiss, the State consented to dismissal, and had therefore failed to show preserved reversible error regarding the trial court’s dismissal order. The appellee declined to file the appellee’s brief identifying any authority for a trial court to assess court costs against the State or a prosecutor individually when dismissing a misdemeanor complaint, and the court found no authority for the trial court to do so. The appellate court sustained the State’s second issue and modified the order of dismissal to delete the assessment of court costs. The appellate court modified the order of dismissal to delete the assessment of court costs against the County Attorney in his individual and official capacities. Accordingly, the trial court’s judgment was so modified and affirmed.


The appellate court saw no basis in law or fact supporting the award of attorney’s fees there as being “in the nature of child support,” and thus, the court concluded that the trial court erred.
In re A.S.M.
Family, Juvenile
Texas 8th Court of Appeals
July 30, 2021
08-19-00212-CV
Jeff Alley
Published
The present dispute arose from a proceeding to confirm a child-support arrearage and for entry of judgment on the arrearage, filed by the appellant, where he requested confirmation of the total child support that had accrued over thirteen and one-half years on a final decree of divorce. The appellate court noted that any procedural error by the trial court in entering a dismissal order as opposed to a take-nothing summary judgment did not result in an improper judgment against the appellant. Further, the appellant did not guide the court to any authority to establish the trial court violated the appellant's procedural due process. The appellate court determined that the appellant's complaint that the trial court erred in dismissing his request for confirmation of child support arrears had already been addressed, and without further guidance from the appellant, the court did not find the trial court denied him procedural due process. The appellate court saw no basis in law or fact supporting the award of attorney’s fees there as being “in the nature of child support,” and thus, the court concluded that the trial court erred. Accordingly, the court modified the judgment of the trial court. 


The appellate court found that because the appellants had knowledge of the March 6 trial setting but failed to appear, the trial court did not abuse its discretion in finding that the appellants did not meet the third element required to sustain a bill of review.
Gard v. Douglas Ray Stracener Estate
Appellate: Civil, Damages, Gov't/Administrative, Procedure, Tax
Texas 6th Court of Appeals
July 30, 2021
06-20-00100-CV
Ralph Burgess
Published
The appellants appealed the trial court’s denial of an equitable bill of review following a post-answer default judgment in favor of the appellees. The appellate court found that because the appellants had knowledge of the March 6 trial setting but failed to appear, the trial court did not abuse its discretion in finding that the appellants did not meet the third element required to sustain a bill of review. Accordingly, the court affirmed the trial court’s judgment.  


Aside from conclusory statements, nothing in the record revealed the underlying facts that would support a finding of any lease violation sufficient to terminate the appellant's lease in the absence of proper grievance proceedings.
Harris v. Paris Hous. Auth.
Contracts, Gov't/Administrative, Landlord and Tenant, Real Property, Torts
Texas 6th Court of Appeals
July 30, 2021
06-20-00086-CV
Josh Morriss, III
Published
The appellant appealed his eviction in a forcible entry and detainer action brought by the appellee for alleged violations of lease rules and regulations. On appeal, the appellant argued that the eviction notice failed to meet the specificity requirements mandated by Housing and Urban Development (HUD) regulations applicable to the appellee and that failing to record the trial was error. The appellate court found that the appellee's notices failed to comply with either Section 247.4 or Section 966.4(l)(3)(v) of Volume 24 of the Code of Federal Regulations. Further, while there was a decision on the merits, the findings of fact did not set forth the underlying facts supporting characterizations of the appellant being belligerent, aggressive, menacing, or threatening. As a result, aside from conclusory statements, nothing in the record revealed the underlying facts that would support a finding of any lease violation sufficient to terminate the appellant's lease in the absence of proper grievance proceedings. Accordingly, the court reversed the trial court’s judgment and remanded the matter to the trial court with instructions to abate the underlying action until sufficient notice was provided, and the proper procedures have been followed.  


The appellate court concluded that the appellant did not provide the court with a clear and concise argument and did not direct the court to the necessary and appropriate authorities and record citations.
Delta Cnty. Appraisal Dist. v. PPF Gin & Warehouse, LLC
Appellate: Civil, Constitution, Procedure, Real Property, Tax
Texas 6th Court of Appeals
July 29, 2021
06-20-00063-CV
Ralph Burgess
Published
The following case arose out of an ad valorem property-tax dispute regarding seven cotton module trucks owned by the appellee company. In two points of error, the appellant contended that the trial court erred (1) when it granted the appellee's motion for summary judgment and denied the appellant's motion for summary judgment and (2) when it granted the appellee's motion for summary judgment despite the existence of an issue of material fact. The appellate court noted that because exemption of the module trucks in the case was consistent with the plain language of Section 11.161, the taxation scheme in Chapter 11 of the Tax Code, as well as the constitutional and legislative history behind Section 11.161, the court found that the module trucks in the case were exempt from ad valorem taxation. The appellate ocurt found that the trial court did not err in granting the appellee's motion for summary judgment. The appellate court concluded that the appellant did not provide the court with a clear and concise argument and did not direct the court to the necessary and appropriate authorities and record citations. Accordingly, the court affirmed the judgment of the trial court.  


The appellate court concluded that his Confrontation Clause complaint was forfeited for review.
Harrison v. State
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
July 29, 2021
07-20-00028-CR
Lawrence M. Doss
Published
The appellant appealed the judgment of the trial court, which entered an open plea of guilty to the offense of “assault family/household member with previous conviction.” The trial court imposed a sentence of twenty-five years’ confinement. The appellate court found that the appellant, agreeing with the trial court’s plan to order a presentence investigation report (PSI), signed a writing in which he affirmatively requested a PSI, made no objection to the trial court’s consideration of the PSI at the punishment hearing, and even touted the benefits of the PSI to the trial court. The appellate court concluded that his Confrontation Clause complaint was forfeited for review. Accordingly, having overruled the appellant’s issue, the court affirmed the judgment of the trial court.  


The appellate court concluded that since the time-payment fee was not included in the amount of court cost assessed in the judgment, the trial court’s judgment was affirmed without modification.
Bryant v. State
Criminal, Evidence, Procedure
Texas 10th Court of Appeals
July 28, 2021
10-18-00352-CR
Tom Gray
Published
The appellant was convicted of assault on a family/household member with a previous conviction and was sentenced by the trial court to eight years in prison. The appellate court found that the counsel had performed the duties required of the appointed counsel. After reviewing the caselaw and the record in this case, the Court agreed that the conditional inclusion of a time-payment fee in the bill of cost by the clerk was premature. The appellate court concluded that since the time-payment fee was not included in the amount of court cost assessed in the judgment, the trial court’s judgment was affirmed without modification. Accordingly, the counsel's motion to withdraw from representation of the appellant was granted, and was discharged from representing him.


The appellate court concluded that the admitted evidence supported the jury’s finding that the appellant was intoxicated while operating his car.
Ortiz v. State
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
July 28, 2021
07-19-00425-CR
Lawrence M. Doss
Published
The appellant was convicted following a jury trial of his third offense of driving while intoxicated and was sentenced to four years confinement. The appellate court found that aside from his breathalyzer test results, additional testimony evidenced the appellant’s guilt when viewed in a light most favorable to the jury’s verdict. The appellate court concluded that the admitted evidence supported the jury’s finding that the appellant was intoxicated while operating his car. Accordingly, the appellate court affirmed the judgment and sentence.          


Because the summary judgment evidence raised a fact issue as to the challenged elements of the appellants’ failure-to-warn claim against the second appellee company, the court reversed the trial court’s summary judgment as to the claim and remanded.
Prado v. Lonestar Res., Inc.
Appellate: Civil, Procedure, Torts
Texas 4th Court of Appeals
July 28, 2021
04-19-00543-CV
Luz Elena D Chapa
Published
The appellants filed a wrongful death and survival action against the appellees. The trial court rendered a final summary judgment in the appellees’ favor. The appellate court held the Federal Railroad Safety Act (FRSA) preempted the appellants’ claim against the appellee company for negligent failure to issue a slow order for the second appellee company. However, considering all the evidence together in a light most favorable to the appellants and drawing all reasonable inferences in their favor, the court held reasonable jurors could disagree as to whether the second appellee company was extra-hazardous. The appellate court determined that because the summary judgment evidence fails to raise a genuine issue of material fact as to whether the third appellee company owed the deceased a duty to warn, the trial court did not err by rendering summary judgment on the claim. Further, the evidence on which the appellants rely did not show the deceased and the second appellee company shared a mutual business or economic interest. The appellate court concluded that because the summary judgment evidence raised a fact issue as to the challenged elements of the appellants’ failure-to-warn claim against the second appellee company, the court reversed the trial court’s summary judgment as to the claim and remanded. Accordingly, the judgment was affirmed, reversed and remanded.


The appellate court found that the trial court erred in quashing the information charging the appellee and in granting his habeas application.
Ex Parte Mora
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
July 27, 2021
01-17-00661-CR
Per Curiam
Published
The State charged the appellee by information with committing the offense of unlawfully disclosing or promoting intimate visual material. On the appellee's motion to quash and application for habeas relief, the trial court quashed the information and granted the habeas application on the ground that the criminal statute violated the free-speech guarantee of the First Amendment to the United States Constitution and therefore was void. The appellate court found that the trial court erred in quashing the information charging the appellee and in granting his habeas application. Accordingly, the court reversed the trial court’s orders granting the appellee's motion and application and remanded for further proceedings.  


The appellate court held that the trial court did not err in denying the appellant’s motion to suppress evidence.
Monjaras v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
July 27, 2021
01-19-00608-CR
Julie Countiss
Published
After the trial court denied his motion to suppress evidence, the appellant, with an agreed punishment recommendation from the State, pleaded guilty to the felony offense of possession of a firearm by a felon. In accordance with the plea agreement, the trial court assessed his punishment at confinement for five years. The appellate court noted that viewing evidence in the light most favorable to the trial court’s ruling, the court concluded that the interaction between the officers was a consensual encounter. The appellate court held that the trial court did not err in denying the appellant’s motion to suppress evidence. Accordingly, the court affirmed the judgment of the trial court as modified.  


The issue of reformation becomes moot after the term of the non-competition covenant has expired, and there was no claim to enforce the covenant not to compete, and thus, the court concluded that the Uniform Declaratory Judgments Act attorney’s fees were not preempted by section 15.52.
Traina v. Hargrove & Associates Inc.
Business, Contracts, Employment
Texas 14th Court of Appeals
July 27, 2021
14-19-00670-CV
Charles Spain
Published
The appellant sought a declaratory judgment that a covenant not to compete he entered into with his employer, the appellee company, was unenforceable. The trial court ruled in the appellee’s favor. The appellate court rejected the appellant’s contention that the employment agreement was not an otherwise enforceable agreement under Tex. Bus. & Com. Code Ann. Section 15.50(a) because it was supported by illusory promises based on the at-will employment relationship. Further, the appellant argued that the trial court erred by reforming the covenant not to compete. The issue of reformation becomes moot after the term of the non-competition covenant has expired, and there was no claim to enforce the covenant not to compete, and thus, the court concluded that the Uniform Declaratory Judgments Act attorney’s fees were not preempted by section 15.52. Accordingly, the judgment was affirmed, reversed and remanded.


The appraiser’s report describes the appraiser’s own research and conclusions regarding the community estate, and thus, the evidence was sufficient to support the trial court’s findings.
In re Marriage of Penafiel
Contracts, Family, Torts
Texas 14th Court of Appeals
July 27, 2021
14-19-00240-CV
Frances Bourliot
Published
The appellant appealed from the trial court’s divorce decree and final judgment dissolving his marriage to the appellee and purporting to enforce the parties’ mediated settlement agreement (MSA). The judgment also held the appellant fraudulently induced the appellee to sign the MSA and awarded her tort damages. The appellate court observed that the evidence supports the trial court’s finding that the appellant fraudulently induced the appellee to sign the MSA and the court’s determination of the value of the community estate. However, the trial court’s awarding the appellee what she would have received under the MSA and what she would have received from a just and right division of the property, even though based on a tort finding, was an abuse of discretion as it provided her with a double recovery, neither enforced the MSA nor provided for a just and right division of the property, and was without reference to guiding rules or principles of family or tort law. Finally, the appraiser’s report describes the appraiser’s own research and conclusions regarding the community estate, and thus, the evidence was sufficient to support the trial court’s findings. Accordingly, the judgment was affirmed, reversed and remanded.


The appellate court concluded that having decided that the surface water drainage analysis and flood protection information in the company’s application complied with applicable rules, the commission did not act arbitrary or capriciously by granting the permit.
TJFA, L.P. v. Tex. Comm'n on Envtl. Quality
Environmental, Gov't/Administrative
Texas 3rd Court of Appeals
July 23, 2021
03-19-00815-CV
Edward Smith
Published
The appellants filed suit for judicial review of the commission’s order, and the trial court rendered judgment upholding the permit. The appellate court observed that there was no dispute that the executive director declared the company’s partial application to be administratively complete before the County enacted the Disposal Ordinance, and the appellants did not allege that the executive director acted outside his authority. The appellate court determined that the commission did not err by concluding the company’s application was pending before it prior to the County’s adoption of the Disposal Ordinance. Further, the appellants’ expert examined the samples and prepared a report, which the two administrative law judges (ALJs) observed lends credence to and generally supports the basic findings and conclusions set forth in the Geology Report, and thus, the court concluded that the ALJs did not abuse their discretion by overruling the appellants’ motion to strike the report. The appellate court concluded that having decided that the surface water drainage analysis and flood protection information in the company’s application complied with applicable rules, the commission did not act arbitrary or capriciously by granting the permit. Accordingly, the court affirmed the trial court’s judgment.


The appellant had not established that members of the jury panel that may have heard the comments of venireperson were influenced by those comments to the prejudice of the appellant, or that such members were forced upon the appellant.
Deere v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
July 22, 2021
11-19-00227-CR
W. Bruce Williams
Published
The appeal was from the appellant’s jury conviction of possession of methamphetamine, where the trial court assessed the appellant’s punishment at two years’ incarceration in the State Jail Division of the Texas Department of Criminal Justice and a fine of $1,500. The appellate court found that even assuming the sister actually placed the methamphetamine in the appellant’s purse, under the light most favorable to the verdict, a rational jury could have found that the appellant subsequently realized and knowingly possessed the methamphetamine after it was placed in her purse but before the search. Further, the appellant failed to establish the predicate necessary to properly challenge for cause any of the jurors complained, and the court could not hold that the trial court abused its discretion in denying the appellant’s for-cause challenges. The appellate court concluded that the appellant had not established that members of the jury panel that may have heard the comments of venireperson were influenced by those comments to the prejudice of the appellant, or that such members were forced upon the appellant. Accordingly, the court affirmed the judgment of the trial court.


The appellate court held that the trial court did not abuse its discretion in determining that the victim's mother was the proper outcry witness.
Dority v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
July 22, 2021
11-19-00236-CR
W. Bruce Williams
Published
The appellant was indicted for the felony offense of aggravated sexual assault of a child under six years of age. The indictment alleged that the appellant intentionally and knowingly caused the contact and penetration of the female sexual organ of the victim by the sexual organ of the appellant, and that the victim was a child younger than six years of age. The appellate court noted that the evidence that the appellant's brother sexually assaulted the appellant would have had no relevance or bearing on the issue of whether the appellant sexually assaulted the victim. The evidence did not tend to prove or disprove whether the appellant was guilty of the crime, and therefore, the trial court did not abuse its discretion in denying the admission of the evidence. The appellate court held that the trial court did not abuse its discretion in determining that the victim's mother was the proper outcry witness. Accordingly, the court affirmed the judgment of the trial court.  


The appellate court held that the trial court erred in awarding attorney’s fees to the appellees under the TTLA.
Hotze v. IN Mgmt., LLC
Appellate: Civil, Bankruptcy, Business, Contracts, Gov't/Administrative, Procedure, Wills/Trusts/Probate
Texas 14th Court of Appeals
July 22, 2021
14-18-00995-CV
Frances Bourliot
Published
The appellants appealed the judgment of the trial court, alleging that the other three brothers, the appellees, manipulated CECO’s financial status to gain control of the company. On appeal, the appellees maintained that they merely undertook actions required to save CECO from impending bankruptcy and dissolution. A key issue in the case was whether the promissory note between the company and CECO authorized a partial conversion of debt for stock. The trial court concluded that it did, and, so instructed, the jury found against the appellants (the brothers), and the other appellants on all claims. The appellate court noted that the trial court erred in concluding the promissory note authorized a partial conversion of CECO stock and in instructing the jury in accordance with that conclusion. The appellate court held that the trial court erred in awarding attorney’s fees to the appellees under the TTLA. Accordingly, the court reversed and remanded the trial court’s judgment in part, modified the remainder of the judgment to remove the award of TTLA attorney’s fees, and affirmed the remainder of the judgment as so modified.  


The appellate court determined that the trial court erred by rendering an attorney’s-fee award in the appellee company's favor after the jury found it was entitled to none because the issue was one of fact, not law.
Upshaw v. Lacado, LLC
Appellate: Civil, Bankruptcy, Contracts, Damages, Evidence, Intellectual Property, Patents/Trademarks, Torts
Texas 2nd Court of Appeals
July 22, 2021
02-20-00031-CV
Brian Walker
Published
The appellants, the individual and his limited-liability company appealed from a jury verdict, finding that the appellant individual had breached three franchise agreements he had entered into with the appellees, the company and the individual and had committed fraud. On appeal, the appellants argued that the evidence did not support the jury’s adverse findings against the appellant individual. They also attacked the trial court’s attorney’s-fee award. The appellate court found that the evidence was legally sufficient to support the jury’s breach-of-contract findings and its calculation of damages, and thus, the court need not address the appellant's issues challenging the jury’s fraud findings. The appellate court determined that the trial court erred by rendering an attorney’s-fee award in the appellee company's favor after the jury found it was entitled to none because the issue was one of fact, not law. Accordingly, the court affirmed in part the trial court’s final judgment, reversed that portion of the final judgment awarding the appellee company its requested amount of attorney’s fees, and remanded the attorney’s-fees issue.   


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The appellate court concluded that the appellee proved that there was no genuine issue of material fact and that it was entitled to judgment quieting title to the Property as a matter of law.
Durant v. Lumberjack Energy, LLC
Appellate: Civil, Procedure, Real Property
Texas 6th Court of Appeals
July 21, 2021
06-21-00020-CV
Scott E. Stevens
Published
The appellant appealed the trial court’s summary judgment, which quieted title to mineral rights in 21.5 acres of land (the Property), in favor of the appellee company. On appeal, the appellant argued that the trial court erred in declaring invalid the quitclaim deed that purportedly gave the appellant’s mother an interest in the Property. The appellate court found that the summary judgment evidence presented by the appellee showed that it had title to the mineral interest in the Property due to deeds executed by the surviving children, that the appellee’s title derived from the individual, and that its claim of title was superior to the claim made by the appellant because the deed on which the appellant relied was invalid and passed no interest to the second individual. The appellate court concluded that the appellee proved that there was no genuine issue of material fact and that it was entitled to judgment quieting title to the Property as a matter of law. Accordingly, the court affirmed the trial court’s judgment.


The appellate court concluded that there was legally and factually sufficient evidence to support the jury findings of gross negligence against both the appellant and the company.
Press Energy Services, LLC v. Ruiz
Appellate: Civil, Damages, Procedure, Torts
Texas 8th Court of Appeals
July 16, 2021
08-19-00179-CV
Gina M. Palafox
Published
The appellant appealed the judgment of the trial court, which returned a verdict in favor of the appellee and awarded substantial damages. The appellate court noted that the medical bills were offered to refute non-economic damages, not as an “independent reason why the plaintiff should not recover,” thus, the court concluded that the appellants did not waive their evidentiary argument by not pleading an affirmative defense. Further, there was no dispute that the appellee himself was prohibited from recovering any economic damages for medical charges because he failed to plead for such claim, and the trial court did not err in excluding the appellee’s medical bills. Next, the record showed the statements were offered against the appellants and were made by one of their agents on a matter within the scope of the relationship while it existed. The appellate court concluded that there was legally and factually sufficient evidence to support the jury findings of gross negligence against both the appellant and the company. Accordingly, the judgment was affirmed.


The appellate court concluded that any variance between the indictment and the proof at trial was immaterial, should be disregarded, and did not affect the court's sufficiency review and the validity of the conviction.
Coleman v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 15, 2021
14-19-01016-CR
Meagan Hassan
Published
The appellant appealed his conviction for the third degree felony offense of assault of a family member, second offender. The appellate court found that based on the evidence in the record and considering the jury was the sole judge of the credibility of witnesses and was free to apply common knowledge and life experience when giving effect to the inferences that may reasonably be drawn from the evidence, the court concluded that the jury reasonably could have determined that the appellant was hitting Complainant causing her physical pain. The appellate court determined that the evidence was legally sufficient to establish the complainant suffered bodily injury in the case, and that based on the evidence admitted at trial by the appellant, the court could conclude the jury reasonably found that the appellant and Complainant had a dating relationship. The appellate court concluded that any variance between the indictment and the proof at trial was immaterial, should be disregarded, and did not affect the court's sufficiency review and the validity of the conviction. Accordingly, the court affirmed the trial court’s judgment.  


The appellate court concluded that the trial court’s denial of the appellant's second motion for post-conviction DNA testing was supported by two independently sufficient grounds.
Evans v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
July 15, 2021
02-20-00097-CR
Mike Wallach
Published
The appellant challenged the trial court’s denial of his second motion for post-conviction forensic DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. On appeal, the appellant claimed the trial court abused its discretion by denying his motion because, he argued, the trial court erroneously found that exculpatory results from the requested DNA tests were unlikely to have changed the jury’s verdict. The appellate court found that because the chain-of-custody requirement was not satisfied, the trial court correctly concluded that it could not grant post-conviction DNA testing under Chapter 64. Further, consequently, the appellant failed to satisfy Chapter 64’s affidavit requirement. The appellate court concluded that the trial court’s denial of the appellant's second motion for post-conviction DNA testing was supported by two independently sufficient grounds. Accordingly, the court affirmed the trial court’s order.      


Based on the evidence presented at the temporary-injunction hearing, the appellants failed to offer evidence tending to prove that either the Zoning Ordinance or the STR Ordinance violated their equal-protection rights.
Draper v. Arlington
Appellate: Civil, Constitution, Gov't/Administrative, Landlord and Tenant, Real Property, Zoning
Texas 2nd Court of Appeals
July 15, 2021
02-19-00410-CV
Elizabeth S. Kerr
Published
The appellants applied for a temporary injunction to enjoin the appellees from enforcing the ordinances, and the trial court denied the application. The appellate court found that the based on the evidence presented at the temporary-injunction hearing, the court concluded that the appellants failed to present evidence tending to prove that the Zoning Ordinance violated their substantive-due-course-of-law rights and thus failed to show that they were likely to prevail on their request for a declaration that the Zoning Ordinance violated their substantive-due-course-of-law rights under Article 1, Section 19 of the Texas Constitution. The appellate court determined that the appellants failed to show on the record and as their claims were currently pleaded that they would likely prevail on their assembly-clause and freedom-of-movement claims because they lacked standing. The appellate court concluded that based on the evidence presented at the temporary-injunction hearing, the appellants failed to offer evidence tending to prove that either the Zoning Ordinance or the STR Ordinance violated their equal-protection rights. Accordingly, the court affirmed the trial court’s order.  


The appellate court concluded that an additional warrant expressly authorizing the testing of the blood seized was not required, and its absence could not serve as a basis for suppressing the blood–analysis results.
State v. Patel
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
July 02, 2021
05-20-00129-CR
Robbie Partida-Kipness
Published
The State appealed the judgment of the trial court, which granted the appellee’s motion and ordered the results of the blood analysis excluded. The appellate court noted that the appellee said nothing in his motion or at the pretrial hearing that may reasonably be construed to be a request for suppression based on the lack of a return and inventory or untimely execution. The State, therefore, had no notice that the appellee contended the BAC results should be suppressed because of a problem with the execution or return of the blood–draw warrant, and thus, the State’s burden of production and persuasion with respect to such issues was never triggered. The appellate court found that the lack of a return and inventory did not invalidate the search warrant, and thus, the lack of a return was not a theory of law on which the trial court could grant the appellee’s motion. The appellate court concluded that an additional warrant expressly authorizing the testing of the blood seized was not required, and its absence could not serve as a basis for suppressing the blood–analysis results. Accordingly, the court reversed the order suppressing the BAC analysis, and remanded.