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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The expert’s medical testimony was unnecessary to prove or refute the plaintiff’s claims and the plaintiff had not alleged facts that gave rise to a health care liability claim.
Valdes v. Shields
Appellate: Civil, Damages, Health Care, Litigation: Personal Injury, Torts
Texas 14th Court of Appeals
August 28, 2020
14-18-00725-CV
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which denied his motion to dismiss the plaintiff’s claims under the Texas Medical Liability Act for failure to serve an expert report. On appeal, the defendant challenged the plaintiff’s request for damages based on injuries she claimed to have suffered when she tripped on a rug in the defendant’s waiting room. The appellate court noted that because the plaintiff’s claim was not a health care liability claim, the trial court did not err in denying the defendant’s motion to dismiss the plaintiff’s claims under the Texas Medical Liability Act. The appellate court concluded that the expert’s medical testimony was unnecessary to prove or refute the plaintiff’s claims and the plaintiff had not alleged facts that gave rise to a health care liability claim. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the relator had not established that it was entitled to mandamus relief.
In re Oprona
Appellate: Civil, Employment, Procedure
Texas 14th Court of Appeals
August 28, 2020
14-20-00370-CV
Margaret Poissant
Published
The relator appealed the judgment of the trial court, filing a petition for writ of mandamus asking the court to compel the presiding judge to set aside his order granting the real party in interest’s motion for new trial and an order denying the relator’s motion to void the new trial order. The appellate court noted that the trial court did not abuse its discretion by finding that the motion to reinstate was not a motion for new trial, granted a new trial, or denied the relator’s motion to set aside the new trial order. The appellate court found that because the court had found that the motion was a motion to reinstate and the trial court had plenary power to grant the motion for new trial, it was not necessary to address the trial court’s holding in the order that the Texas Supreme Court’s Twelfth Emergency Order Regarding the Covid-19 State of Disaster extended the deadline for a party to file a motion for new trial. The appellate court concluded that the relator had not established that it was entitled to mandamus relief. Accordingly, the court denied the relator’s petition for writ of mandamus.  

Upon viewing the totality of the circumstances in the light most favorable to the trial court’s ruling, the trial court did not abuse its discretion in deciding that the defendant’s voluntarily consented to providing a blood sample.
Hunter v. State
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
August 25, 2020
07-20-00092-CR
Brian Quinn
Published
The defendant appealed the judgment of the trial court which denied his motion to suppress the results of a blood test. On appeal, the defendant challenged the trial court’s conviction to the offense of driving while intoxicated and sentenced him to 180 days in county jail. The appellate court noted that the defendant disputed the voluntariness of his consent by moving to suppress evidence of the draw. The appellate court found that the ambiguity and lack of clarity the defendant attributed to the circumstances at bar was no greater than that in Meekins, and, more importantly, one of the several ways it could be construed was indicative of the defendant consenting to the blood draw. The appellate court concluded that upon viewing the totality of the circumstances in the light most favorable to the trial court’s ruling, the trial court did not abuse its discretion in deciding that the defendant’s voluntarily consented to providing a blood sample. Accordingly, the judgment of the trial court was affirmed.    

The Republican Party candidates’ only legally recognized interest in pursuing the mandamus was to avoid being opposed by an ineligible candidate—an outcome that the court could not, at that point, change.
In re Nat'l Republican Congressional Comm.
Appellate: Civil, Constitution, Election, Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
August 25, 2020
03-20-00421-CV
Chari L. Kelly
Published
The relators appealed the judgment of the trial court, seeking writs of mandamus ordering the respondents to declare the real parties in interest, who were candidates for various statewide offices, ineligible to appear as the Libertarian Party candidates on the general election ballot. On appeal, the relators asserted that the real parties in interest have not complied with the Texas Election Code provision requiring them to pay a filing fee or submit a petition in lieu of a filing fee to be eligible to appear on the ballot. The appellate court noted that because the relators waited to file their challenge to a total of 30 candidates until the last possible day the court could grant the relief they sought, they made it impossible for the court to obtain the information and briefing needed to afford due process and make a reasoned decision until less than 74 days remained before election day. The appellate court concluded that the Republican Party candidates’ only legally recognized interest in pursuing the mandamus was to avoid being opposed by an ineligible candidate—an outcome that the court could not, at that point, change. Accordingly, the relators’ petitions for writ of mandamus were dismissed.    

There was no statutory authorization for interlocutory review of an order determining the validity of a lien, and thus, the appellate court lacked jurisdiction to review the portion of the order that found the defendant’s liens were invalid.
Round Table Physicians Group, PLLC v. Kilgore
Appellate: Civil, Corporations, Evidence, Gov't/Administrative, Health Care, Juvenile, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
August 25, 2020
14-19-00543-CV
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which denied their Texas Citizens Participation Act (TCPA) motion to dismiss the plaintiff’s declaratory judgment suit, which alleged that the defendant’s chapter 55 medical lien was fraudulent. The appellate court noted that the defendant’s notices of liens were commercial speech exempt from the TCPA’s dismissal procedures, and as such, could not support dismissal of the plaintiff’s declaratory judgment and fraudulent lien claims. The appellate court strictly construed statutes authorizing interlocutory appeals because a statute authorizing an appeal from an interlocutory order was in derogation of the general rule that only final judgments were appealable. The appellate court further determined that when an order granted both injunctive relief and non-injunctive relief, an appellate court possessed interlocutory appellate jurisdiction over only the injunctive portion of the order. The appellate court concluded that there was no statutory authorization for interlocutory review of an order determining the validity of a lien, and thus, the appellate court lacked jurisdiction to review the portion of the order that found the defendant’s liens were invalid. Accordingly, the judgment of the trial court was affirmed in part.

The defendant’s notice of lien was commercial speech exempt from the TCPA’s dismissal procedures, and as such, could not support dismissal of the plaintiff’s declaratory judgment and fraudulent lien claims.
Round Table Physicians Group, PLLC v. Medina
Appellate: Civil, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
August 25, 2020
14-19-00412-CV
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which denied its Texas Citizens Participation Act (TCPA) motion to dismiss the plaintiff’s declaratory judgment suit, which alleged that the defendant’s chapter 55 medical lien was fraudulent. On appeal, the defendant filed with the county clerk a notice of lien under Property Code chapter 55. The appellate court noted that Chapter 55 created a lien in favor of certain medical providers who treated individuals allegedly injured by the negligence of a third party and established procedures to secure the lien. The appellate court found that after considering the language of the TCPA’s commercial speech exemption, the plaintiff met her burden of establishing each element of the exemption in Tex. Civ. Prac. & Rem. Code section 27.010(b). The appellate court concluded that the defendant’s notice of lien was commercial speech exempt from the TCPA’s dismissal procedures, and as such, could not support dismissal of the plaintiff’s declaratory judgment and fraudulent lien claims. Accordingly, the judgment of the trial court was affirmed.        

The appellate court concluded that the trial court did not err by denying the plaintiffs’ motion seeking disgorgement of profits.
Sohani v. Sunesara
Appellate: Civil, Business, Damages, Procedure, Torts
Texas 1st Court of Appeals
August 25, 2020
01-19-00122-CV
Evelyn V. Keyes
Published
The plaintiffs appealed the judgment of the trial court which ruled in favor of the defendant for fraud and seeking declaratory relief arising out of the defendant’s formation of three limited liability companies. The appellate court noted that the plaintiffs did not challenge the other declaration in favor of the defendant, and they also did not challenge the jury’s findings that the defendant did not commit fraud. The appellate court found that the trial court could have awarded attorney’s fees to the plaintiffs only, to the defendant only, to all parties, or to none of the parties. The appellate court further determined that in the absence of any pleadings to support a breach of fiduciary duty claim or jury findings that the defendant breached a fiduciary duty or otherwise acted wrongfully, the plaintiffs were not entitled to seek post-appeal disgorgement of profits distributed to the defendant. The appellate court concluded that the trial court did not err by denying the plaintiffs’ motion seeking disgorgement of profits. Accordingly, the judgment of the trial court was affirmed.  

Since the trial court found that the State exercised due diligence in completing its transfer proceeding before the defendant’s eighteenth birthday, the trial court maintained jurisdiction over the defendant’s transfer proceeding under Section 51.0412.
In re J.C.W.G.
Criminal, Evidence, Juvenile, Procedure
Texas 4th Court of Appeals
August 12, 2020
04-19-00861-CV
Patricia O. Alvarez
Published
The defendant appealed the judgment of the trial court after the State charge him with aggravated sexual assault. On appeal, the defendant challenged the trial court’s denial of his plea to the jurisdiction and granted the State’s motion to transfer the case to criminal court. The appellate court noted that the trial court did not abuse its discretion in finding that the State exercised due diligence or in denying the defendant’s plea to the jurisdiction. The appellate court found that the trial court ruled that the defendant was at least fourteen years old at the time of the offense, that probable cause existed to support the State’s allegations, and that the offense was serious, involving both injury and violence. The appellate court concluded that since the trial court found that the State exercised due diligence in completing its transfer proceeding before the defendant’s eighteenth birthday, the trial court maintained jurisdiction over the defendant’s transfer proceeding under Section 51.0412. Accordingly, the judgment of the trial court was affirmed.

The trial court erred in granting the defendant’s motion to quash and dismiss the indictment because the interests of justice so required.
State v. Peterson
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
August 25, 2020
01-19-00137-CR
Julie Countiss
Published
The State appealed the judgment of the trial court which granted the motion of the defendant to quash and dismiss the indictment alleging that she committed the felony offense of compelling prostitution by a minor. The appellate court noted that the trial court erred in granting the defendant’s motion to quash and dismiss the indictment because the indictment did not provide the defendant with adequate notice. The appellate court found that the defendant’s double-jeopardy complaint was not ripe, and thus, the trial court erred in granting the defendant’s motion to quash and dismiss the indictment on a double-jeopardy basis. The appellate court concluded that the trial court erred in granting the defendant’s motion to quash and dismiss the indictment because the interests of justice so required. Accordingly, the judgment of the trial court was reversed and remanded.  

Sufficient evidence existed to support the trial court’s determination of custody and possession, and thus, the trial court did not abuse its discretion by deviating from the standard possession order regarding the appellant’s possession of the children.
Escalante v. Escalante
Appellate: Civil, Family, Juvenile, Procedure
Texas 8th Court of Appeals
July 10, 2020
08-18-00067-CV
Yvonne T. Rodriguez
Published
The appellant appealed the judgment of the trial court which granted a divorce between the parties. The appellate court noted that the appellee’s testimony regarding being contacted by the appellant’s girlfriends, in combination with the appellant’s failure to deny allegations of infidelity on multiple occasions including at trial, constituted enough evidence on which the trial court’s judgment may rest. The appellate court found that to the extent there was conflicting evidence between the appellant’s and the appellee’s testimony, of which the court were not convinced, the court presumed the trial court, as the trier of fact, resolved the inconsistency in the appellee’s favor, as a reasonable person could so do. The appellate court concluded that sufficient evidence existed to support the trial court’s determination of custody and possession, and thus, the trial court did not abuse its discretion by deviating from the standard possession order regarding the appellant’s possession of the children. Accordingly, the judgment of the trial court was affirmed.  

The appellate court concluded that the defendant failed to demonstrate that any alleged deficiency prejudiced the outcome of the case.
Vega v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
August 12, 2020
04-19-00468-CR
Patricia O. Alvarez
Published
The defendant appealed the judgment of the trial court which convicted him of two second-degree felony counts of indecency with a child under the age of 14 in violation of Penal Code Section 21.11(a)(1). On appeal, the defendant challenged the trial court’s sentence to fifteen years’ imprisonment. The appellate court found that on the record it could not preclude that the trial counsel’s failure to object to hearsay evidence relating to various outcry witnesses, despite Article 38.072 of the Texas Code of Criminal Procedure, constituted trial strategy. The appellate court concluded that the defendant failed to demonstrate that any alleged deficiency prejudiced the outcome of the case. Accordingly, the judgment of the trial court was affirmed.    

In the absence of expert testimony on the causation element of the plaintiffs’ negligence and negligent misrepresentation claims, summary judgment was proper.
White Rock Exploration, Inc. v. Freeman Mills, P.C.
Appellate: Civil, Corporations, Procedure, Torts
Texas 6th Court of Appeals
August 05, 2020
06-20-00005-CV
Scott E. Stevens
Published
The plaintiffs appealed the judgment of the trial court which granted the defendants’ no-evidence motion for summary judgment in a legal malpractice action. The appellate court noted that the motion was sufficient to comply with Tex. R. Civ. P. Rule 166a(i) and to provide the plaintiffs with adequate information to oppose the motion and to define the issues for the purpose of summary judgment. The appellate court found that the issue of whether the plaintiffs would have obtained a different result via settlement or what the outcome of the unasserted claims might have been was beyond the ken of most jurors. The appellate court concluded that in the absence of expert testimony on the causation element of the plaintiffs’ negligence and negligent misrepresentation claims, summary judgment was proper. Accordingly, the judgment of the trial court was affirmed.  

The trial court did not abuse its discretion by permitting the doctor to testify concerning the detective’s summary of the contents of the audio recording, as that summary formed part of the basis of the doctor’s expert opinion.
In re Burd
Appellate: Civil, Criminal, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
August 06, 2020
01-18-00917-CV
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which determined that the defendant was a sexually violent predator and and which signed an order of civil commitment. On appeal, the defendant challenged the trial court’s civil commitment order under Texas’s Sexually Violent Predators Act (SVP Act). The appellate court noted that the trial court had subject-matter jurisdiction over the SVP Act proceeding and that the trial court did not err by denying the defendant’s motion to dismiss the proceeding for lack of subject matter jurisdiction. The appellate court found that the trial court did not abuse its discretion when it allowed the doctor to testify that the second doctor had determined that the defendant had a behavioral abnormality. The appellate court concluded that the trial court did not abuse its discretion by permitting the doctor to testify concerning the detective’s summary of the contents of the audio recording, as that summary formed part of the basis of the doctor’s expert opinion. Accordingly, the judgment of the trial court was affirmed.  

Since the warrant and supporting affidavit directly linked the evidence being sought to the offense being investigated at the time the warrant was obtained, the search was not an overbroad general search.
Diaz v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 16, 2020
14-17-00685-CR
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which convicted him of burglary of a habitation while committing the offense of aggravated assault with a deadly weapon. On appeal, the defendant challenged the trial court’s denial of his motion to suppress evidence obtained from the defendant’s three cell phones. The appellate court noted that the crucial information identifying the defendant and his involvement in the home invasion was essentially true and independently corroborated. The appellate court agreed with the trial court that the defendant had not shown a Franks violation on those facts, and the facts contained in the affidavit and reasonable inferences therefrom provided a sufficient basis from which the magistrate reasonably could conclude that a fair probability or substantial chance existed that evidence of the home invasion would be found on the defendant’s cell phones. The appellate court concluded that since the warrant and supporting affidavit directly linked the evidence being sought to the offense being investigated at the time the warrant was obtained, the search was not an overbroad general search. Accordingly, the judgment of the trial court was affirmed.  

Since the appellants timely requested but did not receive a de novo hearing on the associate judge’s granting of the appellee’s motion to appoint a receiver, the court reversed the order appointing a receiver and the portion of the trial court’s order denying the de novo hearing request.
Law Office of Joseph Onwuteaka, P.C. v. Serna
Appellate: Civil, Courts, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
July 16, 2020
14-18-01063-CV
Frances Bourliot
Published
The appellants appealed the judgment of the trial court which denied their request for de novo hearings. On appeal, the appellants complained that they did not receive proper notice of their right to request de novo hearings. The appellate court noted that because the appellants did not timely request a de novo hearing regarding the associate judge’s denial of their motions for new trial and to vacate or abate, the court overruled their sole issue to the extent they challenged the denial of their request for a de novo hearing as to those decisions. The appellate court found that because the appellants timely requested but did not receive a de novo hearing on the associate judge’s granting of the appellee’s motion to appoint a receiver, the court reversed the order appointing a receiver and the portion of the trial court’s order denying the de novo hearing request on the motion to appoint a receiver. Accordingly, the judgment of the trial court was reversed and remanded.  

Since the petitioner failed to meet his burden to show that he met the conditions for expunction, the trial court did not abuse its discretion in denying his petition for expunction.
R.G. v. Harris Cnty. Dist. Attorney’s Office
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 13, 2020
14-18-00823-CV
Kevin Jewell
Published
The petitioner appealed the judgment of the trial court which denied the petitioner’s petition for expunction. On appeal, the petitioner sought to expunge the criminal records and files pertaining to the offense alleged in count one of the indictment the State dismissed. The appellate court noted that the record reflected that the petitioner was arrested, and the grand jury returned a single indictment alleging two counts of similar offenses involving injury to the petitioner’s three-week-old daughter. The appellate court found that because an indictment was presented against the petitioner for a felony offense arising out of the same transaction for which he was arrested, to be entitled to expunction of the records pertaining to the dismissed offense the petitioner had to show that count two was dismissed or quashed because of any one of the circumstances listed in article 55.01(a)(2)(A)(ii) of the Texas Code of Criminal Procedure. The appellate court concluded that since the petitioner failed to meet his burden to show that he met the conditions for expunction, the trial court did not abuse its discretion in denying his petition for expunction. Accordingly, the judgment of the trial court was affirmed.

The writ would issue only if the trial court failed to act in accordance with the opinion, and the court denied the remainder of the petition and also dismissed as moot the relator’s motion for emergency relief.
In re V.K.
Appellate: Civil, Constitution, Family, Procedure
Texas 14th Court of Appeals
August 07, 2020
14-20-00491-CV
Kem Thompson Frost
Published
The relator appealed the judgment of the trial court, filing an original petition for divorce. The appellate court noted that the mandamus relief would preserve the relator’s important statutory right under section 83.004 to a live evidentiary hearing on his motion to vacate the order. The appellate court found that the benefits of granting mandamus relief outweighed the detriments and the relator did not have an adequate remedy by appeal. The appellate court further determined that the relator had established that the trial court abused its discretion by refusing to hold a live, evidentiary hearing on relator’s motion to vacate the order and he had no adequate remedy by appeal. The appellate court concluded that the writ would issue only if the trial court failed to act in accordance with the opinion, and the court denied the remainder of the petition and also dismissed as moot the relator’s motion for emergency relief. Accordingly, the court conditionally partly granted the petition and partly denied.      

Since the trial court failed to defer to the magistrate’s evaluation of the facts and their inferences, its ruling was in error.
State v. Baldwin
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 06, 2020
14-19-00154-CR
Tracy Christopher
Published
The State appealed the judgment of the trial court which granted the defendant’s motion to suppress. On appeal, the appellate court was asked to consider whether a search-warrant affidavit set forth enough facts to establish probable cause for the search of a cellphone. The appellate court noted that by issuing the search warrant, the magistrate implicitly determined that the affidavit was sufficient, but the trial court ruled that the affidavit was insufficient and suppressed all of the evidence obtained from the cellphone. The appellate court found that the affidavit contained sufficient facts, coupled with the rational inferences from those facts, to establish a fair probability that a search of the defendant’s cellphone would likely produce evidence in the investigation of the homeowner’s capital murder. The appellate court concluded that since the trial court failed to defer to the magistrate’s evaluation of the facts and their inferences, its ruling was in error. Accordingly, the judgment of the trial court was reversed and remanded.  

Since a governmental entity may not regain waived immunity by virtue of a settlement agreement, the same waiver of immunity that applied to the original settled claims applied to that subsequent dispute over the settlement agreement.
Cnty. of El Paso v. Mijares
Appellate: Civil, Contracts, Damages, Employment, Gov't/Administrative, Procedure, Torts
Texas 8th Court of Appeals
July 13, 2020
08-19-00294-CV
Michael Massengale
Published
The defendant appealed the judgment of the trial court which denied its plea to the jurisdiction in a lawsuit stemming from settlement agreements between the defendant and two of its former employees, the plaintiffs. On appeal, the plaintiffs contended that the defendant was contractually obligated to rehire them and based on the defendant’s failure to do so they have alleged claims for breach of contract, fraud, and fraudulent inducement. In response, the defendant filed its jurisdictional plea asserting governmental immunity, which the trial court denied. The appellate court noted that the plaintiffs have failed to plead any statute or other legislative authority upon which to overcome the presumption that the defendant was immune from suit. The appellate court found that it was an incurable defect at least with respect to the claims of fraud and fraudulent inducement, and with respect to the contract claims, because a governmental entity may not regain waived immunity by virtue of a settlement agreement, the same waiver of immunity that applied to the original settled claims applied to that subsequent dispute over the settlement agreement. The appellate court rejected the suggestion of mootness, as a live controversy still existed concerning the plaintiffs’ claims for damages. Accordingly, the judgment of the trial court was reversed in part and remanded for further proceedings.    

Given the trial court’s discretion to award attorney’s fees under section 27.009(b), the trial court did not abuse its discretion in failing to award the plaintiffs’ reasonable attorney’s fees.
Youngblood v. Zaccaria
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 4th Court of Appeals
August 12, 2020
04-19-00868-CV
Liza A. Rodriguez
Published
The defendants appealed the judgment of the trial court which denied their motion to dismiss under the Texas Citizens’ Participation Act (TCPA). On appeal, the defendants challenged the plaintiffs’ petition for declaratory judgment, requesting that the trial court declare a settlement agreement between them and the defendants void and unenforceable. The appellate court noted that the defendants did not demonstrate that the TCPA applied in the case. The appellate court found that the defendants did not demonstrate that the TCPA applied, and the trial court did not err in denying their motion to dismiss under the TCPA. The appellate court concluded that given the trial court’s discretion to award attorney’s fees under section 27.009(b), the trial court did not abuse its discretion in failing to award the plaintiffs’ reasonable attorney’s fees. Accordingly, the judgment of the trial court was affirmed.  

The Fifth Circuit concluded that the defendant failed to show the trial court erred in its rulings regarding evidence, the jury charge, and Batson issues.
United Rentals N. Am., Inc. v. Evans
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Torts
Texas 5th Court of Appeals
August 18, 2020
05-18-00665-CV
Amanda L. Reichek
Published
The defendant appealed the judgment of the district court which rendered judgment in accordance with the jury’s verdict, granting the plaintiffs damages and awarding pre- and post-judgment interest. On appeal, the defendant challenged the sufficiency of the evidence to support the jury’s findings on negligence and conscious pain and anguish, the trial court’s Batson rulings, and evidentiary and charge rulings related to an expert’s testimony concerning the Texas Administrative Code. The Fifth Circuit found that the evidence was legally and factually sufficient to support the jury’s findings on negligence and the deceased’s conscious pain and suffering. The Fifth Circuit concluded that the defendant failed to show the trial court erred in its rulings regarding evidence, the jury charge, and Batson issues. Accordingly, the judgment of the district court was affirmed.  

Since the undisputed jurisdictional evidence conclusively negated the trial court’s subject matter jurisdiction, the trial court erred in denying the defendant’s plea.
Valley v. Martinez
Appellate: Civil, Constitution, Employment, Evidence, Gov't/Administrative, Procedure
Texas 4th Court of Appeals
August 19, 2020
04-19-00879-CV
Patricia O. Alvarez
Published
The defendant appealed the judgment of the trial court which denied its plea to the jurisdiction in response to the plaintiff’s suit. On appeal, the defendant argued that a quo warranto proceeding was the defendant’s exclusive remedy. The appellate court noted that the defendant’s attempt to be reinstated was an issue which may be raised only in a quo warranto proceeding, and the trial court had no subject matter jurisdiction over the plaintiff’s declaratory judgment action. The appellate court found that the live pleading sought a declaratory judgment that his due process rights under the Texas Constitution were violated when the defendant failed to give him proper notice of the investigative hearings and failed to obtain the necessary votes required to remove him from office. The appellate court concluded that since the undisputed jurisdictional evidence conclusively negated the trial court’s subject matter jurisdiction, the trial court erred in denying the defendant’s plea. Accordingly, the judgment of the trial court was reversed.

The trial court did not err in allowing the third doctor to describe details of the unadjudicated offenses because those facts helped form the basis of his opinion, and they were not unduly prejudicial.
In re Johnson
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
August 19, 2020
04-19-00761-CV
Patricia O. Alvarez
Published
The defendant appealed the judgment of the trial court which convicted him of sex offenses involving two of the victims and sentenced him to twenty-five years in prison. On appeal, the defendant challenged the trial court’s conviction and order of commitment following a jury’s finding that the defendant was a sexually violent predator (SVP). The appellate court noted that the evidence was sufficient to support the jury’s SVP finding, having reviewed the entire record, and the record did not reflect that the trial court abused its discretion regarding the admission into evidence of the doctor’s risk assessment testimony. The appellate court found that the trial court also did not abuse its discretion by allowing testifying expert witnesses to refer to the second doctor’s opinion as part of the basis for their opinions, particularly because the trial court included the defendant’s requested limiting instruction. The appellate court concluded that the trial court did not err in allowing the third doctor to describe details of the unadjudicated offenses because those facts helped form the basis of his opinion, and they were not unduly prejudicial. Accordingly, the judgment of the trial court was affirmed.    

Since the Court's resolution of the plea to the jurisdiction was dispositive, the court need not address the trial court’s ruling on the City’s Rule 91a motion to dismiss for lack of standing.
City of San Antonio v. Dohlen
Appellate: Civil, Business, Constitution, Contracts, Gov't/Administrative, Procedure, Torts
Texas 4th Court of Appeals
August 19, 2020
04-20-00071-CV
Sandee Bryan Marion
Published
The City appealed the judgment of the trial court which denied its plea to the jurisdiction and Rule 91a motion to dismiss. The appellate court noted that the plaintiffs alleged that the City was violating Government Code chapter 2400 by continuing to exclude Chick-fil-A from operating a restaurant in the airport based on Chick-fil-A’s past and present contributions, donations, and support for certain religious organizations that opposed homosexual behavior. The appellate court found that the plaintiffs’ claims affirmatively negated the existence of jurisdiction, and an amendment would not cure the defect. The appellate court concluded that since its resolution of the plea to the jurisdiction was dispositive, the court need not address the trial court’s ruling on the City’s Rule 91a motion to dismiss for lack of standing. Accordingly, the judgment of the trial court was affirmed.

The trial court did not err by implicitly determining that the plaintiff did not present evidence raising a genuine issue of fact to support their claim of tortious interference with a contract.
Jatex Oil & Gas Exploration L.P. v. Nadel & Gussman Permian, L.L.C.
Appellate: Civil, Contracts, Procedure
Texas 11th Court of Appeals
August 20, 2020
11-17-00265-CV
John Bailey
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment. On appeal, the plaintiff asserted causes of action for breach of contract, failure to act as a reasonably prudent operator, and tortious interference with a contract. The appellate court noted that the trial court had multiple bases for striking the plaintiff’s valuation of the mineral interests, and thus, the trial court did not abuse its discretion by granting the defendants’ motion to strike the plaintiff’s valuation from the summary judgment evidence. The appellate court found that the final notice of default indicated that the bank foreclosed upon the mineral interests pursuant to a note executed after the oral forbearance agreement was purportedly made. The appellate court concluded that the trial court did not err by implicitly determining that the plaintiff did not present evidence raising a genuine issue of fact to support their claim of tortious interference with a contract. Accordingly, the judgment of the trial court was affirmed.  

The trial court had sufficient information on which to exercise its discretion and did not abuse its discretion in appointing the Department as sole managing conservator of the child.
In re M. P.
Appellate: Civil, Family, Juvenile, Procedure
Texas 14th Court of Appeals
August 20, 2020
14-20-00169-CV
Per Curiam
Published
The father appealed the judgment of the trial court which terminated the parental rights of the father with respect to his daughter and appointed the Department of Family and Protective Services (the Department) to be the child’s permanent managing conservator. The appellate court noted that the review of the record indicated that the Department succeeded in proving by clear and convincing evidence that the father failed to comply with the court-ordered service plan under subsection O and that the father failed to prove his subsection (d) affirmative defense by a preponderance of the evidence. The appellate court found that there was legally-sufficient evidence to support the finding of endangerment under subsection (D). The appellate court further determined that based on the gaps and conflicts in the evidence, the trial court could not have reasonably concluded under a clear and convincing standard that the father engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child’s physical or emotional well-being. The appellate court concluded that the trial court had sufficient information on which to exercise its discretion and did not abuse its discretion in appointing the Department as sole managing conservator of the child. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded.        

The trial court did not err by dismissing the plaintiff’s lawsuit against the defendant pursuant to the Texas Citizens Participation Act.
Robles v. Nichols
Appellate: Civil, Business, Constitution, Contracts, Criminal, Gov't/Administrative, Procedure, Torts
Texas 8th Court of Appeals
August 19, 2020
08-19-00225-CV
Gina M. Palafox
Published
The plaintiff appealed the judgment of the trial court which dismissed the plaintiff’s claims against the defendant pursuant to the Texas Citizens Participation Act (TCPA). On appeal, the plaintiffs challenged the trial court’s dismissal of her lawsuit against the defendant. The appellate court noted that the plaintiff attempted to remove her claim from the purview of the attorney immunity defense by arguing that the defendant’s conduct was foreign to the duties of a lawyer because it was wrongful or criminal. The appellate court agreed with the plaintiff that the trial court lacked sufficient information to perform a meaningful review of the defendant’s fee application. The appellate court concluded that the trial court did not err by dismissing the plaintiff’s lawsuit against the defendant pursuant to the TCPA. Accordingly, the judgment of the trial court was affirmed in part, reversed and remanded in part.

Since the defendants failed to meet its burden to affirmatively demonstrate that the plaintiffs’ claim was a health care liability claim, the expert report requirement did not apply, and the trial court did not abuse its discretion in denying the defendants’ motion to dismiss.
Belmont Vill. Hunters Creek TRS, LLC v. Marshall
Appellate: Civil, Employment, Health Care, Procedure
Texas 1st Court of Appeals
August 20, 2020
01-18-00984-CV
Richard Hightower
Published
The defendants appealed the judgment of the trial court which denied the defendants’ motion to dismiss. On appeal, the defendants asserted that the plaintiffs’ claim was a health care liability claim and they had failed to provide an expert report as required by the Texas Medical Liability Act (TMLA). The appellate court noted that the record in the case did not show a substantive nexus between the plaintiffs’ claim relating to the safety and security of the deceased’s unit and the defendants’ providing of health care. The appellate court found that in light of the court's conclusion that the defendants failed to establish that the plaintiffs’ claim concerned health care or safety standards related to health care, the court need not address the third element of a TMLA claim whether the complained-of omission proximately caused the injury to the claimant. The appellate court concluded that since the defendants failed to meet its burden to affirmatively demonstrate that the plaintiffs’ claim was a health care liability claim, the expert report requirement did not apply, and the trial court did not abuse its discretion in denying the defendants’ motion to dismiss. Accordingly, the judgment of the trial court was affirmed.  

The appellate court concluded that the relator failed to establish that it was entitled to mandamus relief.
In re Liberty Cnty. Mut. Ins. Co.
Appellate: Civil, Contracts, Damages, Insurance, Procedure, Torts
Texas 14th Court of Appeals
July 07, 2020
14-19-00932-CV
Jerry Zimmerer
Published
The relator appealed the judgment of the trial court, filing a petition for writ of mandamus asking the court to compel the trial court to set aside the order directing the relator to produce its corporate representative for deposition. The appellate court noted that the parties attached documents to the petition and the response to the petition that were not attached as exhibits to an individual’s motion to compel or the relator’s opposition to the motion to compel or even to the relator’s motion to sever and abate. The appellate court found that based on the record before the trial court when it ruled on the motion to compel, the trial court did not abuse its discretion by ordering the relator to produce a representative for deposition on the topics of liability and damages in the underlying car accident case. The appellate court concluded that the relator failed to establish that it was entitled to mandamus relief. Accordingly, the court denied the relator’s petition for writ of mandamus.    

The arbitration clause provided that any dispute or controversy arose under, out of, or in connection with or in relation to the cattle feeding agreement might be resolved through arbitration.
Bonsmara Natural Beef Co., LLC v. Hart of Tex. Cattle Feeders, LLC
ADR, Appellate: Civil, Business, Contracts, Procedure
The Supreme Court of Texas
June 26, 2020
19-0263
J. Brett Busby
Published
The petitioner appealed the judgment of the trial court after it held that the requirements of direct-benefits estoppel were met. On appeal, the Supreme Court was asked to address issues regarding the effect of forgoing an interlocutory appeal and the availability of their chosen forum for arbitration in the cattle-feeding dispute. The petitioner argued that the parties may draft their arbitration agreements to limit estoppel. The Supreme Court noted that the general rule, with a few mostly statutory exceptions, was that an appeal might be taken only from a final judgment, and the statutory exceptions generally provided that a person might appeal from certain types of interlocutory orders, including an order denying a motion to compel arbitration. The Supreme Court found that the petitioner’s assertion that direct-benefits estoppel was inapplicable simply because it would require arbitration with non-signatories was a non-starter. The Supreme Court concluded that the arbitration clause provided that any dispute or controversy arose under, out of, or in connection with or in relation to the cattle feeding agreement might be resolved through arbitration. Accordingly, the judgment of the trial court was affirmed.  

The trial court abused its discretion in ordering, over the objection of the relator, that the child’s possessory conservator with rights to possession of the child.
In re C.J.C.
Appellate: Civil, Constitution, Family, Juvenile, Procedure
The Supreme Court of Texas
June 26, 2020
19-0694
Jane N. Bland
Published
The father appealed the judgment of the trial court, requesting that a court determine conservatorship, possession, and child support for the child. On appeal, the father sought mandamus relief, which the appellate court granted relief in part, finding that the child’s grandparents had no standing to seek conservatorship of the child because no evidence existed that the father’s conservatorship would significantly impair the child’s physical health or emotional development, as the statute governing grandparent intervention required. The Supreme Court noted that because the mother had relinquished managing conservatorship of the child, the jury instruction was within the trial court’s discretion, observing that the statutory presumption in chapter 153, which governed original proceedings, was not found in chapter 156.68. The Supreme Court found that a child did not become a “creature of the State,” subject to the trial court’s unfettered determination of the child’s best interest, because a presumably fit parent invoked the judicial process to establish his or her conservatorship of the child. The Supreme Court concluded that the trial court abused its discretion in ordering, over the objection of the relator, that the child’s possessory conservator with rights to possession of the child. Accordingly, the petition for writ of mandamus was granted and the judgment was vacated.

A rational jury could have found beyond a reasonable doubt that the defendant unlawfully possessed a firearm and that his conduct was not justified by necessity.
Fountain v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
June 30, 2020
14-18-00229-CR
Charles Spain
Published
The defendant appealed the judgment of the trial court which convicted the defendant of the felony offenses of first degree murder and the third degree unlawful possession of a firearm, both for intentionally and knowingly causing the death of the victim by shooting him with a firearm. On appeal, the defendant challenged the trial court’s assessment of the punishment at 24-years imprisonment for murder and 10 years for unlawful possession of a firearm, without fines and to run concurrently. The appellate court found that the evidence summarized that a rational jury could have concluded beyond a reasonable doubt that the defendant intentionally caused the victim's death and was not justified in using deadly force in doing so. The appellate court concluded that a rational jury could have found beyond a reasonable doubt that the defendant unlawfully possessed a firearm and that his conduct was not justified by necessity. Accordingly, the judgment of the trial court was affirmed.   

The appellate court conditionally granted the relator’s petition for writ of mandamus and directed the trial court to vacate its order granting motion to exclude the expert witness.
In re Marcus
Appellate: Civil, Constitution, Contracts, Damages, Gov't/Administrative, Procedure, Real Property
Texas 4th Court of Appeals
July 08, 2020
04-20-00160-CV
Patricia O. Alvarez
Published
The relators appealed the judgment of the trial court which denied the relators the opportunity to present their claim for a jury determination. On appeal, the relators asserted that the trial court abused its discretion by granting a motion to exclude the testimony of their damages expert. The respondents counterargued that the relators’ petition was barred by laches given the unexplained six-month delay in filing their petition, the trial court did not abuse its discretion in striking the testimony, and mandamus relief was improper because the petitioners had an adequate remedy at law. The appellate court found that the trial court abused its discretion by striking the expert witness testimony and other evidence with regard to damages. The appellate court conditionally granted the relator’s petition for writ of mandamus and directed the trial court to vacate its order granting motion to exclude the expert witness. Accordingly, the relator’s petition was conditionally granted.

The appellate court concluded that the trial court abused its discretion by ordering discovery of the relator’s net worth contrary to the requirements of Civil Practice and Remedies Code section 41.0115.
In re Boone
Appellate: Civil, Constitution, Damages, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 4th Court of Appeals
July 08, 2020
04-20-00219-CV
Patricia O. Alvarez
Published
The real party in interest appealed the judgment of the trial court, alleging negligence and gross negligence while RPI was under the relator’s care at the hospital. On appeal, the relator asserted that the trial court abused its discretion by granting RPI’s motion to obtain the relator’s net worth. The appellate court noted that RPI was required to establish, by clear and convincing evidence, both the objective and subjective elements of his gross negligence claim. The appellate court found that because he did not satisfy his burden to establish the objective element, RPI did not demonstrate a substantial likelihood of success on the merits of his claim for exemplary damages; and therefore, the court need not address whether RPI satisfied his burden to establish the subjective element. The appellate court further determined that the trial court abused its discretion by compelling discovery of the relator’s net worth. The appellate court concluded that the trial court abused its discretion by ordering discovery of the relator’s net worth contrary to the requirements of Civil Practice and Remedies Code section 41.0115. Accordingly, the court conditionally granted the relator’s petition for writ of mandamus.  

Since the petitioner was a common carrier, the Tort Claims Act waived the petitioner’s governmental immunity against the respondent’s claim for breach of its duty to its passenger, and that legally sufficient evidence supported the jury’s finding that the petitioner breached that duty.
VIA Metro. Transit v. Meck
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
June 26, 2020
18-0458
Jeffrey S. Boyd
Published
The petitioner appealed the judgment of the trial court, arguing that the high-degree-of-care duty did not, or should not, apply in the case, even if the high-degree of- care duty applied, the Texas Tort Claims Act did not waive governmental immunity against suits for breach of that duty. On appeal, the petitioner contended that no evidence supported the jury’s finding that the petitioner breached the high-degree-of-care duty to the respondent. The Supreme Court noted that even if the trial court had instructed the jury to apply the ordinary negligence duty, the evidence supported the jury’s finding that the petitioner failed to act in the ways the petitioner’s own witnesses agreed it should have acted. The Supreme Court found that the trial court had the authority to make the policy choice to alter the common law as the petitioner requested, however, the court declined to consider that option when the decision would not affect the outcome in the case. The Supreme Court concluded that since the petitioner was a common carrier, the Tort Claims Act waived the petitioner’s governmental immunity against the respondent’s claim for breach of its duty to its passenger, and that legally sufficient evidence supported the jury’s finding that the petitioner breached that duty. Accordingly, the judgment of the trial court was affirmed.    

The wife did not present any sworn witnesses or introduce any exhibits into evidence at the hearing, and although the trial court found evidence that harm was imminent in its order granting the anti-suit injunction, the record contained no competent evidence adduced at the hearing.
Ron v. Ron
Appellate: Civil, Family, Procedure, Real Property
Texas 14th Court of Appeals
June 25, 2020
14-18-00710-CV
Charles Spain
Published
The wife appealed the judgment of the trial court which granted an anti-suit injunction and order granting a temporary injunction in favor of the husband. On appeal, the wife challenged the trial court’s order. The appellate court noted that the wife did not present any sworn witnesses or introduce any exhibits into evidence at the hearing, and although the trial court found evidence that harm was imminent in its order granting the anti-suit injunction, the record contained no competent evidence adduced at the hearing. The appellate court found no evidence in the record showing that the anti-suit injunction portion of the temporary injunction was appropriate to prevent a multiplicity of lawsuits, to provide protection from vexatious or harassing litigation, or to prevent a threat to the trial court’s jurisdiction or the evasion of important public policy. Accordingly, the judgment of the trial court was reversed in part and affirmed in part.

The trial court abused its discretion by denying the relator’s motion to sever and abate the victim's bad-faith claims and related discovery pending disposition of her underinsured motorist claim.
In re Progressive Cnty. Mut. Ins. Co.
Appellate: Civil, Constitution, Contracts, Insurance, Procedure
Texas 4th Court of Appeals
July 08, 2020
04-20-00178-CV
Rebeca C. Martinez
Published
The relator appealed the judgment of the trial court, contending that it abused its discretion by refusing to sever and abate the real party in interest’s bad faith claims and related discovery pending disposition of her underinsured motorist claim. On appeal, the appellate court was asked to consider whether the trial court abused its discretion by denying the motion to abate. The appellate court noted that the trial court could only reach one decision that adequately protected the parties rights and that was to order severance of the two types of claims, and the trial court abused its discretion by denying the motion to sever the claims. The appellate court found that, without abatement, the parties would be put to the effort and expense of conducting discovery and preparing for trial of claims that may be disposed of in a previous trial. The appellate court concluded that the trial court abused its discretion by denying the relator’s motion to sever and abate the victim's bad-faith claims and related discovery pending disposition of her underinsured motorist claim. Accordingly, the relator’s petition for writ of mandamus was conditionally granted.      

There was no evidence in the record establishing that other members of the respondent incurred additional costs pasturing their cattle elsewhere and would have availed themselves of the Haedge.
Haedge v. Cent. Tex. Cattlemen's Ass'n
Appellate: Civil, Creditor/Debtor, Procedure, Real Property
The Supreme Court of Texas
June 26, 2020
19-0595
Per Curiam
Published
The petitioners appealed the judgment of the appellate court which reversed and required the petitioners to pay from the bond and which calculated the amount based on the expense the petitioners would have incurred if the judgment had not been superseded. On appeal, the Supreme Court was asked to consider how “loss or damage” was calculated on release of a supersedeas bond. The Supreme Court noted that the appellate court erred by calculating the respondent’s damages based on the petitioners’ estimated cost to lease alternative grazing pastures. The Supreme Court found that if the judgment had not been superseded, the respondent would simply have replaced the petitioners’ dues with dues paid by other members; and as a result, the respondent had not shown loss or damage beyond the $7,000 amount the trial court ordered released to it. The Supreme Court concluded that there was no evidence in the record establishing that other members of the respondent incurred additional costs pasturing their cattle elsewhere and would have availed themselves of the Haedge. Accordingly, the judgment of the appellate court was reversed.            

The defendant’s financial resources and ability to pay were explicit critical elements in the trial court’s determination of the propriety of ordering reimbursement of costs and fees of legal services provided.
Junell v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
July 02, 2020
06-19-00146-CR
Ralph Burgess
Published
The defendant appealed the judgment of the trial court which convicted him of two counts of intoxication manslaughter resulting from a traffic accident. On appeal, the defendant challenged the trial court’s sentence to fifteen years’ incarceration and fine of $10,000.00 on each count, with the sentences to run consecutively. The appellate court noted that because the spectrum of education, skill, and training was so wide, a trial court had great discretion in determining whether a witness possessed appropriate qualifications as an expert on a specific topic in a particular case. The appellate court found that given the strength of the evidence presented at the guilt/innocence phase of the trial, other punishment-phase evidence considered by the jury, and the fact that the defendant did not receive the maximum sentence, the court could not conclude that there was a reasonable probability that the result of the proceeding would have been different in the absence of the complained-of evidence. The appellate court concluded that the defendant’s financial resources and ability to pay were explicit critical elements in the trial court’s determination of the propriety of ordering reimbursement of costs and fees of legal services provided. Accordingly, the judgment of the trial court was affirmed.    

The appellate court concluded that the TCPA did not apply to the defendant’s request for an injunction because it was dependent upon her claim for the wrongful act of assault.
Cavin v. Abbott
Appellate: Civil, Business, Constitution, Contracts, Damages, Evidence, Litigation: Personal Injury, Procedure, Torts
Texas 3rd Court of Appeals
June 26, 2020
03-19-00168-CV
Gisela D. Triana
Published
The plaintiffs appealed the judgment of the trial court which denied their motion to dismiss pursuant to the Texas Citizens Participation Act (TCPA). On appeal, the plaintiffs challenged the defendant’s request for injunctive relief, arguing that the injunction seeking to prohibit them from contacting the defendant was a separate “legal action” under the TCPA that infringed on the plaintiffs’ exercise of the right of free speech. The appellate court noted that the cause of action for assault, pursuant to which the defendant sought both legal damages and equitable relief in the form of an injunction, was the legal action. The appellate court found that the TCPA did not allow a request for injunctive relief to be separately challenged when it was linked to a cause of action. The appellate court concluded that the TCPA did not apply to the defendant’s request for an injunction because it was dependent upon her claim for the wrongful act of assault. Accordingly, the judgment of the trial court was affirmed.

There was no evidence for either the award of general damages for the plaintiff’s reputation or the award of special damages connected to one of the allegedly defamatory remarks.
Innovative Block of S. Tex., Ltd. v. Valley Builders Supply, Inc.
Appellate: Civil, Business, Damages, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
June 26, 2020
18-1211
John P. Devine
Published
The defendant appealed the judgment of the trial court which returned a defamation verdict in the plaintiff’s favor, awarding general damages for the plaintiff’s reputational injury and special damages for a related pecuniary loss. On appeal, the defendant challenged the plaintiff’s assertions of claims for defamation, slander per se, and business disparagement and findings that the evidence was sufficient to support the jury’s award of general and special damages. The Supreme Court noted that because the harm in the case related solely to the plaintiff’s commercial interests and the falsehoods disparaged only the quality of the plaintiff’s products and not the character of its business, the court concluded that it was not a case of defamation but rather of business disparagement—a cause of action not submitted to the jury. The Supreme Court concluded that there was no evidence for either the award of general damages for the plaintiff’s reputation or the award of special damages connected to one of the allegedly defamatory remarks. Accordingly, the judgment of the trial court was reversed.

The respondent failed to show that Texas’s fair and reasonable reimbursement standard for air ambulance services had a significant effect on its prices, and therefore the federal Airline Deregulation Act did not preempt that standard.
Tex. Mut. Ins. Co. v. PHI Air Med., LLC
Appellate: Civil, Gov't/Administrative, Health Care, Insurance, Procedure
The Supreme Court of Texas
June 26, 2020
18-0216
J. Brett Busby
Published
The respondent appealed the judgment of the trial court which denied the respondent’s motion for summary judgment and granted summary judgment for the petitioners. The Supreme Court noted that the respondent need not obtain a certificate of public convenience and necessity or comply with the associated federal economic regulations. The Supreme Court found that upon the request of first responders or medical professionals, the respondent provided its services without regard to a patient’s insurance status or ability to pay. The Supreme Court further determined that the administrative law judge concluded that the respondent was entitled to reimbursement under the Texas Workers’ Compensation Act’s standards. The Supreme Court concluded that the respondent failed to show that Texas’s fair and reasonable reimbursement standard for air ambulance services had a significant effect on its prices, and therefore the federal Airline Deregulation Act did not preempt that standard. Accordingly, the judgment of the trial court was reversed and remanded.  

The trial court did not err in concluding that the State failed to satisfy its burden that the officer had reasonable suspicion to initiate the traffic stop on the defendant’s vehicle, and thus the trial court did not abuse its discretion in granting the defendant’s motion to suppress.
State v. Colby
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
June 25, 2020
03-19-00710-CR
Gisela D. Triana
Published
The State appealed the judgment of the trial court which granted the defendant’s motion to suppress after he was charged with the misdemeanor offense of driving while intoxicated. The appellate court noted that the totality of the circumstances, as reflected in Officer’s testimony and the dashcam video, illustrated that the officer’s patrol vehicle failed to stop at the stop sign and did not come to a complete stop until it was inside the intersection, and the patrol vehicle was already inside the intersection when the defendant’s vehicle arrived at the intersection. The appellate court found that viewing those circumstances in their totality, and affording the defendant the “strongest legitimate view of the evidence” as well as all reasonable inferences that could be derived from it, the record supported the trial court’s finding that the defendant’s stopping inside the intersection was an attempt to yield to the officer’s patrol vehicle, which the officer should have realized was permitted under the Transportation Code to avoid “conflict with other traffic.” The appellate court concluded that the trial court did not err in concluding that the State failed to satisfy its burden that the officer had reasonable suspicion to initiate the traffic stop on the defendant’s vehicle, and thus the trial court did not abuse its discretion in granting the defendant’s motion to suppress. Accordingly, the judgment of the trial court was affirmed.  

The appellate court concluded that the trial court had plenary power to order a new trial when it signed its order.
N. Burnet Gun Store, LLC v. Tack
Appellate: Civil, Damages, Procedure, Real Property, Torts
Texas 3rd Court of Appeals
July 01, 2020
03-20-00010-CV
Thomas J. Baker
Published
The plaintiff appealed the judgment of the trial court which granted the motion for new trial filed by the defendant, who was the trustee of the trust. The appellate court noted that the parties both agreed that the defendant did not learn of the default judgment and timely filed her motion for new trial. The appellate court found that because the trial court did not expressly rule on the motion, it was overruled by operation of law; and under Rule 329b(c), the motion was overruled 75 days after the defendant learned of the default judgment. The appellate court further determined that under Rule 329b(e), the trial court had plenary power for an additional thirty days to grant a motion new trial. The appellate court concluded that the trial court had plenary power to order a new trial when it signed its order. Accordingly, the judgment of the trial court was affirmed.  

The appellate court concluded that the trial court did not have the authority to reform the judgment of conviction to any lesser included offense.
Brooks v. State
Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
July 03, 2020
03-18-00759-CR
Chari L. Kelly
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated assault with a deadly weapon. On appeal, the defendant challenged the trial court’s assessment of punishment at 30 years’ confinement and requiring the defendant to pay several court costs and fees. The appellate court noted that the variance between the indictment allegation of the defendant’s threat by telling his girlfriend that he was going to end her life and the evidence at trial of a non-verbal threat of displaying a piece of wood was a material variance that prejudiced the defendant’s substantial rights and resulted in insufficient evidence to support his conviction. The appellate court found that, as for simple assault by threat, the court had already concluded that the evidence of a non-verbal threat was insufficient to support a conviction for a charge based on a verbal threat. The appellate court concluded that the trial court did not have the authority to reform the judgment of conviction to any lesser included offense. Accordingly, the judgment of the trial court was reversed.

The plaintiff pleaded, and the jurisdictional evidence supported, claims arising from the defendant’s allegedly negligent use of tangible personal property, thus waiving immunity under the TTCA, based on the record.
Univ. of Tex. Sw. Med. Ctr. v. Rhoades
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 5th Court of Appeals
June 30, 2020
05-19-00445-CV
Robbie Partida-Kipness
Published
The defendant appealed the judgment of the trial court which denied the defendant’s plea to the jurisdiction. On appeal, the defendant challenged the trial court’s denial of its plea to the jurisdiction in the medical negligence action that was subject to the Texas Tort Claims Act (TTCA), Tex. Civ. Prac. & Rem. Code section 101.001–.109. The plaintiff contended that the defendant waived immunity under the TTCA through the alleged misuse of the sponge by failing to remove it before closing and the misuse of the x-ray machine by failing to search the entire surgical field to locate the missing sponge. The appellate court found that the plaintiff pleaded, and the jurisdictional evidence supported, an allegation that the defendant negligently failed to use the x-ray machine for its intended purpose. The appellate court concluded that that the plaintiff pleaded, and the jurisdictional evidence supported, claims arising from the defendant’s allegedly negligent use of tangible personal property, thus waiving immunity under the TTCA, based on the record. Accordingly, the judgment of the trial court was affirmed.