The appellant did not meet its burden to show its entitlement to immunity from suit and the trial court erred in rendering summary judgment in favor of the appellee.
Houston Cmty. Coll. Sys. v. HV BTW, LP
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure, Real Property
Texas 14th Court of Appeals
July 02, 2019
14-18-00467-CV
Frances Bourliot
Published
The appellant appealed the judgment of the trial court which declared that the appellee had an easement on the property and awarded the appellee’s attorney’s fees. On appeal, the appellant challenged the trial court’s grant of summary judgment in favor of the appellee on the grounds that the appellant was entitled to immunity from suit and the appellee did not conclusively establish the easement agreement was properly executed. The appellant alleged that it was entitled to immunity from suit as a political subdivision for which immunity had not been waived. The appellee counterargued that immunity had been waived under chapter 271 of the Local Government Code, which waived governmental immunity from suit for a governmental entity that entered into a contract for services. The appellate court noted that the appellant was a public community college, was a political subdivision of the state and, thus, protected by governmental immunity. The appellate court concluded that the appellant did not meet its burden to show its entitlement to immunity from suit and the trial court erred in rendering summary judgment in favor of the appellee. Accordingly, the judgment of the trial court was reversed and remanded.


Though the trial court did not defer payment of the sanctions, the Pest Control Parties did not make the necessary allegations and showing to trigger that exception to the general rule that an appeal from an order awarding sanctions provided an adequate remedy.
In re Preventative Pest Control Houston, LLC
Appellate: Civil, Constitution, Damages, Discovery, Procedure
Texas 14th Court of Appeals
July 02, 2019
14-19-00274-CV
Kem Thompson Frost
Published
The relators appealed the judgment of the trial court, filing a petition for writ of mandamus, asking the appellate court to compel the trial judge to vacate the orders and compelling the Pest Control Parties to create lists to satisfy requests for production. On appeal, the relators claimed that the trial court abused its discretion by awarding attorney’s fees to the real party in interest as a discovery sanction. The appellate court noted that under Texas procedure, litigants were not required to produce documents or tangible things unless those items were within their possession, custody, or control. The appellate court found that the trial court exceeded the proper scope of discovery by going beyond what the rules of civil procedure permitted, and the trial court abused its discretion by directing the Pest Control Parties to create a Medications List an Employers List solely for purpose of responding to discovery. The appellate court concluded that though the trial court did not defer payment of the sanctions, the Pest Control Parties did not make the necessary allegations and showing to trigger that exception to the general rule that an appeal from an order awarding sanctions provided an adequate remedy. Accordingly, the relators’ petition was conditionally granted and denied in part.


The State carried its burden to justify the defendant’s warrantless arrest and the trial court did not abuse its discretion by denying the defendant’s motion to suppress
Arrington v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
July 02, 2019
01-17-00859-CR
Peter Kelly
Published
The defendant appealed the judgment of the trial court which denied his motion to suppress following his guilty plea to driving while intoxicated (DWI) and suspended his sentence and placed him on community supervision for eighteen months. On appeal, the defendant contended that the trial court erred by denying his motion to suppress because the deputy did not have probable cause or exigent circumstances for a warrantless arrest. The defendant further asserted that when the deputy approached him, he was standing behind a fence on his property, and therefore, he was within the curtilage of his home. The State responded that the deputy had probable cause to arrest the defendant for DWI and did not need a warrant because DWI was a breach of the peace and the defendant was in a suspicious place. The appellate court found that after giving due deference to the trial court’s determination of the historical facts and reviewing de novo the trial court’s application of the law to facts not based on an evaluation of credibility and demeanor, the State carried its burden to justify the defendant’s warrantless arrest. The appellate court concluded that the trial court did not abuse its discretion by denying the defendant’s motion to suppress. Accordingly, the judgment of the trial court was affirmed.


The deadline for filing a verified motion to reinstate was not extended by application of rule 306a(4), and thus, the plaintiffs’ notice of appeal was untimely.
Jarrell v. Bergdorf
Appellate: Civil, Procedure
Texas 14th Court of Appeals
July 02, 2019
14-18-00349-CV
Kevin Jewell
Published
The plaintiffs appealed the judgment of the trial court which dismissed their suit for want of prosecution. On appeal, the plaintiffs asked the appellate court to vacate the dismissal, reinstate their lawsuit, and remand the case for further proceedings. The defendant maintained that the appellate court lacked jurisdiction over the appeal. The appellate court noted that when a plaintiff’s lawsuit was dismissed for want of prosecution, the only available remedy was a motion for reinstatement. The appellate court was asked to determine whether the plaintiffs filed a motion to reinstate that satisfied the verification requirement within thirty days of the dismissal order, or if not, whether they established the right to an extended period under rule 306a and filed such a motion within the extended period. The appellate court found that the plaintiffs did not file a motion to reinstate that satisfied the verification requirement within thirty days of the date the dismissal order was signed. The appellate court concluded that the deadline for filing a verified motion to reinstate was not extended by application of rule 306a(4), and thus, the plaintiffs’ notice of appeal was untimely. Accordingly, the judgment of the trial court was affirmed.


The Supreme Court concluded that after considering the evidence in the light most favorable to the plaintiffs, a fact issue existed on foreseeability, and thus, the hospital’s plea to the jurisdiction was properly denied.
The Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie
Appellate: Civil, Constitution, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
June 28, 2019
17-0730
Debra Ann H. Lehrman
Published
The hospital appealed the judgment of the appellate court which affirmed the trial court’s finding that the plaintiffs sufficiently demonstrated both use and proximate cause and denied the hospital’s plea to the jurisdiction. On appeal, the Supreme Court was asked to determine whether the hospital’s use of an allegedly improper carrier agent during surgery constituted negligent “use” of tangible personal property and, if so, whether sufficient evidence was presented that this use proximately caused the patient’s death. The hospital argued that because the carrier agent was administered properly during surgery, the plaintiffs complained only of negligent medical judgment for which immunity was not waived. The Supreme Court noted that the Texas Tort Claims Act waived governmental immunity for personal injury and death proximately caused by a condition or use of tangible personal property. The Supreme Court found that the plaintiffs’ claim was premised on the hospital’s use of property that was improper under the circumstances and caused harm, and this was sufficient to establish negligent “use” under the Act, regardless of the manner in which the property was administered. The Supreme Court concluded that after considering the evidence in the light most favorable to the plaintiffs, a fact issue existed on foreseeability, and thus, the hospital’s plea to the jurisdiction was properly denied. Accordingly, the judgment of the appellate court was affirmed.


A plasma collection center could reject a person with a disability—eliminating their opportunity to donate plasma and receive compensation—without committing impermissible discrimination under section 121.003(a).
Silguero v. CSL Plasma, Inc.
Appellate: Civil, Civil Rights, Damages, Gov't/Administrative, Health Care, Procedure
The Supreme Court of Texas
June 28, 2019
18-1022
Paul W. Green
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in favor of the defendant where the plaintiff alleged discrimination under the Americans with Disabilities Act (ADA). On appeal, the Supreme Court was asked to answer two questions certified by the appellate courts: (1) whether a plasma collection center was a “public facility” under Texas Human Resources Code (THRC) section 121.002(5), and if so, (2) what standard applied for determining whether a public facility’s rejection of a person with a disability constituted impermissible discrimination under the THRC. The Supreme Court noted that the Legislature intended the THRC to encompass exceptions to the requirement that persons with disabilities be afforded full use and enjoyment of a public facility to the same extent as the general public. The Supreme Court found that a plasma collection center was a “public facility” under section 121.002(5). The Supreme Court concluded that a plasma collection center could reject a person with a disability—eliminating their opportunity to donate plasma and receive compensation—without committing impermissible discrimination under section 121.003(a). Accordingly, the judgment of the trial court was affirmed.


The insured did not establish that it was entitled to TPPCA prompt pay damages as a matter of law and the insurer did not establish that it could owe no TPPCA damages.
Barbara Technologies Corp. v. Lloyds
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Insurance, Procedure, Torts
The Supreme Court of Texas
June 28, 2019
17-0640
Paul W. Green
Published
The insured appealed the judgment of the appellate court which affirmed the trial court’s denial of its motion for summary judgment. On appeal, the Supreme Court was asked to consider whether an insured party could prevail on its claim for damages for delayed payment pursuant to the Texas Prompt Payment of Claims Act (TPPCA) when it was undisputed that the insurer investigated the claim, rejected it, invoked the policy’s provision for an appraisal process, and ultimately paid the insured in full in accordance with the appraisal. The Supreme Court found that the insurer’s payment based on the appraisal was neither an acknowledgment of liability under the policy nor an award of actual damages. The Supreme Court concluded that the insured did not establish that it was entitled to TPPCA prompt pay damages as a matter of law and the insurer did not establish that it could owe no TPPCA damages. Accordingly, the judgment of the appellate court was reversed and remanded for further proceedings.   


The payment barred the insured’s common law and statutory bad faith claims to the extent the only actual damages sought by the insured were lost policy benefits and the insured could proceed on his claim under the Prompt Payment Act.
Ortiz v. State Farm Lloyds
Appellate: Civil, Contracts, Damages, Insurance, Procedure
The Supreme Court of Texas
June 28, 2019
17-1048
Debra Ann H. Lehrman
Published
The insured appealed the judgment of the appellate court which granted the insurer’s motion for summary judgment and motion to compel appraisal in the underlying action. On appeal, the Supreme Court was asked to determine the effect of an insurer’s payment of an appraisal award on an insured’s claims for breach of contract, bad faith insurance practices, and violations of the Texas Prompt Payment of Claims Act. The insured asserted that, by paying him the proper amount only after the appraisal award was issued, the insurer used the appraisal provision to excuse its failure to comply with its other contractual duties to timely pay its policyholders what they were entitled to under the policy. The Supreme Court noted that appraisal clauses in Texas insurance policies have long provided a mechanism to resolve disputes between policy holders and insurers about the amount of loss for a covered claim. The Supreme Court found that the insurer’s payment of the award barred the insured’s breach of contract claim premised on failure to pay the amount of the covered loss. The Supreme Court concluded that the payment barred the insured’s common law and statutory bad faith claims to the extent the only actual damages sought by the insured were lost policy benefits and the insured could proceed on his claim under the Prompt Payment Act. Accordingly, the judgment of the appellate court was affirmed in part and reversed in part.


The plain language of the contract unambiguously entitled the defendant to withhold its consent to a proposed assignment, and therefore the defendant could not have breached the contract as a matter of law.
Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc.
Appellate: Civil, Contracts, Procedure, Torts
The Supreme Court of Texas
June 28, 2019
17-0332
Paul W. Green
Published
The plaintiff appealed the judgment of the appellate court which reversed the trial court’s decision granting judgment in favor of the plaintiff in the breach-of-contract case. On appeal, the Supreme Court was asked to determine whether the appellate court erred in holding that the plaintiff could not prevail on its breach of contract claim as a matter of law because the contract’s consent-to-assignment provision unambiguously gave the defendant an unqualified right to refuse to consent, and holding that the plaintiff could not prevail on its fraud claim as a matter of law because it could not justifiably rely on an oral promise to do something that was addressed in the written contract. The Supreme Court noted that the consent-to-assign provision plainly stated that the plaintiff could not assign its rights unless it obtained the defendant’s consent, which must be express and in writing. The Supreme Court concluded that the plain language of the contract unambiguously entitled the defendant to withhold its consent to a proposed assignment, and therefore the defendant could not have breached the contract as a matter of law. The Supreme Court further found that the plaintiff could not justifiably rely on an oral statement where the written terms of the contract controlled. Accordingly, the judgment of the appellate court was affirmed.


The trial court lacked jurisdiction over the permitholders’ requested ownership declaration and were not entitled to an opportunity to amend. 
Bailey v. Smith
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure, Real Property
Texas 3rd Court of Appeals
June 28, 2019
03-17-00703-CV
Edward Smith
Published
The permitholders appealed the judgment of the trial court which granted the Parks and Wildlife Department’s (the Department) partial plea to the jurisdiction and motion for summary judgment and awarded the Department its attorneys' fees. This appeal stemmed from the permitholders’ suit against the Department to establish that breeder deer were or became private property and to invalidate Department rules requiring breeders to test for chronic wasting disease. On appeal, the appellate court was asked to determine whether the trial court correctly concluded that sovereign immunity barred it from deciding the permitholders’ claim for a declaration of ownership and his ultra vires claims. The permitholders asserted that the Department's immunity did not apply because it requested attorney's fees. The appellate court noted that the Texas Supreme Court held that when a governmental entity asserted affirmative claims for monetary recovery, immunity did not apply to counterclaims for monetary relief that were germane to, connected with, and properly defensive to those asserted by the governmental entity. The appellate court found that the trial court lacked jurisdiction over the permitholders’ requested ownership declaration and were not entitled to an opportunity to amend. Accordingly, the judgment of the trial court was affirmed.


The plaintiff failed to meet his burden to establish clear and specific evidence of a prima facie case for each essential element of his defamation claim.
Baumgart v. Archer
Appellate: Civil, Constitution, Damages, Discovery, Gov't/Administrative, Procedure, Torts
Texas 1st Court of Appeals
June 27, 2019
01-18-00298-CV
Sarah Beth Landau
Published
The plaintiff appealed the judgment of the trial court which dismissed his suit for defamation and for an award of attorney’s fees under the Texas Citizens Participation Act (TCPA). On appeal, the plaintiff contended that the TCPA did not protect the defendant’s defamatory speech, he made a prima facie showing of defamation, and the trial court’s refusal to allow discovery before dismissing his claims violated Texas’s due-process guarantee of open courts. The plaintiff further maintained that a jury trial on the reasonableness of the defendant’s attorney’s fees was constitutionally required and the TCPA operated, on its face and as-applied, as an unconstitutional restraint on a plaintiff’s speech. The appellate court noted that the TCPA was a bulwark against retaliatory lawsuits meant to intimidate or silence citizens on matters of public concern. The appellate court found that the defendant met its initial burden to establish by a preponderance of the evidence that the plaintiff’s legal action was based on, related to, or was in response to its exercise of the right of free speech, as defined in the TCPA. The appellate court concluded that the plaintiff failed to meet his burden to establish clear and specific evidence of a prima facie case for each essential element of his defamation claim. Accordingly, the judgment of the trial court was affirmed.


The trial court lacked subject-matter jurisdiction over the portion of the petitioner’s declaratory-judgment claim. The appellate court concluded that the trial court did not err in granting the City a directed verdict on the petitioner’s declaratory-judgment claim.
Schrock v. Baytown
Appellate: Civil, Constitution, Gov't/Administrative, Procedure, Real Property
Texas 1st Court of Appeals
June 27, 2019
01-17-00442-CV
Julie Countiss
Published
The petitioner appealed the judgment of the trial court which rendered judgment in favor of the City in the petitioner’s suit against the City for taking his property and for a declaratory judgment. On appeal, the petitioner contended that the trial court erred in granting the City a directed verdict on his claims because there were material fact issues to be determined by the jury. The appellate court noted that to determine whether a regulatory taking resulted from the government’s unreasonable interference with a property owner’s right to use and enjoy his property, courts must consider three factors: (1) the economic impact of the regulation on the property owner; (2) the extent to which the regulation interfered with the property owner’s distinct investment-backed expectations; and (3) the character of the governmental action. The appellate court found that the trial court lacked subject-matter jurisdiction over the portion of the petitioner’s declaratory-judgment claim. The appellate court concluded that the trial court did not err in granting the City a directed verdict on the petitioner’s declaratory-judgment claim. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.


The appellate court concluded beyond a reasonable doubt that the erroneous admission of the written autopsy report did not contribute to the defendant’s conviction.
Henriquez v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
June 27, 2019
01-18-00528-CR
Evelyn Keyes
Published
The defendant appealed the judgment of the trial court which convicted him of first-degree felony offense of murder and assessed his punishment at eighty years’ confinement. On appeal, the defendant contended that the trial court erred when it admitted the complainant’s written autopsy report, completed by a medical examiner who did not testify at trial, in violation of the Confrontation Clause. The appellate court noted that an autopsy report was considered testimonial when an objective medical examiner would reasonably believe that the report would be used in a later prosecution. The appellate court found that, considering the circumstances surrounding the death, an objective medical examiner would reasonably believe that the autopsy report prepared by the doctor would be used in a later prosecution. The appellate court concluded beyond a reasonable doubt that the erroneous admission of the written autopsy report did not contribute to the defendant’s conviction. Accordingly, the judgment of the trial court was affirmed.


The criminal appellate court concluded that the evidence was sufficient to show that the complainant was discharging an official duty when the defendant assaulted him.
Cuevas v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
June 26, 2019
PD-0314-18
Mary Lou Keel
Published
The State appealed the judgment of the appellate court which reversed the defendant’s conviction for assault on a peace officer, finding that the evidence was insufficient to show that the complainant was discharging an official duty when he was assaulted. On appeal, the criminal appellate court was asked to consider whether a peace officer working as private security was discharging an official duty when he was acting under Texas Alcoholic Beverage Code Section 101.07. The State maintained that Section 101.07 required peace officers to enforce the provisions of the Texas Alcoholic Beverage Code, and a peace officer working private security who enforced Section 28.10(b) was lawfully discharging an official duty. The criminal appellate court noted that by enforcing Section 28.10(b) as required by Section 101.07, the complainant was discharging an official duty. The criminal appellate court found that the evidence was legally sufficient to show that the complainant was discharging an official duty when the defendant assaulted him. The criminal appellate court concluded that the evidence was sufficient to show that the complainant was discharging an official duty when the defendant assaulted him. Accordingly, the judgment of the appellate court was reversed.


The testimony of the three witnesses constituted more than a scintilla of evidence supporting the Health and Human Services Commission's final order determining that the Commission met its burden. 
Pers. Care Products, Inc. v. Smith
Appellate: Civil, Constitution, Gov't/Administrative, Health Care, Procedure
Texas 3rd Court of Appeals
June 26, 2019
03-18-00344-CV
Gisela D. Triana
Published
The petitioner appealed the judgment of the trial court which affirmed a final administrative order requiring it to repay overpayments that the Texas Health and Human Services Commission (the Commission) made to the petitioner. On appeal, the petitioner asserted that the trial court erred in declining to issue findings of fact and conclusions of law, the adjustment to the amount of the administrative overpayment announced during the administrative hearing on the merits did not provide proper notice of the overpayment, the administrative law judge violated the administrative code and the due process clause of the Constitution by issuing the second PFD too late, and the Commissioner's final order was entitled to recover the extrapolated overpayment was error as a matter of law. The appellate court found that the trial court was not required to issue findings of fact and conclusions of law under Rule 296 after conducting a substantial-evidence review of an agency's final order. The appellate court concluded that the testimony of the three witnesses constituted more than a scintilla of evidence supporting the Commission's final order determining that the Commission met its burden. Accordingly, the judgment of the trial court was affirmed.


The relator was not entitled to mandamus relief challenging the trial court’s denial of the relator’s Rule 91a motion to dismiss the negligent-failure-to-settle claim.
In re Farmers Tex. Cnty. Mut. Ins. Co.
Appellate: Civil, Constitution, Contracts, Insurance, Torts
Texas 4th Court of Appeals
June 26, 2019
04-19-00180-CV
Patricia O. Alvarez
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus in a breach-of-contract and negligent-failure-to-settle claim. On appeal, the relator asserted that the trial courts abused their discretion by denying the motions to dismiss. The relator argued that the trial court abused its discretion by denying its motion to dismiss her breach of contract claim because she never became “legally responsible” to pay damages, the insurance policy contained a “no action” clause, and it could not be held liable for defending or settling claims against her as it deemed appropriate. The appellate court noted that Texas Rule of Civil Procedure 91a provided that a party may move to dismiss a cause of action on the grounds that it had no basis in law or fact. The appellate court found that mandamus would not issue when the law provided another plain, adequate, and complete remedy. The appellate court concluded that the relator was not entitled to mandamus relief challenging the trial court’s denial of the relator’s Rule 91a motion to dismiss the negligent-failure-to-settle claim. Accordingly, the relator’s mandamus was granted.


The evidence was legally sufficient to support the jury’s verdict of guilty for the offense of murder under a party theory of liability.
Garcia v. State
Criminal, Evidence, Procedure
Texas 9th Court of Appeals
June 26, 2019
09-17-00305-CR
Charles A. Kreger
Published
The defendant appealed the judgment of the trial court which convicted him of murder and sentenced him to seventy years’ confinement in the Institutional Division of the Texas Department of Corrections. On appeal, the defendant challenged the sufficiency of the evidence and asserted that the evidence was not legally sufficient to sustain the conviction because the evidence was insufficient to prove the defendant caused the death of the complainant. The defendant further alleged that the evidence was insufficient to prove the alleged offense was committed intentionally, the evidence was insufficient to prove the alleged offense was committed knowingly, and the trial court erred in denying the defendant’s motion for instructed verdict of not guilty for insufficient evidence. The appellate court found that it would look to the non-accomplice testimony and evidence together, instead of as isolated incidents, to determine if it to tended to connect the defendant to the offense of murder. The appellate court noted that Texas Penal Code section 6.03 defined culpable mental states. The appellate court concluded that the evidence was legally sufficient to support the jury’s verdict of guilty for the offense of murder under a party theory of liability. Accordingly, the judgment of the trial court was affirmed.


Since the trial court considered affidavits and billing records in awarding attorney's fees, the record contained some evidence to support the trial court's award of attorney's fees.
Day v. Fed’n of State Med. Boards of the U.S., Inc.
Appellate: Civil, Business, Constitution, Damages, Procedure, Torts
Texas 4th Court of Appeals
June 26, 2019
04-18-00605-CV
Irene Rios
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion to dismiss the suit for defamation and tortious interference with prospective business relations and awarded attorney’s fees. On appeal, the plaintiff argued that the trial court erred by denying his motion to strike an affidavit, dismissing his suit because the Texas Citizens Participation Act (TCPA) did not apply, dismissing his suit because he established a prima facie case for both defamation and tortious interference, and awarding the defendant attorney's fees. The appellate court noted that if the defendant met its initial burden, then the burden shifted to the plaintiff to establish by clear and specific evidence a prima facie case for each essential element of the claim in question. The appellate court found that the trial court did not abuse its discretion in denying the plaintiff’s motion to strike the affidavit. The appellate court concluded that since the trial court considered affidavits and billing records in awarding attorney's fees, the record contained some evidence to support the trial court's award of attorney's fees. Accordingly, the judgment of the trial court was affirmed.


The City’s Historic Preservation Ordinance did not constitute a zoning measure and did not violate the City Charter's limitations on the City's zoning power or the provisions of chapter 211.
Powell v. Houston
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Zoning
Texas 1st Court of Appeals
June 25, 2019
01-18-00237-CV
Evelyn V. Keyes
Published
The homeowners appealed the judgment of the trial court which rendered a take-noting judgment in favor of the City in the homeowners’ suit asserting that the City's Historic Preservation Ordinance (the Ordinance) violated the City Charter's prohibition against zoning regulations. On appeal, the homeowners argued that the City's Ordinance and regulations for geographic historic district and land use constituted zoning, the City's historic district zoning laws violated the City Charter, and the City's historic district zoning laws violated the Texas Legislature's Zoning Enabling Act. The appellate court noted that in construing statutes or ordinances, it would ascertain and give effect to the legislative body's intent as expressed by the language of the statute. The homeowners further alleged that, because of the type of regulation it permitted, the Ordinance constituted de facto zoning. The appellate court found that there was no evidence that the Ordinance applied to the City in a comprehensive manner. The appellate court concluded that the Ordinance did not constitute a zoning measure and did not violate the City Charter's limitations on the City's zoning power or the provisions of chapter 211. Accordingly, the judgment of the trial court was affirmed.


The appellate court found that the City established that it was entitled to judgment as a matter of law in the contestants election-contest action of the proposed charter amendment.
Bryant v. Parker
Appellate: Civil, Election, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
June 25, 2019
01-18-00400-CV
Evelyn V. Keyes
Published
The contestants appealed the judgment of the trial court which denied their motions in an election contest action. On appeal, the contestants argued that the trial court erred in granting the City’s motion for summary judgment and in denying their own motions for summary judgment because the ballot language “affirmatively misrepresented” and “omitted” the true character, purpose, and chief feature of the Charter Amendment. The appellate court noted that the Texas Election Code granted discretion to the authority ordering the election to prescribe the wording of a proposition unless otherwise provided by law. The appellate court found that the City established that it was entitled to judgment as a matter of law. The contestants also alleged that the trial court erred in granting the City’s motion and denying their own motions because the language of Proposition 2 was misleading and deceptive. The appellate court concluded that the ballot language did mention, albeit in a generalized manner, that the measure provided for “transition.” Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the trial court did not err by granting the defendant’s motion for summary judgment on the ground of limitations.
Acosta v. Falvey
Appellate: Civil, Procedure, Torts, Wills/Trusts/Probate
Texas 8th Court of Appeals
June 21, 2019
08-16-00295-CV
Yvonne T. Rodriguez
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment and ordered the plaintiff’s take nothing on their claims against him arising out of the defendant’s legal representation of concerning the estate of her husband. On appeal, the plaintiff asserted that the trial court erroneously, and unintentionally, denied his counterclaim for sanctions by ordering that all relief not expressly granted was denied. The appellate court noted that a party asserting fraudulent concealment to avoid the defense of limitations must prove that the defendant actually knew a wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the wrong. The appellate court found that the summary judgment record conclusively established that the claims accrued and that the lawsuit filed was time-barred. The appellate court concluded that the trial court did not err by granting the defendant’s motion for summary judgment on the ground of limitations. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that it was within the trial court's discretion to find that the defendants’ motion to dismiss was frivolous.
Lei v. Natural Polymer Int’l Corp.
Appellate: Civil, Constitution, Damages, Procedure
Texas 5th Court of Appeals
June 21, 2019
05-18-01041-CV
Leslie Lester Osborne
Published
The defendants appealed the judgment of the trial court which denied their motion to dismiss under the Texas Citizens Participation Act. (TCPA) and which granted attorney's fees and court costs to the plaintiffs based on a finding that the motion to dismiss was frivolous. On appeal, the defendants argued that the plaintiffs’ claims were based on or related to their exercise of the right of free speech, the right of association, and the right to petition. The defendant contended that the plaintiffs’ claims were based on their right of free speech because the communications were made in connection with a matter of public concern, specifically a good, product, or service in the marketplace. The appellate court found that the TCPA's protection of the right of association did not apply to claims for the misappropriation of trade secrets, conversion, and tortious interference based on communications between the alleged tortfeasors and the common interest of a competing business enterprise that was allegedly using the misappropriated confidential information. The appellate court concluded that it was within the trial court's discretion to find that the defendants’ motion to dismiss was frivolous. Accordingly, the judgment of the trial court was affirmed.


The trial court used its authority under Chapter 10 to shift responsibility for the defendant’s reasonable attorney’s fees to the plaintiff as a penalty for his pursuit of groundless claims.
Nath v. Tex. Children’s Hosp.
Appellate: Civil, Damages, Procedure
The Supreme Court of Texas
June 21, 2019
17-0110
Per Curiam
Published
The plaintiff appealed the judgment of the trial court which awarded the defendants a monetary sanction and attorney’s fees in defending against a frivolous suit brought by the plaintiff. On appeal, the plaintiff argued that the defendants’ affidavits were insufficient to prove that the sanction was a reasonable and necessary attorney’s fee. The defendants maintained that a different standard of proof applied for attorney’s fees awarded as sanctions because the purpose of sanctions was to punish violators and deter misconduct. The Supreme Court noted that before a court could exercise its discretion to shift attorney’s fees as a sanction, there must be some evidence of reasonableness because without such proof a trial court could not determine that the sanction was no more severe than necessary to fairly compensate the prevailing party. The Supreme Court found that the trial court used its authority under Chapter 10 to shift responsibility for the defendant’s reasonable attorney’s fees to the plaintiff as a penalty for his pursuit of groundless claims. The Supreme Court concluded that the standard for fee-shifting awards applied to fee-shifting sanctions. Accordingly, the judgment of the trial court was affirmed and remanded for further proceedings.


The appellate court erroneously awarded the respondents’ title to the property as a remedy for their breach of warranty claim, when a proper remedy would be monetary damages.
Trial v. Dragon
Appellate: Civil, Contracts, Damages, Procedure, Real Property, Wills/Trusts/Probate
The Supreme Court of Texas
June 21, 2019
18-0203
Paul W. Green
Published
The respondents appealed the judgment of the appellate court which affirmed the trial court’s holding that the petitioners were entitled to retain the interest inherited from their mother. On appeal, the Supreme Court was asked to consider whether the estoppel by deed doctrine applied to prevent the petitioners from asserting title to an interest they inherited from their mother, when their father previously purported to sell that interest to the respondents. The respondents asserted that the trial court erred in denying their motion for summary judgment because the deed conveyed the entire interest in the property, and estoppel by deed divested the petitioners of any interest. The Supreme Court noted that in the broadest sense, estoppel by deed stood for the proposition that all parties to a deed were bound by the recitals in it, which operated as an estoppel. The Supreme Court found that the appellate court erroneously awarded the respondents’ title to the property as a remedy for their breach of warranty claim, when a proper remedy would be monetary damages. The Supreme Court concluded that neither the estoppel by deed doctrine nor its opinion in Duhig v. Peavy-Moore Lumber Co., applied in this case. Accordingly, the judgment of the appellate court was reversed and remanded.


Sovereign immunity barred the petitioner’s ultra vires claim, and thus, the trial court did not err in granting the Commission’s plea to the jurisdiction.
Grossman v. Wolfe
Appellate: Civil, Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
June 21, 2019
03-19-00002-CV
Jeff Rose
Published
The petitioner appealed the judgment of the trial court which sustained the Texas Historical Commission’s (the Commission) plea to the jurisdiction. This appeal stemmed from the petitioner’s suit for declaratory and injunctive relief related to the allegedly unlawful issuance of an archeological permit for an area of downtown El Paso designated as the site for a proposed construction project. On appeal, the petitioner asserted that the trial court erred in concluding that it lacked subject-matter jurisdiction because sovereign immunity did not bar his ultra vires claims against the Commission, and the Antiquities Code waived sovereign immunity for claims that a government body or government official violated or threatened to violate the Antiquities Code. The petitioner further alleged that the Antiquities Code conferred standing to sue because he was a citizen of the State. The appellate court found that the jurisdictional defect would remain because the Antiquities Code did not waive the Commission’s sovereign immunity. The appellate court concluded that sovereign immunity barred the petitioner’s ultra vires claim, and thus, the trial court did not err in granting the Commission’s plea to the jurisdiction. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the evidence was legally sufficient to support the damages award, regardless of whether the valuation testimony was considered probative.
Subsea 7 Port Isabel, LLC v. Port Isabel Logistical Offshore Terminal, Inc.
Appellate: Civil, Contracts, Damages, Evidence, Landlord and Tenant, Procedure
Texas 13th Court of Appeals
June 20, 2019
13-17-00144-CV
Dori Contreras
Published
The tenant appealed the judgment of the trial court which found that the parties’ sublease was not renewed. On appeal, the appellate court was asked to consider whether a sublease agreement was effectively renewed. The tenant contended that the trial court erred in awarding damages and prejudgment interest to the landlord. The landlord challenged the trial court’s failure to award attorney’s fees and a provision in the final judgment allowing it to remove improvements from the subject premises. The tenant further contended that the trial evidence conclusively established its affirmative defenses of equitable estoppel, quasi-estoppel, and waiver. The appellate court noted that the tenant had the burden to prove estoppel and waiver at trial. The appellate court found that the tenant’s quasi-estoppel defense was not established as a matter of law. The appellate court concluded that the evidence was legally sufficient to support the damages award, regardless of whether the valuation testimony was considered probative. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.


The trial court did not err in dismissing the Fund’s claims against the City and the City Officials for lack of subject-matter jurisdiction.
Houston Firefighters’ Relief & Ret. Fund v. Houston
Appellate: Civil, Constitution, Damages, Gov't/Administrative, Procedure, Torts
Texas 14th Court of Appeals
June 20, 2019
14-17-00533-CV
Kem Thompson Frost
Published
The Houston Firefighters’ Relief and Retirement Fund (the Fund) appealed the judgment of the trial court which granted the City’s jurisdictional pleas in a suit where the Fund challenged the constitutionality of amendments to the Fund’s governing statute. On appeal, the Fund asserted that the amendments facially violated article XVI, section 67(f) of the Texas Constitution and sought declaratory, injunctive, and mandamus relief, as well as a money judgment and attorney’s fees. The Fund further maintained that the trial court abuse its discretion in its alternative ruling denying the Fund’s request for a temporary injunction. The appellate court noted that the City was a governmental entity that generally enjoyed governmental immunity from suit and from liability as to claims based on its performance of a governmental function unless its governmental immunity had been waived. The appellate court found that the City’s governmental immunity was not waived as to each of the constitutional challenges the Fund raised on appeal because the Fund did not plead a viable or valid constitutional claim. The appellate court concluded that the trial court did not err in dismissing the Fund’s claims against the City and the City Officials for lack of subject-matter jurisdiction. Accordingly, the judgment of the trial court was affirmed.


The reporting duties of Section 550.025 were not limited to public structures but apply when the operator of a vehicle was involved in an accident resulting only in damage to a privately-owned structure adjacent to a highway.
Mitchell v. State
Constitution, Criminal, Damages, Evidence, Procedure
Texas 1st Court of Appeals
June 20, 2019
01-18-00609-CR
Laura Carter Higley
Published
The defendant appealed the judgment of the trial court which convicted him of violating Section 550.025(a) of the Transportation Code by failing to report an accident resulting only in damage to a structure adjacent to a highway. On appeal, the defendant argued that the trial court erred in denying his motion for directed verdict because Section 550.025(a) did not require a motorist to report an accident when the damage occurred to private residential property. The defendant asserted that the facts did not constitute an offense under Section 550.025 because the statute did not create an affirmative duty to report and provide information upon striking private structures located on private property, such as the house at issue in this case. The appellate court noted that to determine whether the term “structure” included private residential property, it would begin with the term itself. The appellate court found that in construing the statute according to its plain meaning, the reporting duties of Section 550.025 were not limited to public structures but apply when the operator of a vehicle was involved in an accident resulting only in damage to a privately-owned structure adjacent to a highway. Accordingly, the judgment of the trial court was affirmed.


A rational trier of fact could have found beyond a reasonable doubt that the defendant knew he had a duty to register as a sex offender and knew he had a duty to verify his registration.
Cloud v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
June 20, 2019
14-18-00097-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of failure to comply with a sex-offender registration requirement. On appeal, the defendant challenged the sufficiency of the evidence to support his conviction. The appellate court noted that the uncontested evidence showed that the defendant was a person required to register, and specifically that he was required either to verify that the Registered Address remained correct or provide his correct address before signing the form to verify his registration. The appellate court found that a rational trier of fact could have found beyond a reasonable doubt that the defendant failed to verify an accurate address and failed to comply with the requirement that he provide his correct address before signing the form to verify his registration. The appellate court concluded that a rational trier of fact could have found beyond a reasonable doubt that the defendant knew he had a duty to register as a sex offender and knew he had a duty to verify his registration. Accordingly, the judgment of the trial court was affirmed.


The Supreme Court concluded that the statutes applied to the inmate’s claims and the inmate failed to raise a material fact issue under the statutes’ heightened liability standard.
Tarrant Cnty. v. Bonner
Appellate: Civil, Damages, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
May 24, 2019
18-0431
Jeffrey S. Boyd
Published
The inmate appealed the judgment of the appellate court which reversed its grant of the inmate’s motion for summary judgment. On appeal, the Supreme Court was asked to consider the liability standard that applied to an inmate’s suit for personal injury allegedly sustained during his incarceration in the county jail. The inmate maintained that there must be some limit to the breadth of the acts or omissions encompassed by the phrase “in connection with.” The County argued that a legitimate connection existed between its alleged acts and omissions and the inmate’s medical treatment because the inmate would not have a claim for damages but for that connection. The Supreme Court noted that article 42.20 stated that certain individuals and governmental entities were not liable for damages arising from action or inaction in connection with an inmate activity, including treatment activities, if the action or inaction was performed in an official capacity and was not performed with conscious indifference. The Supreme Court found that because the inmate’s damages claim rested on the County’s alleged negligent acts and omissions intersecting with his medical treatment, and therefore, they were “in connection with” each other. The Supreme Court concluded that the statutes applied to the inmate’s claims and the inmate failed to raise a material fact issue under the statutes’ heightened liability standard. Accordingly, the judgment of the appellate court was reversed.


A connection existed between the defendant law enforcement officer’s job responsibilities and the alleged tort because he was exercising a statutory grant of authority to make a warrantless arrest for a crime committed in his presence.
Garza v. Harrison
Appellate: Civil, Employment, Gov't/Administrative, Procedure, Torts
The Supreme Court of Texas
May 24, 2019
17-0724
Eva M. Guzman
Published
The petitioner appealed the judgment of the appellate court which affirmed the officer’s dismissal motion, citing a fact issue as to whether the officer was acting as a peace officer or as a security guard for his landlord at the time of the shooting. This appeal stemmed from the decedent’s parents suing the officer in his individual capacity for wrongful death under the Texas Tort Claims Act. On appeal, the petitioner argued that section 101.106(f) was inapplicable because the officer was acting in the scope of his employment as a courtesy patrol officer for the apartment complex, not as a peace officer under his commission with the Police Department. The Supreme Court noted that the election-of-remedies provision in section 101.106(f) of the Act required courts to grant a motion to dismiss a lawsuit against a governmental employee sued in an “official capacity” but allowed the governmental unit to be substituted for the employee. The Supreme Court found that even if work was performed wrongly or negligently, the inquiry was satisfied if, when viewed objectively, a connection existed between the employee’s job duties and the alleged tortious conduct. The Supreme Court concluded that a connection existed between the defendant law enforcement officer’s job responsibilities and the alleged tort because he was exercising a statutory grant of authority to make a warrantless arrest for a crime committed in his presence. Accordingly, the judgment of the appellate court was reversed.


By agreeing to limit the jury submissions to contract formation, breach, and specific affirmative defenses, the respondent waived the right to insist on any other fact findings that might otherwise have been required to entitle the petitioner to specific performance.
Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd.
Appellate: Civil, Contracts, Damages, Oil, Gas, & Mineral, Procedure, Torts
The Supreme Court of Texas
May 24, 2019
18-0186
Eva M. Guzman
Published
The petitioner appealed the judgment of the appellate court which reversed the trial court’s decision rendering judgment awarding specific performance as provided by the parties’ agreement in an action where the petitioner claims a 25% working interest in mineral leases under a letter agreement. On appeal, the respondent argued that the Letter Agreement was not an enforceable contract, the trial court’s specific-performance order was improper because the petitioner failed to establish that it was ready, willing, and able to fulfill its contractual obligations, and the trial court improperly awarded damages and prejudgment interest contrary to the parties’ stipulations and without supporting evidence. The Supreme Court noted that its primary objective in construing contracts is to give effect to the written expression of the parties’ intent. The Supreme Court found that because the seller did not concede or stipulate in the trial court that the purchaser was ready, willing, and able to perform, the purchaser still had to prove it. The Supreme Court concluded that by agreeing to limit the jury submissions to contract formation, breach, and specific affirmative defenses, the respondent waived the right to insist on any other fact findings that might otherwise have been required to entitle the petitioner to specific performance. Accordingly, the judgment of the appellate court was reversed and remanded.


The student worker adjustment provision did require upward adjustment of the student’s calculated average weekly wages, but that his benefit recovery was capped at 60 percent of the adjusted average weekly wage amount.
Ferrell v. The Univ. of Tex. Sys.
Appellate: Civil, Education, Employment, Gov't/Administrative, Procedure, Torts, Workers' Compensation
Texas 8th Court of Appeals
May 17, 2019
08-17-00065-CV
Yvonne T. Rodriguez
Published
The university appealed the decision of the Texas Department of Insurance Division of Workers’ Compensation (the Division) which awarded the student workers’ compensation benefits totaling 75 percent of the weekly wage he earned during his undergraduate student. On appeal, the appellate court was asked to consider, when a student-employee was injured on the job, was the student eligible for workers’ compensation from a public university. The university contended that the student did not qualify for a Section 408.044 student worker wage adjustment, and that even if he did, the Section 503.021(b) provision applicable to part-time employees capped any benefits recovery at 60 percent and prevented upward wage adjustment. The student asserted that he established the factual predicate for a Section 408.044 student worker wage adjustment, and that the student worker adjustment was available because the adjustment could be reconciled with the Labor Code provisions generally applicable to the university. The appellate court concluded that the student worker adjustment provision did require upward adjustment of the student’s calculated average weekly wages, but that his benefit recovery was capped at 60 percent of the adjusted average weekly wage amount. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


By failing to transfer the funds from a verified collected balance, the bank subsequently breached the parties’ wire transfer agreement, thereby causing the overdraft and entitling the defendant to offset the chargeback by the amount of overdrawn funds.
Cadence Bank v. Elizondo
Appellate: Civil, Banking and Finance, Consumer, Contracts, Procedure, Professional Responsibility, Torts
Texas 1st Court of Appeals
May 16, 2019
01-17-00886-CV
Laura Carter Higley
Published
The bank appealed the judgment of the trial court which granted judgment in favor of the defendant, asserting claims for breach of the parties’ underlying deposit agreement and breach of warranty under the Texas Uniform Commercial Code. On appeal, the appellate court was asked to consider who was liable for funds that were wire transferred from an attorney’s IOLTA account to a third-party account overseas: the attorney or the bank. The bank contended that it proved as a matter of law that the defendant was liable for breach of UCC transfer warranties and that the bank was entitled to reverse the provisional settlement funds credited to the defendant’s account and to recover as damages the amount of the resulting overdraft under both the UCC and the Deposit Agreement. The appellate court found that, by depositing the counterfeit check, the defendant breached the parties’ deposit agreement and UCC transfer warranties, thereby entitling the bank to charge back the provisional settlement funds. The appellate court concluded that, by failing to transfer the funds from a verified collected balance, the bank subsequently breached the parties’ wire transfer agreement, thereby causing the overdraft and entitling the defendant to offset the chargeback by the amount of overdrawn funds. Accordingly, the judgment of the trial court was affirmed.


The Supreme Court concluded that governmental immunity applied and chapter 271 did not waive the entity’s immunity.
Dallas/Fort Worth Int’l Airport Bd. v. Vizant Technologies, LLC
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure
The Supreme Court of Texas
May 17, 2019
18-0059
Jeffrey S. Boyd
Published
The plaintiff appealed the judgment of the appellate court, claiming that a governmental entity breached a contractual promise to make a good-faith effort to obtain authorization for a higher payment than the parties’ written contract required the entity to make. On appeal, the Supreme Court was asked to consider whether governmental immunity applied and, if so, whether chapter 271 of the Texas Local Government Code waived that immunity. The Supreme Court noted that a governmental entity waived its immunity from liability by entering into a contract, voluntarily binding itself like any other party to the agreement. The plaintiff asserted that chapter 271 of the Local Government Code waived the Board’s immunity against the plaintiff’s contract claim. The Supreme Court was also asked to determine whether the plaintiff could recover damages for the Board’s breach of its promise to make a good-faith effort and, if so, the proper measure of those damages. The Supreme Court found that a contractual breach may give rise to either direct or consequential damages. The Supreme Court concluded that governmental immunity applied and chapter 271 did not waive the entity’s immunity. Accordingly, the judgment of the appellate court was reversed.


The defendant failed to establish by a preponderance of the evidence that the plaintiff’s claims were subject to the Texas Citizens Participation Act.
Krasnicki v. Tactical Ent., LLC
Appellate: Civil, Constitution, Consumer, Procedure, Torts
Texas 5th Court of Appeals
May 16, 2019
05-18-00463-CV
Robbie Partida-Kipness
Published
The defendant appealed the judgment of the trial court which denied his motion to dismiss the plaintiff’s suit alleging claims for fraudulent inducement, deceptive trade practices, and negligent misrepresentation under the Texas Citizens Participation Act (TCPA). On appeal, the defendant asserted that the trial court erred in denying the motion to dismiss because the lawsuit against him was based on or related to his exercise of free speech or association. The defendant further alleged that the commercial speech exception did not apply and that the plaintiff did not show by clear and specific evidence a prima facie case for each essential element of its claims against him. The appellate court found that the TCPA was not meant to take the place of a no-evidence summary judgment motion and it declined to extend its reach beyond its statutory grasp. The appellate court concluded that the defendant failed to establish by a preponderance of the evidence that the plaintiff’s claims were subject to the TCPA. Accordingly, the judgment of the trial court was affirmed.


The trial court’s reason for granting the relators’ motion for a new trial was not supported by the record, and therefore, the trial court clearly abused its discretion by granting a new trial.
In re Pantalion
Appellate: Civil, Constitution, Litigation: Personal Injury, Procedure, Torts
Texas 9th Court of Appeals
May 16, 2019
09-19-00073-CV
Per Curiam
Published
The relators appealed the judgment of the trial court, seeking a writ of mandamus ordering the trial court to vacate its orders granting the motion for new trial filed by the plaintiff, finding that negligence proximately caused the motor vehicle accident made the basis of the underlying lawsuit and found the relators not negligent. On appeal, the relators argued that the trial court abused its discretion when it granted the motion for new trial despite there being factually and legally sufficient evidence to support the jury’s verdict. The appellate court noted that when the trial court granted a new trial because the jury’s finding was against the great weight and preponderance of the evidence, the entire trial record to determine, using a factual sufficiency standard, whether the record supported the trial court’s reasoning. The appellate court found that the new-trial order omitted evidence the jury reasonably could have credited in support of its determination of negligence. The appellate court concluded that the trial court’s reason for granting the relators’ motion for a new trial was not supported by the record, and therefore, the trial court clearly abused its discretion by granting a new trial. Accordingly, the judgment of the trial court was vacated and the relators’ writ was granted.


The trial court’s failure to find that the victim was entitled to a protective order was not so against the great weight and preponderance of the evidence that it was clearly wrong and unjust.
State v. V.T
Constitution, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
May 16, 2019
03-18-00472-CV
Gisela D. Triana
Published
The State appealed the judgment of the trial court which denied the State’s application for a permanent protective order against the victim’s ex-boyfriend. On appeal, the State asserted that the trial court abused its discretion in failing to make adverse inferences against the ex-boyfriend following his invocation of the Fifth Amendment privilege against self-incrimination and that there was insufficient evidence to support the trial court’s denial of the protective order. The appellate court noted that Chapter 7A of the Code of Criminal Procedure allowed victims of certain crimes to obtain permanent protective orders against the offenders who committed those crimes, but that it only applied to crimes that were specifically listed in the statute. The appellate court found that the application for a protective order in this case did not specify the crime that the ex-boyfriend allegedly committed, but instead alleged generally that victim was “a victim of sexual assault or abuse, stalking, or trafficking.” The State further argued that the trial court was required to infer from the above that the State’s allegations against the ex-boyfriend were true. The appellate court concluded that the trial court’s failure to find that the victim was entitled to a protective order was not so against the great weight and preponderance of the evidence that it was clearly wrong and unjust. Accordingly, the judgment of the trial court was affirmed.


The trial court did not violate the defendant’s right to confront the witnesses against him when it admitted the witness’s testimony from the aggravated assault trial.
Moon v State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
May 15, 2019
06-18-00128-CR
Ralph Burgess
Published
The defendant appealed the judgment of the trial court which convicted him of bail jumping and failure to appear and was sentenced to six years and six months’ imprisonment. On appeal, the defendant complained that the trial court violated his right to confront witnesses against him when it admitted testimony from another proceeding to be read in this proceeding. The defendant further asserted that, to satisfy the Confrontation Clause, the prior testimony could not be used unless the testimony was from the same case. The appellate court found that it was undisputed that the witness was unavailable and that the defendant had the opportunity to cross-examine her at the aggravated assault trial. The appellate court concluded that the trial court did not violate the defendant’s right to confront the witnesses against him when it admitted the witness’s testimony from the aggravated assault trial. The appellate court noted that since requirements of the Confrontation Clause were met, the trial court did not abuse its discretion in admitting the testimony. Accordingly, the judgment of the trial court was affirmed.


The trial court judgment erroneously provided for the right of execution against the Department of Transportation, which was a recognized entity of the state.
Tex. Dep’t of Transp. v. Flores
Appellate: Civil, Civil Rights, Damages, Employment, Procedure
Texas 8th Court of Appeals
May 15, 2019
08-17-00047-CV
Gina M. Palafox
Published
The Texas Department of Transportation (the Department) appealed the judgment of the trial court which found in favor of the plaintiff in an action alleging age discrimination under Chapter 21 of the Texas Labor Code. On appeal, the Department challenged the judgment based on whether the trial court had subject matter jurisdiction over this discrimination claim asserted against a governmental employer, and whether the evidence was legally and factually sufficient to support the jury’s verdict. The appellate court noted that the Texas Commission on Human Rights Act (TCHRA) prohibited an employer from terminating or discriminating against an employee because of the employee’s age. The Department maintained that there was no evidence that the plaintiff’s age was a motivating factor in his termination, and that the case should therefore be dismissed for want of jurisdiction based on the Department’s sovereign immunity. The appellate court found that the trial court judgment erroneously provided for the right of execution against the Department, which was a recognized entity of the state. The appellate court concluded that the record supported the jury’s award of compensatory damages. Accordingly, the judgment of the trial court was affirmed.  


The defendant’s confession was due to official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker.
Medrano v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
May 15, 2019
04-18-00400-CR
Patricia O. Alvarez
Published
The defendant appealed the judgment of the trial court which convicted him of continuous sexual abuse of a child, indecency with a child—sexual contact, and indecency with a child by exposure. On appeal, the defendant argued that the trial court erred by denying his motion to suppress because his confession was involuntary. The defendant further asserted that after discovering his religious nature, the detectives made several attempts to force his confession by speaking about religion. The State counterargued that there was no promise of a positive benefit to the defendant in return for his confession. The appellate court noted that the police misconduct must be causally related to the defendant’s statements, and absent such, there was no due process deprivation by a state actor, and no due process violation. The appellate court found that the detectives’ statements did not promise any positive benefit in return for the defendant’s confession. The appellate court concluded that the defendant’s confession was due to official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker. Accordingly, the judgment of the trial court was affirmed.


Because the option contained within the lease violated the rule against perpetuities, it was void at its inception and the trial court properly granted summary judgment in the property owner’s favor.
Caruso v. Young
Appellate: Civil, Contracts, Procedure, Real Property
Texas 6th Court of Appeals
May 10, 2019
06-18-00081-CV
Scott E. Stevens
Published
The property owner appealed the judgment of the trial court which granted summary judgment declaring void an option to purchase property within a lease agreement because it violated the rule against perpetuities. On appeal, the property owner argued that the lease's option, which was an executory interest subject to the Rule, violated the Rule because the lease created a covenant running with the land to be honored by both parties' heirs and, for that reason, could be exercised by their yet unborn heirs after all lives in being had ended plus twenty-one years. The appellate court found that the respondents’ interest was void at the outset because it could potentially vest outside the time period specified by the Rule. The appellate court concluded that because the option contained within the lease violated the rule against perpetuities, it was void at its inception and the trial court properly granted summary judgment in the property owner’s favor. Accordingly, the judgment of the trial court was affirmed.


The petitioner waived the argument that his contractual waiver of the statute of limitations was void as against public policy, and the appellate court erred by declining to reach the petitioner’s argument.
Godoy v. Wells Fargo Bank, N.A.
Appellate: Civil, Consumer, Creditor/Debtor, Procedure
The Supreme Court of Texas
May 10, 2019
18-0071
James D Blacklock
Published
The petitioner appealed the judgment of the appellate court which ruled in favor of the respondent. On appeal, the petitioner argued that the appellate court’s decision applying Simpson v. McDonald, a statute-of-limitations defense could only be waived if the language in the waiver was specific and for a defined period of time. The Supreme Court noted that when the enforceable portions of the petitioner’s contractual waiver were applied, limitations did not bar the respondent’s suit against him. The Supreme Court found that the correct interpretation of Simpson allowed a contractual waiver of the statute of limitations if the waiver was “specific and for a reasonable time.” The Supreme Court concluded that the petitioner waived the argument that his contractual waiver of the statute of limitations was void as against public policy, and the appellate court erred by declining to reach the petitioner’s argument. Accordingly, the judgment of the appellate court was affirmed.


The plaintiffs could not establish the defendant’s negligence as a matter of law given these ostensible contradictions, inconsistencies, and credibility issues with the plaintiff’s testimony.
Cartwright v. Armendariz
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
May 08, 2019
08-16-00129-CV
Yvonne T. Rodriguez
Published
The plaintiffs appealed the judgment of the trial court which rendered a take-nothing verdict against them in an automobile accident case. On appeal, the plaintiffs contended that the trial court’s conclusion was improper both because the verdict rested on legally and factually insufficient evidence, and because the trial court erred by preventing the jury from hearing evidence that the defendant driver received a traffic ticket for failing to stop at a stop sign immediately before the crash. The plaintiffs further maintained that the trial court improperly excluded certain medical records. The appellate court noted that a jury verdict that rested on legally sufficiency evidence could be defective on factual sufficiency grounds. The appellate court found that the plaintiffs could not establish the defendant’s negligence as a matter of law given these ostensible contradictions, inconsistencies, and credibility issues with the plaintiff’s testimony. The appellate court concluded that the jury’s verdict was contrary to the great weight and preponderance of the evidence. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.


Because a trier of fact could resolve any doubts in the plaintiff’s favor and find the request reasonable accommodation under the circumstances, the plaintiff satisfied his burden to generate a genuine question of fact on the issue.
Tex. Dep’t of Transp. v. Lara
Appellate: Civil, Civil Rights, Employment, Gov't/Administrative, Procedure, Transportation
Texas 3rd Court of Appeals
May 09, 2019
03-18-00153-CV
Edward Smith
Published
The Texas Department of Transportation (the Department) appealed the judgment of the trial court which denied its motion for summary judgment and plea to the jurisdiction in the plaintiff’s suit, alleging that the Department failed to provide the reasonable accommodation required by the Texas Commission on Human Rights Act (TCHRA) and retaliated against him for exercising his rights under that Act, id. § 21.055. On appeal, the Department contended that the trial court erred by overruling its plea to the jurisdiction and failing to dismiss the plaintiff’s claims of discrimination and retaliation. The appellate court noted that the TCHRA prohibited workplace discrimination that occurred because of or on the basis of a physical or mental condition that did not impair an individual’s ability to reasonably perform a job. The appellate court found that this was not a case in which the employer was unaware of the desired accommodation or the statements made by the employee were too indefinite and ambiguous to constitute a formal request. The appellate court concluded that because a trier of fact could resolve any doubts in the plaintiff’s favor and find the request reasonable accommodation under the circumstances, the plaintiff satisfied his burden to generate a genuine question of fact on the issue. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.


The appellate court concluded that the evidence was factually insufficient to support the jury's award of past medical expenses.
Villarreal v. Timms
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Torts
Texas 4th Court of Appeals
May 08, 2019
04-18-00444-CV
Beth Watkins
Published
The defendant appealed the judgment of the trial court which rendered judgment in favor of the plaintiff in an automobile accident case. On appeal, the defendant contended that the jury's findings as to certain measures of damages were against the great weight and preponderance of the evidence. The defendant further asserted that the evidence was factually insufficient to support the jury's award for past medical expenses. The appellate court noted that because its decision with regard to the award of past medical expenses was dispositive under Rule 44.1(b) of the Texas Rules of Appellate Procedure, it did not need to review the sufficiency of the future damage awards. The appellate court found that the lone "high, sir" statement, when considered in context, did not lower the "basement" amount the jury could award, and thus, the jury's past medical damage award was against the great weight and preponderance of the evidence. The appellate court concluded that the evidence was factually insufficient to support the jury's award of past medical expenses. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.


The Supreme Court concluded that the plaintiff was required to exhaust administrative remedies before bringing his constitutional-takings claim in the trial court.
Garcia v. Willis
Appellate: Civil, Constitution, Gov't/Administrative, Procedure
The Supreme Court of Texas
May 03, 2019
17-0713
Jeffery Brown
Published
The plaintiff appealed the judgment of the appellate court which rendered judgment that the trial court had no jurisdiction over the plaintiff’s claims because he had failed to seek administrative relief. This appeal stemmed from the plaintiff representing a putative class of citizens that asked a trial court to strike down both the state statutes authorizing use of red-light cameras and the City’s ordinance providing for the use of red-light cameras within its jurisdiction. On appeal, the Supreme Court was asked to consider the plaintiff was required to seek an administrative remedy before filing his case in the trial court. The Supreme Court noted that standing consisted of some interest peculiar to the person individually and not just as a member of the public. The Supreme Court found that the plaintiff lacked standing to bring his prospective claims for declaratory and injunctive relief and that governmental immunity barred his reimbursement claim. The Supreme Court concluded that the plaintiff was required to exhaust administrative remedies before bringing his constitutional-takings claim in the trial court. Accordingly, the judgment of the appellate court was affirmed.


The Commission abused its discretion in issuing negative use determinations on the petitioner’s applications for tax exemptions for the heat recovery steam generators used in its facilities in the counties.
Brazos Elec. Power Coop., Inc. v. Tex. Comm’n on Envtl. Quality
Appellate: Civil, Constitution, Environmental, Gov't/Administrative, Procedure, Tax
The Supreme Court of Texas
May 03, 2019
17-1003
Justice Lehrmann
Published
The petitioner appealed the judgment of the appellate court which held that the Texas Commission on Environmental Quality (the Commission) did have discretion to deny ad valorem exemption. On appeal, the Supreme Court was asked to consider whether Texas Tax Code Section 11.31 gave the Commission discretion to deny an ad valorem tax exemption for heat recovery steam generators, devices the Legislature deemed “pollution control property.” The Supreme Court noted that a proceeding under Section 11.31 was not considered a “contested case” for purposes of the Administrative Procedure Act and its corresponding substantial evidence standard of review. The Supreme Court found that Subsection (a) exempted from taxation “all or part” of real or personal property “used wholly or partly as a facility, device, or method for the control of air, water, or land pollution” The Commission maintained that this holding rendered portions of Section 11.31 meaningless, namely Subsections (c), (g)(3), (g-1), and (h). The Supreme Court concluded that the Commission abused its discretion in issuing negative use determinations on the petitioner’s applications for tax exemptions for the heat recovery steam generators used in its facilities in the counties. Accordingly, the judgment of the appellate court was reversed and remanded for further proceedings.


The appellate court concluded that the trial court did not err in admitting the summary of the defendant’s probation file over the defendant’s Confrontation Clause objection.
Olabode v. State
Constitution, Criminal, Evidence, Procedure
Texas 5th Court of Appeals
May 02, 2019
05-18-00524-CR
Ada Brown
Published
The defendant appealed the judgment of the trial court which adjudicated him guilty of aggravated robbery and evading arrest and sentencing him to imprisonment for twenty-five and ten years, respectively. On appeal, the defendant contended that the trial court erred in denying his motion to quash the State’s amended motions to revoke probation or proceed with an adjudication of guilt, finding he violated probation condition in the aggravated robbery case, and admitting his probation file into evidence. The appellate court noted that proof of a single violation of community supervision was sufficient to support a trial court’s decision to revoke community supervision. The defendant further asserted that the error was harmful because there was “little chance” the trial court did not consider the file in either finding appellant violated conditions of his community supervision or assessing his punishment. The appellate court found that the court’s ruling that the right to confrontation under the Sixth Amendment did not apply during revocation proceedings. The appellate court concluded that the trial court did not err in admitting the summary of the defendant’s probation file over the defendant’s Confrontation Clause objection. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the trial court’s error in submitting an incorrect parole instruction was harmless.
Murrieta v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
May 03, 2019
06-18-00163-CR
Ralph Burgess
Published
The defendant appealed the judgment of trial court which convicted him of aggravated sexual assault of his wife’s six-year-old daughter and was sentenced to forty years’ imprisonment. On appeal, the defendant argued that, during punishment, the trial court erred in submitting the wrong instruction to the jury on the effect of parole law. The appellate court noted that the defendant was correct that the trial court erred in instructing the jury that the defendant’s good conduct time could expedite his eligibility for parole, and thus, the trial court erred in instructing the jury under Section 4(c). The appellate court found that the jury was erroneously instructed that good conduct time could be considered in determining when the defendant would be eligible for parole. The State maintained that the defendant deserved life in prison, but it did not mention parole or good time conduct in its arguments. The appellate court found that the jury did not send any notes to the trial court regarding parole or its effect on the defendant’s length of incarceration. The appellate court concluded that the trial court’s error in submitting an incorrect parole instruction was harmless. Accordingly, the judgment of the trial court was affirmed.


The respondents’ negligent-hiring claim depended on proof that the petitioner’s contemporaneous use of an improvement caused the injury, and the claim therefore arose from the use of the improvement, and chapter 95 applied.
Endeavor Energy Res., L.P. v. Cuevas
Appellate: Civil, Employment, Procedure, Real Property, Torts
The Supreme Court of Texas
May 03, 2019
17-0925
Jeffrey S. Boyd
Published
The petitioner appealed the judgment of the appellate court which granted summary judgment for the respondents’ claims that the petitioner negligently hired, retained, and supervised the individual. On appeal, the Supreme Court was asked to determine whether chapter 95 of the Texas Civil Practice and Remedies Code applied to a contractor’s employee’s negligent-hiring claim against a property owner. The petitioner argued that the respondents reasonably should have known of the danger or condition, and its constructive knowledge was sufficient to support the negligent-hiring claim because chapter 95 did not apply to that claim. The Supreme Court noted that under the common law, a property owner could be liable for premises liability or negligence that harmed an independent contractor or its employee if the owner controlled the work and either knew or reasonably should have known of the risk or danger. The Supreme Court found that a negligent-hiring claim required negligence by two separate parties: the employer’s negligence in hiring the employee and the employee’s subsequent negligent act or omission. The Supreme Court concluded that the respondents’ negligent-hiring claim depended on proof that the petitioner’s contemporaneous use of an improvement caused the injury, and the claim therefore arose from the use of the improvement, and chapter 95 applied. Accordingly, the judgment of the appellate court was reversed.


The defendant failed to demonstrate his entitlement to bring an interlocutory appeal under section 51.014(a)(6) of the Texas Civil Practice and Remedies Code.
Phillips v. Clark
Appellate: Civil, Torts
Texas 5th Court of Appeals
May 03, 2019
05-18-00556-CV
Amanda L. Reichek
Published
The defendant appealed the judgment of the trial court which denied his motion for traditional and no-evidence partial summary judgment in a suit for libel and defamation. On appeal, the plaintiff argued that the appellate court did not have jurisdiction because the defendant was not a media defendant and did not assert any defenses based on free speech, freedom of the press, or Chapter 73. The appellate court noted that appellate courts did not have jurisdiction to consider immediate appeals from interlocutory orders only if a statute explicitly provided such jurisdiction. The appellate court found that the defendant was a candidate for public office who allegedly provided information that was published in mailers and on a website and nothing in the record showed that he ever engaged in professional news reporting or any other form of journalism or professional investigation and commentary about matters of public concern. The appellate court concluded that the defendant failed to demonstrate his entitlement to bring an interlocutory appeal under section 51.014(a)(6) of the Texas Civil Practice and Remedies Code. Accordingly, the judgment of the trial court was affirmed.


Since the trial court lacked subject-matter jurisdiction over the election contest, the trial court did not err in refusing to rule on the petitioner’s motion for summary judgment.
Noteware v. Turner
Appellate: Civil, Election, Gov't/Administrative, Procedure, Tax
Texas 1st Court of Appeals
May 21, 2019
01-18-00663-CV
Evelyn V. Keyes
Published
The petitioner appealed the judgment of the trial court which granted the City’s plea to the jurisdiction and dismissed the election contest case, where the petitioner challenged the sufficiency of the ballot language setting out a bond measure in the City’s November election. On appeal, the petitioner argued that the trial court erred in ruling that the case was no longer justiciable and in failing to grant his motion for summary judgment seeking a ruling that the ballot language was insufficient as a matter of law. The appellate court noted that the mootness doctrine implicated a court’s subject-matter jurisdiction, which was essential to a court’s power to decide a case. The petitioner further asserted that Proposition A authorized the City to levy a tax in excess of the revenue cap in order to pay off the bonds and that the ballot measure presented in the election did not inform voters of this provision, which was a chief feature of Proposition A. The appellate court found that the City presented evidence that it followed the statutory procedure for issuing the bonds and that the bonds have issued. The appellate court concluded that since the trial court lacked subject-matter jurisdiction over the election contest, the trial court did not err in refusing to rule on the petitioner’s motion for summary judgment. Accordingly, the judgment of the trial court was affirmed.


The trial court had the discretion to determine that the officer’s violation of Miranda was merely inadvertent and that the officer did not intend to employ a two-strap strategy.
Foster v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 21, 2019
14-17-00893-CR
Tracy Christopher
Published
The defendant appealed the judgment of the trial court which denied his motion to suppress both of his statements, claiming that the interrogators had circumvented Miranda by subjecting him to the two-step technique that was sometimes known as “question first, warn later.” On appeal, the defendant argued that there was coordination between the officer and the detective because they were both involved in the defendant’s arrest, they both spoke to each other after the arrest and before the defendant’s transport, and they both interrogated the defendant close in time. The appellate court noted that the trial court did not explicitly address the officer’s intent in its findings of fact, rather, the trial court determined that the officer had not engaged in a “true interrogation” and that it would be a “stretch” to label his questioning as an actual interview. The appellate court found that there was no evidence that the officer and the detective spoke to each other at the police station following the officer’s initial interrogation. The defendant further asserted that the officer’s intent to employ a two-step strategy was apparent on the face of the record because the officer knew that the defendant was under arrest but the officer interrogated him anyways. The appellate court concluded that the trial court had the discretion to determine that the officer’s violation of Miranda was merely inadvertent and that the officer did not intend to employ a two-strap strategy. Accordingly, the judgment of the trial court was affirmed.


There was no evidence that it violated the Fourth Amendment, rather, the record demonstrated that the entity acted as a private entity in conducting its search of the defendant’s account and that its search did not implicate the defendant’s Fourth Amendment rights.
Burwell v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 21, 2019
01-18-00300-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which convicted him of four counts of possession of child pornography and assessed his punishment at imprisonment for two years in two of the offenses and probation for ten years in the other two offenses. On appeal, the defendant argued that the trial court improperly denied his motion to suppress evidence obtained from the entity with which defendant had electronically stored some photographs. Specifically, the defendant asserted that the entity acted as an agent, which was a governmental entity, and invoked the protections of the Fourth, Fifth and Fourteenth Amendments to the Constitution. The appellate court noted that the only warrantless search of the contents of the defendant’s account was done by the entity, which actually viewed the contents of the defendant’s files. The appellate court concluded that there was no evidence that it violated the Fourth Amendment, rather, the record demonstrated that the entity acted as a private entity in conducting its search of the defendant’s account and that its search did not implicate the defendant’s Fourth Amendment rights. Accordingly, the judgment of the trial court was affirmed.


The TCPA applied to the portion of the plaintiff’s claim for breach of fiduciary duty against the defendants that was based on alleged damages other than the special assessment cost.
O'Hern v. Mughrabi
Appellate: Civil, Damages, Gov't/Administrative, Procedure, Real Property, Torts
Texas 14th Court of Appeals
May 21, 2019
14-18-00128-CV
Kevin Jewell
Published
The defendants appealed the judgment of the trial court which denied their motion to dismiss under the Texas Citizens Protection Act (TCPA) in an action where the plaintiff breach of fiduciary duty and requested injunctive, declaratory, and monetary relief. On appeal, the defendants contended that the trial court erred because the plaintiff failed to present prima facie evidence supporting his claims, and the plaintiffs established an affirmative defense. The plaintiff counterargued that the appeal was moot because a new association board of directors cancelled the special assessment while the case was pending in the trial court. The appellate court agreed with the plaintiff that this case was moot as to the portion of the plaintiff’s claim that was based on alleged damages resulting from the now-cancelled special assessment. The appellate court noted that the TCPA was intended to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury. The appellate court concluded that the TCPA applied to the portion of the plaintiff’s claim for breach of fiduciary duty against the defendants that was based on alleged damages other than the special assessment cost. Accordingly, the judgment of the trial court was reversed in part and remanded with instructions to determine appropriate attorney's fees and sanctions.


A reasonable factfinder could have formed a firm belief or conviction as to the truth of the finding that the father endangered his children through his conduct.
In re T.L.E.
Appellate: Civil, Family, Procedure
Texas 14th Court of Appeals
May 21, 2019
14-18-01057-CV
Charles Spain
Published
The father appealed the judgment of the trial court which terminated the parental rights of the parents with respect to their children and appointed the Department of Family and Protective Services (the Department) to be the children’s sole managing conservator. On appeal, the appellate court was asked to consider whether the trial court’s findings to terminate a father’s parental rights were supported by legally- and factually-sufficient evidence. The father challenged the legal and factual sufficiency of the evidence to support the trial court’s findings on the predicate ground of endangerment and that termination was in the children’s best interest. The father further asserted that the record should be limited to the reporter’s record because the trial court did not take judicial notice of its file. The appellate court noted that no factual statements or allegations contained in the clerk’s record, which were not admitted during the final hearing, could be considered evidence when reviewing the sufficiency of the evidence. The appellate court found that the evidence of the father’s prior conviction for indecency with a child by contact was sufficient to support the trial court’s endangerment finding under section 161.001(b)(1)(E). The appellate court concluded that a reasonable factfinder could have formed a firm belief or conviction as to the truth of the finding that the father endangered his children through his conduct. Accordingly, the judgment of the trial court was affirmed.


The defendant’s petition for a writ of habeas corpus, filed while a criminal complaint was pending, remained a criminal proceeding over which the court did not have jurisdiction.
Ex Parte Bhardwaj
Appellate: Civil, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
May 15, 2019
10-19-00032-CR
Tom Gray
Published
The defendant appealed the judgment of the trial court which granted the State’s motion to dismiss. On appeal, the appellate court was asked to consider whether the proceeding was properly characterized as a pretrial habeas corpus proceeding from a pending criminal case or whether it was a habeas corpus proceeding challenging a confinement for some reason other than due to a pending criminal proceeding. The defendant argued that because this was a pretrial petition for a writ of habeas corpus in a pending criminal proceeding, this intermediate appellate court had no jurisdiction. The appellate court noted that if this was a pretrial petition for a writ of habeas corpus from detention for a criminal proceeding, it did not have jurisdiction of it. The appellate court found that the defendant’s detention clearly started as a criminal proceeding and his competency to stand trial was raised, thus, it was determined that he was not, at that time, competent to stand trial. The appellate court concluded that the defendant’s petition for a writ of habeas corpus, filed while a criminal complaint was pending, remained a criminal proceeding over which the court did not have jurisdiction. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that there was a substantial chance that a claim would be filed or that the defendants needed to preserve the fire scene.
In re Xterra Constr., LLC
Appellate: Civil, Constitution, Contracts, Evidence, Procedure
Texas 10th Court of Appeals
May 15, 2019
10-16-00420-CV
Rex D. Davis
Published
The petitioner appealed the judgment of the trial court, seeking mandamus relief to vacate the order on motion for sanctions for spoliation of evidence in an action asserting negligence and breach-of-contract causes of action. On appeal, the appellate court was asked to consider whether the defendants have shown that the trial court clearly abused its discretion in imposing sanctions against them for the spoliation of evidence. The appellate court noted that the defendants reasonably should have known that there was a substantial chance that a claim would be filed. The appellate court found that the evidence indicated that the damage was confined to one room of the warehouse, not the entire warehouse, and the evidence did not support that a reasonable person would conclude from the severity of the fire or extent of the damages that a substantial chance of litigation would ensue. The petitioner further alleged that from the moment that the fire occurred, the defendants should have been aware of their duty to preserve the fire scene because they were the sole tenants and occupiers of the warehouse. The appellate court concluded that there was a substantial chance that a claim would be filed or that the defendants needed to preserve the fire scene. Accordingly, the petitioner’s petition for mandamus relief was granted.


The appellate court concluded that, as a matter of law, the plaintiffs failed to raise a genuine issue of material fact on their wrongful death claims.
Douglas v. Hardy
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Torts
Texas 12th Court of Appeals
May 15, 2019
12-18-00035-CV
Greg Neeley
Published
The plaintiffs appealed the judgment of the trial court which granted summary judgment in favor of the defendant in their wrongful death suit. On appeal, the plaintiffs argued that the trial court erred in granting summary judgment in the defendant’s favor. The appellate court noted that it was well settled that a trial court could not grant a motion for summary judgment on grounds not presented in the motion, and a no-evidence motion for summary judgment must identify the essential elements as to which there was no evidence. The plaintiffs further maintained that the defendant failed to sufficiently identify the essential element he challenged in his no evidence motion for summary judgment. The appellate court found that the defendant properly raised a no-evidence motion for summary judgment on the legal duty, proximate cause, and foreseeability elements on all of the plaintiffs’ claims. The appellate court concluded that, as a matter of law, the plaintiffs failed to raise a genuine issue of material fact on their claims. Accordingly, the judgment of the trial court was affirmed.


By failing to transfer the funds from a verified collected balance, the bank subsequently breached the parties’ wire transfer agreement, thereby causing the overdraft and entitling the defendant to offset the chargeback by the amount of overdrawn funds.
Cadence Bank v. Elizondo
Appellate: Civil, Banking and Finance, Consumer, Contracts, Procedure, Professional Responsibility, Torts
Texas 1st Court of Appeals
May 16, 2019
01-17-00886-CV
Laura Carter Higley
Published
The bank appealed the judgment of the trial court which granted judgment in favor of the defendant, asserting claims for breach of the parties’ underlying deposit agreement and breach of warranty under the Texas Uniform Commercial Code. On appeal, the appellate court was asked to consider who was liable for funds that were wire transferred from an attorney’s IOLTA account to a third-party account overseas: the attorney or the bank. The bank contended that it proved as a matter of law that the defendant was liable for breach of UCC transfer warranties and that the bank was entitled to reverse the provisional settlement funds credited to the defendant’s account and to recover as damages the amount of the resulting overdraft under both the UCC and the Deposit Agreement. The appellate court found that, by depositing the counterfeit check, the defendant breached the parties’ deposit agreement and UCC transfer warranties, thereby entitling the bank to charge back the provisional settlement funds. The appellate court concluded that, by failing to transfer the funds from a verified collected balance, the bank subsequently breached the parties’ wire transfer agreement, thereby causing the overdraft and entitling the defendant to offset the chargeback by the amount of overdrawn funds. Accordingly, the judgment of the trial court was affirmed.


The defendant’s failure to object to the trial court’s limiting instruction given immediately before the victim’s testimony did not preserve error in this issue.
Webb v. State
Constitution, Criminal, Evidence, Juvenile, Procedure
Texas 10th Court of Appeals
May 15, 2019
10-17-00149-CR
John E. Neill
Published
The defendant appealed the judgment of the trial court, challenging his conviction for indecency with a child by contact. On appeal, the defendant argued that the trial court abused its discretion by admitting extraneous-offense evidence of other sexual offenses in violation of Texas Rules of Evidence 403 and 404(b) and that the trial court’s limiting instruction regarding the extraneous-offense evidence was erroneous. The State maintained that the defendant’s complaint was not preserved, and when it moved to introduce extraneous-offense evidence pertaining to sexual-assault offenses allegedly committed by the defendant against two victims, the defendant did not object under Rule 404(b). The appellate court noted that evidence of other crimes, wrongs, or acts was not admissible to prove the character of a person in order to show action in conformity. The appellate court found that rebuttal of a defensive theory was one of the permissible purposes for which extraneous-offense evidence could be admitted. The appellate court concluded that the defendant’s failure to object to the trial court’s limiting instruction given immediately before the victim’s testimony did not preserve error in this issue. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the parties to the easement could have intended a definition of oil or gas the legislature did not adopt until later and only then for reasons unrelated to pipeline transportation of oil or gas.
Texan Land & Cattle II, Ltd. v. Exxonmobil Pipeline Co.
Appellate: Civil, Contracts, Oil, Gas, & Mineral, Procedure, Real Property, Torts
Texas 14th Court of Appeals
May 16, 2019
14-18-00038-CV
Kevin Jewell
Published
The landowner appealed the judgment of the trial court which granted summary judgment in the easement holder’s favor on the landowner’s claims for breach of contract, trespass, and declaratory judgment. On appeal, the appellate court was asked to consider whether a pipeline easement’s right-of-way to transport oil or gas was limited to crude petroleum, or alternatively whether the easement also permitted transportation of the refined petroleum products gasoline and diesel. The landowner argued that the easement’s terms oil or gas meant only crude oil. The appellate court noted that an easement was a nonpossessory interest that allowed its holder to use another’s property for a stated purpose such as the right to lay, operate, and remove a pipeline for the transportation of oil or gas. The appellate court found that Texas courts have addressed the terms “natural gas” or “gas” in a deed or lease and found that they included “all constituent elements,” including refined products such as gasoline. The appellate court concluded that the parties to the easement could have intended a definition of oil or gas the legislature did not adopt until later and only then for reasons unrelated to pipeline transportation of oil or gas. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that when imposing rule 13 sanctions, the trial court was required to make particularized findings of “good cause” justifying the sanctions.
In re D.Z.
Appellate: Civil, Damages, Family, Procedure
Texas 14th Court of Appeals
May 16, 2019
14-17-00938-CV
Charles Spain
Published
The father appealed the judgment of the trial court in a suit to modify a parent-child relationship. On appeal, the father maintained that the trial court abused its discretion in awarding the mother attorney’s fees of $10,000, and the trial court erred in characterizing amicus attorney’s fees as additional child support subject to income withholding. The mother alleged that the appellate court should not consider the new issues and arguments to the father’s reply brief because the father did not raise them in his opening brief and they prejudiced her. The appellate court noted that an appellant could file a reply brief addressing any matter in the appellee’s brief, such as waiver, and the father raised the lack of evidence to support the attorney’s-fee award in his opening brief. The father further asserted that the mother failed to segregate attorney’s fees between claims for which attorney’s fees were recoverable and claims for which they were not. The appellate court found that the record did not reflect that the father ever raised any objection in the trial court based on lack of segregation of the mother’s attorney’s fees, and he likewise did not preserve this complaint. The appellate court concluded that when imposing rule 13 sanctions, the trial court was required to make particularized findings of “good cause” justifying the sanctions. Accordingly, the judgment of the trial court was affirmed.


There was no statutory basis for the jury’s answer to the jury question serving as a bar to the plaintiff’s recovery on a breach of warranty claim.
Equistar Chemicals, LP v. ClydeUnion DB, Ltd.
Appellate: Civil, Contracts, Procedure
Texas 14th Court of Appeals
May 16, 2019
14-17-00791-CV
Ken Wise
Published
The plaintiff appealed the judgment of the trial court which found that the defendant breached its warranties, but that the plaintiff breached the contract. On appeal, the plaintiff contended that the trial court erred by admitting, and rendering judgment on, unreliable and conclusory expert testimony, and in excluding evidence of a letter written by the defendant’s attorney. The plaintiff further asserted that the trial court erred by not disregarding the jury’s answer concerning the “opportunity to cure” question and rendering a judgment for the defendant on its counterclaim after applying the offer-of-settlement statute and rule. The appellate court noted that the plaintiff proposed specific redactions to the letter to omit a reference to settlement, although the plaintiff did not redact the defendant’s demand that the plaintiff released its damage claims. The appellate court found that exclusion of evidence related to the opportunity-to-cure issue did not probably cause the rendition of an improper judgment. The plaintiff further maintained that the trial court’s judgment could not be affirmed based on the jury’s answer to the opportunity-to-cure question. The appellate court concluded that there was no statutory basis for the jury’s answer to the jury question serving as a bar to the plaintiff’s recovery on a breach of warranty claim. Accordingly, the judgment of the trial court was reversed.


Since the homeowners failed to prove a cause of action allowing the recovery of attorney and expert fees, the trial court did not err in ruling that they were not entitled to recover either type of fee.
Mitchell v. D.R. Horton-Emerald, Ltd.
ADR, Appellate: Civil, Contracts, Damages, Procedure, Real Property
Texas 1st Court of Appeals
May 16, 2019
01-18-00755-CV
Laura Carter Higley
Published
The homeowners appealed the judgment of the trial court which held that they were not entitled to recover attorney and expert fees against the contractor. On appeal, the homeowners argued that their fees were recoverable as damages under the Residential Construction Liability Act. The contractor counterargued that Section 27.004(g) was not an independent basis for the recovery of attorney and expert fees. The appellate court noted that the Act did not create a cause of action for damages, but it limited the types of damages recoverable under causes of action that already existed. The appellate court found that the homeowners failed to assert a cause of action allowing for the recovery of attorney or expert fees. The appellate court concluded that since the homeowners failed to prove a cause of action allowing the recovery of attorney and expert fees, the trial court did not err in ruling that they were not entitled to recover either type of fee. Accordingly, the judgment of the trial court was affirmed.


The City’s immunity was not waived and that the plaintiff did not demonstrate that it was a governmental unit entitled to an interlocutory appeal of a ruling on a plea to the jurisdiction.
City of New Braunfels v. Carowest Land, Ltd.
Appellate: Civil, Contracts, Gov't/Administrative, Procedure, Real Property
Texas 3rd Court of Appeals
May 16, 2019
03-17-00696-CV
Gisela D. Triana
Published
The City and defendants appealed the judgment of the trial court which denied each of their pleas to the jurisdiction asserted in a suit brought against them by the plaintiff. On appeal, the appellate court was asked to consider whether the City violated the Texas Open Meetings Act (TOMA) in meetings relating to the project, whether the City’s contract awarding the project was void under Local Government Code chapter 252, and (3) whether the delay claims related to the project were valid. The appellate court noted that because the plaintiff did not show that it was a governmental entity under section 101.001, the plaintiff could not pursue an interlocutory appeal. The appellate court found that in submitting the delay claim to the City and maintaining the claim even after the City opined that the claim had been released, it did not appear that the plaintiff was carrying out the City’s directives with no independent discretion. The appellate court concluded that the City’s immunity was not waived and that the plaintiff did not demonstrate that it was a governmental unit entitled to an interlocutory appeal of a ruling on a plea to the jurisdiction. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.   


The trial court could not grant summary judgment on the plaintiff’s contractual or extra-contractual claims as they were no longer pending in trial court.
Franks v. Liberty Cnty. Mut. Ins. Co.
Appellate: Civil, Contracts, Insurance, Procedure, Torts
Texas 14th Court of Appeals
May 14, 2019
14-18-00341-CV
Margaret Poissant
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment in the plaintiff’s suit seeking benefits under his car insurance policy. This appeal stemmed from the plaintiff bringing claims for breach of insurance contract, breach of the duty of good faith and fair dealing, deceptive trade practices, and violations of the Texas Insurance Code. On appeal, the plaintiff contended that the trial court erred in entering summary judgment on his contractual and extra-contractual claims when those claims had been severed and abated. The defendant counterargued that because the uninsured/underinsured motorist (UIM) claim was a necessary predicate to the severed claims, the trial court did not err. The appellate court noted that the trial court’s judgment did not, and could not have, disposed of the plaintiff’s contractual or extracontractual claims. The appellate court found that before this court was only the plaintiff’s suit to determine contractual liability. The appellate court concluded that the trial court could not grant summary judgment on the plaintiff’s contractual or extra-contractual claims as they were no longer pending in trial court. Accordingly, the judgment of the trial court was affirmed.


The State's punishment evidence did not demonstrate that the defendant would receive such a lengthy sentence, and therefore, the trial court should have sustained the defendant’s objections.
Coleman v. State
Constitution, Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
May 09, 2019
02-17-00123-CR
Mark T. Pittman
Published
The defendant appealed the judgment of the trial court which convicted him of possession of a controlled substance, methamphetamine, and sentenced him to 99 years in prison. On appeal, the defendant argued that the State violated the Michael Morton Act, his due process rights, and his rights under Brady v. Maryland, by failing to learn the identity of the informant whose tip led police to arrest him and by not disclosing the informant's criminal history, and the trial court erred by denying his motion for disclosure of the informant's identity. The defendant further asserted that the trial court abused its discretion by not allowing him to "timely" use a prior statement of the arresting officer for impeachment purposes, and the trial court abused its discretion by overruling his objection to the prosecutor's jury argument during the punishment phase of trial. The appellate court noted that under the current version of Article 39.14 of the Texas Code of Criminal Procedure, once the State charged the defendant with a crime, it had a duty to disclose to the defendant any exculpatory information that tended to negate the defendant's guilt. The appellate court concluded that the State's punishment evidence did not demonstrate that the defendant would receive such a lengthy sentence, and therefore, the trial court should have sustained the defendant’s objections. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded for a new trial on punishment.


The absence of a right to hybrid representation meant that a relator’s pro se mandamus petition should be treated as presenting nothing for review, and thus, the relator did not provide a record showing that he was no longer represented by counsel.
In re Flanigan
Appellate: Civil, Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 09, 2019
14-18-01116-CR
Ken Wise
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus asking the appellate court to compel the trial court judge to examine the results of alleged D.N.A. testing, hold a hearing, make a finding as to whether, and have the results been available during the trial of the offense. On appeal, the relator challenged the trial court’s judgment regarding the D.N.A. testing. The appellate court noted that be entitled to mandamus relief, a relator must show that the relator had no adequate remedy at law for obtaining the relief sought, and what the relator sought to compel involved a ministerial act rather than a discretionary act. The appellate court found that the trial court had a ministerial duty to consider and rule on motions properly filed and pending before it, and mandamus could issue to compel the trial court to act. The appellate court concluded that the absence of a right to hybrid representation meant that a relator’s pro se mandamus petition should be treated as presenting nothing for review, and thus, the relator did not provide a record showing that he was no longer represented by counsel. Accordingly, the judgment of the trial court was affirmed.


The expert’s opinions were not conclusory and the expert was qualified to opine on the standards of care applicable to nonphysician healthcare providers.
Harvey v. Kindred Healthcare Operating, Inc.
Appellate: Civil, Evidence, Health Care, Procedure, Torts
Texas 14th Court of Appeals
May 09, 2019
14-17-00479-CV
Frances Bourliot
Published
The plaintiffs appealed the judgment of the trial court which dismissed their medical malpractice claims in favor of the defendants. On appeal, the appellate court was asked to address the adequacy of an expert report under the Texas Medical Liability Act when the only defendants were the hospital and affiliated entities and the expert report did not separately address standard of care, breach of the standard of care, and causation as to each healthcare provider involved in caring for the patient. The appellate court noted that the Act entitled a defendant to dismissal of a healthcare liability claim if it was not timely served with an expert report showing that the claim has merit. The appellate court found that the expert report was adequate since it represented an objective good faith effort to comply with the Act because the expert opined that the same standard of care was applicable to all involved healthcare providers, none of the healthcare providers complied with that standard, and such failure resulted in the patient’s injuries. The appellate court concluded that the expert’s opinions were not conclusory and the expert was qualified to opine on the standards of care applicable to nonphysician healthcare providers. Accordingly, the judgment of the trial court was reversed and remanded.


The plaintiff did not raise an issue or argument challenging the independent, alternative ferae naturae basis for the trial court’s decision.
Gonzales v. Thorndale Coop. Gin & Grain Co.
Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
May 09, 2019
14-18-00267-CV
Charles Spain
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment on the plaintiff’s negligence claim. On appeal, the plaintiff contended that the trial court erred in granting the defendant’s motion for summary judgment where evidence was presented to the trial court that the subject danger was concealed and unknown to the plaintiff. The plaintiff further alleged that the defendant mischaracterized the subject danger too generally as rats in the bathroom, and that the plaintiff did not have full knowledge of the specific danger of rats falling on him from the ceiling above. The appellate court disagreed and found that the plaintiff did not raise an issue or argument challenging the independent, alternative ferae naturae basis for the trial court’s decision. The appellate court found that longstanding case law only permitted the appellate court to look to the trial court’s formal summary-judgment order to determine the trial court’s grounds, if any, for its ruling. The appellate court concluded that the rule gave litigants and appellate courts a single place to look to determine why the trial court granted summary judgment. Accordingly, the judgment of the trial court was affirmed.


The Texas Citizens Participation Act did not apply to the plaintiff’s Rule 202 proceeding and his appeal must be dismissed for lack of jurisdiction.
Caress v. Fortier
Appellate: Civil, Constitution, Discovery, Procedure, Torts
Texas 1st Court of Appeals
May 09, 2019
01-18-00071-CV
Gordon Goodman
Published
The plaintiff appealed the judgment of the trial court which dismissed, pursuant to the defendant’s motion under the Texas Citizens Participation Act (TCPA), of his petition seeking to depose the defendant before filing suit. On appeal, the plaintiff contended that the trial court erred in dismissing his Rule 202 petition because the defendant did not show that the communication underlying the plaintiff’s potential defamation claim was made in connection with a matter of public concern and thus related to the plaintiff’s exercise of his free speech rights. The appellate court noted that the parties attempted to agree that section 27.008 of the Civil Practice and Remedies Code, the TCPA's interlocutory appeal provision, gave the court jurisdiction to review the trial court's order. The plaintiff acknowledged that his Rule 202 petition was simply a request for pre-litigation discovery, and that a decision on the merits of his defamation claim would ultimately be up to a jury. The appellate court found that a trial court's order denying a Rule 202 petition could not dispose of those unfiled claims on the merits, even if the denial purported to rest on a ruling under the TCPA. The appellate court concluded that the TCPA did not apply to the plaintiff’s Rule 202 proceeding and his appeal must be dismissed for lack of jurisdiction. Accordingly, the judgment of the trial court was affirmed.


The trial court did not err in declaring as a matter of law that the petitioner could not force the respondent to arbitrate the dispute.
Carter v. ZB, Nat’l Ass’n
ADR, Appellate: Civil, Procedure
Texas 14th Court of Appeals
May 07, 2019
14-17-00900-CV
Kem Thompson Frost
Published
The petitioner appealed the judgment of the trial court which granted the respondent’s motion for summary judgment on its claim for declaratory relief that the petitioner could not force the respondent to arbitrate the dispute in an arbitration that the petitioner had commenced. On appeal, the respondent argued that construing the instruments as not requiring an Arbitration Order before a dispute could be arbitrated would render superfluous the requirement that a party seek an order compelling arbitration within thirty days of the trial court's order determining that the jury-trial waiver was not enforceable. The respondent asserted that there would be no need for a thirty-day deadline to seek an order compelling arbitration if the parties could proceed to arbitrate a dispute after the thirty-day deadline expired. The appellate court noted that a party seeking to force another party to arbitrate certain claims must establish that a valid arbitration agreement existed and the claims at issue were within the scope of the agreement. The appellate court found that under the unambiguous wording of each instrument, the parties agreed to arbitrate any dispute, but only if a jury trial waiver was not permitted by applicable law or ruling by a court. The appellate court concluded that the trial court did not err in declaring as a matter of law that the petitioner could not force the respondent to arbitrate the dispute. Accordingly, the judgment of the trial court was affirmed.


Sufficient evidence supported the trial court’s findings that the mother had a parent-child relationship terminated with respect to another child based on a finding that the mother’s conduct endangered that child, and termination of the mother’s parental rights was in the child’s best interest.
In re J.J.L.
Appellate: Civil, Family, Procedure
Texas 14th Court of Appeals
May 07, 2019
14-18-01055-CV
Jerry Zimmerer
Published
The mother appealed the judgment of the trial court which terminated both parents’ parental rights and appointed the Texas Department of Family and Protective Services (the Department) to be the child’s managing conservator. On appeal, the mother challenged the sufficiency of the evidence to support termination. On appeal, the mother challenged the sufficiency of the evidence to support the trial court’s findings under subsections D, E, and O of section 161.001(b)(1) of the Family Code. The appellate court noted that parental rights could be terminated if clear and convincing evidence showed the parent committed an act described in section 161.001(b)(1) of the Family Code, and termination was in the best interest of the child. The mother further challenged the legal and factual sufficiency of the evidence to support the trial court’s finding that termination of parental rights was in the child’s best interest. The appellate court concluded that legally and factually sufficient evidence supported the trial court’s findings that the mother had a parent-child relationship terminated with respect to another child based on a finding that the mother’s conduct endangered that child, and termination of the mother’s parental rights was in the child’s best interest. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the arbitrator exhibited evident partiality by failing to disclose the extent of his personal and professional connections with the attorney.
In re marriage of Piske
ADR, Appellate: Civil, Family, Procedure, Torts
Texas 14th Court of Appeals
May 07, 2019
14-17-00869-CV
Meagan Hassan
Published
The wife appealed the judgment of the trial court which confirmed an arbitration award entered in favor of the husband. On appeal, the wife asserted that the arbitrator exhibited evident partiality in the husband’s favor by failing to disclose his personal and professional connections with one of the husband’s attorneys. Specifically, the wife maintained that under section 171.088 of the Texas Arbitration Act, the arbitrator’s failure to disclose his personal and professional connections with the attorney established evident partiality that warranted vacatur of the arbitration award. The appellate court noted that under the Act, a trial court shall vacate an award if the rights of a party were prejudiced by the evident partiality of an arbitrator appointed as a neutral arbitrator. The appellate court found that evidence partiality was established from the nondisclosure itself, regardless of whether the nondisclosed information showed actual partiality or bias. The appellate court concluded that the arbitrator exhibited evident partiality by failing to disclose the extent of his personal and professional connections with the attorney. Accordingly, the judgment of the trial court was reversed, vacated, and remanded for further proceedings.


The trial court did not abuse its discretion in refusing to instruct the jury on the materiality factors outlined in Mustang Pipeline in addition to the definition of material noncompliance in the lease.
Sloane v. Goldberg B'nai B'rith Towers
Appellate: Civil, Contracts, Landlord and Tenant, Procedure
Texas 14th Court of Appeals
May 07, 2019
14-17-00557-CV
Jerry Zimmerer
Published
The tenant appealed the judgment of the trial court in an action seeking the tenant’s eviction based on several alleged non-rent breaches of the lease agreement. On appeal, the tenant asserted the jury charge error, lack of sufficient evidence to support the award of attorney's fees, and lack of sufficient evidence to support the award of back rent. The tenant contended that the trial court should have submitted his requested affirmative defenses of prior material breach by the landlord and immateriality of his own breach. The appellate court noted that the trial court discussed the requested question with the affirmative defenses and instruction on materiality at the charge conference and refused to give them, and thus, the tenant preserved his jury charge issue for review. The appellate court found that the trial court did not abuse its discretion by refusing to submit the affirmative defense of prior material breach because the evidence was undisputed that the defense did not apply. The appellate court concluded that the trial court did not abuse its discretion in refusing to instruct the jury on the materiality factors outlined in Mustang Pipeline in addition to the definition of material noncompliance in the lease. Accordingly, the judgment of the trial court which affirmed in part, reversed in part, and remand in part.


Because the State failed to bring the defendant to trial before the 180-day period expired, the trial court erred in denying the defendant’s motion to dismiss for violation of Article III of the Interstate Agreement on Detainers Act.
Lasker v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
May 07, 2019
01-18-00046-CR
Russell Lloyd
Published
The defendant appealed the judgment of the trial court which convicted him of murder. On appeal, the defendant contended that the trial court erred in denying his motion to dismiss his cases because the State failed to bring him to trial within 180 days after he triggered Article III of the Interstate Agreement on Detainers Act and 120 days after he was received required by Article IV of the Act. The appellate court noted that the Act’s purpose was to encourage the expeditious and orderly disposition of outstanding charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints, based on the rationale that such charges and detainers produced uncertainties which obstructed programs of prisoner treatment and rehabilitation. The defendant further asserted that while his first Article III request was possibly ineffective, his second request to invoke its provisions was successful. The State counterargued that both of the defendant’s requests failed to strictly comply with Article III. The appellate court found that the defendant’s second request properly included all relevant documentation, including a certificate from the appropriate custodial official, and that it was sent by registered mail, return receipt requested. The appellate court concluded that because the State failed to bring the defendant to trial before the 180-day period expired, the trial court erred in denying the defendant’s motion to dismiss for violation of Article III of the Act. Accordingly, the judgment of the trial court was reversed and remanded.


The plaintiffs did not show that the trial court erred in granting summary judgment based on the no-evidence ground challenging the third equitable-bill-of-review element — lack of fault or negligence on the plaintiffs’ part.
Maree v. Zuniga
Appellate: Civil, Procedure
Texas 14th Court of Appeals
May 07, 2019
14-17-00210-CV
Kem Thompson Frost
Published
The plaintiffs appealed the judgment of the trial court which granted summary judgment dismissing the petition in which they sought an equitable bill of review against a judgment rendered after they failed to appear at trial. On appeal, the plaintiffs asserted that the trial court erred in granting summary judgment because the summary-judgment evidence raised a genuine fact issue and the plaintiffs were not served with notice of the underlying judgment. The appellate court noted that a bill of review was an independent, equitable proceeding brought by a party to a prior action seeking to set aside a judgment in that action that was no longer subject to challenge by a motion for new trial or a direct appeal. The appellate court found that the plaintiffs did not show that the summary-judgment evidence raised a genuine fact issue as to whether no proper service of process was effected on them or as to whether they diligently pursued all available and adequate legal remedies, such as a new trial. The appellate court concluded that the plaintiffs did not show that the trial court erred in granting summary judgment based on the no-evidence ground challenging the third equitable-bill-of-review element — lack of fault or negligence on the plaintiffs’ part. Accordingly, the judgment of the trial court was affirmed.


The hospital did not waive its sovereign immunity under the circumstances of the case, and the trial court erred in denying the hospital’s jurisdictional plea.
The Univ. of Tex. MD Anderson Cancer Ctr. v. Contreras
Appellate: Civil, Gov't/Administrative, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
May 07, 2019
01-18-01046-CV
Gordon Goodman
Published
The hospital appealed the judgment of the trial court which denied its plea to the jurisdiction based on the doctrine of sovereign immunity. This appeal stemmed from the plaintiff’s allegations that he was injured in a fall after undergoing knee-replacement surgery at the hospital, asserting negligence against the hospital. The appellate court noted that the hospital was a state entity shielded from suit by sovereign immunity unless its immunity was waived by the Tort Claims Act. The plaintiff maintained that the hospital’s negligent use of a rolling IV pole as a mobility-assistance device caused his injuries and that this brought him within the Act’s waiver of immunity for injuries caused by the state’s use of tangible personal property. The hospital counterargued that the plaintiff’s negligence claim did not satisfy section 101.021(2)’s use requirement. The appellate court found that whether the hospital was entitled to dismissal based on sovereign immunity turned on the jurisdictional allegations in the plaintiff’s petition and the relevant evidence in the record. The appellate court concluded that the hospital did not waive its sovereign immunity under the circumstances of the case, and the trial court erred in denying the hospital’s jurisdictional plea. Accordingly, the judgment of the trial court was reversed.


A rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt based on the trial evidence and any error in admitting the challenged evidence was harmless.
Hernandez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
May 02, 2019
14-17-00643-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of tampering with a governmental record and assessed punishment at two years’ confinement, suspended the sentence, and placed him on community supervision for two years. On appeal, the defendant challenged the sufficiency of the evidence and the trial court’s admission of extraneous bad-acts evidence. Specifically, the defendant maintained that the evidence was legally insufficient to support the jury’s finding that the offense report in which he allegedly made a false entry did not amount to a “governmental record” at the time the defendant made the entries. The appellate court noted that in evaluating a challenge to the sufficiency of the evidence supporting a criminal conviction, it would view the evidence in the light most favorable to the verdict. The appellate court found that the plain, unambiguous text of section 37.01(2)(A) included anything belonging to, received by, or kept by government for information. The appellate court concluded that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt based on the trial evidence and any error in admitting the challenged evidence was harmless. Accordingly, the judgment of the trial court was affirmed.


The trial court erred in reversing the Public Utility Commission’s order dismissing the Hospital District's complaint because the Hospital District was bound by the disputed settlement decree.
Harris Cnty. Hosp. Dist. v. Pub. Util. Comm’n of Tex
ADR, Appellate: Civil, Consumer, Gov't/Administrative, Procedure, Torts
Texas 3rd Court of Appeals
May 03, 2019
03-17-00811-CV
Per Curiam
Published
The Public Utility Commission (the Commission) appealed the judgment of the trial court which reversed its decision to dismiss the Hospital District’s complaint, holding the Hospital District's claims were barred by res judicata due to the class-action settlement. On appeal, the Hospital District contended that the trial court should have held the 20-year-old Settlement void because the released claims arose from a fee dispute that fell within the exclusive jurisdiction of the Commission. The Commission maintained that the trial court erred by reversing the Commission’s order and holding the Hospital District not bound by the Settlement's release. The appellate court noted that this was not a jurisdictional challenge raised on direct appeal. The appellate court found that the trial court erred in reversing the Commission’s order dismissing the Hospital District's complaint. The appellate court concluded that the Hospital District was bound by the disputed settlement decree. Accordingly, the judgment of the trial court was reversed.


In construing the TCPA to apply to such a motion would open the floodgates to serial motions to dismiss during the pendency of litigation based on conduct ancillary to the substantive claims in the case.
Misko v. Johns
Appellate: Civil, Constitution, Damages, Gov't/Administrative, Procedure
Texas 5th Court of Appeals
May 01, 2019
05-18-00487-CV
Ken Molberg
Published
The defendant appealed the judgment of the trial court which denied its motion to dismiss the plaintiff’s claims under the Texas Citizens Participation Act (TCPA). On appeal, the defendant argued that the motion for sanctions was a legal action, as defined by the TCPA, and was filed in response to her exercise of the right to petition. The appellate court noted that the stated purpose of the TCPA was to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury. The appellate court found that the definition of “legal action” in the TCPA did not encompass a motion for sanctions alleging discovery abuse by a party that was filed after, and in this case years after, the commencement of litigation. The appellate court concluded that in construing the TCPA to apply to such a motion would open the floodgates to serial motions to dismiss during the pendency of litigation based on conduct ancillary to the substantive claims in the case. Accordingly, the judgment of the trial court was affirmed.


The relator had an adequate remedy, that was an appeal, however, he failed to timely perfect his appeal, and therefore, the relator was not entitled to mandamus relief.
In re Lujan
Appellate: Civil, Constitution, Courts, Procedure
Texas 8th Court of Appeals
April 30, 2019
08-15-00286-CV
Yvonne T. Rodriguez
Published
The respondent (trial court judge) appealed the judgment of the trial court which granted the relator’s writ of mandamus petition, finding that the respondent failed to set the case for trial or enter a judgment. On appeal, the respondent argued that the trial court lacked jurisdiction to issue a mandamus since the Justice Court lacked jurisdiction because the case was not justiciable and moot after the relator satisfied the fine and pleaded nolo contendere. The respondent further maintained the doctrine of laches barred the relator, and that the justice of the peace did not have a ministerial duty to issue a paper judgment in fine-only misdemeanor cases. The relator counterargued that the present case was justiciable and not moot. The appellate court found that to obtain mandamus relief, the relator must show that he had no adequate remedy at law, such as an appeal. The appellate court concluded that the relator had an adequate remedy, that was an appeal, however, he failed to timely perfect his appeal, and therefore, the relator was not entitled to mandamus relief. Accordingly, the judgment of the trial court was reversed.


The appellate court concluded that the defendants did not attempt to reconcile the release language in the amended partnership agreement with statutory language addressing partners’ right of access to books and records.
Raider Ranch, LP v. Lugano, Ltd.
Appellate: Civil, Business, Procedure
Texas 7th Court of Appeals
April 30, 2019
07-17-00156-CV
James T. Campbell
Published
The defendants appealed the judgment of the trial court which denied the Rule 91a motion to dismiss the plaintiffs’ suit for declaratory relief. On appeal, the defendants argued that the trial court erred in denying their Rule 91a motion to dismiss because the release should have been considered along with the limited partners’ live petition and when so considered the pleading was shown frivolous on its face, lacking a basis in law or fact. The appellate court noted that the defendants’ complaint of the trial court’s denial of their motion to dismiss was rendered moot when the court tried the merits of the limited partners’ case and rendered judgment in their favor. The appellate court found that even if the issue was not moot, there was no merit to the defendants’ “optional completeness” argument, which called on the trial court to base its determination on the affirmative defense of release, contained in their pleadings. The appellate court concluded that the defendants did not attempt to reconcile the release language in the amended partnership agreement with statutory language addressing partners’ right of access to books and records. Accordingly, the judgment of the trial court was affirmed.


Because none of the predicates for dismissal for want of prosecution under TEX.R.CIV.P. 165a, or under a trial court’s inherent power were met on the record, the dismissal of the plaintiff’s suit was error.
Arzate v. Andujo
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
April 30, 2019
08-18-00018-CV
Ann Crawford McClure
Published
The plaintiff appealed the judgment of the trial court which dismissed her lawsuit for want of prosecution. This appeal stemmed from the plaintiff’s petition alleging that a year before, the defendant, while intoxicated, entered the Interstate heading in the wrong direction and caused an accident which injured the plaintiff. On appeal, the plaintiff argued that the dismissal hearing was set under Rule 165a and neither of the two grounds for dismissal under that rule applied here, the dismissal could not be supported as an exercise of the trial court’s inherent authority, and the trial court abused its discretion in failing to grant the motion to reinstate. The appellate court noted that a trial court’s authority to dismiss for want of prosecution was governed by Texas Rule of Civil Procedure 165a as well as the court’s inherent power. The appellate court found that although the trial court had broad discretion to dismiss a case for want of prosecution pursuant to its inherent authority, that discretion was not unfettered. The appellate court concluded that because none of the predicates for dismissal for want of prosecution under TEX.R.CIV.P. 165a, or under a trial court’s inherent power were met on the record, the dismissal of the plaintiff’s suit was error. Accordingly, the judgment of the trial court was reversed and remanded.


Under the unambiguous language of section 171.1012(g), the petitioner was required to reduce its COGS deduction by the amount of depreciation it claimed on its federal taxes.
Rent-A-Center, Inc. v. Hegar
Appellate: Civil, Business, Contracts, Procedure, Tax
Texas 3rd Court of Appeals
April 30, 2019
03-18-00247-CV
Jeff Rose
Published
The petitioner appealed the judgment of the trial court which awarded it only a portion of the franchise taxes it paid under protest. On appeal, the appellate court was asked to consider whether the petitioner must reduce its cost-of-goods-sold (COGS) deduction for the merchandise it sold by depreciation on that merchandise during the time it was rented prior to sale, as reflected on its federal tax return. The appellate court noted that the legislature enacted Texas’s franchise tax statutes purely for revenue purposes, and it must liberally construe the relevant statutes so as to effectuate that purpose. The petitioner further asserted that the fact that it depreciated its capitalized merchandise was irrelevant to the franchise tax calculation. The appellate court found that the petitioner chose to capitalize those costs and thus was required to capitalize each cost allowed under this section that it capitalized on its federal income tax return. The appellate court concluded that under the unambiguous language of section 171.1012(g), the petitioner was required to reduce its COGS deduction by the amount of depreciation it claimed on its federal taxes. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that, on balance, the evidence fully supported the trial court’s ruling, and therefore, the defendant was not denied his right to a speedy trial.
Zamarripa v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 30, 2019
14-17-00267-CR
Margaret Poissant
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 prison for thirty years and assessed a fine. On appeal, the defendant challenged the trial court’s denial of his motion to quash the indictment for violation of his right to a speedy trial. The defendant further asserted that his constitutional right to a speedy trial was violated. The appellate court noted that an accused was guaranteed the right to a speedy trial under both the United States and Texas Constitutions. The appellate court found that Texas courts applied the same standard to enforce the state constitutional right to a speedy trial as federal courts use to enforce the Sixth Amendment right to a speedy trial. The appellate court concluded that, on balance, the evidence fully supported the trial court’s ruling, and therefore, the defendant was not denied his right to a speedy trial. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the relators’ allegedly defamatory statements were inextricably intertwined with matters relating to an internal struggle between a current and former leader of the Church over Church governance.
In re Alief Vietnamese Alliance Church
Appellate: Civil, Constitution, Procedure, Torts
Texas 1st Court of Appeals
April 30, 2019
01-18-00127-CV
Evelyn V. Keyes
Published
The relators appealed the judgment of the trial court, seeking a stay of the underlying trial court proceedings pending disposition of their mandamus petition in a defamation action against the relators. On appeal, the relators contended that the trial court clearly abused its discretion when it denied its plea to the jurisdiction because the ecclesiastical abstention doctrine applied and deprived the court of subject-matter jurisdiction. The appellate court noted that to be entitled to mandamus relief, the relator must demonstrate that the trial court abused its discretion and that it had no adequate remedy by appeal. The appellate court found that several Texas courts have addressed the application of the ecclesiastical abstention doctrine to a plaintiff’s tort claims, including claims for defamation. The appellate court concluded that the relators’ allegedly defamatory statements were inextricably intertwined with matters relating to an internal struggle between a current and former leader of the Church over Church governance. Accordingly, the relators’ motion was granted.


The guarantors lacked standing to assert some of their counterclaims and that the summary judgment evidence did not raise a fact issue as to the remainder of their counterclaims and their contract defenses.
Wyrick v. Business Bank of Tex., N.A.
Appellate: Civil, Contracts, Creditor/Debtor, Procedure, Torts
Texas 14th Court of Appeals
April 30, 2019
14-18-00062-CV
Kevin Jewell
Published
The guarantors of a promissory note appealed the judgment of the trial court which granted summary judgment enforcing the guaranty in favor of a bank and dismissing the guarantors’ tort claims. On appeal, the guarantors contended that the trial court erred in granting summary judgment to the bank because legally sufficient evidence supported their contract defenses and affirmative counterclaims. The guarantors further challenged the trial court’s permanent anti-suit injunction, which barred them and others, including a company they owned from initiating or proceeding with any related claims they may have against the Bank in any other forum. The appellate court found that the trial court erred in granting the anti-suit injunction. The appellate court concluded that the guarantors lacked standing to assert some of their counterclaims and that the summary judgment evidence did not raise a fact issue as to the remainder of their counterclaims and their contract defenses. Accordingly, the judgment of the trial court was affirmed and modified in part.


The Supreme Court concluded that no evidence supported the objective component of gross negligence, and it did not need to further consider the subjective component.
Medina v. Zuniga
Appellate: Civil, Damages, Discovery, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
April 26, 2019
17-0498
Jeffery Brown
Published
The defendant appealed the judgment of the appellate court which affirmed the trial court’s grant of sanctions and attorney’s fees following a suit for negligence. On appeal, the Supreme Court was asked to consider when, if ever, a trial court could sanction a party who failed to admit negligence during discovery but conceded it at trial. The Supreme Court noted that under Rule 198, a request for admission was deemed admitted—without the necessity of a court order—if a response was not timely served. The Supreme Court found that no evidence supported the jury’s finding that the defendant was grossly negligent. The Supreme Court concluded that no evidence supported the objective component of gross negligence, and it did not need to further consider the subjective component. Accordingly, the judgment of the appellate court was reversed.


The Supreme Court concluded that a fact issue remained as to whether the accident “arose from” the failure to set the emergency brake, and at this stage of the proceedings, no more was required to satisfy section 101.021(1)(A)’s “arises from” requirement.
PHI, Inc. v. Tex. Juvenile Justice Dep’t
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
April 26, 2019
18-0099
James D Blacklock
Published
The petitioner appealed the judgment of the appellate court which ruled in favor of the respondent. On appeal, the Supreme Court was asked to consider whether sovereign immunity barred the helicopter owner’s claim. The respondent argued that there was evidence that a worn gear-shift mechanism was a cause of the accident. The Supreme Court noted that sovereign immunity protected the State of Texas and its agencies and subdivisions from suit and liability. The Supreme Court found that portions of the claim should have been allowed to proceed. The Supreme Court concluded that a fact issue remained as to whether the accident “arose from” the failure to set the emergency brake, and at this stage of the proceedings, no more was required to satisfy section 101.021(1)(A)’s “arises from” requirement. Accordingly, the judgment of the appellate court was reversed and remanded.


The respondent’s action in filing and prosecuting a suit seeking to enforce the superseded judgment was interfering with the relator’s right to supersede the judgment and pursue its appeal to this Court.
In re Tex. Dep’t of Transp.
Appellate: Civil, Civil Rights, Constitution, Courts, Gov't/Administrative, Procedure, Transportation
Texas 8th Court of Appeals
April 24, 2019
08-18-00132-CV
Yvonne T. Rodriguez
Published
The relator appealed the judgment of the trial court, seeking a writ of prohibition against the trial court judge, asking that it prohibit the judge from exercising jurisdiction over the underlying case because that proceeding was interfering with this Court’s jurisdiction in a pending appeal. On appeal, the relator challenges the respondent’s efforts to enforce the superseded judgment by filing a new suit, arguing that the continued prosecution of the respondent’s suit was an impermissible attempt to enforce the superseded judgment that was the subject of its appeal. The appellate court noted that the appellate court had the power to issue all writs necessary to enforce its jurisdiction. The appellate court found that the respondent’s action in filing and prosecuting a suit seeking to enforce the superseded judgment was interfering with the relator’s right to supersede the judgment and pursue its appeal to this Court. The appellate court concluded that the writ of prohibition would issue only if the trial court failed to act in accordance with this opinion. Accordingly, the relator’s writ was conditionally granted.


The trial court properly concluded that it could not exercise specific jurisdiction over the defendants because it negated jurisdiction on legal basis by showing that even if plaintiff’s alleged facts were true, defendants’ contacts with Texas did not amount to purposeful availment.
11500 Space Ctr., L.L.C. v. Private Capital Group, Inc.
Appellate: Civil, Constitution, Contracts, Creditor/Debtor, Procedure, Torts
Texas 1st Court of Appeals
April 25, 2019
01-17-00896-CV
Evelyn V. Keyes
Published
The plaintiffs appealed the judgment of the trial court which granted the defendant’s special appearance in a suit alleging deceptive trade practices, fraud, negligent misrepresentation, and money had and received. On appeal, the plaintiffs argued that the trial court erred in granting the defendant’s special appearance because the plaintiffs pleaded and proved sufficient jurisdictional facts, which the defendant failed to negate, the exercise of jurisdiction would not offend the traditional notions of fair play and substantial justice, and the trial court relied on the defendant’s legally insufficient affidavit. The appellate court noted that Texas courts could exercise personal jurisdiction over a nonresident if the long-arm statute authorized it, consistent with federal and state constitutional due process guarantees. The appellate court found that the trial court properly concluded that it could not exercise specific jurisdiction over the defendants because it negated jurisdiction on legal basis by showing that even if plaintiff’s alleged facts were true, defendants’ contacts with Texas did not amount to purposeful availment. The appellate court concluded that the defendants lacked Texas connections. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the trial court did not err in granting the Workforce Commission’s motion for summary judgment and denying the School District’s competing motion.
Houston Indep. Sch. Dist. v. Tex. Workforce Comm’n
Appellate: Civil, Damages, Employment, Gov't/Administrative, Procedure, Tax
Texas 3rd Court of Appeals
April 25, 2019
03-18-00123-CV
Edward Smith
Published
The School District appealed the judgment of the trial court which granted final judgment in favor of the Workforce Commission in a suit to recover allegedly overpaid unemployment taxes. On appeal, the School District contended that Section 204.086(a) imposed no liability for any unemployment taxes arising from benefits paid to the former employees because the school was not “indebted” for those sums at the time of annexation. The appellate court noted that the Texas Unemployment Compensation Act provided short-term financial relief for individuals who became unemployed through no fault of their own. The School District further maintained that Section 204.086(a) should not apply because it did not hire the employees who received unemployment benefits, and—unlike in the private sector—this was not a voluntary acquisition of one employer by another. The appellate court found that the Unemployment Compensation Act applied to nearly all employers, including non-profit organizations and governmental entities. The appellate court concluded that the trial court did not err in granting the Workforce Commission’s motion for summary judgment and denying the School District’s competing motion. Accordingly, the judgment of the trial court was affirmed.


Since the evidence was insufficient to prove any culpable mental state, the defendant was entitled to a judgment of acquittal.
Erwin v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
April 24, 2019
06-18-00058-CR
Josh Morriss, III
Published
The defendant appealed the judgment of the trial court which convicted her of exploitation of an elderly individual and sentenced her to ten years’ imprisonment but suspended the sentence in favor of placing her on community supervision for six years. On appeal, the defendant argued that the evidence was legally insufficient to support her conviction. The appellate court noted that legal sufficiency of the evidence was measured by the elements of the offense as defined by a hypothetically correct jury charge.   The appellate court found that to obtain a conviction, the State was required to prove beyond a reasonable doubt that the defendant, for monetary or personal benefit, profit, or gain, intentionally, knowingly, or recklessly caused the exploitation of an elderly person, by the illegal or improper use of funds from her bank account. The appellate court concluded that since the evidence was insufficient to prove any culpable mental state, the defendant was entitled to a judgment of acquittal. Accordingly, the judgment of the trial court was reversed.


The charge error was not egregiously harmful because it did not affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory.
Servin v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
April 24, 2019
04-16-00671-CR
Liza A. Rodriguez
Published
The defendant appealed the judgment of the trial court which convicted him of two counts of aggravated robbery. On appeal, the defendant contended that the jury charge failed to link the appropriate mens rea to its respective conduct element resulting in egregious harm. The defendant further asserted that he was egregiously harmed by the charge error. The State conceded that the jury charge was erroneous, however, the State asserted that the record did not establish egregious harm. The appellate court noted that if the jury believed the defendant was guilty of robbery, he necessarily was guilty of aggravated robbery because it was undisputed that the victims were over the age of 65. The appellate court found that the mental states and conduct elements applicable to each element of the offense was not the focus at trial or during closing argument. The appellate court concluded that the charge error was not egregiously harmful because it did not affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Accordingly, the judgment of the trial court was affirmed.


The pilots failed to affirmatively allege facts that invoked the trial court’s jurisdiction, and it was not aware of any way they could cure these jurisdictional defects through repleading.
Gant v. Abbott
Appellate: Civil, Gov't/Administrative, Procedure, Transportation
Texas 3rd Court of Appeals
April 24, 2019
03-18-00360-CV
Gisela D. Triana
Published
The pilots appealed the judgment of the trial court, seeking the ability to apply for Texas deputy branch pilot certification and branch pilot licensure in Galveston County without going through the current process, claiming that the process was unconstitutional in that it granted an impermissible monopoly to the Galveston-Texas City Pilots Association. On appeal, the pilots s sought declaratory and injunctive relief under the Administrative Procedures Act (APA) and the Uniform Declaratory Judgments Act (UDJA) on the grounds that sections 67.033(4), 67.034(3), and 67.035 of the Texas Transportation Code violated the Monopoly Clause of the Texas Constitution and that the Board failed to adopt rules in accordance with the APA. The pilots further challenged the trial court’s order denying their motion for summary judgment and granting the defendants’ motions. The appellate court noted that Section 67.033 of the Galveston Act set out the statutory requirements of eligibility for branch pilots. The appellate court found that the Galveston Act assigned rulemaking authority to the Board, not the Governor, through its general grant of rulemaking authority. The appellate court concluded that the pilots failed to affirmatively allege facts that invoked the trial court’s jurisdiction, and it was not aware of any way they could cure these jurisdictional defects through repleading. Accordingly, the judgment of the trial court was affirmed in part and vacated in part.


The insurer did not owe the decedent a duty with respect to her claims for common law negligence, negligent undertaking, negligent failure to train and license, negligence per se, and gross negligence.
Kenyon v. Elephant Ins. Co., LLC
Appellate: Civil, Damages, Insurance, Litigation: Personal Injury, Procedure, Torts, Wills/Trusts/Probate
Texas 4th Court of Appeals
April 24, 2019
04-18-00131-CV
Sandee Bryan Marion
Published
The Estate appealed the judgment of the trial court which granted partial summary judgment in favor of insurer. On appeal, the Estate argued that the trial court erred in ruling that the insurer did not owe the decedent a duty with respect to her claims for common law negligence, negligent undertaking, negligent failure to train and license, negligence per se, and gross negligence. The Estate further maintained that the trial court erred in granting summary judgment on her claims for Texas Insurance Code and Texas Deceptive Trade Practices Act (DTPA) violations based on alleged misrepresentations. The appellate court noted that the trial court granted the insurer’s motion for traditional summary judgment on the Estate’s common law negligence claim based on its conclusion that the insurer did not owe the decedent a duty of care. The appellate court found that the insurer did not owe the decedent a duty with respect to her claims for common law negligence, negligent undertaking, negligent failure to train and license, negligence per se, and gross negligence. The appellate court concluded that it lacked jurisdiction to consider the Estate’s second issue. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the district court lacked jurisdiction over the remainder of the plaintiff’s claims.
Data Foundry, Inc. v. Austin
Appellate: Civil, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
April 23, 2019
14-18-00071-CV
Tracy Christopher
Published
The plaintiff appealed the judgment of the trial court which dismissed the suit over its pricing of electricity on the ground that it lacked standing. On appeal, the City argued that the plaintiff was asserting only a generalized injury for which it lacked standing. The plaintiff maintained that the City unbundled wholesale transmission costs from retail transmission costs. The appellate court noted that the trial court had jurisdiction to consider these claims if standing requirements were satisfied, because a court could review a claim that rates were exorbitant or that the amount of its return was so high as to violate the ratepayer’s constitutional rights. The appellate court found that the plaintiff had standing to complain that the City’s retail electricity rates were excessive in that the City’s alleged 12% rate of return and its 2.36 debt-service coverage ratio were claimed to be unreasonably high, and the trial court had jurisdiction to determine whether the resulting rates were unreasonable. The appellate court concluded that the district court lacked jurisdiction over the remainder of the plaintiff’s claims. Accordingly, the judgment of the trial court was reversed in part and remanded for further proceedings.


The appellate court concluded that a genuine fact issue as to waiver precluded summary judgment in the seller’s favor
Rima Group, Inc. v. Janowitz
Appellate: Civil, Contracts, Damages, Procedure, Real Property
Texas 14th Court of Appeals
April 23, 2019
14-17-00466-CV
Kem Thompson Frost
Published
The buyer appealed the judgment of the trial court which granted the seller’s summary-judgment motion as to the buyer’s claims for specific performance of the contracts. On appeal, the buyer challenged the trial court’s ruling that as a matter of law the seller properly terminated the contracts. Specifically, the buyer maintained that the trial court erred in granting summary judgment because the Trust failed to present evidence that the Trust terminated each contract in good faith and there was evidence that the Trust failed to act in good faith in terminating the contracts, and the trial court erred in granting the Trust’s summary-judgment motion as to attorney’s fees. The appellate court noted that as to a traditional motion for summary judgment, if the movant’s motion and summary-judgment evidence facially established its right to judgment as a matter of law, the burden shifted to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. The appellate court found that the Trust did not have a duty to act in good faith in terminating the contracts. The appellate court concluded that a genuine fact issue as to waiver precluded summary judgment in the seller’s favor. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The trial court’s reason for ordering a mistrial was both sufficiently specific and legally appropriate, and its reason for granting a mistrial was supported by the record, therefore, the relators did not establish their entitlement to mandamus relief.
In re Hightower
Appellate: Civil, Evidence, Procedure, Real Property
Texas 14th Court of Appeals
April 23, 2019
14-19-00047-CV
Frances Bourliot
Published
The relators appealed the judgment of the trial court, seeking a writ of mandamus asking the court to compel the trial court judge to withdraw the court’s order granting a mistrial and enter a take-nothing judgment in the relators’ favor. On appeal, the relators argued that the plaintiffs waived any objection they may have had to their exhibit by failing to make a contemporaneous objection at trial. The appellate court noted that a trial court’s order granting a new trial after a jury trial was subject to mandamus review, and a new trial order initially must satisfy two “facial requirements.” The appellate court found that the trial court’s order satisfied the second requirement of specificity because the order contained the specific facts and circumstances of the case that led the trial court to reach its conclusion. The appellate court concluded that the trial court’s reason for ordering a mistrial was both sufficiently specific and legally appropriate, and its reason for granting a mistrial was supported by the record, therefore, the relators did not establish their entitlement to mandamus relief. Accordingly, the relators’ petition was denied.


The relators have no adequate remedy on appeal and the trial court abused its discretion by issuing the discovery order and by granting the excessive discovery requests.
In re SSCP Mgmt., Inc.
Appellate: Civil, Constitution, Contracts, Damages, Discovery, Gov't/Administrative, Procedure, Real Property
Texas 2nd Court of Appeals
April 22, 2019
02-19-00098-CV
Mark T. Pittman
Published
The relators appealed the judgment of the trial court, seeking a writ of mandamus, complaining that the trial court abused its discretion when it ordered them to respond to numerous discovery requests during the pendency of their motions to dismiss. On appeal, the appellate court was asked to explore the amount of discovery allowed once a motion to dismiss under the Texas Citizens Participation Act (TCPA) had been filed but not yet ruled upon by the trial court. The relators contended that “good cause” was not shown justifying such discovery, the permitted discovery was not “specified and limited” or relevant to the motions to dismiss as required by the TCPA, and their appellate remedy was inadequate. The appellate court noted that mandamus relief was proper only to correct a clear abuse of discretion when there was no adequate remedy at law, such as a normal appeal. The appellate court found that the burden of establishing an abuse of discretion and no adequate remedy on appeal was on the party resisting discovery, and this burden was a heavy one. The appellate court concluded that the relators have no adequate remedy on appeal and the trial court abused its discretion by issuing the discovery order and by granting the excessive discovery requests. Accordingly, the relators’ writ was conditionally granted.


The appellate court found legally sufficient evidence supported the jury’s findings that the employee engaged in a protected activity and that the employer retaliated against her for making a complaint.
Apache Corp. v. Davis
Appellate: Civil, Civil Rights, Damages, Employment, Procedure
Texas 14th Court of Appeals
April 04, 2019
14-17-00306-CV
Ken Wise
Published
The employer appealed the judgment of the trial court which rendered judgment in favor of the employee on her retaliation claim under Chapter 21 of the Texas Labor Code. Thereafter, the jury awarded the employee no back pay and no future compensatory damages, but it did award her past compensatory damages for her emotional pain and suffering and other noneconomic losses related to the retaliation claim. On appeal, the employer challenged the trial court’s judgment, arguing there was legally insufficient evidence that the employer engaged in protected activity, but-for causation was lacking, the jury charge was erroneous based on Casteel error, and the attorneys’ fees awarded by the trial court were unreasonable and unsupported by sufficient evidence. The appellate court found legally sufficient evidence supported the jury’s findings that the employee engaged in a protected activity and that the employer retaliated against her for making a complaint. The appellate court concluded regarding the attorneys’ fees that there was sufficient evidence to support the award of fees with the exception of a portion of the fees awarded for the time. Accordingly, the judgment of the trial court was affirmed.


The Supreme Court concluded that dismissal of the plaintiff’s lawsuit was required because this falsified-medical-records claim was a health care liability claim subject to the Act’s expert-report requirements.
Scott v. Weems
Appellate: Civil, Gov't/Administrative, Health Care, Procedure, Torts
The Supreme Court of Texas
April 26, 2019
17-0563
Eva M. Guzman
Published
The defendant appealed the judgment of the appellate court which ruled in favor of the plaintiff in his claim asserting that a nurse fraudulently recorded information in a patient’s medical records. On appeal, the defendant claimed that he was injured by a health care provider’s falsification of a patient’s medical records during the course of medical treatment alleging a departure of accepted standards of professional or administrative services directly related to health care. The Supreme Court noted that the Texas Medical Liability Act (Act) required a claimant pursuing a health care liability claim to timely serve an adequate expert report, and failure to do so required dismissal with prejudice. The Supreme Court found that the plaintiff did not serve anything resembling an expert report, either in name or substance, and therefore, his suit must be dismissed with prejudice if he was asserting a health care liability claim. The Supreme Court concluded that dismissal of the plaintiff’s lawsuit was required because this falsified-medical-records claim was a health care liability claim subject to the Act’s expert-report requirements. Accordingly, the judgment of the appellate court was reversed.


When a fee claimant sought to recover attorney’s fees from an opposing party, it must put on evidence of reasonable hours worked multiplied by a reasonable hourly rate, yielding a base figure that could be adjusted by considerations not already accounted.
Rohrmoos Venture v. UTSW DVA Healthcare, LLP
Appellate: Civil, Contracts, Damages, Landlord and Tenant, Procedure
The Supreme Court of Texas
April 26, 2019
16-0006
Paul W. Green
Published
The petitioners appealed the judgment of the appellate court which awarded the respondent attorney’s fees with the conditional appellate awards, and which denied the petitioners’ motion to reform the judgment or for a new trial. On appeal, the Supreme Court was asked to consider whether a tenant could terminate a commercial lease contract for the landlord’s prior material breach, and whether the evidence offered to prove attorney’s fees was sufficient under precedent for fee-shifting awards. The petitioners attacked the jury’s finding that it breached the implied warranty of suitability established under Davidow. The respondent maintained that the Davidow issue was not properly before this Court because the petitioners did not object to the jury charge regarding material breach. The Supreme Court found that under Davidow v. Inwood North Professional Group–Phase I, termination was a justified remedy when the landlord breached the commercial lease. The Supreme Court concluded that when a fee claimant sought to recover attorney’s fees from an opposing party, it must put on evidence of reasonable hours worked multiplied by a reasonable hourly rate, yielding a base figure that could be adjusted by considerations not already accounted for in either the hours worked or the rate. Accordingly, the judgment of the appellate court was affirmed in part, reversed in part and remanded for further proceedings.


The defendant established a violation of his right to a speedy trial because the State did not introduce any evidence in the trial court to detail the reasons why the defendant would suffer no prejudice because of the delay.
Sanchez v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
April 17, 2019
04-18-00302-CR
Patricia O. Alvarez
Published
The defendant appealed the judgment of the trial court which convicted him of felony assault of a family member. On appeal, the defendant contended that the trial court erred in denying his motion to dismiss based on the violation of his right to a speedy trial due to a six-year delay between indictment and his arrest. The defendant further asserted that the trial court erred in admitting hearsay in violation of his constitutional right to confront the witnesses against him. The appellate court noted that under the Barker test, it must first whether the length of delay between the arrest or formal accusation and trial was so long as to be presumptively prejudicial. The appellate court found that more than six years elapsed between the defendant’s formal accusation by indictment and his arrest and trial, and the State conceded that this delay was presumptively prejudicial. The appellate court concluded that the defendant established a violation of his right to a speedy trial because the State did not introduce any evidence in the trial court to detail the reasons why the defendant would suffer no prejudice because of the delay. Accordingly, the judgment of the trial court was reversed.


The appellate court concluded that the erroneous jury charge did not egregiously harm the defendant and the defendant did not show that counsel rendered ineffective assistance.
Tiller v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
April 15, 2019
06-18-00153-CR
Josh Morriss, III
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of a child and sentenced him to seventy-five years’ imprisonment on each count. On appeal, the defendant argued that the jury charge was erroneous because it allowed for non-unanimous verdicts and that his counsel rendered ineffective assistance throughout the trial. The appellate court noted that the jury was the exclusive judge of the facts, but it was bound to receive the law from the court and be governed thereby. The appellate court found that the State’s evidence at the defendant’s trial included more than one instance of aggravated sexual assault to support each count for which the defendant was convicted, and thus, the jury could have relied on separate incidents of criminal conduct, which constituted different offenses or separate units of prosecution in finding the defendant’s guilt. The appellate court concluded that the erroneous jury charge did not egregiously harm the defendant and the defendant did not show that counsel rendered ineffective assistance. Accordingly, the judgment of the trial court was affirmed.


Viewing the evidence in the light most favorable to the trial court’s order and indulging every reasonable inference in favor of the ruling, the defendant did not show that the trial court abused its discretion in granting the temporary injunction.
RWI Constr., Inc. v. Comerica Bank
Appellate: Civil, Banking and Finance, Creditor/Debtor, Procedure, Torts
Texas 5th Court of Appeals
April 12, 2019
05-18-00265-CV
David Schenck
Published
The defendant appealed the judgment of the trial court which enjoined it from taking any action with respect to the excess proceeds other than depositing them into the registry of the court to be held in an interest bearing account pending a trial. On appeal, the appellate court was asked to determine whether the trial court erred in granting the bank’s request for a temporary injunction. The defendant claimed that the trial court abused its discretion in entering the injunction because the bank did not establish that it would suffer an irreparable injury for which the remedy at law would be inadequate. The appellate court noted that the purpose of a temporary injunction was to maintain the status quo of the litigation’s subject matter pending a trial on the merits. The appellate court found that viewing the evidence in the light most favorable to the trial court’s order and indulging every reasonable inference in favor of the ruling, the defendant did not show that the trial court abused its discretion in granting the temporary injunction. Accordingly, the judgment of the trial court was reversed in part and affirmed in part and remanded.


The Supreme Court concluded that under Section 256.003(a), when an applicant sought late-probate of a will in her individual capacity, only the applicant’s conduct was relevant to determining whether she was not in default.
Ferreira v. Butler
Appellate: Civil, Procedure, Real Property, Wills/Trusts/Probate
The Supreme Court of Texas
April 12, 2019
17-0901
Nathan L. Hecht
Published
The petitioner appealed the judgment of the appellate court which granted the respondents’ motion for summary judgment and dismissed the petitioner’s application to probate the decedent’s will. On appeal, the respondents argued that the petitioner’s pleadings were determinative. The Supreme Court noted that a devisee’s default was imputed to his own devisee, though the latter was not himself in default, but the statute plainly stated that it was the applicant who must be in default for limitations to run. The Supreme Court found that since the petitioner was standing in the shoes of the administrator of the estate, the default inquiry must focus on the administrator, and it was undisputed that there was no proof that the administrator was not in default in failing to probate the decedent’s will within four years of her death. The Supreme Court concluded that under Section 256.003(a), when an applicant sought late-probate of a will in her individual capacity, only the applicant’s conduct was relevant to determining whether she was not in default. Accordingly, the judgment of the appellate court was vacated and remanded.


Since section 101.056 of the Tort Claims Act, known as the discretionary function exception, applied, governmental immunity barred the petitioners’ claims.
Tarrant Reg’l Water Dist. v. Johnson
Appellate: Civil, Gov't/Administrative, Procedure, Torts
The Supreme Court of Texas
April 12, 2019
17-0095
James D Blacklock
Published
The Water District appealed the judgment of the appellate court which denied its plea to the jurisdiction. On appeal, the Supreme Court was asked to examine the Tort Claims Act to determine whether the Legislature had authorized this suit against the Water District. The Water District argued that, by operation of section 101.056, immunity barred all the petitioners’ claims, including those based on the scoured area of the riverbed and the alleged boil effect. The Water District also asserted that the petitioners’ premise-defect claim did not support a waiver of immunity because the petitioners’ decedent chose to encounter the open and obvious risk that she might drown. The Supreme Court noted that the Water District was a political subdivision of the State of Texas. The Supreme Court found that the Water District could have maintained the riverbed at a constant eight-foot depth if it chose to do so. The Supreme Court concluded that since section 101.056 of the Tort Claims Act, known as the discretionary function exception, applied, governmental immunity barred the petitioners’ claims. Accordingly, the judgment of the appellate court was reversed in part.


The petitioners had the burden to show that the respondents engaged in acts of self-dealing that unfairly diminished the value of the petitioners’ non-executive interest, and that burden was not me.
Tex. Outfitters Ltd., LLC v. Nicholson
Appellate: Civil, Damages, Oil, Gas, & Mineral, Procedure, Real Property, Torts
The Supreme Court of Texas
April 12, 2019
17-0509
Debra Ann H. Lehrman
Published
The petitioners appealed the judgment of the appellate court which affirmed the trial court’s decision, finding that the executive violated its duty. On appeal, the Supreme Court was asked to apply the duty in the context of an executive’s refusal to lease in contravention of the non-executive’s known wishes. The Supreme Court noted that the petitioners had the burden to show that the respondents engaged in acts of self-dealing that unfairly diminished the value of the petitioners’ non-executive interest, and that burden was not me. The Supreme Court found that the holder of the executive right to lease a mineral estate owed non-participating mineral and royalty-interest owners a duty of utmost good faith and fair dealing. The Supreme Court concluded that, while its parameters were imprecise, at bottom, the executive was prohibited from engaging in acts of self-dealing that unfairly diminished the value of the non-executive interest. Accordingly, the judgment of the appellate court was affirmed.


Based on the evidence in the record, that disclosing the source’s identity would create a substantial threat of physical harm to the source’s employees and others, and therefore need not be disclosed.
Tex. Dep’t of Criminal Justice v. Levin
Constitution, Criminal, Evidence, Gov't/Administrative, Procedure
The Supreme Court of Texas
April 12, 2019
17-0552
Paul W. Green
Published
The Department of Criminal Justice (the Department) appealed the judgment of the appellate court which ruled that the inmates were permitted to the information sought, which was the source of drugs used in Texas executions by lethal injection. On appeal, the Supreme Court was asked to consider whether the public’s right to information under the Texas Public Information Act (PIA) was subject to reasonable limitations when its production could lead to physical harm. The Supreme Court noted that the PIA embodied a powerful policy that each person was entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The Supreme Court found that if the evidence, viewed in a light most favorable to the Department where reasonable jurors could, produced no genuine issue of material fact and established as a matter of law that the Cox physical-safety exception applied, then it must reverse the appellate court’s judgment. The Supreme Court concluded, based on the evidence in the record, that disclosing the source’s identity would create a substantial threat of physical harm to the source’s employees and others, and therefore need not be disclosed. Accordingly, the judgment of the appellate court was reversed.


The Texas Rules of Civil Procedure did not authorize this procedure for discovery from a non-party witness.
In re Berry
Appellate: Civil, Constitution, Discovery, Procedure
Texas 13th Court of Appeals
April 16, 2019
13-19-00100-CV
Gregory T. Perkes
Published
The relators appealed the judgment of the trial court, filing a petition for writ of mandamus seeking to compel the trial court to vacate the order granting the plaintiffs’ motion for substituted service. In its petition, the relators contended that Rule 106 only applied to service of citation at the inception of a lawsuit and provided no authority for serving a deposition notice or subpoena on a non-party by simply attaching it to the non-party’s front door or leaving it at a residence. The relators further asserted that the plaintiff had not produced evidence that the address at which he attempted to serve was, in fact, his residence. The appellate court noted that a trial court abused its discretion if it reached a decision that was so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly failed to correctly analyze or apply the law. The appellate court found that mandamus was proper because the order was not permitted by the Texas Rules of Civil Procedure and because any discovery undertaken pursuant to the order could not be undone. The appellate court concluded that the Texas Rules of Civil Procedure did not authorize this procedure for discovery from a non-party witness. Accordingly, the relators’ petition for writ of mandamus was conditionally granted.


A party could not seek the dismissal of a Texas Citizens Participation Act motion to dismiss by filing a responsive or countermotion to dismiss under the Act.
Deepwell Energy Serv., LLC v. Aveda Transp. & Energy Serv.
Appellate: Civil, Gov't/Administrative, Procedure
Texas 11th Court of Appeals
April 18, 2019
11-18-00265-CV
John Bailey
Published
The plaintiff appealed the judgment of the trial court which denied its responsive Texas Citizens Participation Act (TCPA) motion to dismiss, alleging that the TCPA motion to dismiss violated the same act. On appeal, the appellate court was asked to consider whether a TCPA motion to dismiss was subject to dismissal by a responsive or countermotion to dismiss brought under the Act. The appellate court noted that the TCPA allowed a defendant to obtain expedited dismissal of certain legal actions for which the party bringing the action did not establish prima facie support. The plaintiff further asserted that the defendants’ TCPA motion to dismiss was a legal action that was based on, related to, or in response to the plaintiff’s exercise of its right to petition. The appellate court found that a TCPA motion to dismiss was not included as a “legal action” under the phrase “or any other judicial pleading or filing that requests legal or equitable relief” because it was not a procedural vehicle for the vindication of a legal claim like a “lawsuit,” “cause of action,” “petition,” “complaint,” “cross-claim,” or “counterclaim.” The appellate court concluded that a party could not seek the dismissal of a TCPA motion to dismiss by filing a responsive or countermotion to dismiss under the Act. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the appellant was the owner of the grain, and thus estopped from entering a contrary agreement under § 1.111(e).
Sebastian Cotton & Grain, Ltd. v. Willacy Cnty. Appraisal Dist.
Appellate: Civil, Gov't/Administrative, Procedure, Tax
Texas 13th Court of Appeals
April 18, 2019
13-14-00574-CV
Gregory T. Perkes
Published
The appellant appealed the judgment of the trial court which upheld the Appraisal Review Board’s (the Board) decision, alleging that the Appraisal District was prohibited by statute from changing the appraisal roll because it increased the tax liability, or the phone conversation was a final, nonreviewable agreement under § 1.111(e) of the Property Tax Code. On appeal, the appellate court was asked to consider whether the appellant was the owner of the subject property, and if so, whether the appellant was quasi-estopped from entering an agreement pursuant to tax code § 1.111(e) with the Appraisal District. The appellate court noted that a buyer would be the owner upon execution of a purchase contract, with all the attendant rights and obligations of ownership, yet legal title would not pass until shipment or delivery—if either occurred at all. The appellate court found that the only reasonable interpretation of Rule 6 was that it delineated the point at which ownership transferred from the seller to the buyer. The appellate court concluded that the appellant was the owner of the grain, and thus estopped from entering a contrary agreement under § 1.111(e). Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the trooper’s reasonable mistake about the timing of “sunset” did not invalidate the statute or render it unconstitutionally vague.
Babel v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 18, 2019
14-17-00762-CR
Margaret Poissant
Published
The defendant appealed the judgment of the trial court which convicted her of driving while intoxicated and denied her motion to suppress evidence on grounds that the trooper conducting the traffic stop had reasonable suspicion of criminal activity. On appeal, the defendant contended that the trial court abused its discretion in denying the defendant’s motion to suppress and motion to find Sections 541.401(5) and 547.302(a)(1) of the Transportation Code unconstitutional. The State conceded the entire thirty-minute time period had not actually expired at the time the trooper initiated the stop, however, the State argued that the trooper had a reasonable, albeit mistaken, suspicion that the defendant was committing the crime of failing to display her lights. The appellate court found that the defendant, or a reasonably intelligent person in the defendant’s shoes, was given a reasonable opportunity to know what the term “sunset” meant. The appellate court concluded that the trooper’s reasonable mistake about the timing of “sunset” did not invalidate the statute or render it unconstitutionally vague. Accordingly, the judgment of the trial court was affirmed.


The record failed to affirmatively show strict compliance with the rules of civil procedure governing issuance, service, and return of citation, and therefore, error was apparent on the face of the record, and the attempted service of process was invalid and of no effect.
Propel Fin. Serv., LLC v. Conquer Land Utilities, LLC
Appellate: Civil, Damages, Procedure
Texas 13th Court of Appeals
April 18, 2019
13-18-00280-CV
Leticia Hinojosa
Published
The defendant appealed the judgment of the trial court which rendered a no-answer default judgment in favor of the plaintiff, awarding damages, and post-judgment orders granting turnover relief and appointing a receiver. On appeal, the defendant argued that the default judgment should be set aside by restricted appeal because error appeared on the face of the record, and the trial court abused its discretion in ordering turnover relief and appointing a receiver. The appellate court noted that a restricted appeal was available for the limited purpose of providing a party who did not participate at trial with the opportunity to correct an erroneous judgment. The defendant further alleged that the plaintiff’s return of service did not strictly comply with Texas Rule of Civil Procedure 107. The appellate court found that the trial court’s authority to grant a Rule 118 amendment extended only as far as its plenary power over the judgment. The appellate court concluded that the record failed to affirmatively show strict compliance with the rules of civil procedure governing issuance, service, and return of citation, and therefore, error was apparent on the face of the record, and the attempted service of process was invalid and of no effect. Accordingly, the judgment of the trial court was reversed and remanded.


The appellate court concluded that there existed no appealable order for the appellate court to review under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code.
San Jacinto River Auth. v. Lewis
Appellate: Civil, Constitution, Gov't/Administrative, Procedure, Real Property
Texas 14th Court of Appeals
April 16, 2019
14-19-00137-CV
Per Curiam
Published
The defendant appealed the judgment of the trial court, complaining of its “effective” denial of its motion filed pursuant to Texas Rule of Civil Procedure 91a. This appeal stemmed from the plaintiff’s suit against the defendant alleging actions taken by the defendant in the immediate aftermath of Hurricane Harvey amounted to a taking of his property. On appeal, the defendant argued that the trial court’s failure to rule on the defendant’s motion to dismiss within forty-five days was effectively a denial of its motion to dismiss. The appellate court noted that automatic denial of a motion filed under the Texas Citizens Participation Act (TCPA) followed when the trial court missed the deadline. The appellate court found that because the trial court did not rule on the plea to the jurisdiction and motion to dismiss under Rule 91a, no ruling existed over which this court could exercise its interlocutory appellate jurisdiction. The appellate court concluded that there existed no appealable order for the appellate court to review under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code. Accordingly, the judgment of the trial court was affirmed.


There was no conflict with the master service agreement because the parties’ license agreement provided additional methods to terminate the relationship that were not contained in the master service agreement.
Polaris Guidance Sys., LLC v. EOG Res., Inc.
Appellate: Civil, Contracts, Procedure, Torts
Texas 14th Court of Appeals
April 16, 2019
14-17-00717-CV
Jerry Zimmerer
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment in an action alleging breach of contract and promissory estoppel. On appeal, the plaintiff contended that the trial court erred in its construction of the three writings underlying the software transaction between the parties. The appellate court noted that a contract was unambiguous if it could be given one certain or definite legal interpretation, and in construing an unambiguous contract, an appellate court’s primary goal was to ascertain the true intentions of the parties as expressed in the instrument. The appellate court found that parol evidence could not be used to create a latent ambiguity, and because the documents at issue in this dispute could be given a certain or definite meaning, they were not ambiguous. The plaintiff further asserted that the agreement superseded the master service agreement as a result of a merger clause. The appellate court concluded that there was no conflict with the master service agreement because the parties’ license agreement provided additional methods to terminate the relationship that were not contained in the master service agreement. Accordingly, the judgment of the trial court was affirmed.


The defendant failed to satisfy the first prong of Strickland because it could not assume a lack of sound trial strategy where the record was silent regarding trial counsel’s strategy.
Jones v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 16, 2019
14-17-00536-CR
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which convicted him of family violence assault enhanced with a prior conviction for family violence assault and assessed the defendant’s punishment at thirty years in prison. On appeal, the defendant argued that the trial court abused its discretion when it admitted records from the State documenting his prior felony convictions into evidence. The defendant further asserted that he received ineffective assistance of counsel during the punishment phase of his trial because his trial counsel offered no mitigating evidence. The appellate court noted that Rule 902 allowed for self-authentication of copies of an official record–or a copy of a document that was recorded or filed in a public office as authorized by law if the copy was certified as correct by the custodian or another person authorized to make the certification. The appellate court found that there was a strong presumption that trial counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy. The appellate court concluded that the defendant failed to satisfy the first prong of Strickland because it could not assume a lack of sound trial strategy where the record was silent regarding trial counsel’s strategy. Accordingly, the judgment of the trial court was affirmed.


The defendants were not entitled to recover attorney’s fees from the plaintiff under section 3 deed restrictions and no other basis was identified to support the award of attorney’s fees.
Dealer Computer Serv., Inc. v. DCT Hollister RD, LLC
Appellate: Civil, Contracts, Damages, Real Property
Texas 14th Court of Appeals
April 16, 2019
14-17-00480-CV
Charles Spain
Published
The plaintiff appealed the judgment of the trial court which granted the defendants’ motions for summary judgment and awards of attorney’s fees. On appeal, the plaintiff argued that the trial court erred by deciding the following issues in favor of the defendants on summary judgment: standing, amendment, duty, nuisance, limitations, laches, waiver, and estoppel, and settlement and release. Specifically, the plaintiff contended that it had standing to enforce the restrictions because the property was operated under a common scheme or plan. The appellate court noted that a restrictive covenant, such as a deed restriction, was a contractual agreement between the seller and purchaser of real property. The appellate court found that under Texas law, a property owner could subdivide property into lots and create a subdivision in which all property owners agreed to the same or similar restrictive covenants designed to further the owner’s general plan or scheme of development. The appellate court concluded that the defendants were not entitled to recover attorney’s fees from the plaintiff under section 3 deed restrictions and no other basis was identified to support the award of attorney’s fees. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.


The appellate court found that legally sufficient evidence supported the jury's findings that the employee engaged in a protected activity and that the employer retaliated against her for making a complaint.
Apache Corp. v. Davis
Appellate: Civil, Civil Rights, Damages, Employment, Procedure, Torts
Texas 14th Court of Appeals
April 23, 2019
14-17-00306-CV
Ken Wise
Published
The employer appealed the judgment of the trial court which ruled in favor of its former employee on her retaliation claim under Chapter 21 of the Texas Labor Code, finding that the employee filed a complaint of age or gender discrimination and was discharged the employee because she filed the complaint. On appeal, the employer challenged the trial court's judgment, arguing there was legally insufficient evidence that the employee engaged in protected activity, but-for causation was lacking, the jury charge was erroneous, and the attorneys' fees awarded by the trial court are unreasonable and unsupported by sufficient evidence. The appellate court found that legally sufficient evidence supported the jury's findings that the employee engaged in a protected activity and that the employer retaliated against her for making a complaint. The appellate court concluded that there was no Casteel error and there was sufficient evidence to support the award of attorney fees with the exception of a portion of the fees awarded for time. Accordingly, the judgment of the trial court was affirmed and modified in part.


The appellate court concluded that a person, whose conduct violated sections 42.07(a)(1) and (b)(3), was not engaging in a legitimate communication of ideas, opinions, or information, but had only the intent to inflict emotional distress for its own sake.
Ex parte Nuncio
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
April 10, 2019
04-18-00127-CR
Beth Watkins
Published
The defendant appealed the judgment of the trial court, seeking a pretrial application for writ of habeas corpus in which he contended sections 42.07(a)(1) and (b)(3) of the harassment statute were unconstitutionally overbroad and vague. On appeal, the defendant contended that the trial court erred in denying his application. Specifically, the defendant challenged the facial constitutionality of sections 42.07(a)(1) and (b)(3) of the Texas Penal Code. The appellate court noted that section 42.07(a) provided that a person committed the offense of harassment if with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person initiated communication and in the course of the communication made a comment, request, suggestion, or proposal that was obscene. The defendant further alleged that the provisions were overbroad because they invaded the area of protected speech and were vague in that they deprived a person of adequate notice of the prohibited activity. The appellate court concluded that a person, whose conduct violated sections 42.07(a)(1) and (b)(3), was not engaging in a legitimate communication of ideas, opinions, or information, but had only the intent to inflict emotional distress for its own sake. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the mother received ineffective assistance of counsel during the motion for new trial stage.
In re I.L.
Constitution, Family, Gov't/Administrative, Procedure
Texas 4th Court of Appeals
April 10, 2019
04-18-00742-CV
Luz Elena D Chapa
Published
The mother appealed the judgment of the trial court which terminated her parent’s rights in a suit affecting the parent-child relationship filed by the Department of Family and Protective Services (the Department). On appeal, the mother argued that her counsel rendered ineffective assistance. The appellate court noted that to sustain the mother’s ineffective assistance of counsel claim, it must find that she had a right to effective assistance of counsel, counsel performed deficiently, and counsel's deficient performance was prejudicial. The appellate court found that the mother had the right to effective assistance of counsel. The mother further alleged that her counsel performed deficiently after trial. The appellate court concluded that the mother received ineffective assistance of counsel during the motion for new trial stage. Accordingly, the judgment of the trial court was reversed and remanded in part and affirmed in part.


Since the only difference between continuous trafficking of persons and trafficking of persons was the time period of more than thirty days, the defendant was entitled to an instruction on the lesser-included offense of trafficking of persons.
Williams v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
April 10, 2019
04-17-00815-CR
Liza A. Rodriguez
Published
The defendant appealed the judgment of the trial court which convicted him of continuous trafficking of persons and sentenced him to fifty years of imprisonment. On appeal, the defendant argued that there was affirmative evidence from which a rational jury could find him guilty of only trafficking of persons. The State counterargued that the fact that the defendant’s name only appeared on some of the ads did not negate other evidence establishing that he encouraged the victim to engage in prostitution. The appellate court noted that there was more than a scintilla of evidence from which a rational jury could find the defendant was guilty of only trafficking of persons and not continuous trafficking of persons. The appellate court found that since the only difference between continuous trafficking of persons and trafficking of persons was the time period of more than thirty days, the defendant was entitled to an instruction on the lesser-included offense of trafficking of persons. The appellate court concluded that the trial court erred in denying his request for a lesser-included instruction on human trafficking of persons. Accordingly, the judgment of the trial court was reversed and remanded for a new trial.


The evidence was legally and factually sufficient to support the predicate termination finding under subsection E of the Texas Family Code.
In re L.M.
Family, Gov't/Administrative, Juvenile, Procedure
Texas 14th Court of Appeals
April 09, 2019
14-18-01047-CV
Kevin Jewell
Published
The father appealed the judgment of the trial court which terminated the parental rights to his child and appointed the Department of Family and Protective Services (the Department) as the child's sole managing conservator. On appeal, the father challenged the legal and factual sufficiency of the evidence to support the trial court's findings on the predicate grounds and that termination was in the child's best interest. The appellate court noted that due to the severity and permanency of terminating the parental relationship, Texas required clear and convincing evidence to support such an order. The father further asserted that the trial court should not have admitted the removal affidavit over his hearsay objection. The appellate court found that the evidence contained within the police report was otherwise admitted through witness testimony and thus any error in admitting the report was harmless. The appellate court concluded that the evidence was legally and factually sufficient to support the predicate termination finding under subsection E of the Texas Family Code. Accordingly, the judgment of the trial court was affirmed.


Since the defendant did not object or otherwise bring his complaint to the attention of the trial court, the defendant’s appellate issue was not preserved for review.
Fenner v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
March 13, 2019
10-18-00229-CR
Tom Gray
Published
The defendant appealed the judgment of the trial court which convicted him of indecency with a child by contact and deferred an adjudication of guilt and placed him on community supervision for 10 years. On appeal, the defendant contended that the trial court abused its discretion in finding the defendant violated the conditions of his community supervision as alleged in the State's motion to proceed to an adjudication of guilt. The appellate court noted that one of the conditions upon which the State sought to revoke the defendant’s community supervision required him to work faithfully and satisfactorily participate in Community Service Projects by completing 320 hours of Community Service. The defendant further alleged that the trial court erred in assessing only 694 days as credit toward his 20-year sentence. The appellate court found that because the trial court erred in its assessment of attorney's fees, the trial court's judgment must be modified to delete those fees from the court costs assessed. The appellate court concluded that since the defendant did not object or otherwise bring his complaint to the attention of the trial court, the defendant’s appellate issue was not preserved for review. Accordingly, the judgment of the trial court was affirmed.


Because a constitutional challenge to section 12.42(c)(2) and (g)(1) was not cognizable in a pretrial writ of habeas corpus, and the defendant did not establish his plea was involuntary.
Ex parte Powell
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
February 20, 2019
10-18-00142-CR
Tom Gray
Published
The defendant appealed the judgment of the trial court which convicted him of sexual assault and placed him on deferred adjudication community supervision for seven years. Thereafter, the defendant filed a writ of habeas corpus contending that section 12.42(c)(2) and (g)(1) was unconstitutional on its face and as applied and that his plea of guilty was involuntary, which the trial court denied. On appeal, the defendant alleged that his plea was involuntary because he was not admonished that a sentence of deferred adjudication would constitute a final conviction under certain circumstances. The defendant further complained that he should have been admonished of the collateral consequences of his plea if he committed another sexual assault. The appellate court noted that the defendant provided no statutory or case authority that would suggest the trial court was required to admonish him beyond what was required in article 26.13 of the Texas Code of Criminal Procedure. The appellate court found that the defendant’s challenge to the constitutionality of section 12.42(c)(2) and (g)(1) was not cognizable by way of a pretrial writ of habeas corpus. The appellate court concluded that because a constitutional challenge to section 12.42(c)(2) and (g)(1) was not cognizable in a pretrial writ of habeas corpus, and the defendant did not establish his plea was involuntary. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that it must dismiss the defendant’s appeal of the recommitment order for lack of jurisdiction because those cases that were moot were normally not justiciable.
Truong v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
February 28, 2019
01-16-00390-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which found him not guilty by reason of insanity of second-degree felony offense of manslaughter, but which renewed the order for inpatient commitment for each of the followed six years. On appeal, the defendant argued that the State failed to prove by clear and convincing evidence that further inpatient treatment was necessary. The appellate court noted that an appeal from a recommitment order presenting only the issue of insufficiency of the evidence to support recommitment did not fall within the capable of repetition, yet evading review exception to the mootness doctrine. The appellate court found that under the circumstances of this case, considering the merits of the defendant’s sufficiency challenge to the recommitment order would have no practical effect. The appellate court concluded that it must dismiss the defendant’s appeal of the recommitment order for lack of jurisdiction because those cases that were moot were normally not justiciable. Accordingly, the judgment of the trial court was affirmed.


The State adduced sufficient evidence to show beyond a reasonable doubt that the defendant, knowing that an investigation was in progress, tampered with the evidence.
Tolliver v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
February 20, 2019
10-18-00070-CR
Thomas W. Gray
Published
The defendant appealed the judgment of the trial court which convicted him of tampering with physical evidence and two revocations of his community supervision. On appeal, the defendant complained that the evidence was insufficient and that he was egregiously harmed by the omission of an instruction on legal impossibility in the jury charge during the guilt-innocence phase of the trial. The defendant further contended that the evidence was insufficient to support the orders for him to pay his court-appointed attorney's fees in each of the two proceedings. The appellate court noted that three elements defined the offense of tampering with physical evidence: (1) knowing that an investigation or official proceeding was pending or in progress, (2) a person altered, destroyed, or concealed any record, document, or thing, (3) with the intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding. The appellate court found that there was no reversible error in the conviction for tampering with physical evidence, and the award of attorney's fees was erroneously included in those judgments in part. The appellate court concluded that the State adduced sufficient evidence to show beyond a reasonable doubt that the defendant, knowing that an investigation was in progress, tampered with the evidence. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that the trial court properly granted the appellee’s petition for expunction but erred in failing to modify the order's scope.
Tex. Educ. Agency v. H.C.V.
Criminal, Evidence, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
February 28, 2019
01-17-00210-CV
Richard Hightower
Published
The Texas Education Agency (the Agency) appealed the judgment of the trial court which granted the expunction order and its scope of all records of the appellee’s arrest. On appeal, the Agency contended that the trial court erred in granting the petition for expunction because the appellee was placed on community supervision, which negated her entitlement to expunction. The Agency further maintained that, even if the appellee were entitled to expunction, the trial court's order was overly broad because it included information that was not subject to being expunged. The appellate court found that the portions of the proposal for decision that described the appellee’s underlying conduct were not subject to expunction because they were not records and files relating to the arrest. The appellate court concluded that the trial court properly granted the appellee’s petition for expunction but erred in failing to modify the order's scope. Accordingly, the judgment of the trial court was affirmed in part and modified in part.


The trial court properly instructed the jury that it could find the defendant guilty of a class A misdemeanor if it found his blood alcohol concentration was .15 or more.
Taylor v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 09, 2019
14-17-00303-CR
Frances Bourliot
Published
The defendant appealed the judgment of the trial court which convicted him of driving while intoxicated (DWI). On appeal, the defendant challenged the sufficiency of the evidence to support his conviction under the corpus delecti rule, the trial court's admission of evidence involving a fatality accident at the scene, and the enhancement of his conviction to a class A misdemeanor without a prior DWI conviction. The appellate court noted that the jury found that the defendant drove with an alcohol concentration of more than .15. The appellate court found that the defendant’s conviction was supported by legally sufficient evidence, and the defendant did not preserve error on his evidentiary challenge. The appellate court concluded that the trial court properly instructed the jury that it could find the defendant guilty of a class A misdemeanor if it found his blood alcohol concentration was .15 or more. Accordingly, the judgment of the trial court was affirmed.


The trial court could have formed a firm belief or conviction that an adequate regimen of outpatient or community-based treatment was not available to the defendant and, therefore, that inpatient treatment or residential care was necessary to protect the safety of others.
Truong v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
February 28, 2019
01-18-00454-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which found him guilty by reason of insanity for the second-degree felony offense of manslaughter and committed him for inpatient treatment. On appeal, the defendant challenged the trial court's recommitment order, contending that the State presented insufficient evidence to support the order renewing appellant's commitment for inpatient treatment. Specifically, the defendant maintained that the State failed to prove that treatment and supervision for his mental illness could not be safely and effectively provided as outpatient treatment and that, as a result, inpatient treatment was necessary to protect the safety of others. The appellate court noted that the State presented evidence that the defendant had been diagnosed with schizoaffective disorder-bipolar type, as well as alcohol and cocaine abuse. The appellate court found that although there was evidence that the defendant would, if released from inpatient treatment, be under the care of a psychiatrist, there was no evidence presented that he would reside in an appropriate assisted living facility that would provide supervision and monitoring of his medication. The appellate court concluded that the trial court could have formed a firm belief or conviction that an adequate regimen of outpatient or community-based treatment was not available to the defendant and, therefore, that inpatient treatment or residential care was necessary to protect the safety of others. Accordingly, the judgment of the trial court was affirmed.


Because the relator adduced some evidence that the designated responsible third party was potentially responsible for the alleged injuries, the trial court clearly abused its discretion by striking the designation.
In re Molina
Appellate: Civil, Employment, Litigation: Personal Injury, Procedure, Torts
Texas 5th Court of Appeals
March 29, 2019
05-19-00147-CV
Bill Whitehill
Published
The relator appealed the judgment of the trial court, seeking a petition for writ of mandamus asserting that the trial court abused its discretion by striking the designation. This appeal stemmed from the plaintiff’s allegations that he was injured in a multi-vehicle collision. On appeal, the relator argued that the motion to strike argued only that there was no evidence that a breach of duty of care had occurred and thus did not attack proximate cause. The appellate court noted that to obtain mandamus relief, a relator must show that the trial court clearly abused its discretion and that relator had no adequate appellate remedy. The appellate court found that if there was more than a scintilla of evidence of causation, the trial court erred and abused its discretion. The appellate court concluded that because the relator adduced some evidence that the designated responsible third party was potentially responsible for the alleged injuries, the trial court clearly abused its discretion by striking the designation. Accordingly, the relator’s writ was granted.


The parol evidence rule did not preclude enforcement of the agreement through which the plaintiff claimed to have satisfied his debt to the defendant, and thus, the plaintiff met his current burden to establish a prima facie case for the falsity of the defendant’s liens.
West v. Quintanilla
Appellate: Civil, Contracts, Creditor/Debtor, Procedure, Real Property, Tax
The Supreme Court of Texas
April 05, 2019
17-0454
Jeffrey S. Boyd
Published
The plaintiff appealed the judgment of the appellate court which ruled that the parol evidence rule barred evidence and enforcement of the agreement through which to have satisfied the debt. On appeal, the Supreme Court was asked to consider whether the defendant’s assertion that the plaintiff still owed the defendant under the Trading Agreement was false. The Supreme Court noted that to avoid dismissal under the TCPA, the plaintiff bore the burden to establish by clear and specific evidence a prima facie case for each essential element of his slander-of-title and fraudulent-lien claims. The Supreme Court found that under the parol evidence rule, the written, integrated Purchase Agreement precluded enforcement of any prior or contemporaneous agreement that addressed the same subject matter and was inconsistent with its terms. The Supreme Court concluded that the parol evidence rule did not preclude enforcement of the agreement through which the plaintiff claimed to have satisfied his debt to the defendant, and thus, the plaintiff met his current burden to establish a prima facie case for the falsity of the defendant’s liens. Accordingly, the judgment of the appellate court was reversed and remanded.


The appellate court concluded that the trial court abused its discretion in awarding the paternal grandmother possession of and access to the younger child.
In re Nelke
Family, Juvenile, Procedure
Texas 5th Court of Appeals
April 05, 2019
05-19-00050-CV
David Schenck
Published
The relator appealed the judgment of the trial court, seeking relief from the trial court's temporary orders in this suit affecting the parent-child relationship. On appeal, the relator challenged the paternal grandmother's standing to file a petition to intervene in the relator’s pending original SAPCR regarding the younger child. The relator further alleged that the trial court abused its discretion in awarding the paternal grandmother possession of and access to the younger child. The appellate court found that the trial court did not err in concluding that the paternal grandmother had standing to intervene, although that standing to be supported under section 102.004(b). The appellate court concluded that the trial court abused its discretion in awarding the paternal grandmother possession of and access to the younger child. Accordingly, the relator’s writ was conditionally granted in part and denied in part.


The Texas Citizens Participation Act applied to the Commission's disciplinary proceeding against the respondent, however the Commission met its burden of establishing by clear and specific evidence a prima facie case for each element of its claim against the respondent.
Comm’n for Lawyer Discipline v. Rosales
Appellate: Civil, Civil Rights, Constitution, Ethics, Gov't/Administrative, Procedure, Professional Responsibility
Texas 3rd Court of Appeals
April 03, 2019
03-18-00147-CV
Jeff Rose
Published
The Commission for Lawyer Discipline (the Commission) appealed the judgment of the trial court which dismissed the Commission's disciplinary action against the respondent (attorney) under the Texas Citizens Participation Act (TCPA). On appeal, the Commission contended that the TCPA did not apply to its lawyer-discipline actions because those proceedings were exempt under the TCPA's exemption for government enforcement actions, because the Commission was protected by immunity, and because of its decision in Sullivan v. Texas Ethics Commission. The appellate court found that the plain language of the exemption did not encompass Commission disciplinary proceedings brought by the State Bar's Chief Disciplinary Counsel. The appellate court concluded that the TCPA applied to the Commission's disciplinary proceeding against the respondent, however the Commission met its burden of establishing by clear and specific evidence a prima facie case for each element of its claim against the respondent. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The appellee’s expert report provided a fair summary of the expert's opinions regarding the applicable standards of care, and a statement identifying the manner in which the care rendered failed to meet the standards.
Naderi v. Ratnarajah
Appellate: Civil, Damages, Evidence, Health Care, Litigation: Personal Injury, Procedure
Texas 14th Court of Appeals
April 02, 2019
14-18-00480-CV
Ken Wise
Published
The appellants appealed the judgment of the trial court which denied their Chapter 74 motion to dismiss based on alleged deficiencies in the appellee’s expert report. On appeal, the appellants contended that the appellee’s expert report failed to provide a sufficient opinion of the applicable standard of care and breach of that standard. The appellants further asserted that the appellee’s expert report failed to adequately set forth a causal chain linking any alleged harm actually suffered to a specific breach of an applicable standard of care. The appellate court noted that the Texas Medical Liability Act required that plaintiffs alleging a health care liability claim must serve each defendant with an adequate expert report or face dismissal of their claim. The appellate court found that the appellee’s expert report was sufficient as to the standards of care identified and the breaches of those standards. The appellate court concluded that since the appellee’s expert report provided a fair summary of the expert's opinions regarding the applicable standards of care, a statement identifying the manner in which the care rendered failed to meet the standards, the trial court did not abuse its discretion in denying the appellants' motion to dismiss. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that because the defendants did not show any injury that this Court could redress, the defendants lacked standing to bring this appeal.
Nephrology Leaders & Assoc. v. Am. Renal Assoc. LLC
Appellate: Civil, Discovery, Procedure
Texas 1st Court of Appeals
April 02, 2019
01-18-00242-CV
Laura Carter Higley
Published
The defendants appealed the judgment of the trial court which temporarily sealed certain documents that the third party sought to protect from the defendants’ subpoena. On appeal, the defendants argued that the trial court abused its discretion by setting the motion for a hearing sua sponte and that the evidence was insufficient to support the order. The third party counterargued that the defendant lacked standing to bring this appeal. The appellate court noted that in determining whether an appellant had standing, a party’s status in the trial court was not controlling. The defendants further alleged that whether it suffered an injury was immaterial, because it had statutory standing to appeal without showing it was injured under Texas Rule of Civil Procedure 76a(8). The appellate court concluded that because the defendants did not show any injury that this Court could redress, the defendants lacked standing to bring this appeal. Accordingly, the judgment of the trial court was affirmed.


Based on the totality of the circumstances, a reasonable person in the defendant’s position would have believed that the seizure was sufficiently intrusive as to be an arrest.
Scott v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 02, 2019
14-17-00493-CR
Kem Frost
Published
The defendant appealed the judgment of the trial court which convicted him of driving while intoxicated (DWI). On appeal, the defendant asserted that the officers lacked probable cause to support a warrantless arrest and unduly prolonged his detention, making it illegal. The State counterargued that the officer had probable cause to arrest the defendant after witnessing him commit two traffic offenses for which an officer may properly make an arrest. The appellate court found that based on the totality of the circumstances, a reasonable person in the defendant’s position would have believed that the seizure was sufficiently intrusive as to be an arrest. The defendant further alleged that the police unduly prolonged his detention, making it illegal. The appellate court concluded that if, at the moment the officer made an arrest, the facts and circumstances within the officer's knowledge and of which the officer had reasonably trustworthy information suffice to warrant a prudent person in believing that the person arrested had committed or was committing a traffic violation for which a person properly may be arrested, a court was to deem the arrest valid and legal. Accordingly, the judgment of the trial court was affirmed.


A presentence report could not be inspected by the judge nor could its contents be disclosed unless the defendant pled guilty or nolo contendere or was convicted of the offense, or the defendant authorized in writing the judge to inspect the report.
Townes v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
April 02, 2019
14-18-00233-CR
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which imposed two sentences for felony robbery and aggravated robbery with a deadly weapon. On appeal, the defendant asserted that the presentence investigation report was biased, and that the lack of objection did not preclude the appellate court’s review because his asserted right to an unbiased presentence report was a "category-two" Marin right. The defendant further alleged that his trial counsel was ineffective by failing to object. The appellate court noted that the record did not support the violation alleged even assuming preservation of the defendant’s issues. The appellate court found that a presentence report could not be inspected by the judge nor could its contents be disclosed unless the defendant pled guilty or nolo contendere or was convicted of the offense, or the defendant authorized in writing the judge to inspect the report. The appellate court concluded that a presentence report was as likely to contain information adverse to the punishment position of the state as of the defense, and this one did. Accordingly, the judgment of the trial court was affirmed.


The trial court's implied finding that the parties agreed that the plaintiff would repay the loans in installments over a period of up to seven years was supported by legally sufficient evidence.
Smith v. Barnhart
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 1st Court of Appeals
April 02, 2019
01-18-00111-CV
Laura Carter Higley
Published
The defendant appealed the judgment of the trial court which rendered judgment for the plaintiff, finding that the plaintiff made a series of zero-interest loans to the defendant, and the defendant breached the agreement by refusing to continue making payments. On appeal, the defendant contended that there was legally insufficient evidence that the contract had clear and definite terms and was supported by adequate consideration. The appellate court noted that to prevail on a claim for breach of contract, a plaintiff must show the existence of a valid contract, performance or tendered performance by the plaintiff, breach of the contract by the defendant, and damages sustained as a result of the breach. The appellate court found that viewing the evidence in the light most favorable to the trial court's implied finding that the parties agreed that the plaintiff would repay the loans in installments over a period of up to seven years, and indulging every reasonable inference that supported that finding, the finding was supported by legally sufficient evidence. Accordingly, the judgment of the trial court was affirmed.


The appellate court noted that a court could disregard the jury's negative finding and substitute its own affirmative finding only if the evidence conclusively established the affirmative finding.
C&C Rd. Constr., Inc. v. Saab Site Contractors, L.P.
Appellate: Civil, Contracts, Damages, Procedure, Torts, Transportation
Texas 8th Court of Appeals
March 29, 2019
08-17-00056-CV
Gina M. Palafox
Published
The general contractor appealed the judgment of the trial court which found that it failed to pay its subcontractor the full amount due under two contracts for road work on two rural highways. On appeal,  the general contractor challenged the charge submitted to the jury. The subcontractor cross-appealed and complained of the jury's reduction of its damage claim and the zero-dollar answer for attorney's fees for appeals. The appellate court noted that a court could disregard the jury's negative finding and substitute its own affirmative finding only if the evidence conclusively established the affirmative finding. The appellate court found that the general contractor's requested issues were properly refused, and that the subcontractor did not prove the amount of its claimed damages as a matter of law, and thus the jury's finding on damages should stand. The appellate court concluded that the jury's zero finding of appellate attorney's fees was improper. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.


The disputed evidence was not so significant as to prevent the trial court from forming a firm belief or conviction that termination was justified under Section 161.001(b)(1)(D).
In re O.E.R.
Family, Gov't/Administrative, Juvenile, Procedure
Texas 8th Court of Appeals
March 29, 2019
08-18-00176-CV
Ann Crawford McClure
Published
The mother appealed the judgment of the trial court which terminated her parental rights of the children. On appeal, the mother challenged the legal and factual sufficiency of the evidence supporting the trial court's findings on the predicate termination grounds under Section 161.001(b)(1)(D), (E), and (O) and the best interest finding made under Section 161.001(b)(2). The appellate court noted that a parent's rights could be terminated if there was clear and convincing evidence that the parent had knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child. The appellate court found that the disputed evidence was not so significant as to prevent the trial court from forming a firm belief or conviction that termination was justified under Section 161.001(b)(1)(D). The appellate court concluded that the trial court could have reached a firm conviction that termination of the mother’s parental rights. Accordingly, the judgment of the trial court was affirmed.


The instruction found support in the evidence and might be of some assistance to the jury in answering the accompanying question, and therefore, the trial court did not abuse its discretion in submitting the instruction on partnership property.
Etheridge v. Opitz
Appellate: Civil, Family, Procedure, Real Property
Texas 12th Court of Appeals
March 29, 2019
12-18-00088-CV
James T. Worthen
Published
The plaintiff appealed the judgment of the trial court which ruled in favor of the defendant in her suit for post-divorce division of property and her suit for partition. On appeal, the plaintiff alleged that the evidence was insufficient to support the jury findings, and the trial court erred in allowing the case to be tried on an unpled theory, admitting certain expert testimony, submitting a jury instruction regarding partnership property, and including in the judgment a recitation that it served as a muniment of title. The appellate court noted that Texas Rule of Civil Procedure 93 required that a pleading asserting that a plaintiff was not entitled to recover in the capacity in which she sued or that the defendant was not liable in the capacity in which he was sued must be verified by affidavit. The appellate court found that even assuming the trial court erred in admitting the testimony, it was cumulative of previously admitted evidence showing that the partnership paid for the land, and thus, its admission was harmless. The appellate court concluded that the instruction found support in the evidence and might be of some assistance to the jury in answering the accompanying question, and therefore, the trial court did not abuse its discretion in submitting the instruction on partnership property. Accordingly, the judgment of the trial court was reversed in part and affirmed in part.


The appellate court concluded that the recognized cause of action for negligent entrustment was an adequate protection for the risk that the subrogee sought to protect.
Amwins Specialty Auto, Inc. v. Cabral
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 11th Court of Appeals
March 29, 2019
11-17-00239-CV
John M. Bailey
Published
The subrogee appealed the judgment of the trial court which granted summary judgment in favor of the plaintiff in his suit for negligence, negligent entrustment, and "aiding and abetting." On appeal, the subrogee contended that the trial court erred in the entry of summary judgment in favor of the plaintiff because it produced more than a scintilla of evidence on all three of its causes of action. The subrogee further maintained that the supplemental no-evidence motion for summary judgment failed to specify the elements of the aiding-and-abetting claim for which the plaintiff asserted there was no evidence. The appellate court noted that the suborgee’s evidence was no more than a scintilla of evidence to prove that the plaintiff was the driver. The appellate court found that the subrogee’s allegation that the plaintiff refused to tender information was irrelevant to whether the driver was an incompetent or reckless driver, and therefore, there was no evidence to support the subroge’s negligent entrustment claim. The appellate court concluded that the recognized cause of action for negligent entrustment was an adequate protection for the risk that the subrogee sought to protect. Accordingly, the judgment of the trial court was affirmed.


The jury's verdict that the defendant was competent to stand trial was so against the great weight and preponderance of the evidence as to be manifestly unjust.
Perez v State
Constitution, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
March 29, 2019
08-13-00208-CR
Yvonne T. Rodriguez
Published
The defendant appealed the judgment of the trial court which convicted her of indecency with a child and sentenced to six years' imprisonment. On appeal, the defendant asserted that the jury's finding she was competent to stand trial was against the great weight and preponderance of the evidence. The appellate court noted that the defendant’s burden was to prove by a preponderance that she was incompetent because she did not have sufficient present ability to consult with her lawyer with a reasonable degree of rational understanding, or a rational as well as factual understanding of the proceedings against the person. The appellate court concluded that the jury's verdict that the defendant was competent to stand trial was so against the great weight and preponderance of the evidence as to be manifestly unjust. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.


The use of the phrase "COGS deduction" in the trial court's conclusion of law demonstrated the use of a heightened burden of proof, and there was no other evidence in the record that the court applied an incorrect burden of proof.
U.S. Concrete, Inc. v. Hegar
Appellate: Civil, Consumer, Gov't/Administrative, Procedure, Tax
Texas 3rd Court of Appeals
March 28, 2019
03-17-00315-CV
Gisela D. Triana
Published
The petitioner appealed the judgment of the trial court which ruled in favor of the Comptroller of Public Accounts in a franchise tax protest action. On appeal, the petitioner asserted that the trial court erred in upholding the Comptroller's decision to disallow 70% of the petitioner’s mixer-truck costs and 41% of its truck-operator labor costs on the ground that these costs did not qualify. The petitioner further alleged that the trial court erred in imposing a higher burden of proof on the petitioner because the statute was unambiguous. The appellate court found that the trial court correctly concluded that, under the statute and corresponding administrative rule, only those driver labor costs allocable to acquisition or production of ready-mixed concrete could be included as cost of goods sold (COGS). The appellate court concluded that the use of the phrase "COGS deduction" in the trial court's conclusion of law demonstrated the use of a heightened burden of proof, and there was no other evidence in the record that the court applied an incorrect burden of proof. Accordingly, the judgment of the trial court was affirmed.


Because the ineffective-assistance claim was non-cognizable, the pretrial habeas proceeding was misused and the defendant’s ineffective-assistance claim was not cognizable in a pretrial habeas corpus proceeding.
Ex parte Estrada
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 28, 2019
01-18-00792-CR
Laura Carter Higley
Published
The defendant appealed the judgment of the trial court which denied his application for a pretrial writ of habeas corpus, filed under article 11.08 of the Texas Code of Criminal Procedure. On appeal, the defendant contended that he was entitled to immediate release from custody based on a violation of the Fifth Amendment Double Jeopardy Clause, a Sixth Amendment violation for ineffective assistance of counsel, a violation of the Fifth Amendment Due Process Clause, vindictive prosecution, and a Sixth Amendment violation of the Speedy Trial Clause. The appellate court found that a vindictive-prosecution claim was not among the claims for which pretrial habeas corpus relief lay, and its proper use required a prior conviction that was reversed on appeal or vacated upon granting a new trial or the deprivation of a protected legal right. The appellate court concluded that because the ineffective-assistance claim was non-cognizable, the pretrial habeas proceeding was misused and the defendant’s ineffective-assistance claim was not cognizable in a pretrial habeas corpus proceeding. Accordingly, the judgment of the trial court was affirmed.


The trial evidence stood factually sufficient to support both the jury's findings that the cyclist's negligence proximately caused the occurrence and the jury's comparative-responsibility findings.
In re Cambell
Appellate: Civil, Constitution, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
March 28, 2019
14-18-01016-CV
Kem Thompson Frost
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus ordering the respondent to vacate his order granting a new trial. In his petition, the relator contended that the trial court abused its discretion in signing the new-trial order because the jury's findings of 83% responsibility for the cyclist and 17% responsibility for the relator did not go against the great weight and preponderance of the evidence. Specifically, the relator asserted that the trial court in its order incorrectly adopted the cyclist's view of the evidence as uncontroverted facts. The appellate court noted that in order to obtain mandamus relief, a relator generally must show both that the trial court clearly abused its discretion and that the relator lacked an adequate remedy at law, such as an appeal. The appellate court found that while federal cases provided analysis and legal rules for consideration in this area, the federal context differed materially from the state context. The appellate court concluded that the trial evidence stood factually sufficient to support both the jury's findings that the cyclist's negligence proximately caused the occurrence and the jury's comparative-responsibility findings. Accordingly, the relator’s writ was conditionally granted.


The trial court could have reasonably concluded that the expert report constituted an objective, good-faith effort to provide a fair summary of his opinions with respect to the causal relationship between the defendants’ alleged breaches and the plaintiff’s injury.
New Medical Horizons, II, Ltd. v. Milner
Appellate: Civil, Evidence, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
March 28, 2019
01-17-00827-CV
Richard Hightower
Published
The defendants appealed the judgment of the trial court which ruled in favor of the plaintiff in her medical negligence action, which resulted in amputation of her toe. On appeal, the defendants argued that the trial court abused its discretion by denying their motion to dismiss because the causation opinions were conclusory, by finding the expert report sufficient and denying its motion to dismiss because the report failed to provide the necessary fair summary of the standard of care applicable to the nursing staff. The appellate court noted that section 74.351 of the Texas Medical Liability Act (TMLA) provided that no medical negligence cause of action could proceed until the plaintiff made a good-faith effort to demonstrate that a qualified medical expert believed that a defendant's conduct breached the applicable standard of care and caused the claimed injury. The appellate court found that the report on the standard of care and its breach gave the trial court a sufficient basis to reasonably conclude that the plaintiff’s claims had merit. The appellate court concluded that the trial court could have reasonably concluded that the expert report constituted an objective, good-faith effort to provide a fair summary of his opinions with respect to the causal relationship between the defendants’ alleged breaches and the plaintiff’s injury. Accordingly, the judgment of the trial court was affirmed.


The relator established it was the representative within the scope of Rule 503(a)(2)(B), and therefore, the dissemination of the withheld documents did not waive the attorney-client privilege.
In re Stephens, Inc.
Constitution, Discovery, Evidence, Procedure, Professional Responsibility
Texas 4th Court of Appeals
March 27, 2019
04-18-00216-CV
Irene Rios
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus and arguing the trial court abused its discretion by compelling the relator to produce the documents. This appeal stemmed from the trial court granting the real parties in interest's motion to compel discovery of 140 documents that the relator contended were all protected under the attorney-client privilege. On appeal, the relator argued that because the relator and its attorneys were "representatives,” the communications remained privileged under Rule 503. The plaintiffs contended that there was no presumption in favor of privilege because a fact question on whether the documents were privileged existed and the trial court's determination that the privilege did not apply was conclusive. The appellate court found that the relator did not establish a prima facie case for privilege under subsection (a)(2)(A) because relator did not produce the minimum quantum of evidence necessary to support a rational inference that the allegation of fact was true. The appellate court concluded that the relator established it was the representative within the scope of Rule 503(a)(2)(B), and therefore, the dissemination of the withheld documents did not waive the attorney-client privilege. Accordingly, the relator’s petition was conditionally granted.


The evidence was insufficient to support a determination that the defendant used a vehicle as a deadly weapon during the commission of the offense of evading arrest or detention with a motor vehicle.
Clark v. State
Constitution, Criminal, Evidence, Procedure
Texas 9th Court of Appeals
March 27, 2019
09-17-00401-CR
Charles A. Kreger
Published
The defendant appealed the judgment of the trial court which convicted him of evading arrest or detention with a motor vehicle, and  using a motor vehicle as a deadly weapon and sentenced him to ten years confinement in the Institutional Division. On appeal, the defendant argued that the evidence was insufficient to support the trial court’s affirmative finding that he used a motor vehicle as a deadly weapon since no person was placed in actual danger by his motor vehicle during the commission of the charged offense. The appellate court noted that while the danger to motorists must be actual and not merely hypothetical, it did not require pursuing officers or other motorists to be in a zone of danger. The appellate court found that the State failed to present evidence from which a reasonable trier of fact could conclude beyond a reasonable doubt that people were placed in actual danger by the defendant’s operation of the vehicle during the offense for which he was charged. The appellate court concluded that the evidence was insufficient to support a determination that the defendant used a vehicle as a deadly weapon during the commission of the offense of evading arrest or detention with a motor vehicle. Accordingly, the judgment of the trial court was affirmed in part and modified in part.


While the jury could have rationally found that a reasonable and necessary fee was less than the amount sought, an award of no fees was improper in the absence of evidence affirmatively showing that no attorney's fees were needed or that any services provided were of no value.
State v. Buchanan
Appellate: Civil, Damages, Gov't/Administrative, Procedure, Tax
Texas 3rd Court of Appeals
March 27, 2019
03-18-00120-CV
Thomas J. Baker
Published
The State appealed the judgment of the trial court which found that it was entitled  to prevail on its state, municipal, and transit-authority sales-tax claims against the respondent, but did not award the State any attorney's fees. On appeal, the State argued that an award was mandatory. The appellate court noted that any proceeding under the chapter or other law in which the State sought to collect or recover a delinquent obligation or damages, the attorney general could recover reasonable attorney fees, investigative costs, and court costs incurred on behalf of the state in the proceeding in the same manner as provided by general law for a private litigant. The appellate court agreed with the State that the portion of the trial court's judgment awarding the State no attorney's fees was improper. The appellate court concluded that while the jury could have rationally found that a reasonable and necessary fee was less than the amount sought, an award of no fees was improper in the absence of evidence affirmatively showing that no attorney's fees were needed or that any services provided were of no value. Accordingly, the judgment of the trial court was remanded on the issue of attorney's fees for a new trial.


Because the prejudice could be remedied by granting the defendant a new trial and suppressing the billing records and all evidence derived on remand, the defendant’s request to dismiss the indictment was improper.
Morrison v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
March 27, 2019
06-17-00159-CR
Ralph Burgess
Published
The defendant appealed the judgment of the trial court which convicted her of murder and sentenced her to thirty years’ imprisonment. On appeal, the defendant argued that the State violated her Sixth Amendment rights when it obtained, reviewed, and then used information from her attorney’s billing records against her. The State counterargued that it did not purposefully intrude into the defendant’s attorney-client relationship because the billing records were filed as public records, and therefore, it was entitled to review those records. The appellate court noted that the defendant’s Sixth Amendment right to counsel and right to be free from State intrusion into the attorney-client relationship were violated. The appellate court found that since the State acquired and used useful information from those records, the defendant was prejudiced by the State’s intrusion and defense counsel’s deficient performance. The appellate court concluded that because this prejudice could be remedied by granting the defendant a new trial and suppressing the billing records and all evidence derived on remand, the defendant’s request to dismiss the indictment was improper. Accordingly, the judgment of the trial court was reversed and remanded.


Since the record established that the defendant failed to appear in court at the scheduled time and that he was aware of the hearing date and his obligation to appeal, the evidence was legally sufficient to establish that he knowingly or intentionally failed to appear.
Figueredo v. State
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
March 26, 2019
07-17-00334-CR
Patrick A. Pirtle
Published
The defendant appealed the judgment of the trial court which convicted him of two counts of the third-degree felony offense of bail jumping and assessed his punishment at three years confinement. On appeal, the defendant contended that the evidence was insufficient to establish his guilt beyond a reasonable doubt, his trial counsel was ineffective for stipulating that he received notice of the court date at issue, and prosecution for more than one offense of bail jumping, for the failure to appear at a single time and place to answer a single indictment violated his protections against double jeopardy. The appellate court noted that for purposes of a double jeopardy analysis, an accused was subject to multiple punishments in violation of the Double Jeopardy Clause when he was convicted of more offenses than the legislature intended under a given set of facts. The appellate court found that an allowable unit of prosecution was an offense defined by a distinguishable discrete act that was a separate violation of the penal statute in question. The appellate court concluded that since the record established that the defendant failed to appear in court at the scheduled time and that he was aware of the hearing date and his obligation to appeal, the evidence was legally sufficient to establish that he knowingly or intentionally failed to appear. Accordingly, the judgment of the trial court was affirmed.


The trial court did not abuse its discretion in admitting the testimony of the complainant's stepsister because the defendant did not offer them into evidence and obtain a timely ruling.
Castillo v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 26, 2019
01-18-00284-CR
Gordon Goodman
Published
The defendant appealed the judgment of the trial court which convicted him of the offense of aggravated sexual assault of a child. On appeal, the defendant contended that the trial court's application of mandatory-minimum and parole-ineligibility statutes violated his constitutional guarantees against conviction for ex post facto crimes, and the admission into evidence of a recording of the complainant's forensic interview and the testimony of the complainant's stepsister that he also sexually abused her was an abuse of discretion. The defendant further alleged that the trial court erred in the exclusion from evidence of letters written to him by the complainant's stepsister after she reported that he had sexually abused her was an abuse of discretion.  The State asserted that some or all of the interview was admissible under either the hearsay exclusion for prior consistent statements offered to rebut a charge of recent fabrication or the rule of optional completeness. The appellate court agreed with the State that the trial court did not abuse its discretion in admitting the complainant's recorded interview. The appellate court concluded that the trial court did not abuse its discretion in admitting the testimony of the complainant's stepsister because the defendant did not offer them into evidence and obtain a timely ruling. Accordingly, the judgment of the trial court was affirmed.


The appellate court concluded that legally insufficient proof supported the defendant's conviction under count three of the indictment for aggravated sexual assault by penetration.
Prestiano v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 26, 2019
01-17-00763-CR
Gordon Goodman
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of a child younger than six years old. On appeal, the defendant argued that the evidence was legally insufficient to sustain his conviction, in which the State alleged that he penetrated the child's mouth, the trial court erred in overruling his hearsay objection to a picture of sex toys drawn by the child during therapy, and his trial lawyer rendered ineffective assistance by not lodging a hearsay objection to the therapist's testimony. The appellate court noted that the statute criminalizing aggravated sexual assault of a child set forth several distinct offenses. The appellate court found that the evidence was legally insufficient to prove beyond a reasonable doubt that the defendant penetrated the child's mouth, but the evidence was sufficient to sustain a conviction for the lesser-included offense of aggravated sexual assault by contact. The appellate court concluded that legally insufficient proof supported the defendant's conviction under count three of the indictment for aggravated sexual assault by penetration. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded for a new punishment hearing.


A fair assurance existed that any error in admitting the video recording of the forensic interview did not influence the jury or had but a slight effect, and thus, the admission did not constitute reversible error.
Prince v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
March 26, 2019
01-18-00208-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which convicted him of the first-degree felony offense of continuous sexual abuse of a child and assessed his punishment at twenty-five years' confinement. On appeal, the defendant contended that the trial court erred by admitting a video recording of the complainant's forensic interview under the rule of optional completeness. Specifically, the defendant asserted that the forensic interview constituted inadmissible hearsay and that it was not necessary to admit the recording to clear up a false impression. The appellate court noted that hearsay was an out-of-court statement offered to prove the truth of the matter asserted in the statement, and generally, hearsay was not admissible unless a statute or rule provided otherwise. The appellate court found that erroneous admission of evidence became harmless error if other evidence proving the same fact was properly admitted elsewhere, or the evidence came in elsewhere without objection. The appellate court concluded that a fair assurance existed that any error in admitting the video recording of the forensic interview did not influence the jury or had but a slight effect, and thus, the admission did not constitute reversible error. Accordingly, the judgment of the trial court was affirmed.


Because the relators failed to meet their burden to establish that the trial court clearly abused its discretion, they also failed to show that they were entitled to mandamus relief.
In re W. Dairy Transp., L.L.C.
Appellate: Civil, Contracts, Discovery, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
March 22, 2019
08-18-00030-CV
Gina M. Palafox
Published
The relators appealed the judgment of the trial court, filing a mandamus petition against the trial court judge, seeking mandamus relief from his order granting motions to compel discovery. On appeal, the relators contended that the trial court abused its discretion in ordering them to respond to certain discovery before the court ruled on their motion to dismiss based on a forum-selection clause. Specifically, the relators asserted that the trial court's order required them to answer discovery that was not allowed at this juncture. The relators further alleged that the burden fell on the plaintiffs to make a showing of necessity for limited discovery before the discovery sought could be compelled by the court. The appellate court noted that forum-selection clauses were contractual provisions whereby parties agreed in advance to submit their disputes for resolution within a particular jurisdiction. The appellate court found that the statutory provision of the Texas Arbitration Act did not require a limitation on pre-arbitration discovery at this juncture of the proceedings. The appellate court conclude that because the relators failed to meet their burden to establish that the trial court clearly abused its discretion, they also failed to show that they were entitled to mandamus relief. Accordingly, the relators’ petition was denied.