The plaintiff had adequately stated an Eighth Amendment claim for deliberate indifference to a serious medical need, and because his claim did not lack an arguable basis in law, the trial court erred by dismissing it as frivolous.
DeHorney v. Talley
Appellate: Civil, Constitution, Employment, Gov't/Administrative, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
January 12, 2021
08-19-00066-CV
Gina M. Palafox
Published
The plaintiff appealed the judgment of the trial court which dismissed his lawsuit against the defendants pursuant to chapter 14 of the Texas Civil Practice and Remedies Code. The appellate court found that the plaintiff's claims for medical malpractice, intentional infliction of emotional distress, and negligent infliction of emotional distress were tort claims. The appellate court noted that the plaintiff's claims were “brought under” the Texas Tort Claims Act (TTCA), regardless of whether immunity was waived for those claims, and because the TTCA did not contain a waiver of immunity applicable to any of the plaintiff's tort claims, the defendants' governmental employer would be entitled to sovereign immunity. The appellate court concluded that the plaintiff had adequately stated an Eighth Amendment claim for deliberate indifference to a serious medical need, and because his claim did not lack an arguable basis in law, the trial court erred by dismissing it as frivolous. Accordingly, the judgment was affirmed in part, reversed, and remanded in part.  


The appellate court concluded that the trial court did not err by denying the defendant's plea to the jurisdiction.
Metro. Transit Auth. of Harris Cnty. v. Carr
Appellate: Civil, Procedure
Texas 14th Court of Appeals
January 12, 2021
14-19-00158-CV
Ken Wise
Published
The defendant appealed the judgment of the trial court, filing a plea to the jurisdiction, an amended plea, and a supplement to the plea. On appeal, the defendant challenged the trial court's denial of a plea to the jurisdiction alleging that the plaintiff failed to provide notice of her claim under Section 101.101 of the Civil Practice and Remedies Code. The appellate court found that the plaintiff complied with the requirement of reasonably describing the place of the incident giving rise to her claim by alleging that it occurred on a bus near a specific intersection. The appellate court concluded that the trial court did not err by denying the defendant's plea to the jurisdiction. Accordingly, the judgment of the trial court was affirmed. 


The appellate court concluded that because the plaintiff did not file an expert report on any of the defendants, the trial court erred in denying their motion to dismiss.
Chapman v. Patterson
Civil Rights, Constitution, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
January 12, 2021
14-19-00491-CV
Tracy Christopher
Published
The defendants appealed the judgment of the trial court which denied the defendants' motion to dismiss the claims against them on the ground that they were defendants and the plaintiff failed to serve them with an expert report as required by statute. On appeal, the defendants challenged the plaintiff's claims of civil-rights violations under 42 U.S.C. Section 1983. The appellate court found that the plaintiff's claims against the defendants were health care liability claims; thus, the Texas Medical Liability Act’s expert-report requirement applied. The appellate court concluded that because the plaintiff did not file an expert report on any of the defendants, the trial court erred in denying their motion to dismiss. Accordingly, the judgment of the trial court was reversed and remanded. 


The courts were not authorized to review the arbitrator’s decision on the merits despite allegations that the decision rested on factual errors and the fact that a court was convinced the arbitrator committed serious error did not suffice to overturn his decision.
Load Trail, LLC v. Julian
ADR, Damages, Employment, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
Texas 6th Court of Appeals
January 07, 2021
06-19-00099-CV
Ralph Burgess
Published
The defendant appealed the judgment of the trial court in a suit alleging negligence, negligence per se, and gross negligence. On appeal, the defendant sought damages of over $1,000,000.00, challenging an award confirming an arbitration award in favor of the plaintiff. The appellate court found that the claims of perceived actual bias during the proceeding aside, the defendant would have the court vacated the Final Award based on alleged fallacies in the arbitrator’s findings of fact and award, claiming those alleged fallacies indicate bias. The appellate court was not permitted to “conduct a review of an arbitrator’s decision on the merits.” The appellate court concluded that the courts were not authorized to review the arbitrator’s decision on the merits despite allegations that the decision rested on factual errors and the fact that a court was convinced the arbitrator committed serious error did not suffice to overturn his decision. Accordingly, the court affirmed the trial court’s judgment.  


The defendant's challenge to his felony conviction and sentence, as raised in this civil proceeding, lacked any arguable basis in law as the trial court had no power or authority to hear it.
Sheppard v. Wichita Cnty. Dist. Attorney’s Office
Criminal, Evidence, Procedure
Texas 8th Court of Appeals
January 06, 2021
08-19-00106-CV
Gina M. Palafox
Published
The defendant appealed the judgment of the trial court which convicted him of possession of a controlled substance (1–4 grams), enhanced by prior convictions, and sentenced him to 50 years’ imprisonment. On appeal, the defendant challenged an order dismissing his lawsuit against the plaintiffs. The appellate court noted that the trial court dismissed that lawsuit as frivolous pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code (Chapter 14) and for lack of jurisdiction. The appellate court found that Chapter 14 of the Texas Civil Practice and Remedies Code governed litigation brought by an inmate who filed an affidavit or unsworn declaration of inability to pay costs. The defendant further alleged in his petition that his indictment and conviction were void and that an improper enhancement charge was used in his sentencing. The appellate court concluded that the defendant's challenge to his felony conviction and sentence, as raised in this civil proceeding, lacked any arguable basis in law as the trial court had no power or authority to hear it. Accordingly, the judgment was affirmed.


Any complaint about the exclusion of hearsay was waived by the defendant and the defendant cited no legal authority to support her argument that the recording of her own statement was admissible.
Bleimeyer v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
January 07, 2021
14-18-01082-CR
Ken Wise
Published
The defendant appealed the judgment of the trial court which convicted her of injury to a child and assessed punishment at twenty-eight years’ confinement. The appellate court noted that the jury rationally concluded that the complainant suffered serious bodily injury because the complainant’s chronic starvation and the lack of medical care created a substantial risk of death, and the evidence supported the jury’s finding beyond a reasonable doubt. The appellate court found that the evidence was legally sufficient to support the jury’s findings on the challenged elements and the evidence did not show that if the defendant was guilty, she was guilty only of the offense of child endangerment. The appellate court could not conclude that the exclusion of the defendant's proffered testimony that there was abuse in the relationship with the defendant's ex-husband had a substantial and injurious effect or influence in determining the jury’s verdict. The appellate court concluded that any complaint about the exclusion of hearsay was waived by the defendant and the defendant cited no legal authority to support her argument that the recording of her own statement was admissible. Accordingly, the court affirmed the trial court’s judgment.  


The trial court did not abuse its discretion in compelling a corporate representative’s deposition, however, it abused its discretion in refusing to narrowly focus the deposition’s scope to the facts RPI must prove and the relator’s contentions in defense of those facts.
In re AllState Fire & Cas. Ins. Co.
Appellate: Civil, Contracts, Damages, Insurance, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
January 07, 2021
14-20-00430-CV
Kevin Jewell
Published
The relator appealed the judgment of the trial court, seeking mandamus relief from the trial court’s orders compelling a deposition of the relator’s corporate representative on several topics related to the plaintiff’s claim for underinsured motorist coverage. The appellate court found that because the relator’s contractual obligations did not ripen until after the issues of the individual’s liability, RPI’s damages and underinsured status had been determined, topics 2-7, 11, and 12 were irrelevant to the current claim. The appellate court determined that the UIM insurer was not required to incur litigation expense on those issues because they may be rendered moot by the resolution of the accident. The appellate court concluded that the trial court did not abuse its discretion in compelling a corporate representative’s deposition, however, it abused its discretion in refusing to narrowly focus the deposition’s scope to the facts RPI must prove and the relator’s contentions in defense of those facts. Accordingly, the court denied in part and conditionally granted in part the relator’s petition for writ of mandamus. 


The appellate court sustained the appellant’s final issue regarding the application of the compensatory damages cap.
THF Hous. Mgmt. Corp. v. Gideon
Civil Rights, Damages, Employment, Health Care, Torts
Texas 7th Court of Appeals
January 06, 2021
07-19-00343-CV
Judy C. Parker
Published
The appellant appealed the judgment of the trial court which ruled in favor of its former employee, the appellee, on her claim for employment discrimination. On appeal, the appellant challenged the appellee's allegations that the appellant had discriminated against her because of her disability. The appellate court found that the limited evidence on the issue included testimony from the individual, who was asked whether the appellant provided coverage under the Family and Medical Leave Act (FMLA). The appellate court noted that any damages award for compensatory damages in the case was limited to $50,000 pursuant to section 21.2585 of the Labor Code. The appellate court sustained the appellant’s final issue regarding the application of the compensatory damages cap. Accordingly, the judgment was affirmed.   


The appellate court concluded that the appellee failed to present sufficient evidence establishing a prima facie case of antitrust activity between the appellants and the company.
W. Mktg, Inc. v. AEG Petroleum, LLC
Appellate: Civil, Business, Contracts, Corporations, Employment, Torts
Texas 7th Court of Appeals
January 06, 2021
07-20-00093-CV
Brian Quinn
Published
The appellants appealed the judgment of the trial court in a suit under the Texas Citizens Participation Act (TCPA). On appeal, the appellants challenged the trial court's denial of the motion, resulting in the interlocutory appeal. The appellate court noted that the commercial-speech exemption invoked by the appellee was inapplicable to any utterances directed at the companies and it was applicable to those told the entity and the services. The appellate court found that the appellee failed to present clear and specific evidence establishing a prima facie case on the existence of an agreement or concerted action between the appellants, the company and second company for purposes of the section 15.05(a) of the Texas Business and Commerce Code claim. The appellate court concluded that the appellee failed to present sufficient evidence establishing a prima facie case of antitrust activity between the appellants and the company. Accordingly, the judgment of the trial court was affirmed in part and reversed in part. 


The appellate court concluded that the fee-shifting provisions of the TCPA did not violate the Texas Constitution or the First and Fourteenth Amendments to the United States Constitution.
Gensetix, Inc. v. Baylor Coll. of Med.
Constitution, Contracts, Intellectual Property, Patents/Trademarks, Torts
Texas 14th Court of Appeals
December 31, 2020
14-19-00488-CV
Jerry Zimmerer
Published
The appellant appealed the judgment of the trial court which dismissed its claims that were breach of contract–non-disclosure agreement, breach of contract–cooperation agreement, promissory estoppel, tortious interference, civil conspiracy against the appellee college, the appellee company, and the appellee individual. The appellate court found that the trial court dismissed the appellant’s claims pursuant to the Texas Citizens Participation Act (TCPA). The appellate court determined that the TCPA applied to the appellant’s claims and the appellant failed to establish by clear and specific evidence a prima facie case for each element of its claims. The appellate court concluded that the fee-shifting provisions of the TCPA did not violate the Texas Constitution or the First and Fourteenth Amendments to the United States Constitution. Accordingly, the court affirmed the trial court’s dismissal of the appellant’s claims.  


The appellate court determined that the appellee had not cited any authority that would purport to give the court any authority to dismiss the appellants without a motion filed by them or on their behalf.
Lyle v. Midway Solar, LLC
Appellate: Civil, Damages, Procedure, Real Property, Technology, Torts
Texas 8th Court of Appeals
December 30, 2020
08-19-00216-CV
Jeff Alley
Published
The appellants appealed the judgment of the trial court, claiming that the solar panels and associated transmission lines impaired their ability to drill for any oil and gas which might lie beneath the surface. On appeal, the appellants sought damages from the appellees for that lost opportunity. The appellate court agreed with the appellee that the question of whether the accommodation doctrine applied was the starting point for the court's resolution of the appeal. The appellate court determined that given that there was no controversy over that aspect of the case at the time, the trial court should have dismissed the trespass and breach of contract claims without prejudice. The appellate court determined that the appellee had not cited any authority that would purport to give the court any authority to dismiss the appellants without a motion filed by them or on their behalf. Accordingly, the court affirmed in part, reversed in part the summary judgment, and remanded.  


The appellate court agreed that by its plain text the scope of the statute prohibited or chilled a substantial amount of protected speech, rendering it unconstitutionally overbroad.
State v. Chen
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 31, 2020
14-19-00372-CR
Charles Spain
Published
The State appealed the judgment of the trial court which granted the defendant's application for writ of habeas corpus and motion to quash the information, arguing that the statute under which he was charged was facially unconstitutional and unconstitutional as applied to him under the First Amendment. On appeal, the State challenged the trial court's conclusion that the statute was facially unconstitutional and granted habeas-corpus relief and the motion to quash the information, thereby discharging the defendant. The appellate court found that the statute was content-neutral, and accordingly the court did not presume the invalidity of the statute and need not analyze it under strict scrutiny. The appellate court begin with the presumption that the statute was valid and that the Legislature had not acted unreasonably or arbitrarily. The appellate court agreed that by its plain text the scope of the statute prohibited or chilled a substantial amount of protected speech, rendering it unconstitutionally overbroad. Accordingly, the judgment was affirmed.  


The defendant had failed to carry his burden of proving the trial court’s recital in the judgment of conviction was contrary to the truth.
Smith v. State
Constitution, Criminal, Evidence, Procedure
Texas 5th Court of Appeals
December 31, 2020
05-19-01057-CR
Lana Myers
Published
The defendant appealed the judgment of the trial court which convicted him of possession of marijuana in an amount less than two ounces and unlawful carrying of a weapon. The appellate court found that the docket sheet in the clerk’s record documented two occasions when the defendant pled not guilty to the offense of unlawful carrying of a weapon. The appellate court noted that the trial court recorded in a docket entry that the case was called for trial, both sides announced ready, the defendant was admonished, waived formal arraignment, and pled not guilty. The appellate court concluded that the defendant had failed to carry his burden of proving the trial court’s recital in the judgment of conviction was contrary to the truth. Accordingly, the court affirmed the judgment of conviction.  


The appellate court concluded that a potential agreement that would be invalid under the terms of the trust could not supply a basis for making the appellant’s requested relief into a justiciable controversy.
Ackers v. Comerica Bank & Trust
Appellate: Civil, Contracts, Litigation: Personal Injury, Procedure, Wills/Trusts/Probate
Texas 11th Court of Appeals
December 31, 2020
11-18-00352-CV
John M. Bailey
Published
The appellant appealed the judgment of the trial court which denied the appellant's request for declaratory judgment, seeking a determination that some of his descendants should be excluded at his death. The appellate court noted that the appellant asserted that the trial court erred in granting the motion for summary judgment on the basis of ripeness, and ripeness was a component of the trial court’s subject-matter jurisdiction. The appellate court found that the appellant’s claim involved making a determination of class membership of a gift made to a class and the appellant acknowledged that the gift to his descendants was a class gift and that his descendants were contingent, non-vested beneficiaries. The appellate court concluded that a potential agreement that would be invalid under the terms of the trust could not supply a basis for making the appellant’s requested relief into a justiciable controversy. Accordingly, the judgment was affirmed.


The appellants have not established that the trial court abused its discretion in refusing to permit the expert witnesses to testify regarding the subjective intent of the appellee or its employees.
Wellons v. Valero Ref.—New Orleans, L.L.C.
Appellate: Civil, Damages, Employment, Insurance, Litigation: Personal Injury, Torts, Workers' Compensation
Texas 14th Court of Appeals
December 31, 2020
14-18-01075-CV
Frances Bourliot
Published
The appellants appealed the judgment of the trial court which determined that Louisiana law should apply to the claims against the appellee and from the court’s final take-nothing judgment favoring the appellee. The appellate court found that because the appellants could still obtain Louisiana benefits and the appellee had greater immunity under Louisiana law than Texas law, Restatement Section 184 dictated that Louisiana law applies to the claims against the appellee. The appellate court noted that the trial court did not err in applying Louisiana law to those claims. The appellate court determined that the appellants have not established that the trial court abused its discretion in refusing to permit the expert witnesses to testify regarding the subjective intent of the appellee or its employees. Accordingly, the court affirmed the trial court’s judgment.    


The appellate court found that because no clear abuse of discretion had been demonstrated, the order granting a new trial was not subject to mandamus correction by the court.
In re Rudolph Auto., LLC
Constitution, Procedure, Torts
Texas 8th Court of Appeals
December 30, 2020
08-18-00149-CV
Gina M. Palafox
Published
The relators appealed the judgment of the trial court, filing a motion to disregard the jury’s answer to the question on comparative responsibility asserting that the jury’s assignment of 10% fault to the relators conflicted with its earlier no-liability finding on negligence. On appeal, the relators asked the Court to direct the judge of the trial court to vacate his order granting a new trial, harmonize the verdict consistent with the relators’ interpretation of the jury’s verdict, render judgment on the harmonized verdict, and award costs and other appropriate relief. The appellate court noted that there were several grounds, individually and collectively, that would support the trial court’s new trial order in its entirety. The appellate court found that because no clear abuse of discretion had been demonstrated, the order granting a new trial was not subject to mandamus correction by the court. Accordingly, the relators’ petition for a writ of mandamus was denied.  


The lease contained a purchase option that gave the appellee, by unilateral exercise of its own will, the immediate right to compel the transfer of fee title.
Dallas Cent. Appraisal Dist. v. Int'l Am. Educ. Fed'n Inc.
Contracts, Corporations, Education, Real Property, Tax
Texas 5th Court of Appeals
December 29, 2020
05-19-01354-CV
David Schenck
Published
The appellant appealed the judgment of the trial court which granted summary judgment in favor of the appellee. On appeal, the appellant argued that the trial court erred by concluding the appellee was entitled to an exemption for certain property it leased. The appellate court found that the appellee argued, as the trial court declared, that it had equitable title to the property because a purchase option within the lease agreement gave it the unqualified, unilateral right to assume fee title to the property. The appellate court determined that the provision provided the lessee, the appellee, with the power to compel transfer of legal title. The appellate court concluded that the lease contained a purchase option that gave the appellee, by unilateral exercise of its own will, the immediate right to compel the transfer of fee title. Accordingly, the trial court's judgment was affirmed.  


The appellate court concluded that the trial court did not err by denying the appellant’s special appearance.
Petrosaudi Oil Services Ltd. v. Hartley
Appellate: Civil, Contracts, Corporations, International, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
December 29, 2020
01-19-00607-CV
Evelyn V. Keyes
Published
The appellant appealed the judgment of the trial court which ruled in favor of the appellee in a suit under the Jones Act for injuries he allegedly received while working on the drillship that was anchored off the coast of Trinidad and Tobago. On appeal, the appellant filed a special appearance, asserting that it was a non-resident of Texas and that Texas courts could not exercise personal jurisdiction over it consistent with due process guarantees. The appellate court found that the evidence supported the trial court’s implied finding that the appellant maintained an office in Houston and that it had sufficient minimum contacts with Texas to support the exercise of jurisdiction in the state. The appellate court noted that although it might be burdensome for the president, as the appellant’s president, to travel to Texas to participate in litigation, the same could be said of all non-residents and distance alone could not ordinarily defeat jurisdiction. The appellate court concluded that the trial court did not err by denying the appellant’s special appearance. Accordingly, the trial court's judgment was affirmed.  


The appellate court concluded that a trial court abused its discretion if its decision was arbitrary, unreasonable, and without reference to guiding principles.
Hydrochem LLC v. Evoqua Water Technologies, LLC
Appellate: Civil, Contracts, Employment, Procedure
Texas 1st Court of Appeals
December 31, 2020
01-19-00770-CV
Sarah Beth Landau
Published
The appellant appealed the judgment of the trial court in a suit for claims for trade secret misappropriation, violation of 2 the Texas Uniform Trade Secrets Act, and breach of contract. On appeal, the appellant challenged the appellee's allegations that the appellant moved to the competitor entity in violation of various contract provisions and restrictive covenants and their alleged use of confidential trade secret information for the third appellant’s financial benefit. The appellant further contended that the trial court erred in denying their TCPA motion and in finding that their motion was frivolous or filed solely for purpose of delay. The appellate court found that to the extent that the court's resolution of the case required to the court to address issues of statutory construction, the court reviewed such issues de novo. The appellate court noted that because all four Castleman factors were met, the trial court did not err in denying the appellants’ motion to dismiss. The appellate court concluded that a trial court abused its discretion if its decision was arbitrary, unreasonable, and without reference to guiding principles. Accordingly, the judgment was affirmed.    


The appellate court concluded that it was confident that the trial court would comply, and the court's writ would issue only if it failed to do so.
In re Torres
Appellate: Civil, Constitution, Family, Procedure
Texas 10th Court of Appeals
December 30, 2020
10-20-00266-CV
Tom Gray
Published
The petitioners appealed the judgment of the trial court, filing a writ of mandamus after the trial court denied their Plea to the Jurisdiction, Motion to Strike Petition in Intervention, and Motion to Dismiss. On appeal, the petitioners challenged the trial court's denial of the petitioners’ motion and granted the parents' leave to intervene in the proceeding. The appellate court found that they did not meet the twelve-month requirement of Section 102.003(a)(12) and outside of the 313 days the parents were the foster parents of the children, their response to the petition in the proceeding listed an additional 32 days in which they contended they had actual care, control, or possession of the children. The appellate court conditionally granted the petition for writ of mandamus and directed the trial court to vacate its Order Denying Intervenor Torres’ Plea to the Jurisdiction signed. The appellate court concluded that it was confident that the trial court would comply, and the court's writ would issue only if it failed to do so. Accordingly, the petition was granted.  


The appellate court concluded that the law required the trial court to grant the appellant's motion to dismiss.
Aquatic Care Programs, Inc. v. Cooper
Appellate: Civil, Gov't/Administrative, Health Care
Texas 14th Court of Appeals
December 29, 2020
14-18-01108-CV
Kem Thompson Frost
Published
The appellant appealed the judgment of the trial court, asserting that the trial court abused its discretion in overruling objections to the appellee's expert reports and in denying the appellant's motions to dismiss based on alleged violations of the Texas Medical Liability Act’s expert-report requirements. The appellate court found that in the absence of a qualified expert with a report addressing the essential liability components of the appellee's health care liability claims, the trial court abused its discretion in failing to sustain the appellant's objections. The appellate court noted that because the trial court already had granted the appellee one thirty-day extension to supplement her expert reports, the trial court had no discretion to overrule the objections. The appellate court concluded that the law required the trial court to grant the appellant's motion to dismiss. Accordingly, the court reversed and remanded to the trial court for rendition of a judgment of dismissal.  


The trial court’s failure to issue findings of fact and conclusions of law did not leave the defendant to guess the basis for the trial court’s rulings and did not prevent him from making a proper presentation of his case to the court.
Isaac v. Burnside
Appellate: Civil, Procedure, Real Property, Wills/Trusts/Probate
Texas 14th Court of Appeals
December 29, 2020
14-18-01096-CV
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which ruled in favor of the plaintiff in a suit alleging that the defendant breached his fiduciary duty as executor by failing to give the plaintiff one-half of the money in the decedent’s bank accounts and by failing to pay the plaintiff for expenses she incurred for the decedent’s funeral. The appellate court held that because a trial on the merits followed the denial of the defendant’s summary judgment motion, the court could not review the trial court’s denial of the motion. The appellate court found that under its unambiguous language, the decedent's will did not contain any written directions for the disposition of the decedent’s remains, and thus, Texas Health and Safety Code section 711.002(h) did not apply to the case. The appellate court concluded that the trial court’s failure to issue findings of fact and conclusions of law did not leave the defendant to guess the basis for the trial court’s rulings and did not prevent him from making a proper presentation of his case to the court. Accordingly, the judgment was affirmed.      


A rational jury could have found beyond a reasonable doubt that the defendant did not reasonably believe his use of force was immediately necessary to make or assist in making an arrest or search.
Warren v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 31, 2020
14-19-00589-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted the defendant, a Metro Police Department patrol officer, of misdemeanor assault for striking a man at a transit center platform with a baton. On appeal, the defendant challenged the trial court's conviction. The appellate court found that the jury reasonably could have inferred from the evidence that the defendant's use of the baton, a tool the defendant was taught to use to achieve pain, did that very thing. The appellate court concluded that a rational jury could have found beyond a reasonable doubt that the defendant did not reasonably believe his use of force, particularly the baton-strikes against the victim's chest once the victim already was on the ground, was immediately necessary to make or assist in making an arrest or search. Accordingly, the court affirmed the trial court’s judgment.  


The trial court erred when it granted the appellee’s motion to dismiss for the State’s pre-litigation non-compliance with statutory requirements.
State v. Mesquite Creek Dev., Inc.
Appellate: Civil, Contracts, Corporations, Damages, Gov't/Administrative, Real Property, Torts, Transportation
Texas 5th Court of Appeals
December 31, 2020
05-19-00028-CV
David Evans
Published
The State appealed the judgment of the trial court which dismissed the State’s condemnation suit against the appellees. On appeal, the State challenged the trial court's award to the appellees. The appellate court agreed with the State that when the appellees withdrew the award it waived any complaint about whether pre-litigation procedures were followed and waived all other issues except its complaint about the adequacy of the award. The appellate court thoroughly laid out the statutory condemnation procedure and labeled it as a separate phase of the condemnation process in recognition of the appellee’s argument that a significant purpose of the procedures was to protect property owners from governmental abuse. The appellate court concluded that having reviewed sufficient grounds raised by the State and the appellee’s counterarguments, the trial court erred when it granted the appellee’s motion to dismiss for the State’s pre-litigation non-compliance with statutory requirements. Accordingly, the judgment was reversed and remanded.


The trial court’s decision that any prejudice flowing from the statement was curable was within the zone of reasonable disagreement, and therefore, the trial court did not abuse its discretion in denying the defendant's motion for mistrial.
Rankin v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 29, 2020
01-19-00156-CR
Sarah Beth Landau
Published
The defendant appealed the judgment of the trial court which convicted the defendant of murder. On appeal, the defendant challenged the jury's assessment of punishment at 15 years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. The appellate court found that like the defendant in Estrada v. State, the defendant could have left the hospital or asked the police for a ride home, but she did not. The appellate court noted that there was no manifestation of probable cause that would have led the defendant to believe that she was under arrest, and the trial court’s decision to deny her motion to suppress was within the zone of reasonable disagreement. The appellate court concluded that the trial court’s decision that any prejudice flowing from the statement was curable was within the zone of reasonable disagreement, and therefore, the trial court did not abuse its discretion in denying the defendant's motion for mistrial. Accordingly, the judgment was affirmed.  


The appellate court concluded that the plaintiff had not shown that the trial court erred in granting the defendants' amended no-evidence summary-judgment motion.
Brown v. Tarbert, LLC
Contracts, Corporations, Procedure, Real Property
Texas 14th Court of Appeals
December 29, 2020
14-18-00388-CV
Charles Spain
Published
The plaintiff appealed the judgment of the trial court, alleging that the house contained toxic mold and required repairs, further asserting claims of violations of the Deceptive Trade Practices–Consumer Protection Act (DTPA). On appeal, the plaintiff challenged the trial court’s rendition of summary judgment in favor of the defendants. The appellate court found that none of the evidence presented by the plaintiff in response to the defendants' amended summary-judgment motion was competent, as none of it was properly authenticated. The appellate court need not address additional arguments concerning whether the plaintiff's exhibits were properly stricken. The appellate court concluded that the plaintiff had not shown that the trial court erred in granting the defendants' amended no-evidence summary-judgment motion. Accordingly, the trial court's judgment was affirmed. 


The appellate court concluded that the trial court erred by denying the defendant's TCPA motion to dismiss.
Choctaw Constr. Services, LLC v. Rail-Life R.R. Services, LLC
Appellate: Civil, Business, Contracts, Employment, Gov't/Administrative, Procedure, Torts
Texas 1st Court of Appeals
December 29, 2020
01-20-00216-CV
Sarah Beth Landau
Published
The defendant appealed the judgment of the trial court which denied the defendant's motion to dismiss the suit for tortious interference with contract, business disparagement, and other claims arising out of allegedly false allegations by the defendant. On appeal, the defendant challenged the trial court's denial of the defendant's motion to dismiss the suit under the Texas Citizens Participation Act (TCPA). The appellate court noted that because the court held that at least one of the defendant's constitutional rights invoked the TCPA, the court now determined whether the plaintiff established by clear and specific evidence a prima facie case for each element of its claims for tortious interference with a contract and business disparagement. The appellate court found that the plaintiff had not met its prima facie burden for its business-disparagement claim because the evidence showed that the defendant's statement was, in fact, true, negating the “false and disparaging information” element. The appellate court concluded that the trial court erred by denying the defendant's TCPA motion to dismiss. Accordingly, the judgment was reversed and remanded.  


The defendant's claim that he must surrender a protected right under the statute was irrelevant because the statute violated neither the First nor the Second Amendment.
Ex Parte Lee
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 29, 2020
01-18-00969-CR
Gordon Goodman
Published
The defendant appealed the judgment of the trial court which convicted him of unlawfully carrying a firearm in his vehicle while a member of a criminal street gang, in violation of section 46.02(a-1)(2)(C) of the Texas Penal Code. On appeal, the defendant filed a pre-trial application for writ of habeas corpus challenging the statute as void under the First and Second Amendments to the United States Constitution. The appellate court noted that because section 46.02(a-1)(2)(C) did not restrict the core purpose of the Second Amendment, the court applied intermediate scrutiny in evaluating the defendant's Second Amendment challenge to the statute. The appellate court found that the statute satisfied intermediate scrutiny because the statute was reasonably adapted to promote a significant governmental interest. The appellate court concluded that the defendant's claim that he must surrender a protected right under the statute was irrelevant because the statute violated neither the First nor the Second Amendment. Accordingly, the judgment was affirmed.


The trial court did not err by ruling that it no longer retained exclusive continuing jurisdiction over the possession, access, and conservatorship aspects of the parent-child relationship between the appellant and the children.
Cortez v. Cortez
Appellate: Civil, Family, Juvenile, Procedure
Texas 1st Court of Appeals
December 29, 2020
01-19-00296-CV
Evelyn V. Keyes
Published
The appellant appealed the judgment of the trial court which rendered a divorce decree requiring that the primary residence of their minor children was to be in Texas. The appellate court found that the trial court signed several orders declining jurisdiction over the case, and at the appellant’s request, the trial court issued findings of fact and conclusions of law. The appellate court noted that the trial court found that the appellee and the children had moved to Mexico where they had lived continuously ever since, and the record before the trial court included an affidavit by the appellee that she filed with her counter-petition to modify the agreed divorce decree. The appellate court concluded that the trial court did not err by determining that neither the children, nor the children and one parent, had a significant connection with Texas and that substantial evidence was no longer available in Texas concerning the children’s care, protection, training, and personal relationships. The appellate court determined that the trial court did not err by ruling that it no longer retained exclusive continuing jurisdiction over the possession, access, and conservatorship aspects of the parent-child relationship between the appellant and the children. Accordingly, the trial court's judgment was affirmed.  


Since the appellant’s requested modification to include prejudgment interest and costs would have awarded additional relief that was considered and rejected by the arbitrator, the trial court did not err in refusing the requested modification and confirming the arbitration award.
Ortiz v. Builders First Source - S. Tex., LP
ADR, Appellate: Civil, Damages, Employment, Insurance, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
Texas 14th Court of Appeals
December 29, 2020
14-19-00394-CV
Tracy Christopher
Published
The appellant appealed the judgment of the trial court which vacated the arbitrator’s sanctions order based on evident partiality. The appellate court observed that it were aware of no FAA provision or state statute authorizing a trial court to modify an arbitration award to include prejudgment interest and costs, nor had the appellant identified any such authority. The appellate court found that he instead relied on caselaw addressing an arbitrator’s authority to modify an award, as opposed to a trial court’s authority to do so, or a trial court’s modification of an arbitration award under the Texas General Arbitration Act to correct the arbitrator’s error in calculating an award of prejudgment interest after the arbitrator expressed an intent to award it. The appellate court determined that the arbitration award accurately reflected the arbitrator’s intent, without material miscalculation of figures. The appellate court concluded that because the appellant’s requested modification to include prejudgment interest and costs would have awarded additional relief that was considered and rejected by the arbitrator, the trial court did not err in refusing the requested modification and confirming the arbitration award. Accordingly, the judgment was affirmed.  


The record contained sufficient evidence to raise a fact issue as to whether the foreman and/or general superintendent were decision-makers and had knowledge of the appellant’s on-the-job injury at the time the appellant was placed on the reduction of force list and terminated.
Salas v. Fluor Daniel Services Corp.
Damages, Employment, Torts, Workers' Compensation
Texas 14th Court of Appeals
December 29, 2020
14-18-01103-CV
Meagan Hassan
Published
The appellant appealed the judgment of the trial court which granted a no-evidence and traditional summary judgment in favor of the appellee. On appeal, the appellant contended that the trial court erroneously granted summary judgment on his workers’ compensation retaliatory discharge claim under Texas Labor Code section 451.001(1) and (3). The appellate court noted that contrary to the appellant’s assertion, there was no evidence that he engaged in protected activity under section 451.001(1). The appellate court found that there was sufficient evidence that the appellant instituted or caused to be instituted a proceeding under the Workers’ Compensation Act when he informed his supervisor of his injury and thus engaged in protected conduct under section 451.001(3). The appellate court determined that the record contained sufficient evidence to raise a fact issue as to whether the foreman and/or general superintendent were decision-makers and had knowledge of the appellant’s on-the-job injury at the time the appellant was placed on the reduction of force list and terminated. The appellate court concluded that the trial court erroneously granted summary judgment on that basis. Accordingly, the judgment was affirmed, reversed, and remanded. 


The appellate court concluded that the issue of breach of the Settlement Agreement must be retried, and specific performance was an equitable remedy for breach of contract.
Maxey v. Maxey
Appellate: Civil, Contracts, Procedure, Real Property
Texas 1st Court of Appeals
December 29, 2020
01-19-00078-CV
Evelyn V. Keyes
Published
The appellant appealed the judgment of the trial court which found that the appellant breached the settlement and rejected the appellant’s counterclaims. On appeal, the appellant challenged the trial court's entry of the judgment on the jury verdict, awarding specific performance of release language in the settlement agreement and assessing attorney’s fees against the appellant. The appellate court noted that because the language of the Settlement Agreement was unambiguous, the trial court and not the jury should have determined the parties’ intent as a matter of law, and it could not do so by relying on extrinsic evidence to create an intent that the contract itself did not express. The appellate court held that the trial court reversibly erred by ruling that the Settlement Agreement was ambiguous, admitting and instructing the jury to consider parol evidence concerning whether the parties intended to divide the property according to the Survey, and submitting the question to the jury. The appellate court concluded that the issue of breach of the Settlement Agreement must be retried, and specific performance was an equitable remedy for breach of contract. Accordingly, the court reversed the judgment of the trial court and remanded the case. 


When properly construed and analyzed as a whole, sections 483.042(a) and 483.001(2) provided both fair notice of the prohibited conduct and sufficient guidelines for law enforcement, prosecutors, juries, and judges.
Ex parte Jarreau
Constitution, Criminal, Evidence, Health Care, Procedure
Texas 4th Court of Appeals
December 23, 2020
04-19-00704-CR
Irene Rios
Published
The defendant appealed the judgment of the trial court which convicted the defendant of delivery of a dangerous drug. On appeal, the defendant filed a pretrial application for a writ of habeas corpus, arguing that the relevant penal statutes, sections 483.042(a) and 483.001(2) of the Texas Health and Safety Code, were unconstitutionally vague on their face. The appellate court found that when measured by common understanding and practices, sections 483.042(a) and 483.001(2) provide ordinary people fair notice of the criminalized conduct. The appellate court noted that it could not be said that the challenged statutes provided “no standard” for law enforcement, prosecutors, judges, and juries, or that they delegated policy matters. The appellate court concluded that when properly construed and analyzed as a whole, sections 483.042(a) and 483.001(2) provided both fair notice of the prohibited conduct and sufficient guidelines for law enforcement, prosecutors, juries, and judges. Accordingly, the judgment of the trial court was affirmed and remanded for further proceedings.  


The appellate court had no need to reach the question of whether the claimed false information in the plaintiff's application would independently support dismissal of the claim under a “resume fraud” theory.
Tex. Dep't of Aging & Disability Services v. Lagunas
Civil Rights, Employment, Evidence, Gov't/Administrative, Health Care
Texas 8th Court of Appeals
December 23, 2020
08-19-00095-CV
Jeff Alley
Published
The defendant appealed the judgment of the trial court which denied its Plea to the Jurisdiction in a suit under the Texas Commission on Human Rights Act (TCHRA). On appeal, the defendant argued that the trial court should have granted its Plea to the Jurisdiction because the plaintiff failed to show that the defendant hired a younger individual to fill the position for which he applied. The appellate court found that the plaintiff failed to establish that the defendant's decision to restructure the department was made with discriminatory intent. The appellate court had no need to reach the question of whether the claimed false information in the plaintiff's application would independently support dismissal of the claim under a “resume fraud” theory, or whether the plaintiff met the objective criteria set forth in the job posting for the "Assistant Unit Director" or "AUD" position. Accordingly, the court reversed the trial court’s judgment and rendered judgment dismissing the plaintiff's claims for lack of jurisdiction.      


The fact the Department failed to meet its burden of proof and the child remained in managing conservatorship was not alone sufficient reason to exercise the court's discretion to remand for a new trial in the interest of justice.
In re J.M.T.
Appellate: Civil, Gov't/Administrative, Juvenile, Procedure
Texas 4th Court of Appeals
December 23, 2020
04-19-00807-CV
Luz Elena D Chapa
Published
The appellant appealed the judgment of the trial court which terminated the parent-child relationship between the appellant and the child, finding that it was in the child’s best interest. The appellate court found that in the usual case when the evidence was found to be legally insufficient to support a trial court’s termination order, the court had a duty to render judgment denying the petition to terminate. The appellate court determined that when unique or unusual circumstances resulted in the case not being fully developed, the court may exercise its discretion to remand for a new trial in the interest of justice. The appellate court concluded that the fact the Department failed to meet its burden of proof and the child remained in managing conservatorship was not alone sufficient reason to exercise the court's discretion to remand for a new trial in the interest of justice. Accordingly, the judgment was reversed and rendered.  


The appellate court concluded that regarding the awards for past and future mental anguish, loss of use, and diminution of value, the court had authority, pursuant to Rule 43.2 of the Texas Rules of Appellate Procedure, to reform the judgment removing the improper jury awards.
Wolf v. Starr
Appellate: Civil, Contracts, Damages, Evidence, Procedure, Torts
Texas 8th Court of Appeals
December 23, 2020
08-14-00236-CV
Yvonne T. Rodriguez
Published
The appellant appealed the judgment of the trial court which ruled in favor of the appellees for actual damages, mental anguish, attorney fees, and exemplary damages. On appeal, the appellant claimed that the evidence was legally and factually insufficient to support multiple parts of the jury award. The appellate court noted that it must determine whether the record contained evidence of how the diminished value contained in the repair estimate was calculated, and whether it was proper to include it in the award of damages. The appellate court sustained the appellant’s fourth issue only as it pertained to the diminished value portion of the damages estimate. The appellate court concluded that regarding the awards for past and future mental anguish, loss of use, and diminution of value, the court had authority, pursuant to Rule 43.2 of the Texas Rules of Appellate Procedure, to reform the judgment removing the improper jury awards. Accordingly, the judgment was affirmed as modified and reversed in part.


The appellate court concluded that the trial court did not err in appointing the Agency as sole managing conservator of the children.
In re D.L.W.W.
Contracts, Family, Gov't/Administrative, Juvenile
Texas 1st Court of Appeals
December 22, 2020
01-20-00507-CV
Julie Countiss
Published
The mother appealed the judgment of the trial court which terminated her parental rights to her minor child and awarded the Department of Family and Protective Services (the Agency) sole managing conservatorship of the mother’s minor children. The appellate court held that the evidence was legally sufficient to support the trial court’s findings that the mother and father engaged, or knowingly placed the child with persons who engaged, in conduct that endangered the child’s physical and emotional well-being. The appellate court found that there was no evidence presented that addressed the child’s precise physical and emotional condition at the time of trial. The appellate court concluded that the trial court did not err in appointing the Agency as sole managing conservator of the children. Accordingly, the judgment was affirmed, reversed, and remanded.  


The appellate court concluded that the appellants failed to establish that the TCPA applied to the appellee’s claims against them.
The Republic Tavern & Music Hall, LLC v. Laurenzo’s Midtown Mgmt., LLC
Appellate: Civil, Constitution, Contracts, Corporations, Evidence, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
December 22, 2020
14-19-00731-CV
Tracy Christopher
Published
The appellant appealed the judgment of the trial court which denied their motion under the Texas Citizens Participation Act (the TCPA) for dismissal of the claims against them. The appellate court noted that the only communications at issue in the appellee’s claims against the appellant were the contract between them, the alleged representations by the appellants that they would and could fund the construction and operation of the restaurant and disagreements about the appellee’s accounting. The appellate court found that the communications did not constitute an exercise of the right of association protected by the TCPA. The appellate court determined that because the appellants failed to meet their initial burden to prove by a preponderance of the evidence that the appellee’s claims were based on, related to, or in response to their exercise of their right of free speech, their right to petition, or their right of association, the burden never shifted to the appellee to establish a prima facie case for each element of its claims, nor did the burden then move back to the appellants to prove an affirmative defense. The appellate court concluded that the appellants failed to establish that the TCPA applied to the appellee’s claims against them. Accordingly, the judgment was affirmed.


The appellate court noted that the abuse-of-discretion standard articulated in Leonard v. State was applicable there.
Torres v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 22, 2020
01-18-01074-CR
Richard Hightower
Published
The defendant appealed the judgment of the trial court which convicted him of first-degree felony offense of aggravated robbery and deferred adjudication and placed him on community supervision for ten years. On appeal, the defendant challenged the trial court's grant of the State’s motion and assessed his punishment at twenty years’ confinement. The appellate court noted that the abuse-of-discretion standard articulated in Leonard v. State was applicable there. The appellate court determined that in reviewing whether the trial court abused its discretion the court must also examine the Substance Abuse Felony Punishment Facility (SAFPF)’s use of its discretion to ensure that it was used on a basis that was rational and connected to the purposes of community supervision. The appellate court concluded that the trial court failed to do so when it exercised its discretion to revoke the defendant's community supervision, adjudicate his guilt, and assess his punishment at 20 years’ confinement based solely on conclusory statements passed from the SAFPF program through a witness who had no personal knowledge of the circumstances leading to the defendant's unsuccessful discharge from the program. Accordingly, the judgment was reversed and remanded.


The State’s supplying of evidence after the hearing did not change the defendant's failure to prove entitlement to the relief sought. The appellate court concluded that any error in considering the State’s evidence would be harmless.
Ex Parte Allen
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 22, 2020
14-19-00898-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which sentenced the defendant to ten years’ confinement in the Texas Department of Criminal Justice but suspended that sentence for ten years and placed the defendant on community supervision for that term. On appeal, the defendant challenged the trial court’s order denying his application for a writ of habeas corpus, filed under article 11.072 of the Texas Code of Criminal Procedure. The appellate court noted that the statute provided that the State was not required to file an answer and that matters alleged in the application not admitted by the state were considered to have been denied. The appellate court found that the State’s supplying of evidence after the hearing did not change the defendant's failure to prove entitlement to the relief sought. The appellate court concluded that any error in considering the State’s evidence would be harmless. Accordingly, the court affirmed the trial court’s judgment denying habeas relief.      


The appellate court concluded that the defendant was not entitled to a jury instruction under article 38.23, and the trial court did not err by not giving such an instruction.
Kinnett v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 22, 2020
01-18-01128-CR
Evelyn Keyes
Published
The defendant appealed the judgment of the trial court which convicted the defendant of the third-degree felony offense of driving while intoxicated (DWI) and, after finding the allegations in two enhancement paragraphs true, assessed his punishment at confinement for life. The appellate court found that the evidence to justify an instruction under article 38.23 may be derived from any source, no matter whether the evidence was strong, weak, contradicted, unimpeached, or unbelievable, but it must raise a factual dispute concerning how the evidence was obtained. The appellate court noted that the issue of whether the defendant's vehicle was running at the time the Police Department Officer approached it was not contested by affirmative evidence at trial. The appellate court concluded that the defendant was not entitled to a jury instruction under article 38.23, and the trial court did not err by not giving such an instruction. Accordingly, the judgment was affirmed.  


The portion of the judgment awarding attorney’s fees should be reversed, and the attorney’s fees issue remanded to the trial court for a new trial.
Sustainable Texas Oyster Resource Management, L.L.C. v. Hannah Reef, Inc.
Contracts, Corporations, Gov't/Administrative
Texas 1st Court of Appeals
December 22, 2020
01-18-00088-CV
Richard Hightower
Published
The appellant appealed the judgment of the trial court after the Navigation District issued the Coastal Surface Lease to the appellant, parts of the 23,000 acres covered by the lease were already subject to six oyster-production permits, known as “certificates of location,” and accompanying oyster leases issued by the Texas Parks and Wildlife Department (TPWD) to oystermen. On appeal, the appellant challenged the trial court's grant of declaratory relief requested by the appellees. The appellate court agreed with the appellant that because the appellees did not segregate their attorney’s fees between claims on which attorney’s fees may be recovered and those for which they may not, the portion of the judgment awarding attorney’s fees should be reversed, and the attorney’s fees issue remanded to the trial court for a new trial. Accordingly, the judgment was reversed in part and affirmed in part. 


The Supreme Court concluded that because a trial court abused its discretion by holding a person in criminal contempt for violating an ambiguous order, and because the relator had no appellate remedy, the relator was entitled to her requested relief.
In re Janson
Criminal, Evidence, Juvenile, Procedure
The Supreme Court of Texas
December 18, 2020
19-1109
Per Curiam
Published
The relator (mother) appealed the judgment of the trial court, seeking a writ of mandamus. On appeal, the relator argued that an order holding her in criminal contempt was ambiguous and unenforceable. The Supreme Court found that because no other provision imposed a duty on the relator with respect to soccer at the time of the alleged violations, any violations necessarily involved violations of the provision the trial court found too ambiguous to be enforced by contempt. The Supreme Court concluded that because a trial court abused its discretion by holding a person in criminal contempt for violating an ambiguous order, and because the relator had no appellate remedy, the relator was entitled to her requested relief. Accordingly, the court conditionally granted mandamus relief directing the trial court to vacate its order holding the relator in contempt.  


The Supreme Court concluded that had greater care been taken in the drafting of the continuous-development clause, the litigation could have been avoided.
Endeavor Energy Res., L.P. v. Energen Res. Corp.
Contracts, Corporations, Real Property
The Supreme Court of Texas
December 18, 2020
18-1187
James D Blacklock
Published
The petitioner appealed the judgment of the trial court which granted summary judgment for the respondents. On appeal, the Supreme Court was asked to consider how to calculate the number of “unused days.” The petitioner argued that the agreement allowed it to carry forward unused days across multiple 150-day terms. In the alternative, the petitioner contended that the lease was at least ambiguous on that point such that the disputed language may not operate as a special limitation. The respondents counterargued that the contested provision unambiguously allowed unused days earned in any given term to be carried forward only once, to the next 150-day term. The Supreme Court found that because ambiguities in continuous-development clauses were frequent concerning the times at which wells must be commenced, great care should be exercised in drafting to avoid questions of whether the lessee has complied. The Supreme Court concluded that had greater care been taken in the drafting of the continuous-development clause, the litigation could have been avoided. Accordingly, the judgment of the appellate court was reversed and remanded for further proceedings consistent with the opinion.  


The Supreme Court concluded that the appellate court must detail why it had concluded that a reasonable factfinder could not have credited disputed evidence in favor of the finding.
In re Commitment of Stoddard
Appellate: Civil, Health Care
The Supreme Court of Texas
December 18, 2020
19-0561
Justice Lehrmann
Published
The defendant appealed the judgment of the trial court which ordered civil commitment under Health and Safety Code chapter 841 on the basis that he was a sexually violent predator (SVP). The Supreme Court noted that the standard as requiring it to weigh all the evidence in a neutral light to determine whether the jury’s finding was factually insufficient or was so against the great weight and preponderance as to be manifestly unjust, shocked the conscience, or clearly demonstrated bias. The Supreme Court found that the appellate standard governing a factual-sufficiency review of a finding that a person was a sexually violent predator was whether, in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of the verdict, along with undisputed facts contrary to the verdict, was so significant that the factfinder could not have found beyond a reasonable doubt that the statutory elements were met. The Supreme Court concluded that the appellate court must detail why it had concluded that a reasonable factfinder could not have credited disputed evidence in favor of the finding. Accordingly, the court reversed the appellate court's judgment and remanded the case to that trial court.    


The Supreme Court was confident the comptroller would comply, and writ would issue only if he did not.
In re Brown
Contracts, Evidence, Gov't/Administrative, Procedure
The Supreme Court of Texas
December 18, 2020
19-0877
Eva M. Guzman
Published
The relator appealed the judgment of the trial court which convicted and sentenced the relator to death because the prosecuting attorney withheld and suppressed exculpatory evidence. On appeal, the relator sought mandamus relief compelling the comptroller to withdraw his denial of the relator’s application for compensation and application to cure and compensate the relator for wrongful imprisonment in accordance with the Act’s terms. The Supreme Court found that the relator’s application checked all the statutory boxes, and as a purely ministerial matter, he was eligible for compensation under the Tim Cole Act. The Supreme Court noted that by considering matters beyond the verified documents to make a de novo jurisdictional determination, the comptroller exceeded his authority. The Supreme Court was confident the comptroller would comply, and writ would issue only if he did not. Accordingly, the court conditionally granted the relator's petition for writ of mandamus.       


The Supreme Court concluded that the trial court did not abuse its discretion when it admitted the accountant’s deposition testimony.
Lion Copolymer Holdings, LLC v. Lion Polymers, LLC
Contracts, Corporations, Damages, Torts
The Supreme Court of Texas
December 18, 2020
19-0343
Per Curiam
Published
The petitioner appealed the judgment of the trial court which awarded the respondent actual damages. On appeal, the petitioner argued that the evidence was so weak that it was factually insufficient to support a finding that the petitioner owed the respondent any money. The Supreme Court noted that a party attacking the factual sufficiency of a finding on appeal must demonstrate on appeal that the adverse finding was against the great weight and preponderance of the evidence. The Supreme Court found that the appellate court erred in holding that the petitioner waived its factual sufficiency complaint by inadequately briefing the issue, and the accountant’s deposition testimony addressed the heart of the dispute whether this was the final spreadsheet he compiled, which showed the tax as previously deducted thus it did not have a tendency to confuse or mislead the jury because it addressed the exact wrong the respondent complained of. The Supreme Court concluded that the trial court did not abuse its discretion when it admitted the accountant’s deposition testimony. Accordingly, the court granted the petitioner’s petition for review, reversed the appellate court’s judgment, and remanded the case.  


Although there was evidence that the mother had partially completed her service plan and was bonded with the children, the evidence was factually sufficient to support the trial court’s best-interest finding.
In re J.O.H.
Appellate: Civil, Gov't/Administrative, Juvenile, Procedure
Texas 4th Court of Appeals
December 18, 2020
04-20-00330-CV
Liza A. Rodriguez
Published
The mother appealed the judgment of the trial court which terminated her parental rights to her five children. On appeal, the mother challenged the trial court's finding by clear and convincing evidence that termination of the mother's parental rights was in the children’s best interest. The appellate court noted that at the time of trial, the children were still living with their maternal grandmother, with whom the children were bonded and with whom both their emotional and physical needs were being met. The appellate court found that there was also some testimony that one of the children had “special needs,” although there were no specifics contained in the record. The appellate court concluded that although there was evidence that the mother had partially completed her service plan and was bonded with the children, the evidence was factually sufficient to support the trial court’s best-interest finding. Accordingly, the judgment was affirmed.


The appellate court concluded that the father did not have standing to appeal the trial court’s judgment denying the Department's petition for termination.
In re P.R.
Appellate: Civil, Family, Gov't/Administrative, Juvenile, Procedure
Texas 6th Court of Appeals
December 18, 2020
06-20-00022-CV
Ralph Burgess
Published
The father appealed the judgment of the trial court, complaining that the trial court erroneously denied the petition to terminate his parental rights to the children. On appeal, the father contended that his Due Process rights were violated because neither he nor his counsel were present for the final hearing; the evidence supporting the trial court's order denying termination of his parental rights was legally insufficient, and the evidence supporting the trial court's order denying termination of his parental rights was factually insufficient. The appellate court found that because the trial court in the case denied the Department's petition to terminate the father's parental rights, the father was not injuriously affected by that judgment. The appellate court concluded that the father did not have standing to appeal the trial court’s judgment denying the Department's petition for termination. Accordingly, the court dismissed the father's appeal.   


The appellate court concluded that the trial court did not err by denying the appellants’ motion to dismiss pursuant to the TCPA because the appellants did not establish that the TCPA applied.
Ngo v. Ass'n of Woodwind Lakes Homeowners, Inc.
Appellate: Civil, Contracts, Procedure, Real Property
Texas 1st Court of Appeals
December 17, 2020
01-18-00919-CV
Russell Lloyd
Published
The appellants appealed the judgment of the trial court which denied their motion to dismiss the appellee's suit for breach of contract, alleging that they violated the community’s deed restrictions. On appeal, the appellants challenged the trial court's denial of their motion to dismiss the suit pursuant to the Texas Citizens Participation Act (TCPA). The appellate court found that the appellants did not meet their burden of showing, by a preponderance of the evidence, that the appellee’s suit was based on, related to, or was in response to the appellants’ exercise of their right of association as that term was used in the TCPA. The appellate court concluded that the trial court did not err by denying the appellants’ motion to dismiss pursuant to the TCPA because the appellants did not establish that the TCPA applied. Accordingly, the judgment was affirmed.  


The appellate court concluded that having considered and rejected all reasons advanced by the defendant for holding section 43.26 unconstitutionally overbroad, the court overruled the defendant's sole issue on appeal.
Ex parte Dehnert
Constitution, Criminal, Evidence
Texas 1st Court of Appeals
July 14, 2020
01-20-00344-CR
Sherry Radack
Published
The defendant appealed the judgment of the trial court which denied the relief he requested in his pretrial applications for writ of habeas corpus. On appeal, the defendant contended that the Texas Penal Code statute prohibiting the possession of child pornography was facially overbroad and violated the Free Speech Clause of the United States and Texas Constitutions. The defendant further asserted that section 43.26 was unconstitutional. The appellate court found that the Texas Supreme Court had not interpreted Article I, section 8 more broadly than the First Amendment in any case that did not involve an issue of a prior restraint on free speech. The appellate court determined that the case did not involve an issue of a prior restraint on free speech, and the defendant had shown no reason, based on “the text, history, or purpose of Article 1, section 8,” for the court to expand the protections afforded in in the case beyond those provided by the First Amendment. The appellate court concluded that having considered and rejected all reasons advanced by the defendant for holding section 43.26 unconstitutionally overbroad, the court overruled the defendant's sole issue on appeal. Accordingly, the trial court’s judgment was affirmed.    


The appellate court concluded that sections 20A.02(a)(5) and 20A.02(a)(6) of the Texas Penal Code were neither facially unconstitutionally overbroad nor facially unconstitutionally vague.
Ex parte Barrett
Appellate: Civil, Constitution, Juvenile
Texas 5th Court of Appeals
July 17, 2020
05-19-00889-CR
Robbie Partida-Kipness
Published
The defendants appealed the judgment of the trial court which convicted them of the offense of trafficking of children for forced labor or services. On appeal, the defendants challenged the trial court’s denial of their pretrial applications for writ of habeas corpus in which they asserted facial constitutional challenges to section 20A.02. The appellate court found that because the challenged portions of section 20A.02 did not contain a substantial number of impermissible applications that would inhibit the exercise of First Amendment rights to free speech and intimate association when judged in relation to the statute’s plainly legitimate sweep, the trial court did not abuse its discretion in concluding the statute was not overbroad. The appellate court determined that the trial court did not abuse its discretion by declining to apply substantial overbreadth review. The appellate court concluded that sections 20A.02(a)(5) and 20A.02(a)(6) of the Texas Penal Code were neither facially unconstitutionally overbroad nor facially unconstitutionally vague. Accordingly, the judgment was affirmed. 


The appellate court concluded that the defendant presented no appellate issues warranting reversal of the trial court’s judgment.
Harrison v. Reiner
Appellate: Civil, Bankruptcy, Contracts, Corporations, Damages
Texas 14th Court of Appeals
August 06, 2020
14-19-00050-CV
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which ruled in favor of the deceased. The appellate court found that the record reflected that first attorney filed a notice of appearance as her counsel of record, and he represented her during the trial; the defendant brought forth no complaints about the attorney’s performance. The appellate court noted that it could not say that the defendant was harmed by the second attorney's withdrawal. The appellate court determined that the defendant offered no discernible argument and cited no authority in support of her issues in the section of her brief, and thus, the defendant had waived the issues because she had inadequately briefed them. The appellate court concluded that the defendant presented no appellate issues warranting reversal of the trial court’s judgment. Accordingly, the judgment was affirmed.    


The appellate court concluded that due to the record presented in the case, the court found no abuse of discretion in the trial court’s finding that providing the mother with the complained-of exclusive rights was in the children’s best interests.
In re D.L.N.
Appellate: Civil, Family, Procedure
Texas 6th Court of Appeals
August 19, 2020
06-19-00090-CV
Scott E. Stevens
Published
The father appealed the judgment of the trial court which modified the relationship with his children. On appeal, the father argued that the trial court abused its discretion by awarding the mother child support in excess of statutory guidelines, awarding the mother the exclusive right to establish the children’s residence without geographical restriction, and awarding the mother other exclusive rights, including the rights to consent to the children’s health care needs, make decisions about their education, and maintain their passports. The appellate court found that the record showed that the father had interfered in the mother’s attempts to obtain schooling and adequate medical care for the children. The appellate court noted that the trial court also heard that the father refused to cooperate with the mother on even simple tasks, such as picking up medication for his son, and would withhold information and consent to decisions involving the children just to place undue burdens on the mother. The appellate court concluded that due to the record presented in the case, the court found no abuse of discretion in the trial court’s finding that providing the mother with the complained-of exclusive rights was in the children’s best interests. Accordingly, the judgment was affirmed.   


The appellee responded that the money held in escrow had no double-recovery implications because Brady was not a party to the escrow agreement but acknowledged that the amounts paid to the company from the escrow account would come into play in any one-satisfaction analysis.
Spicer v. Maxus Healthcare Partners, LLC
Appellate: Civil, Contracts, Damages, Health Care, Procedure, Torts
Texas 2nd Court of Appeals
December 17, 2020
02-17-00449-CV
Bonnie Sudderth
Published
The appellant appealed the judgment of the trial court which ruled in favor of the appellee in a breach of contract action. The appellate court observed that there was ample evidence, as set out, upon which the jury could have found that the company had breached both an asset purchase agreement (APA) Sections 2.16 and 2.17. The appellate court found that the evidence was sufficient to support the $2.3 million in the jury’s finding and in the judgment. The appellate court noted that because the record reflected that the company did not breach Section 4.15, the court sustained the portion of the appellants’ issues. The appellate court concluded that the appellee responded that the money held in escrow had no double-recovery implications because Brady was not a party to the escrow agreement but acknowledged that the amounts paid to the company from the escrow account would come into play in any one-satisfaction analysis. Accordingly, the judgment was affirmed, reversed, rendered, and remanded. 


The appellate court concluded that the trial court’s error in excluding the guardian ad litem report and limiting the testimony of the court-appointed guardian ad litem could not be adequately remedied on appeal following trial.
In re Ortegon
Constitution, Family, Procedure
Texas 4th Court of Appeals
December 16, 2020
04-20-00451-CV
Beth Watkins
Published
The relator appealed the judgment of the trial court, filing a petition for writ of mandamus, asserting that the trial court abused its discretion by excluding the report and limiting the testimony of a guardian ad litem appointed in the underlying suit affecting the parent-child relationship (SAPCR), and that such error could not be adequately remedied on appeal. The appellate court noted that when considered in isolation, TEX. FAM. CODE section 104.008 appeared to show the Legislature’s intent that child custody evaluators were the only witnesses who could provide recommendations on a child’s best interest in disputes about conservatorship of and access to a child. The appellate court found that because the trial court’s order stripped the guardian ad litem of authority to which he was statutorily entitled, that order constituted an abuse of discretion. The appellate court determined that if the trial proceeds under the existing order, the relator would be prevented from presenting much of the court-appointed guardian ad litem’s evidence on the best interest of the child. The appellate court concluded that the trial court’s error in excluding the guardian ad litem report and limiting the testimony of the court-appointed guardian ad litem could not be adequately remedied on appeal following trial. Accordingly, the court conditionally granted the petition for writ of mandamus.                


The appellate court concluded that the final claim was contingent on the appellants succeeding on at least one of its first three issues.
Deander & Felhaber, LP v. Montgomery
ADR, Evidence, Procedure
Texas 8th Court of Appeals
December 10, 2020
08-18-00209-CV
Gina M. Palafox
Published
The appellants appealed the judgment of the trial court which made rulings after referring the matter to arbitration. On appeal, the appellants challenged the arbitrator’s consideration of certain business records. The appellate court noted that the appellants sought vacatur or modification of the arbitration award on the grounds that the trial court committed evidentiary error before the case was referred to arbitration by refusing to strike certain business records affidavits, and the arbitrator committed error by considering the invoices of the firm which rendered the service because they were unreliable. The appellate court found that the trial court in the case had no option but to confirm the award, and the appellants had presented no ground upon which the court may disturb that confirmation. The appellate court concluded that the final claim was contingent on the appellants succeeding on at least one of its first three issues. Accordingly, the judgment of the trial court was affirmed.  


Since the appellant’s notice of past due findings of fact and conclusions of law was untimely, he waived any complaint regarding the trial court’s failure to file findings of fact and conclusions of law.
In re S.M.
Appellate: Civil, Family, Juvenile, Procedure
Texas 12th Court of Appeals
December 16, 2020
12-19-00395-CV
James T. Worthen
Published
The appellant appealed the judgment of the trial court in a suit to modify the parent-child relationship. On appeal, he argued that the trial court failed to consider child support that he paid to the children’s mother, when calculating her net resources. The appellate court found that the trial court failed to respond to a timely request for findings within twenty days, the requesting party must file a notice of past due findings within thirty days of the original request. The appellate court noted that the party who failed to file a notice of past due findings and conclusions or filed an untimely notice of past due findings and conclusions waived a complaint on appeal regarding a trial court’s failure to file findings of fact and conclusions of law. The appellate court concluded that because the appellant’s notice of past due findings of fact and conclusions of law was untimely, he waived any complaint regarding the trial court’s failure to file findings of fact and conclusions of law. Accordingly, the judgment was affirmed.    


The appellate court concluded that it need not discuss the grandparents’ second issue challenging the mother’s prima facie case on the essential elements of her request for an injunction.
In re C.T.H.
Appellate: Civil, Family, Juvenile, Procedure
Texas 5th Court of Appeals
December 15, 2020
05-19-01476-CV
Leslie Lester Osborne
Published
The grandparents of the children appealed the judgment of the trial court which denied their application after the mother filed an application for injunctive relief to prevent the grandparents from contacting or communicating with the children. On appeal, the grandparents challenged the trial court's denial of their motion to dismiss the mother’s application under the Texas Citizens Participation Act (TCPA). The appellate court found that because the grandparents’ supplemental motion to dismiss was not filed or heard within the TCPA’s 60-day deadlines, the trial court did not err by denying it. The appellate court decided the grandparents’ first issue against them. The appellate court concluded that it need not discuss the grandparents’ second issue challenging the mother’s prima facie case on the essential elements of her request for an injunction. Accordingly, the court affirmed the trial court’s order denying the grandparents’ motion to dismiss.      


The appellate court concluded that the trial court did not abuse its discretion in finding that the motion was solely intended to delay and in awarding costs and attorney’s fees to the parties after denying the appellants' amended TCPA motion.
Reynolds v. Sanchez Oil & Gas Corp.
Appellate: Civil, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
December 15, 2020
01-18-00940-CV
Evelyn V. Keyes
Published
The appellants appealed the judgment of the trial court, filing an amended motion to dismiss under the Texas Citizens Participation Act (TCPA). The appellate court found that the trial court found that appellants amended the motion was intended solely for delay, but it did not make a finding whether the motion was also frivolous. The appellate court agreed with the appellees' parties that delay motivated the appellants to file their amended TCPA motion. The appellate court could not say that the trial court acted without reference to any guiding rules or principles in concluding that the appellants filed their amended TCPA motion solely to delay the trial proceedings and not to advance any meritorious grounds for dismissal of the parties' claims and that, the trial court’s dismissal of the appellants' amended TCPA motion was arbitrary, unreasonable, and without reference to guiding principles. The appellate court concluded that the trial court did not abuse its discretion in finding that the motion was solely intended to delay and in awarding costs and attorney’s fees to the parties after denying the appellants' amended TCPA motion. Accordingly, the judgment of the trial court was affirmed. 


The county court at law lacked jurisdiction to enter a judgment of conviction for official oppression against the defendant.
Roland v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 15, 2020
01-19-00752-CR
Sarah Beth Landau
Published
The defendant appealed the judgment of the trial court which convicted him of official oppression, a Class A misdemeanor, and placed the defendant on deferred adjudication community supervision for six months. On appeal, the defendant challenged the trial court's denial of the defendant's motion to dismiss. The appellate court noted that the State responded that trial courts and county courts have concurrent original jurisdiction over misdemeanor offenses involving official misconduct. To appellate court found that neither the Code of Criminal Procedure nor the Government Code granted original jurisdiction over misdemeanors involving official misconduct to county courts at law. The appellate court concluded that the county court at law lacked jurisdiction to enter a judgment of conviction for official oppression against the defendant. Accordingly, the court vacated and dismissed the trial court’s judgment.


The appellate court directed the trial court to vacate its order denying the motion to stay enforcement of the judgment and grant a stay of enforcement of that judgment pending further proceedings consistent with the opinion.
In re Outreach Hous. Corp.
Appellate: Civil, Constitution
Texas 5th Court of Appeals
July 30, 2020
05-20-00431-CV
Cory L Carlyle
Published
The relators appealed the judgment of the trial court, requesting a writ of mandamus directing the trial court to vacate an order reopening a case and denying their motion to dismiss or stay enforcement of what they characterized as an interlocutory default judgment. The appellate court found that the trial court abused its discretion by denying that motion to stay because the judgment was interlocutory and may not be enforced. The appellate court noted that because there was no final judgment in the case, the trial court abused its discretion but only by not staying the current litigation seeking to enforce the interlocutory judgment. The appellate court directed the trial court to vacate its order denying the motion to stay enforcement of the judgment and grant a stay of enforcement of that judgment pending further proceedings consistent with the opinion. Accordingly, the judgment of the trial court was vacated. 


The appellate court concluded that the failure to present clear and convincing evidence required reversal of the order and rendition that the State’s application was denied.
Thatcher v. State
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
December 04, 2020
07-20-00230-CV
Lawrence M. Doss
Published
The defendant appealed the judgment of the trial court which authorized the involuntary administration of psychoactive medication into a non-consenting person awaiting his criminal trial. On appeal, the defendant challenged the adverse judgment of the trial court. The appellate court held that the State failed to present any evidence of its required elements, notwithstanding the trial court taking judicial notice of the doctor’s report. The appellate court noted that Rule of Evidence 201 permitted a court to judicially notice adjudicative facts that were not subject to reasonable dispute because they were either generally known within the trial court’s territorial jurisdiction or capable of accurate and ready determination from sources whose accuracy could not reasonably be questioned. The appellate court concluded that the failure to present clear and convincing evidence required reversal of the order and rendition that the State’s application was denied. Accordingly, the court reversed and rendered an order that the State’s application was denied.    


The trial court abused its discretion by granting the RPI’s plea in abatement and ordering the State to make a bona fide offer to him before the special commissioners’ hearing occurs.
In re Texas
Constitution, Gov't/Administrative, Real Property
Texas 3rd Court of Appeals
December 02, 2020
03-20-00447-CV
Gisela D. Triana
Published
The relator appealed the judgment of the trial court, filing a petition for writ of mandamus challenging the trial court’s order sustaining real party in interest's (RPI) plea in abatement in the underlying eminent-domain proceeding. On appeal, the State petitioned for condemnation of certain real property and interests or rights pertaining thereto, asserting that the condemnation was necessary for public use to make improvements to State Highway. The appellate court noted that the trial court sustained the plea, abating the case until the State complied with Tex. Prop. Code Section 21.0113 by providing RPI with a bona fide offer and giving him fourteen days to respond to the offer. The appellate court found that as an interest holder and a party to the condemnation petition, the RPI may participate in the special commissioners’ hearing and advocate his position regarding the amount of compensation owed for the easement so that it was incorporated into the total compensation paid for the property. The appellate court concluded that the trial court abused its discretion by granting the RPI’s plea in abatement and ordering the State to make a bona fide offer to him before the special commissioners’ hearing occurs. Accordingly, the court conditionally granted the State’s petition for writ of mandamus.  


Since no express contract provision required the University to perform as the plaintiff alleged in its second amended petition, the plaintiff failed to show, as a matter of law, that Texas Civil Practice and Remedies Code Chapter 114 waived the University's immunity from suit.
Tex. S. Univ. v. Pepper Lawson Horizon Int'l Group, LLC
Appellate: Civil, Contracts, Procedure
Texas 1st Court of Appeals
December 01, 2020
01-19-00395-CV
Julie Countiss
Published
The University appealed the judgment of the trial court which denied its first amended plea to the jurisdiction filed in the suit brought against it by the plaintiff for breach of contract under Texas Civil Practice and Remedies Code Chapter 114 and for violation of the Texas Prompt Payment Act (PPA). The appellate court noted that the plaintiff did not identify a separate statutory source outside of the PPA that allowed a waiver of sovereign immunity for its claim against the University for violation of the PPA. The appellate court found that the PPA did not waive the University's sovereign immunity related to the plaintiff's claim for violation of the PPA and the trial court erred in denying the University's first amended plea to the jurisdiction on the claim under the PPA. The appellate court concluded that because no express contract provision required the University to perform as the plaintiff alleged in its second amended petition, the plaintiff failed to show, as a matter of law, that Texas Civil Practice and Remedies Code Chapter 114 waived the University's immunity from suit. Accordingly, the judgment was reversed and rendered.  


The appellate court determined that the evidence was legally and factually sufficient to support the jury’s finding the defendant was negligent.
Gregory v. Chohan
Appellate: Civil, Damages, Evidence, Litigation: Personal Injury, Procedure, Torts
Texas 5th Court of Appeals
November 30, 2020
05-18-00167-CV
Amanda L. Reichek
Published
The appellants appealed a judgment of the trial court which awarded damages to the Estate of the deceased and his wife, children, and parents in connection with the deceased's death following a multi-vehicle collision on Interstate 40 in Texas. The appellate court found that considering and weighing all of the evidence in the record pertinent to the finding of negligence, the court determined that there was more than a scintilla of competent evidence to support the jury’s finding, and the finding was not contrary to the overwhelming weight of all the evidence as to be clearly wrong and unjust. The appellate court determined that the evidence was legally and factually sufficient to support the jury’s finding the defendant was negligent. The appellate court concluded that based on the evidence presented at trial, the jury could have reasonably concluded that the defendant's initial negligence in jackknifing the trailer and abandoning the vehicle on a dark, icy highway without warning to oncoming traffic, continued to pose a danger to all motorists who approached the scene thereafter and until the injuries at issue there occurred. Accordingly, the judgment of the trial court was affirmed. 


The appellate court concluded that, on the record, the defendant had not affirmatively met her heavy burden to show that the trial court’s admonishments left her unaware of the consequences of her plea, or that she was misled and harmed by pleading guilty.
Thomas v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 01, 2020
01-18-00504-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which convicted her of one count of first-degree theft and one count of first-degree money laundering without an agreed punishment recommendation. On appeal, the defendant challenged the trial court's sentence to 28 years’ confinement. The appellate court held that the defendant had not waived her right to appeal the trial court’s judgment, and, therefore, the court had subject-matter jurisdiction to consider the merits of the defendant's remaining issues on appeal. The appellate court found that based on the defendant's lack of briefing on the issue and her appellate counsel’s representations at the hearing on remand to the trial court after the defendant filed her brief in the appeal, the defendant had not raised a claim of ineffective assistance of counsel. The appellate court concluded that, on the record, the defendant had not affirmatively met her heavy burden to show that the trial court’s admonishments left her unaware of the consequences of her plea, or that she was misled and harmed by pleading guilty. Accordingly, the court affirmed the judgment of the trial court.  


Since the appellants have neither asserted a particularized injury nor sought to enjoin the illegal expenditure of public funds, the appellants lacked standing to assert their challenge.
Turner v. Jones
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Real Property, Tax
Texas 14th Court of Appeals
December 03, 2020
14-19-00989-CV
Tracy Christopher
Published
The appellant appealed the judgment of the trial court, seeking a declaration that the appellees must fund the Drainage Fund according to the formula stated in the charter. On appeal, the appellants sought injunctive and mandamus relief against the appellees, insofar as the appellees were allegedly underfunding the Drainage Fund. The appellate court noted that the appellees filed a separate plea to the jurisdiction, in which they argued that they had not underfunded the Drainage Fund and that the appellants had failed to plead an ultra vires claim. The appellate court found that because the appellants have neither asserted a particularized injury nor sought to enjoin the illegal expenditure of public funds, the appellants lacked standing to assert their challenge. Accordingly, the court reversed the trial court’s order and rendered judgment dismissing the appellant's case for want of jurisdiction.  


The wife failed to meet her initial burden to show the husband's suit was based on or in response to her exercise of the rights of free speech or association.
Morris v. Daniel
Appellate: Civil, Contracts, Family, Juvenile, Torts
Texas 1st Court of Appeals
December 03, 2020
01-20-00148-CV
Gordon Goodman
Published
The wife appealed the judgment of the trial court in a dispute as to the custody of their child via a mediated settlement agreement. On appeal, the wife challenged the trial court’s order denying her motion to dismiss the husband's suit under the Texas Citizens Participation Act. The appellate court found that the trial court did not err in denying the wife's motion to dismiss the husband's legal action under the Citizens Participation Act because the Act did not apply to his legal action. The appellate court noted that because the Act did not apply, the court did not proceed to the second step of the analysis and decide whether the husband made a prima facie case supporting his claims. The appellate court concluded that the wife failed to meet her initial burden to show the husband's suit was based on or in response to her exercise of the rights of free speech or association. Accordingly, the court affirmed the trial court’s order denying her motion to dismiss.  


The appellate court concluded that the MDL court had subject-matter jurisdiction over the plaintiffs' and the defendants' litigation and its rulings on the special appearances the merits were not void.
Mass. Bay Ins. Co. v. Adkins
Appellate: Civil, Insurance, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
December 03, 2020
01-18-00993-CV
Evelyn V. Keyes
Published
The defendants appealed the judgment of the trial court in litigation arising out of two asbestos-related personal injury lawsuits. The appellate court noted that because the first pleading filed by Massachusetts Bay in a Texas court in the plaintiffs' litigation was its answer, special exceptions, and plea to the jurisdiction, which did not challenge the exercise of personal jurisdiction over it by a Texas court, the trial court did not err by impliedly concluding that the defendants waived its special appearance and instead entered a general appearance. The appellate court found that the trial court did not err by denying the defendants' special appearance. The appellate court concluded that the MDL court had subject-matter jurisdiction over the plaintiffs' and the defendants' litigation and its rulings on the special appearances the merits were not void. Accordingly, the judgment was affirmed.  


The appellate court concluded that the trial court did not abuse its discretion in granting the temporary injunction.
Danbill Partners, L.P. v. Sandoval
Appellate: Civil, Contracts, Damages, Litigation: Personal Injury, Procedure, Real Property, Torts
Texas 8th Court of Appeals
November 30, 2020
08-19-00139-CV
Yvonne T. Rodriguez
Published
The appellant appealed the judgment of the trial court which enjoined them from foreclosing on a property whose rightful ownership was disputed. On appeal, the appellant challenged the trial court's grant of a temporary injunction in the appellees’ favor, which prohibited the appellant from foreclosing pending the outcome of a trial on the merits. The appellate court noted that the trial court’s decision to vacate the trial setting indefinitely pending appeal transformed an otherwise valid temporary injunction order, and rendered it void because of the subsequent modification. The appellate court found that if the trial court set a new trial setting, thereby modifying the injunction order once again, ostensibly, the temporary injunction order would assume its validity under Rule 683. The appellate court concluded that the trial court did not abuse its discretion in granting the temporary injunction. Accordingly, the judgment was vacated and remanded.


The defendant's references to a janitor or a secretary addressed theoretical harm rather than actual harm, and thus, the record did not reflect that the defendant was egregiously harmed by the definition of employer that the trial court used in the court’s charge.
Loving v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
November 30, 2020
11-18-00325-CR
John M. Bailey
Published
The defendant appealed the judgment of the trial court which convicted the defendant of unauthorized employment of an unlicensed person, a criminal offense contained within the Private Security Act. On appeal, the defendant challenged the trial court's conviction. The appellate court noted that a rational jury could have found beyond a reasonable doubt the essential elements of the offense of unauthorized employment of an unlicensed person as the offense was set out in Section 1702.386. The appellate court found that the defendant was not egregiously harmed by the definition used by the trial court, and the evidence established that the defendant violated the unauthorized employment statute by hiring the employee, thereby employing him. The appellate court concluded that the defendant's references to a janitor or a secretary addressed theoretical harm rather than actual harm, and thus, the record did not reflect that the defendant was egregiously harmed by the definition of employer that the trial court used in the court’s charge. Accordingly, the judgment was affirmed.    


Since the defendant had not met its burden to negate the bases of specific jurisdiction alleged against it, the trial court did not err in denying the defendant's special appearance and exercising specific personal jurisdiction over the defendant.
Fuji Elec. Co., Ltd. v. Perez
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
November 24, 2020
01-19-00373-CV
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which denied the defendant's special appearance, ruling that it could properly exercise specific personal jurisdiction over the defendant. On appeal, the defendant challenged the plaintiff's claims for negligent misrepresentation, negligence, gross negligence, and products liability. The appellate court found that the defendant had argued for the first time in its reply brief that the plaintiff's interest in having the defendant as a defendant was non-existent because the plaintiff filed his lawsuit more than fifteen years after the date of the sale of the plaintiff's transformers. The appellate court noted that the statute of repose had nothing to do with whether the trial court properly asserted personal jurisdiction over the defendant. The appellate court concluded that since the defendant had not met its burden to negate the bases of specific jurisdiction alleged against it, the trial court did not err in denying the defendant's special appearance and exercising specific personal jurisdiction over the defendant. Accordingly, the judgment was affirmed.  


The appellate court concluded that the trial court did not err by including a jury instruction under article 13.19 of the Code of Criminal Procedure.
Romano v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
November 24, 2020
14-18-01073-CR
Ken Wise
Published
The defendant appealed the judgment of the trial court which convicted the defendant of attempted indecency with a child by contact, indecency with a child by contact, and indecency with a child by exposure. On appeal, the defendant argued that the individual’s testimony could not support a finding beyond a reasonable doubt that the defendant committed that offense because the individual did not tell his mother what happened in the hot tub, and the grand jury did not indict him for his conduct towards the individual. The appellate court noted that the defendant wrongly suggested the conflicting evidence of where the spooning and skinny-dipping incidents took place rendered the evidence legally insufficient. The appellate court found that venue was a procedural matter, not an element of a crime. The appellate court concluded that the trial court did not err by including a jury instruction under article 13.19 of the Code of Criminal Procedure. Accordingly, the judgment of the trial court was affirmed.  


The appellate court noted that the covenant not to compete was not designed to enforce the employee’s consideration or return promise in an otherwise enforceable agreement.
Titan Oil & Gas Consultants, LLC v. Willis
Appellate: Civil, Contracts, Employment, Procedure
Texas 6th Court of Appeals
November 24, 2020
06-20-00026-CV
Ralph Burgess
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in favor of the defendant and dismissed the plaintiff's suit to enforce a covenant not to compete contained in its contractor agreement. On appeal, the plaintiff challenged the trial court’s grant of summary judgment in favor of the defendant and its dismissal of the plaintiff's claims. The appellate court found that since the plaintiff did not provide any consideration for the defendant's promise not to use the corporation’s confidential information for his benefit, there was no otherwise enforceable agreement. The appellate court noted that the covenant not to compete was not designed to enforce the employee’s consideration or return promise in an otherwise enforceable agreement. The appellate court concluded that the trial court did not err when it granted the defendant's motion for summary judgment. Accordingly, the judgment was affirmed.    


The trial court did not abuse its discretion in awarding the plaintiffs, as the prevailing party, its full measure of attorney’s fees.
Turners v. Ewing
Appellate: Civil, Contracts, Damages, Evidence, Torts
Texas 14th Court of Appeals
November 24, 2020
14-18-01020-CV
Margaret Poissant
Published
The defendant appealed the judgment of the trial court awarding damages and attorney’s fees to the plaintiffs in the plaintiffs' suit to recover on a construction contract. The appellate court found that in light of the evidence presented, the jury’s finding of damages in favor of the plaintiffs was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The appellate court held that the evidence was legally and factually sufficient to support the jury’s findings. The appellate court determined that because the defendant did not prevail on its breach of contract counterclaim and did not recover damages, the trial court did not abuse its discretion in refusing to award attorney’s fees to the defendant. The appellate court concluded that the trial court did not abuse its discretion in awarding the plaintiffs, as the prevailing party, its full measure of attorney’s fees. Accordingly, the court affirmed the trial court’s judgment.      


The appellate court concluded that the trial court erred by granting the defendant's motion for summary judgment.
Ledesma v. Houston
Appellate: Civil, Employment, Gov't/Administrative, Procedure, Torts
Texas 1st Court of Appeals
November 24, 2020
01-19-00034-CV
Evelyn V. Keyes
Published
The plaintiffs appealed the judgment of the trial court which ruled in favor of the defendant-officer under the Texas Tort Claims Act after a motor-vehicle collision. On appeal, the plaintiffs challenged the grant of the defendant's motion to dismiss the plaintiffs’ claims against its employee under the Act’s election-of-remedies provision. The appellate court found that by moving to dismiss the plaintiffs’ claims against the employee under Section 101.106(e), the defendant judicially admitted that the employee was acting within the scope of her employment and agreed to vicariously defend her, and the defendant's judicial admission barred it from later disputing that the employee was acting within the scope of her employment. The appellate court concluded that the trial court erred by granting the defendant's motion for summary judgment. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.    


The charge before the court did not assume the defendant's victim was a "disabled individual" rather than requiring the jury to find he was so as a prerequisite to a guilty verdict.
Hopkins v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
November 24, 2020
01-19-00221-CR
Gordon Goodman
Published
The defendant appealed the judgment of the trial court which convicted him of the offense of aggravated sexual assault, finding that the defendant intentionally and knowingly caused his mouth to contact the sexual organ of a disabled individual, without consent. On appeal, the defendant challenged the trial court's assessment of punishment at 18 years’ confinement. The appellate court found that the same conduct constituted aggravated sexual assault if the victim was a “disabled individual,” which was “a person older than 13 years of age who by reason of age or physical or mental disease, defect, or injury was substantially unable to protect the person’s self from harm or to provide food, shelter, or medical care for the person’s self.” The appellate court noted that viewing all the evidence in the light most favorable to the verdict, the evidence was legally sufficient to prove the defendant knew the disabled individual had a mental disease or defect that made him incapable of appraising the nature of oral sex or resisting it. The appellate court agreed with the Romero v. State court and held that the charge before the court did not assume the defendant's victim was a "disabled individual" rather than requiring the jury to find he was so as a prerequisite to a guilty verdict. Accordingly, the trial court's judgment was affirmed. 


The State failed to apprise the defendant of the offense with which he was charged and it failed to allege facts in the indictment necessary to demonstrate that the offense was one that vested jurisdiction in the trial court.
State v. Green
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
November 23, 2020
06-20-00010-CR
Ralph Burgess
Published
The State appealed the judgment of the trial court which heard the defendant's motion to quash. On appeal, the State argued that it had the discretion to charge forgery of a twenty-dollar bill as either a class C misdemeanor under subsection (e-1)(1) or as a third-degree felony under subsection (e). The appellate court found that the language in Section 32.21(e-1) “to obtain or attempt to obtain a property or service” created an offense-classification scheme “based on aggravating facts associated with the circumstances of the offense.” The appellate court noted that the question it must resolve was how much of this information the State must allege in an indictment to charge an offense under Section 32.21(e) when the defendant filed a motion to quash the indictment. The appellate court concluded that the State failed to apprise the defendant of the offense with which he was charged and it failed to allege facts in the indictment necessary to demonstrate that the offense was one that vested jurisdiction in the trial court. Accordingly, the judgment of the trial court was affirmed.  


The Texas Commission on Human Rights Act did not waive the petitioner's sovereign immunity from the suit, and the trial court therefore erred by not granting its plea to the jurisdiction.
Tex. Tech Univ. Health Sciences Ctr.-El Paso v. Flores
Appellate: Civil, Civil Rights, Employment, Evidence, Gov't/Administrative, Procedure
The Supreme Court of Texas
November 20, 2020
19-0790
Jeffrey S. Boyd
Published
The petitioner appealed the judgment of the trial court which denied the petitioner's plea to the jurisdiction, concluding that the respondent's evidence created fact issues on whether the President “replaced” the respondent with a younger worker and whether the President's stated reasons for reclassifying the respondent were pretexts for age discrimination. The Supreme Court found that as a long-time, executive-level employee at the petitioner, the respondent fully expected that the new university’s incoming president would make changes to his staff. The Supreme Court noted that the respondent was on the losing end of those changes simply did not justify an age-discrimination lawsuit. The Supreme Court concluded that the Texas Commission on Human Rights Act did not waive the petitioner's sovereign immunity from the suit, and the trial court therefore erred by not granting its plea to the jurisdiction. Accordingly, the judgment of the trial court was reversed. 


Since the petitioner relied on the appellate court's holding in the previous case that declaratory relief was available—when it was not—and Open Meetings Act and Chapter 252 afforded alternative relief to consider, rehearing was granted and the case and remanded in interest of justice.
Carowest Land, LTD. v. New Braunfels
Appellate: Civil, Gov't/Administrative, Procedure
The Supreme Court of Texas
November 20, 2020
18-0678
Per Curiam
Published
The City appealed the judgment of the trial court which awarded the petitioner declaratory relief and attorney's fees against the City for violations of the Open Meetings Act and the contract-bidding provisions of Local Government Code Chapter 252. On appeal, the City challenged the trial court's denial of the City’s jurisdictional plea based on governmental immunity. The Supreme Court found that because the petitioner relied on the appellate court's holding in the previous case that declaratory relief was available—when it was not—and Open Meetings Act and Chapter 252 afforded alternative relief to consider, rehearing was granted and the case and remanded in interest of justice. The Supreme Court granted the petitioner’s motion for rehearing, granted its petition, and, without hearing oral argument, vacated the appellate court's judgment and remanded the case to the trial court for further proceedings under Chapter 252 and the Open Meetings Act. Accordingly, the judgment of the trial court was reversed and remanded. 


The Supreme Court concluded that the appellate court correctly ruled that the evidence in the case did not show that a petitioner knew that he would cause a falling lead to injuring the respondent.
Berkel & Co. Contractors, Inc. v. Lee
Appellate: Civil, Employment, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
The Supreme Court of Texas
November 20, 2020
18-0309
Jane N. Bland
Published
The petitioner appealed the judgment of the trial court which ruled in favor of the respondent in a suit arising under the exception to the Workers' Compensation Act and confirmed that the substantial certainty test established in Reed Tool Co. v. Copelin and re-affirmed in Mo-Vac Service Co. v. Escobedo required that the defendant intend or know that its actions were substantially certain to injure a particular employee. The Supreme Court noted that the evidence in the case did not meet that level, and the court agreed with its conclusion. The Supreme Court found that under the intentional-injury exception to the Workers’ Compensation Act, the plaintiff must prove that the employer believed that its actions were substantially certain to injure the plaintiff. The Supreme Court concluded that the appellate court correctly ruled that the evidence in the case did not show that a petitioner knew that he would cause a falling lead to injuring the respondent. Accordingly, the judgment of the trial court was affirmed. 


Since a genuine issue of material fact existed as to whether the first petitioner breached a duty of care, the appellate court correctly reversed summary judgment on the respondent’s negligence claim against the first petitioner.
AEP Tex. Cent. Co. v. Arredondo
Appellate: Civil, Contracts, Damages, Employment, Evidence, Litigation: Personal Injury, Procedure, Real Property, Torts
The Supreme Court of Texas
November 20, 2020
19-0045
Debra Ann H. Lehrman
Published
The respondent appealed the judgment of the trial court which granted the petitioners's motion for no-evidence and traditional summary judgment in an action alleging negligence, negligence per se, and gross negligence. The Supreme Court noted that because a genuine issue of material fact existed as to whether the first petitioner failed to exercise reasonable care in removing the stub pole, the first petitioner was not entitled to summary judgment on the respondent’s negligence claim. The Supreme Court found that the second petitioner did not have the right to control the means, methods, or details of the first petitioner's work with respect to removal of the stub pole or restoration of the property necessitated by the pole’s removal. The Supreme Court concluded that because a genuine issue of material fact existed as to whether the first petitioner breached a duty of care, the appellate court correctly reversed summary judgment on the respondent’s negligence claim against the first petitioner. Accordingly, the judgment of the trial court was affirmed in part, reversed in part, and remanded.


The Supreme Court concluded that the default judgment could not stand, and without hearing oral argument, the court granted the petitioners’ petition for review.
Spanton v. Bellah
Appellate: Civil, Employment, Procedure, Torts
The Supreme Court of Texas
November 20, 2020
19-0920
Per Curiam
Published
The petitioners appealed the judgment of the trial court which entered a default judgment in favor of the respondent after the petitioners failed to timely file an answer or otherwise appear. On appeal, the petitioners claimed that the respondent failed to properly serve them with process. The Supreme Court disagreed, holding that a discrepancy between the address at which the trial court authorized substitute service and the address where the process server actually sent substitute service was minor and did not invalidate service or the default judgment. The Supreme Court found that nothing in the record demonstrated that the petitioners actually received substitute service. The Supreme Court determined that the face of the record in the case established that the substitute service did not strictly comply with the order permitting such service. The Supreme Court concluded that the default judgment could not stand, and without hearing oral argument, the court granted the petitioners’ petition for review. Accordingly, the judgment of the trial court was vacated and remanded for further proceedings.  


The trial court abused its discretion in proceeding to an adjudication of guilt and in revoking the defendant's deferred-adjudication community supervision.
Martell v. State
Criminal, Evidence, Procedure
Texas 8th Court of Appeals
November 20, 2020
08-18-00180-CR
Gina M. Palafox
Published
The defendant appealed the judgment of the trial court which convicted him of unlawful possession of marihuana in an amount of greater than five pounds but less than fifty pounds. On appeal, the defendant challenged the trial court's sentence to ten years’ confinement in the Texas Department of Criminal Justice, which the court then suspended, and he was placed on ten years’ community supervision. The appellate court found that it was undisputed that no supervision officer, peace officer, or other officer attempted in-person contact with the defendant at the address used for both his residence and employment, and the defendant satisfied his burden of proving the due-diligence affirmative defense. The appellate court determined that the evidence was both legally and factually insufficient to support the trial court’s rejection of the due-diligence affirmative defense. The appellate court concluded that the trial court abused its discretion in proceeding to an adjudication of guilt and in revoking the defendant's deferred-adjudication community supervision. Accordingly, the judgment of the trial court was reversed and remanded with instructions to dismiss the motion to adjudicate.  


Since the plaintiff had actual notice of the taxes owed each year in time to file a protest, it had the opportunity to be heard on the issue of its property taxes for that particular year.
Harris Cnty. Appraisal Dist. v. IQ Life Sciences Corp.
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Tax
Texas 14th Court of Appeals
October 13, 2020
14-18-00894-CV
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which denied the defendant's plea to the jurisdiction in response to the plaintiff's Tex. Tax Code Ann. section 25.25(d) motion for correction of its property taxes and section 41.411 protest of its property taxes for the tax years. On appeal, the defendant argued that the trial court did not have subject-matter jurisdiction because the plaintiff did not timely file either the motion for correction or protest. The appellate court noted that like Anderton, the plaintiff's construction of section 25.25(d) conflicted with the legislature’s intent. The appellate court found that as a result, the trial court did not have jurisdiction over the plaintiff's claim and it erred when it denied the defendant's plea to the jurisdiction. The appellate court concluded that since the plaintiff had actual notice of the taxes owed each year in time to file a protest, it had the opportunity to be heard on the issue of its property taxes for that particular year. Accordingly, the judgment of the trial court was reversed.


Although the untimely motion for new trial was included in the clerk’s record of this case, it was not properly before the trial court, and thus, the court could not consider it.
In re S.W.
Appellate: Civil, Family, Procedure
Texas 2nd Court of Appeals
November 19, 2020
02-20-00159-CV
Bonnie Sudderth
Published
The parents appealed the judgment of the trial court which terminated the mother’s and unknown biological father’s parental rights in a suit brought by a private adoption agency instead of the Department of Family and Protective Services. The appellate court found that it was undisputed that the parents were not present at the final termination hearing, and the plain language of the affidavit the mother signed indicated that she did not want to, or intend to, participate in the final trial. The appellate court noted that the mother did not participate in the decision-making event resulting in the termination order and, therefore, that the mother had shown that the court had jurisdiction over her restricted appeal. The appellate court concluded that although the untimely motion for new trial was included in the clerk’s record of this case, it was not properly before the trial court, and thus, the court could not consider it. Accordingly, the court affirmed the trial court’s judgment. 


The appellate court concluded that the appellee failed to establish its entitlement to summary judgment on the merits of the appellant’s statutory claims as to the tax years.
SPX Corp. v. Altinger
Appellate: Civil, Business, Gov't/Administrative, Procedure, Real Property, Tax
Texas 14th Court of Appeals
November 19, 2020
14-19-00057-CV
Tracy Christopher
Published
The appellant appealed the judgment of the trial court, challenging the procedures used to correct the taxable situs of, and assess taxes, penalties, and interest on, its business personal property in tax years. On appeal, the appellant challenged the trial court's grant of the appellees’ motion combining a plea to the jurisdiction with a summary judgment on the merits. The appellate court noted that the appellant’s statutory petition for judicial review against the appellee was the appellant’s exclusive remedy. The appellate court found that the trial court did not err in dismissing the appellant’s statutory claims against the appellee chief appraiser and the appellee board and the appellant’s claims against the appellee district for relief outside the Property Tax Code. The appellate court concluded that the appellee failed to establish its entitlement to summary judgment on the merits of the appellant’s statutory claims as to the tax years. Accordingly, the judgment was affirmed as modified. 


The trial court’s order fell within section 85.022(b)(5), and thus, it was within the trial court’s discretion to include the provision in the protective order to effectuate the statute’s preventative purpose.
Rodriguez v. Doe
Appellate: Civil, Family, Procedure
Texas 14th Court of Appeals
November 19, 2020
14-18-01026-CV
Margaret Poissant
Published
The appellant appealed the judgment of the trial court which granted a family violence protective order against the appellant. On appeal, the appellant asserted that the provision in the trial court’s protective order prohibiting the appellant from going within 500 feet of any location where the appellee was located exceeded the scope of protection allowed by section 85.022(b) of the Family Code. The appellate court found that the appellant’s argument that, because any location was not enumerated as one of the prohibited locations in section 85.022 the trial court erred when it issued an order that prohibited him from going within 500 feet of any location that the appellee could be found, failed. The appellate court concluded that the trial court’s order fell within section 85.022(b)(5), and thus, it was within the trial court’s discretion to include the provision in the protective order to effectuate the statute’s preventative purpose. Accordingly, the judgment was affirmed.  


The appellate court concluded that the trial court did not abuse its discretion by overruling the defendant's objection based on extraneous conduct.
Gutierrez v. State
Criminal, Evidence, Juvenile, Procedure
Texas 11th Court of Appeals
November 19, 2020
11-18-00298-CR
John M. Bailey
Published
The defendant appealed the judgment of the trial court which convicted him of continuous sexual abuse of a child and indecency with a child. On appeal, the defendant challenged the trial court's assessment of the defendant's punishment at confinement for life on the conviction for continuous sexual abuse of a child and at confinement for a term of twenty years on the conviction for indecency with a child. The appellate court observed that while the defendant alleged that the victim fabricated the allegations from the beginning, he also asserted that her trial testimony contained matters that she had not previously alleged. The appellate court found that the trial court did not abuse its discretion by admitting the victim’s statements to the nurse examiner and a forensic interviewer as prior statements. The appellate court concluded that the trial court did not abuse its discretion by overruling the defendant's objection based on extraneous conduct. Accordingly, the judgment was affirmed.


Since the currency and property seized from the defendant was seized as an instrumentality of the gambling offenses, and not as a fine intended to punish him, the court need not reach the issue of proportionality.
Ahmad v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
November 19, 2020
01-19-00569-CV
Sarah Beth Landau
Published
The defendant appealed the judgment of the trial court which convicted him of gambling promotion, keeping a gambling place, and possession of a gambling device, equipment, or paraphernalia. On appeal, the defendant challenged the trial court's conviction. The appellate court found that the gambling machines, proceeds, and other property were “tainted” by the illegal gambling offense. The appellate court noted that the defendant did not show what portion, if any, of the seized funds was starting capital versus currency paid by customers, and he did not attach any evidence in support of his allegations. The appellate court concluded that because the currency and property seized from the defendant was seized as an instrumentality of the gambling offenses, and not as a fine intended to punish him, the court need not reach the issue of proportionality. Accordingly, the trial court's judgment was affirmed.  


The appellate court was bound by the doctrine of stare decisis to hold that the trial court did not abuse its discretion by following the precedent of Arnold, as modified by Murray, in entering an order compelling such discovery.
In re State Farm Mut. Auto. Ins. Co.
Constitution, Contracts, Insurance, Torts
Texas 2nd Court of Appeals
November 19, 2020
02-20-00144-CV
Wade J. Birdwell
Published
The petitioner appealed the judgment of the trial court in a suit arising due to the unique incorporation of the elements of a negligence cause of action against the uninsured or underinsured motorist into the contractual terms of the UM/UIM coverage provided by the standard automobile liability policy. The appellate court observed that consistent with Arnold, the accrual analysis in Murray clearly contemplated a contractual obligation to pay such a claim without the insured having to file and successfully prosecute a direct action to a binding judgment for benefits against the insurer. The appellate court found that because Brainard did not expressly overrule either Arnold or Murray and thereby foreclosed the accrual or ripening of the common law bad faith cause of action asserted by the real party interest due to the relator’s alleged contractual mishandling and maladjustment of her claim, the court was bound by the doctrine of stare decisis to hold that the trial court did not abuse its discretion by following the precedent of Arnold, as modified by Murray, in entering an order compelling such discovery. Accordingly, the appellate court denied the mandamus relief requested.  


The appellate court concluded that since the error was calculated to injure the defendant's rights, it caused the defendant “some harm.”
Smith v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
November 17, 2020
14-15-00502-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated assault with a deadly weapon. The appellate court found that the trial court essentially explained that it was giving the instruction because it was concerned that the jury might look at the evidence of addiction and intoxication, regard that evidence as having reduced the defendant's blameworthiness, and then assess a lenient sentence. The appellate court noted that the erroneous Voluntary Intoxication Instruction was calculated to injure the defendant's rights and thus caused the defendant “some harm.” The appellate court concluded that since the error was calculated to injure the defendant's rights, it caused the defendant “some harm.” Accordingly, the judgment of the trial court was affirmed and remanded to the trial court for a new punishment hearing.      


The appellate court concluded that the trial court did not err in granting a directed verdict on the appellee's breach of fiduciary duty claim.
Adam v. Marcos
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 14th Court of Appeals
November 17, 2020
14-18-00450-CV
Frances Bourliot
Published
The appellant appealed the judgment of the trial court in a dispute over an alleged partnership, alleging that the appellee and the appellant had agreed to enter a 50/50 partnership to own and operate future joint ventures. On appeal, the appellant challenged the trial court's decision to disregard the jury’s findings that the appellant breached the partnership agreement and the value of the appellee's unpaid legal services was $0, and it entered a judgment notwithstanding the verdict (JNOV) favoring the appellee on his quantum meruit claim in the amount of $405,000. The appellate court determined that the appellee conclusively established that he incurred some damages but did not conclusively establish a specific amount of damages, the issues were sustained in part and reversed the trial court’s judgment to the extent it awarded quantum meruit damages. The appellate court found that the trial court did not err in holding the agreement was invalid and unenforceable. The appellate court concluded that the trial court did not err in granting a directed verdict on the appellee's breach of fiduciary duty claim. Accordingly, the judgment was affirmed, reversed and remanded.  


The appellate court found that having considered the evidence concerning the appellants' motion to compel arbitration and the appellee's traditional motion for summary judgment under the standard of review applicable to each, none of the movants satisfied their respective burdens.
Nationwide Coin & Bullion Reserve, Inc. v. Thomas
ADR, Appellate: Civil, Consumer, Contracts, Damages, Gov't/Administrative, Torts
Texas 14th Court of Appeals
November 17, 2020
14-19-00632-CV
Tracy Christopher
Published
The appellants appealed the judgment of the trial court in a suit under the Texas Deceptive Trade Practices–Consumer Protection Act (DTPA), alleging that the appellants violated the DTPA in connection with her purchase of collectible coins from the first appellant for investment purposes. On appeal, the appellants challenged the denial of their motion to compel arbitration, and in addition, the first appellant appealed the denial of the summary judgment rendered against it. The appellate court found that having considered the evidence concerning the appellants' motion to compel arbitration and the appellee's traditional motion for summary judgment under the standard of review applicable to each, none of the movants satisfied their respective burdens. Accordingly, the court affirmed the order denying the motion to compel arbitration, reversed the order granting summary judgment, and remanded the case to the trial court for further proceedings consistent with the opinion.    


The defendant only cited to Barton to support his argument the statute was unconstitutionally vague, and his reliance on that case was misplaced, and therefore, he failed to show how the statute was unconstitutionally vague as applied to his conduct.
State v. Grohn
Constitution, Criminal, Evidence, Procedure
Texas 9th Court of Appeals
November 18, 2020
09-20-00075-CR
Charles A. Kreger
Published
The State appealed the judgment of the trial court after it charged the defendant with intent to harass, annoy, alarm, abuse, torment and embarrass the victim, making repeated electronic communication to the victim, in a manner reasonably likely to harass the said victim to wit: emailing and or texting her numerous times with vague and rambling messages despite being asked not to send her such communications. On appeal, the State challenged the trial court's grant of the defendant's Motion to Quash and Exception to Substance of Information. The appellate court agreed with the sister court in Ex parte McDonald that Ex parte Barton was not binding on another intermediate court of appeals and was unpersuaded by Barton when the overwhelming majority of the sister courts that have examined the issue have held that section 42.07(a)(7) was constitutional. The appellate court held that section 42.07(a)(7) was not unconstitutionally overbroad. The appellate court concluded that the defendant only cited to Barton to support his argument the statute was unconstitutionally vague, and his reliance on that case was misplaced, and therefore, he failed to show how the statute was unconstitutionally vague as applied to his conduct. Accordingly, the judgment was reversed and remanded.    


The appellate court concluded that the friend’s statements were non-testimonial because their primary purpose was not to create an out-of-court substitute for trial testimony.
Lopez v. State
Criminal, Evidence, Procedure
Texas 8th Court of Appeals
November 17, 2020
08-17-00240-CR
Gina M. Palafox
Published
The defendant appealed the judgment of the trial court which convicted him of three counts of engaging in organized criminal activity (EOCA), alleging charges of assault and aggravated assault, against two victims, enhanced by two previous convictions. On appeal, the defendant challenged the assessed punishment at 50-years’ confinement and a $10,000 fine on count two, and 20-years’ confinement and a $10,000 fine on count three. The appellate court held that the evidence was legally sufficient to support the defendant's conviction for EOCA assault. The appellate court found that the evidence was legally sufficient to support the appellant’s conviction for EOCA aggravated assault. The appellate court concluded that the friend’s statements were non-testimonial because their primary purpose was not to create an out-of-court substitute for trial testimony. Accordingly, the judgment was affirmed.      


The trial court erred in denying the motion to dismiss the claims against the second appellant for intentional and negligent nuisance, tortious interference, fraudulent misrepresentation, promissory estoppel, and conspiracy.
Enterprise Crude GP LLC v. Sealy Partners, LLC
Appellate: Civil, Contracts, Gov't/Administrative, Procedure, Real Property, Torts
Texas 14th Court of Appeals
November 17, 2020
14-19-00818-CV
Kevin Jewell
Published
The appellant appealed the judgment of the trial court after it jointly moved to dismiss all claims under the TCPA, which the trial court denied. The appellate court found that the trial court did not err in denying the motion to dismiss the claim against the first appellant for negligent nuisance because the TCPA applied to that claim, and the appellees established a prima facie case for each element of that claim. The appellate court noted that the trial court did not err in denying the motion to dismiss the claim against the second appellant for trespass because the TCPA did not apply to that claim. The appellate court concluded that the trial court erred in denying the motion to dismiss the claims against the second appellant for intentional and negligent nuisance, tortious interference, fraudulent misrepresentation, promissory estoppel, and conspiracy. Accordingly, the judgment was affirmed in part, reversed in part, and remanded for further proceedings.  


The trial court abused its discretion to the extent it dismissed the indictment pursuant to Rule 508(c)(3) because this section of the rule did not authorize a trial court to dismiss a case.
State v. Dunn
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
November 17, 2020
14-19-00701-CR
Jerry Zimmerer
Published
The State appealed the judgment of the trial court which granted the defendant's motion for disclosure of a confidential informant after it charged the defendant with possession of more than 4 grams and less than 200 grams of a controlled substance, specifically cocaine. The appellate court observed that because the defendant failed to establish that the confidential informant had any connection with the drugs underlying the charge at issue in the appeal, the defendant also failed to offer any evidence demonstrated that the police did not reasonably believe the confidential informant was reliable or credible. The appellate court found that any determination by the trial court that the State relied on the confidential informant to establish the legality of the means by which the police obtained the evidence against the defendant and that the confidential informant was not considered reliable or credible was based on mere speculation. The appellate court concluded that the trial court abused its discretion to the extent it dismissed the indictment pursuant to Rule 508(c)(3) because this section of the rule did not authorize a trial court to dismiss a case. Accordingly, the judgment was reversed and remanded.


The appellate court found that because the appellee’s affidavit was insufficient, the trial court erred by denying the parents’ motion to dismiss.
In re H.L.
Appellate: Civil, Family, Juvenile, Procedure
Texas 2nd Court of Appeals
November 12, 2020
02-20-00143-CV
Bonnie Sudderth
Published
The parents appealed the judgment of the trial court, in a private termination suit, which terminated the parental rights of eight-year-old the child’s biological parents and granted possession and access to the child’s paternal grandparents. On appeal, the parents challenged the trial court's termination. The appellate court noted that the appellee made a conclusory assertion about the results of denial of possession or access and made unsupported predictions about what the lack of possession or access would teach the child in the future. The appellate court found that because the appellee’s affidavit was insufficient, the trial court erred by denying the parents’ motion to dismiss. Accordingly, the court reversed the trial court’s order granting possession and access and rendered judgment dismissing the grandparent access suit.  


The appellate court concluded that since it was undisputed that the plaintiff presented no evidence to support his allegations other than the allegations themselves, the trial court did not err in granting the defendants' TCPA motions to dismiss.
Buzbee v. Clear Channel Outdoor, LLC
Damages, Election, Torts
Texas 14th Court of Appeals
November 17, 2020
14-19-00512-CV
Kevin Jewell
Published
The plaintiff appealed the judgment of the trial court which dismissed his claims against the defendants under the Texas Citizens Participation Act (TCPA). On appeal, the plaintiff argued that the defendants' billboards constituted campaign propaganda for the first defendant under the guise of a public safety message, and the defendants failed to properly document the billboards’ value as a campaign contribution under the Election Code. The appellate court agreed with the plaintiff that he established standing to assert all his claims, but the court concluded that his claim for injunctive relief had become moot. The appellate court found that as to the propriety of dismissing the plaintiff's monetary damages claims under the TCPA, the dispositive question was whether a claimant, in responding to a TCPA motion to dismiss, may meet his prima facie burden by relying solely on the allegations in his petition. The appellate court concluded that since it was undisputed that the plaintiff presented no evidence to support his allegations other than the allegations themselves, the trial court did not err in granting the defendants' TCPA motions to dismiss. Accordingly, the judgment of the trial court was affirmed.


The lack of a clear organizational chart with a defined leader and chain of command was antithetical to promoting cooperation, and the court left it to the political leaders of the State and that region, whose motives were all beyond reproach, to cooperatively lead the court.
State v. El Paso Cnty.
Appellate: Civil, Business, Gov't/Administrative, Health Care, Procedure
Texas 8th Court of Appeals
November 13, 2020
08-20-00226-CV
Jeff Alley
Published
The appellants appealed the judgment of the trial court, filing suit to enjoin enforcement of CE-13 on the basis that the County Judge acted ultra vires and without legal authority. On appeal, the appellate court was asked to consider whether the appellants must comply with CE-13 or GA-32. The appellate court found that just as a servant could not have two masters, the public could not have two sets of rules to live by, particularly in a pandemic and when those rules carry criminal penalties substantially impacting peoples’ lives and livelihood. The appellate court noted that much of the Disaster Act was premised on promoting cooperation between levels of government for the benefit of Texas citizens. The appellate court concluded that the lack of a clear organizational chart with a defined leader and chain of command was antithetical to promoting cooperation, and the court left it to the political leaders of the State and that region, whose motives were all beyond reproach, to cooperatively lead the court through the unparalleled disaster.  


The appellate court concluded that the variance between the indictment and the jury instruction was not plain error.
Ex parte Becciu
Constitution, Criminal, Evidence
Texas 1st Court of Appeals
November 10, 2020
01-19-00800-CR
Evelyn Keyes
Published
The defendant appealed the judgment of the trial court which convicted him of the Class A misdemeanor offense of assault on a family member. On appeal, the defendant filed the application for writ of habeas corpus, seeking relief from the order of deferred adjudication, arguing that his guilty plea was involuntary. The appellate court noted that the trial court concluded that no evidence justified the defendant's seven-year delay in filing his writ of habeas corpus, that the State demonstrated that it had been prejudiced by the defendant's delay, that the defendant had presented no evidence of any compelling reason why laches should not apply, and that the defendant's claim for habeas relief should be barred by laches. The appellate court found that the record in the light most favorable to the trial court’s findings and affording almost total deference to the trial court’s findings, especially those that turn on credibility and demeanor, as the court must in the Article 11.072 habeas proceeding, the court could not conclude that the trial court abused its discretion by determining that the doctrine of laches applied and barred the defendant's claim for habeas relief. The appellate court concluded that the trial court did not abuse its discretion in denying the defendant's application for a writ of habeas corpus. Accordingly, the judgment was affirmed.    


The appellate court concluded that because simple possession, if such possession facilitated the associated felony, was sufficient, the deadly weapon finding was supported by legally sufficient evidence.
Davis v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
November 10, 2020
06-20-00032-CR
Ralph Burgess
Published
The defendant appealed the judgment of the trial court which convicted the defendant of attempted burglary of a habitation, finding that the defendant had used or exhibited a deadly weapon during the commission of the offense, and sentenced him to seventeen years imprisonment. The appellate court found that the defendant admitted the prior extraneous offense, and by testifying first on direct examination, the defendant waived any error on the trial court’s ruling regarding admissibility of the extraneous offense. The appellate court noted that based on the evidence, a rational fact-finder could determine, beyond a reasonable doubt, that the defendant attempted to enter the home, without the defendant's consent, with the intent to assault or kill the defendant's parent. The appellate court concluded that because simple possession, if such possession facilitated the associated felony, was sufficient, the deadly weapon finding was supported by legally sufficient evidence. Accordingly, the trial court's judgment was affirmed.  


Since the right to immediate possession of the property could be adjudicated only on the basis of title, neither the justice court nor the county court at law had subject-matter jurisdiction over the respondent's forcible-detainer action.
Tellez v. Rodriguez
Appellate: Civil, Procedure, Real Property
Texas 14th Court of Appeals
November 10, 2020
14-19-00317-CV
Tracy Christopher
Published
The petitioner appealed the judgment of the trial court in a forcible-detainer action. On appeal, the petitioner argued that the justice court and the county court at law lacked subject-matter jurisdiction over remainderman, the respondent's claim for possession of the property. The appellate court noted that the petitioner's right to possession of the property during her lifetime could be terminated only by terminating her title in the life estate. The appellate court found that this was exactly what the respondent sought to do via the forcible-detainer action. The appellate court concluded that since the right to immediate possession of the property could be adjudicated only on the basis of title, neither the justice court nor the county court at law had subject-matter jurisdiction over the respondent's forcible-detainer action. Accordingly, the court declared the judgment void and dismissed the appeal.    


The appellate court concluded that the trial court lacked subject matter jurisdiction over the suit.
Moody v. Moody
Appellate: Civil, Contracts, Procedure, Real Property
Texas 14th Court of Appeals
November 10, 2020
14-18-01018-CV
Margaret Poissant
Published
The appellant appealed the judgment of the trial court in a probate proceeding in which the jury rendered a verdict in favor of the appellee, finding that the decedent lacked the requisite capacity to execute a marital property agreement, the surviving spouse breached a fiduciary duty to the decedent in connection with making the marital property agreement and committed fraud regarding her spouse’s separate property rights, and the marital property agreement was unenforceable. On appeal, the appellant challenged the jury's award of compensatory and exemplary damages to the appellee. The appellate court noted that the trial judge awarded the attorneys’ fees and expenses of appellee and appellants paid from the decedent’s trust. The appellate court found that the appellee lacked standing and/or capacity to pursue her claims. The appellate court concluded that the trial court lacked subject matter jurisdiction over the suit. Accordingly, the court reversed the judgment of the trial court. 


The appellate court concluded that the relator failed to show that the trial court abused its discretion, and therefore, it must deny the relator's petition for writ of mandamus.
In re Muller
Appellate: Civil, Constitution, Contracts, Discovery, Procedure, Torts
Texas 7th Court of Appeals
November 06, 2020
07-20-00137-CV
Judy C. Parker
Published
The relator appealed the judgment of the trial court, filing a petition for writ of mandamus in which she requested that the Court instruct the trial court to vacate its order denying her motion to compel discovery and grant said motion. In response, the respondent alleged that it was still owed $40,444.84 for the goods and services it provided to the relator and her son. The appellate court noted that the trial court could have reasonably determined that the requested discovery was not proportional to the needs of the case or that the burden or expense of production outweighed its likely benefit. The appellate court found that the relator had not met her burden to establish that the trial court clearly abused its discretion in denying her motion to compel. The appellate court concluded that the relator failed to show that the trial court abused its discretion, and therefore, it must deny the relator's petition for writ of mandamus. Accordingly, the court denied the petition for writ of mandamus.    


The appellate court concluded that the test was a balance between the appellant’s choice of forum and the public and private factors that were implicated by an available alternate forum.
Diaz v. Todd
Appellate: Civil, Business, Procedure, Torts
Texas 8th Court of Appeals
November 04, 2020
08-18-00184-CV
Jeff Alley
Published
The appellant appealed the judgment of the trial court which made detailed findings of fact supporting the argument that the suit would be better suited for trial in Mexico in a case arising out of a business dispute between the appellant and the appellee. The appellate court noted that the fact that both the appellant and the appellee could claim Texas residence did not by itself answer the broader question of what forum was the most convenient under the correctly applied forum non conveniens test. The appellate court found that because the trial court applied the incorrect standard for one-half of the balancing test, there was an abuse of discretion as it was for the trial court in the first instance to make the appropriate balance. The appellate court concluded that the test was a balance between the appellant’s choice of forum and the public and private factors that were implicated by an available alternate forum. Accordingly, the judgment was reversed and remanded.  


The appellate court concluded that the defendant pled guilty to murder under Penal Code section 19.02(b)(1).
McDade v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
November 03, 2020
05-19-00485-CR
Bill Pedersen, III
Published
The defendant appealed the judgment of the trial court which convicted him of murder after a judicial confession. On appeal, the defendant challenged the trial court's assessment of punishment of confinement for thirty years. The appellate court found that the trial court’s admission of the State’s exhibits were not outside the zone of reasonable disagreement. The appellate court noted that the trial court did not abuse its discretion in admitting the recordings. The appellate court concluded that the defendant pled guilty to murder under Penal Code section 19.02(b)(1). Accordingly, the judgment was affirmed.  


The defendant was not required to raise a misidentification defense or file special exceptions in the trial court to bring a sufficiency challenge on appeal and the jury’s negligence finding was not supported by legally sufficient evidence.
Ross Stores, Inc. v. Miller
Appellate: Civil, Damages, Employment, Gov't/Administrative, Litigation: Personal Injury, Torts
Texas 14th Court of Appeals
November 03, 2020
14-18-01032-CV
Frances Bourliot
Published
The defendant appealed the judgment of the trial court in a personal injury action, challenging the legal sufficiency of the evidence in support of the jury’s negligence finding in favor of the plaintiff. The appellate court found that the defendant was not required to raise a misidentification defense or file special exceptions in the trial court to bring a sufficiency challenge on appeal and the jury’s negligence finding was not supported by legally sufficient evidence. The appellate court concluded that it must reverse the judgment of the trial court. Accordingly, the judgment of the trial court was reversed and rendered. 


Despite the defendant's protests to the contrary, there was evidence that the defendant stole the boat, and article 13.08 of the Texas Code of Criminal Procedure was applicable in the case.
Mottin v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
November 03, 2020
01-19-00249-CR
Sherry Radack
Published
The defendant appealed the judgment of the trial court which convicted the defendant, of theft over $2,500 but less than $30,000, and the trial court assessed punishment at 180 days’ confinement in a State Jail. The appellate court noted that the defendant was not indicted under Tex. Penal Code under 31.01(b)(2), but was indicted under the more general 31.01(b)(1). The appellate court found that before the inference may be invoked, the State must establish that the possession was personal, recent, unexplained, and involved a distinct and conscious assertion of a right to the property by the defendant. The appellate court concluded that despite the defendant's protests to the contrary, there was evidence that the defendant stole the boat, and article 13.08 of the Texas Code of Criminal Procedure was applicable in the case. Accordingly, the court affirmed the trial court’s judgment.  


The appellate court could not conclude that the trial court abused its discretion in striking the balance that it did.
In re Plains Pipeline, L.P.
Appellate: Civil, Constitution, Contracts, Damages, Environmental, Gov't/Administrative, Procedure, Real Property, Torts
Texas 8th Court of Appeals
October 30, 2020
08-19-00224-CV
Jeff Alley
Published
The relator appealed the judgment of the trial court in an action where the plaintiffs sought a declaratory judgment stating, inter alia, that as owner of the dominant groundwater estate, the plaintiffs were entitled to develop the groundwater estate by making use of the surface of the Property, and that there were no other reasonable and efficient means of producing groundwater off the Property. The appellate court found that the risk to the facility was disputed and unquantified, and the relevance of the test holes was explained in plausible, but qualitative terms. The appellate court concluded that balancing of those two interests against each other struck the court as more of an art than a science. The appellate court could not conclude that the trial court abused its discretion in striking the balance that it did. Accordingly, the relator's mandamus application was denied.  


The appellate court concluded that since the defendant's global Confrontation Clause objection to voluminous documents did not preserve error, the court overruled his sole complaint on appeal.
In re A.R.G.
Criminal, Evidence, Family, Juvenile, Procedure
Texas 6th Court of Appeals
November 05, 2020
06-20-00040-CV
Ralph Burgess
Published
The defendant appealed the judgment of the juvenile court after the State charged the defendant with intentionally causing the shooting death of the victim while in the course of committing a robbery. On appeal, the defendant challenged the juvenile court’s waiver of jurisdiction and discretionary transfer to a criminal district court. The appellate court noted that even assuming, without deciding, that the Confrontation Clause applied to Section 54.02 of Texas Family Code proceedings, the court could not address the point of error raised by the defendant  in his brief on the merits because he did not properly preserve his complaint. The appellate court found that the defendant's global objections were insufficient to make the court aware of which statements in or portions of the documents he believed violated the Confrontation Clause. The appellate court concluded that since the defendant's global Confrontation Clause objection to voluminous documents did not preserve error, the court overruled his sole complaint on appeal. Accordingly, the court affirmed the juvenile court’s order.    


The appellate court concluded that the plaintiff's appeal was not frivolous under Rule 45.
Hernandez v. Hernandez
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Landlord and Tenant, Real Property
Texas 8th Court of Appeals
November 04, 2020
08-19-00060-CV
Yvonne T. Rodriguez
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in his wrongful-removal claim and awarded attorney’s fees. On appeal, the plaintiff challenged those rulings. The appellate court found that the plaintiff failed to show the summary judgment was error where: (1) his appellate argument was unreviewable because it was based on a claim not raised in his original petition; (2) he failed to negate all grounds upon which the judgment could be upheld; and (3) his claim, newly argued claim on appeal, would not have established a genuine issue of material fact. The appellate court held that the trial court erred by awarding attorney’s fees in the absence of any authority alleged in the pleadings on which such fees could be upheld. The appellate court concluded that the plaintiff's appeal was not frivolous under Rule 45. Accordingly, the judgment was affirmed. 


The appellant’s wholesale reliance on the process server to exercise due diligence did not constitute due diligence on the appellant’s part as a matter of law.
Flanigan v. Nekkalapu
Appellate: Civil, Evidence, Health Care, Procedure, Torts
Texas 2nd Court of Appeals
November 05, 2020
02-20-00024-CV
Bonnie Sudderth
Published
The appellant appealed the judgment of the trial court which granted the appellee’s motion for summary judgment on his affirmative defense of limitations. The appellate court observed that the appellant’s excuse was that she exercised due diligence by placing her faith in the process server to effectuate service in a diligent manner and that the process server failed to do so. The appellate court found that the appellant’s wholesale reliance on the process server to exercise due diligence did not constitute due diligence on the appellant’s part as a matter of law. The appellate court concluded that the appellant’s waiting until limitations had run before even requesting citation, the multiple unexplained gaps of time between filing suit and service, and the appellant’s four-and-a-half week reliance on the process server an excuse that was invalid as a matter of law established that diligence was lacking as a matter of law. Accordingly, the judgment was affirmed.


The appellate court concluded that there was no reason the same protection should not be afforded to a defendant for whom bail had been set but not taken when the court decided to increase bail.
Ex parte Robles
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 29, 2020
14-20-00317-CR
Tracy Christopher
Published
The appellant appealed the judgment of the trial court, filing a writ of habeas corpus asking the court to lower his bail from $75,000 to $10,000. On appeal, the appellant challenged the trial court's denial of the habeas application by written order and orally raised bail to $100,000. The appellate court noted that the appellant’s mother lived in Ohio, and it appeared he lived with her for most of his life; she was involved in his life enough to write an affidavit on his behalf in the case. The appellate court found that the appellant had not shown the trial court abused its discretion in denying his habeas application to reduce bail. The appellate court concluded that there was no reason the same protection should not be afforded to a defendant for whom bail had been set but not taken when the court decided to increase bail. Accordingly, the court affirmed the trial court’s order denying the appellant’s habeas application to decrease bail.  


The appellate court concluded that it did not believe that such a conclusion was so arbitrary and unreasonable as to amount to a clear and prejudicial error of law such that the trial court could reasonably have reached only one decision.
In re Stutsman
ADR, Appellate: Civil, Damages, Litigation: Personal Injury, Torts
Texas 6th Court of Appeals
November 05, 2020
06-20-00072-CV
Ralph Burgess
Published
The claimant appealed the judgment of the trial court in a personal injury case. On appeal, the claimant sought mandamus relief from the trial court’s severance order that severed her claims against two alleged tortfeasors. The appellate court found that the trial court could have concluded that the claimant’s claims against the first tortfeasor and her claims against the second tortfeasors had originated from two different automobile accidents more than one week apart. The appellate court noted that the accidents were not in such close temporal proximity to cause proof of damages in each case to have been interrelated to the extent that the tortfeasors would be jointly and severally liable for those damages. The appellate court concluded that it did not believe that such a conclusion was so arbitrary and unreasonable as to amount to a clear and prejudicial error of law such that the trial court could reasonably have reached only one decision. Accordingly, the court denied the claimant’s petition for writ of mandamus. 


The appellate court concluded that the Gigliobianco v. State factors weighed in favor of admitting the evidence, the court found no abuse of discretion.
Garcia v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
November 05, 2020
11-18-00357-CR
Keith Stretcher
Published
The defendant appealed the judgment of the trial court which convicted him of murder and assessed his punishment at fifty years imprisonment in the Correctional Institutions Division of the Texas Department of Criminal Justice. On appeal, the defendant challenged the State's introduction of the crime scene photographs during its case-in-chief. The appellate court found that the trial court could have reasonably determined that the photographs had probative value because they accurately depicted the victim’s body and could help the jury understand the injuries sustained from a close-range gunshot. The appellate court noted that the trial court could have reasonably concluded that the jury was not likely to give the photographs undue weight. The appellate court concluded that the Gigliobianco v. State factors weighed in favor of admitting the evidence, the court found no abuse of discretion. Accordingly, the judgment was affirmed.    


Since the defendant had not met its burden to show it was entitled to the protections of section 184 of the Restatement, the trial court erred in granting the defendant's plea to the jurisdiction.
Tozi v. RJ & Sons LLC
Appellate: Civil, Corporations, Procedure, Torts
Texas 4th Court of Appeals
October 28, 2020
04-19-00591-CV
Liza A. Rodriguez
Published
The plaintiff appealed the judgment of the trial court which granted the defendant's plea to the jurisdiction and dismissed all of the plaintiff's claims. On appeal, the defendant argued that Texas courts lacked subject matter jurisdiction over the plaintiff's claims. The appellate court found that the plaintiff's affidavit presented disputed material facts regarding the location of his hire. The appellate court found that because of the issue of material fact surrounding the location of the plaintiff's contract for hire, the court held the defendant had also not met its burden under the second requirement of section 184 of the Restatement to show that the plaintiff could obtain an award for his injury in Michigan. The appellate court concluded that since the defendant had not met its burden to show it was entitled to the protections of section 184 of the Restatement, the trial court erred in granting the defendant's plea to the jurisdiction. Accordingly, the judgment of the trial court was reversed and remanded the cause for further proceedings.    


The appellate court concluded that the defendant was not entitled to an Texas Penal Code article 38.23 instruction based on the argument he made to the trial court or to the court on appeal.
Aguirre v. State
Criminal, Evidence, Procedure
Texas 10th Court of Appeals
October 28, 2020
10-19-00286-CR
Tom Gray
Published
The defendant appealed the judgment of the trial court which convicted him of resisting arrest and sentenced him to 365 days in jail. On appeal, the defendant challenged the sentence, which was suspended, and placed him on community supervision for 18 months. The appellate court found that the evidence of resisting arrest was obtained lawfully during the course of the defendant's arrest for public intoxication. The appellate court concluded that the defendant was not entitled to an Texas Penal Code article 38.23 instruction based on the argument he made to the trial court or to the court on appeal. Accordingly, the trial court’s judgment was affirmed.  


Since the State had not shown that any procedure did not encompass a bench trial, it had not established it was indisputably entitled to the relief it sought or that the trial court had a ministerial duty to deny the relator's request.
In re State ex rel. Ogg
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 27, 2020
14-20-00451-CR
Per Curiam
Published
The relator appealed the judgment of the trial court, filing petitions for writs of mandamus and petitions for writs of prohibition. On appeal, the relator asked the court to compel the presiding judge of the criminal court to set aside his ruling in trial court in a criminal case which granted the criminal defendant's motion to conduct a bench trial without the State’s consent to waiver of a jury trial. The appellate court found that the State’s argument was not based on the plain language of the emergency order, which allowed the trial court to modify any procedure subject only to constitutional limitations. The appellate court noted that, assuming, without deciding, that for the conduct imposed a limitation on the type of procedure that an emergency order might suspend, it was a statutory, not constitutional limitation. The appellate court concluded that since the State had not shown that any procedure did not encompass a bench trial, it had not established it was indisputably entitled to the relief it sought or that the trial court had a ministerial duty to deny the relator's request. Accordingly, the petition was denied.  


The appellate court concluded that since the release of those results did not violate HIPAA, the grand jury subpoena sought the defendant's medical records could not be fruit of the poisonous tree.
Consuelo v. State
Constitution, Criminal, Evidence, Health Care, Procedure
Texas 5th Court of Appeals
October 27, 2020
05-19-01385-CR
Bill Pedersen, III
Published
The defendant appealed the judgment of the trial court which convicted him of three counts of intoxication assault and sentenced him to eight years’ confinement in each case. On appeal, the defendant challenged the trial court’s order denying his Motion to Suppress. The appellate court noted that it gave almost total deference to the trial court’s determination of historical facts and reviewed de novo the application of the law to the facts. The appellate court viewed the record in the light most favorable to the trial court’s ruling and upheld the ruling if it was supported by the record and is correct under any theory of the law applicable to the case. The appellate court determined that the Health Insurance Portability and Accountability Act (HIPAA) specifically allowed the release of the defendant's toxicology results to the police. The appellate court concluded that since the release of those results did not violate HIPAA, the grand jury subpoena sought the defendant's medical records could not be fruit of the poisonous tree. Accordingly, the judgment was affirmed.


The appellate court found that the plaintiff did not seek judicial review of the Board of Adjustment’s decision under Local Government Code section 211.011.
City of Dickinson v. Stefan
Appellate: Civil, Business, Constitution, Contracts, Evidence, Gov't/Administrative, Procedure, Real Property, Zoning
Texas 14th Court of Appeals
October 27, 2020
14-18-00778-CV
Kem Thompson Frost
Published
The City appealed the judgment of the trial court which denied its plea to the jurisdiction, attaching evidence, and asserting that the trial court lacked jurisdiction because the plaintiff failed to exhaust his administrative remedies by failing to seek judicial review of the Board of Adjustment’s decision under Texas Local Government Code section 211.011. The appellate court noted that because the plaintiff failed to exhaust his administrative remedies by seeking review of the Board of Adjustment’s decision under Local Government Code section 211.011, the trial court lacked subject-matter jurisdiction over the plaintiff’s declaratory-judgment claim, and the trial court erred in denying the defendant’s plea to the jurisdiction as to this claim. The appellate court found that the plaintiff did not seek judicial review of the Board of Adjustment’s decision under Local Government Code section 211.011. The appellate court concluded that there was a difference between allowing the plaintiff an opportunity to plead more facts to show jurisdiction over claims that the plaintiff purported to plead and allowing the plaintiff a chance to assert new claims after the appellate court concluded that the trial court lacked jurisdiction over the claims the plaintiff purportedly pleaded. Accordingly, the judgment was reversed and rendered.


The appellate court concluded that it must overrule the issue because any error in the charge was harmless.
Ramirez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 27, 2020
14-19-00433-CR
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which convicted the defendant of felony driving while intoxicated (DWI). The appellate court noted that the trial court did not abuse its discretion when it refused to exclude evidence related to the lab analysis of his blood because the blood was drawn, and subsequently analyzed, pursuant to a search warrant. The appellate court denied the defendant's second issue because the deputy constable who stopped the defendant had reasonable suspicion that the defendant had engaged in, or was about to engage in, criminal activity. The appellate court concluded that it must overrule the issue because any error in the charge was harmless. Accordingly, the judgment was affirmed.  


The appellate court concluded that the plaintiffs' lawsuit, as pleaded, failed for lack of standing.
Bickham v. Dallas Cnty.
Appellate: Civil, Election, Gov't/Administrative, Litigation: Personal Injury, Procedure
Texas 5th Court of Appeals
October 23, 2020
05-20-00560-CV
Robert Burns, III
Published
The plaintiffs appealed the judgment of the trial court. On appeal, the appellate court was asked to consider whether “election watchers”—persons appointed to observe the conduct of an election under Chapter 33 of the Texas Election Code—had standing to pursue claims against certain election officials for alleged violations of chapter 33 and the Texas Administrative Code. The appellate court found that relying on the reasoning in Andrade, the trial court observed that if the language found in Section 273.081—“a person who is being harmed or is in danger of being harmed by a violation or threatened violation of this code”—did not confer standing without a showing of harm other than as a member of the general public, then there was no reason to conclude that Section 273.061 would create individual standing without the claimant showing a particularized injury beyond that of the general public. The appellate court noted that the legislature had not conferred statutory standing to the plaintiffs exempting them from showing proof of a special injury, nor have the plaintiffs alleged claims or injuries showing they have common-law standing to assert their claims. The appellate court concluded that the plaintiffs' lawsuit, as pleaded, failed for lack of standing. Accordingly, the judgment of the trial court was affirmed. 


Since the plaintiff could not establish a probable right to the relief sought through its constitutional challenge to Section 112.101 of the Tax Code, it was not entitled to a temporary injunction pending the adjudication of that claim.
Texley Inc. v. Hegar
Business, Constitution, Gov't/Administrative, Tax
Texas 3rd Court of Appeals
October 23, 2020
03-18-00397-CV
Edward Smith
Published
The plaintiff appealed the judgment of the trial court which sustained the defendant's plea to the jurisdiction and dismissing all but one of the plaintiff's claims challenging a tax assessment. On cross-appeal, the defendant challenged an order enjoining its efforts to collect the disputed assessment. The appellate court found that the taxpayer sought judicial review of an assessment under Chapter 112 without first paying the entire amount assessed, and the taxpayer filed an oath of inability to pay. The appellate court noted that the trial court did not hold a hearing on the alleged ability to pay or determine whether prepayment would constitute an unreasonable restraint on the plaintiff's right of access to the courts. The appellate court concluded that since the plaintiff could not establish a probable right to the relief sought through its constitutional challenge to Section 112.101 of the Tax Code, it was not entitled to a temporary injunction pending the adjudication of that claim. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.  


The Supreme Court concluded that based on the asset-purchase agreement’s plain and unambiguous language, the buyer’s expressed assumption of the written warranty for repair or replacement of defective treadmill parts was not an assumption of a warranty of merchantability implied by law.
Northland Indus., Inc. v. Kouba
Appellate: Civil, Business, Contracts, Damages, Procedure, Real Property, Torts
The Supreme Court of Texas
October 23, 2020
19-0835
Eva M. Guzman
Published
The buyer appealed the judgment of the appellate court in a dispute over an asset-purchase agreement as to both the assumed and excluded liabilities, arising from a fatal treadmill injury. On appeal, the Supreme Court was asked to consider whether the entity who purchased the treadmill manufacturer’s assets assumed an implied warranty of merchantability that attached, and was not disclaimed when the manufacturer sold the treadmill. The Supreme Court found that the appellate court ascertained intent by giving words the meaning a reasonable person would afford them under the circumstances and by construing them within the contractual context as a whole, not in isolation. The Supreme Court noted that absent absurdity, contracts must be interpreted according to their literal terms. The Supreme Court concluded that based on the asset-purchase agreement’s plain and unambiguous language, the buyer’s expressed assumption of the written warranty for repair or replacement of defective treadmill parts was not an assumption of a warranty of merchantability implied by law. Accordingly, the judgment of the appellate court was reversed.


There was insufficient evidence to find, beyond a reasonable doubt, that the defendant possessed the specific intent to conceal the photograph.
Denny v. State
Criminal, Evidence, Procedure
Texas 11th Court of Appeals
October 30, 2020
11-18-00270-CR
Keith Stretcher
Published
The defendant appealed the judgment of the trial court which convicted him of the third-degree felony offense of tampering with physical evidence. On appeal, the defendant challenged the trial court's sentence to six years’ confinement in the Correctional Institutions Division of the Texas Department of Criminal Justice, with the sentence suspended and community supervision imposed for six years. The appellate court noted that it was constrained to follow the holding of the Court of Criminal Appeals; the court therefore rejected the State’s argument that it only needed to prove the defendant's intent to impair the availability of evidence. The appellate court found that the State must prove that the defendant intended to conceal and actually concealed the photograph, and there was no evidence from which a rational trier of fact could have found beyond a reasonable doubt that the photograph was actually concealed. The appellate court concluded that there was insufficient evidence to find, beyond a reasonable doubt, that the defendant possessed the specific intent to conceal the photograph. Accordingly, the judgment of the trial court was reversed and rendered.


The appellate court concluded that the trial court did not abuse its discretion in excluding the evidence, and the court overruled the defendant's second issue.
Blacklock v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 22, 2020
14-19-00307-CR
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault and sentenced him to 35 years in prison for the aggravated assault reformation. On appeal, the defendant challenged the trial court's conviction and sentence. The appellate court found that the defendant was allowed to impeach the complainant on two prior felony prostitution convictions, three theft convictions, and one burglary of a motor vehicle conviction. The appellate court noted that the defendant's ability to impeach the complainant with much more recent convictions allowed him to attack the complainant’s credibility in front of the jury. The appellate court concluded that the trial court did not abuse its discretion in excluding the evidence, and the court overruled the defendant's second issue. Accordingly, the judgment of the trial court was affirmed. 


The appellate court concluded that had the wife's affidavit been admitted over the husband's objections, there was at the very least a fact issue as to her signature on the Acto de Matrimonio precluding partial summary judgment.
De Juarez v. Delgado
Appellate: Civil, Contracts, Family, Procedure
Texas 8th Court of Appeals
October 22, 2020
08-16-00046-CV
McClure Ann Crawford
Published
The husband appealed the judgment of the trial court which rendered a ruling regarding the parties' dissolution of the marriage. On appeal, the appellate court was asked to consider whether a Mexican premarital agreement existed between the parties. The appellate court found that because the court could not ascertain from the voluminous record-which consisted of twenty-eight reporters’ records and sixteen clerk’s records-whether the executed marriage certificate was timely disclosed, was overruled. The appellate court concluded that had the wife's affidavit been admitted over the husband's objections, there was at the very least a fact issue as to her signature on the Acto de Matrimonio precluding partial summary judgment. Accordingly, the judgment of the trial court was reversed and remanded. 


The appellate court concluded that since the trial court already conditionally awarded appellate attorneys’ fees in the event the appellant’s appeal was unsuccessful, the court declined to award additional damages.
Nunu v. Risk
Appellate: Civil, Gov't/Administrative, Procedure, Real Property, Torts
Texas 14th Court of Appeals
October 22, 2020
14-19-00564-CV
Tracy Christopher
Published
The appellant appealed the judgment of the trial court, asking the court to reverse the court's prior decision affirming the trial court’s finding that he was a vexatious litigant and requiring him to obtain leave from the local administrative judge before filing any new pro se litigation. On appeal, the appellant asked the appellate court to reverse the local administrative judge’s order denying him leave to file the pro se appeal and to reverse multiple trial-court orders. The appellate court noted that because the appellant failed in his burden to establish that the Texas Citizens Participation Act (the TCPA) applied to those matters, the court affirmed the trial court’s denial of the appellant’s motion and counter-motion to dismiss. The appellate court found that the appellant failed to establish that those motions and objections were legal actions as that term was defined in the TCPA. The appellate court concluded that since the trial court already conditionally awarded appellate attorneys’ fees in the event the appellant’s appeal was unsuccessful, the court declined to award additional damages. Accordingly, the judgment of the trial court was affirmed and motion denied.  


The appellate court concluded that the part of the trial court's order the relators challenged materially changed the trial court’s final judgment and was therefore void.
In re Fluid Power Equip., Inc.
ADR, Appellate: Civil, Constitution, Gov't/Administrative, Procedure
Texas 14th Court of Appeals
October 22, 2020
14-20-00577-CV
Kevin Jewell
Published
The relators appealed the judgment of the trial court, filing a petition for writ of mandamus. On appeal, the relators asked the appellate court to compel the presiding judge to vacate her order granting the deceased's motion to enforce a final judgment confirming an arbitration award. The appellate court noted that the trial court, however, may not issue an order that was inconsistent with the original judgment or that otherwise constituted a material change in the substantive adjudicative portions of the judgment after its plenary power had expired. The appellate court found that such an order was void. The appellate court concluded that the part of the trial court's order the relators challenged materially changed the trial court’s final judgment and was therefore void. Accordingly, the court conditionally granted mandamus relief.  


Viewed in the light most favorable to the defendant, the summary judgment evidence did not conclusively prove that the plaintiff owned or was entitled to possession of the dog.
Hunsaker v. Richardson
Appellate: Civil, Evidence, Procedure
Texas 11th Court of Appeals
October 22, 2020
11-19-00248-CV
Jim R. Wright
Published
The defendant appealed the judgment of the trial court which granted summary judgment in favor of the plaintiff and ordered that the plaintiff was entitled to possession of the dog. The appellate court noted that when the trial court granted one motion for summary judgment and denied the other, the court reviewed all the summary judgment evidence and determined all questions presented. The appellate court found that since the dachshund that the individual took to Dusty Puddles Dachshund Rescue (DPDR) was seen on the plaintiff's neighbors properties during the time that Sally was in the plaintiff's possession or on the property, there was at least an inference that the dachshund taken by the individual to DPDR was not Sally. The appellate court concluded that viewed in the light most favorable to the defendant, the summary judgment evidence did not conclusively prove that the plaintiff owned or was entitled to possession of the dog. Accordingly, the judgment of the trial court was reversed and remanded.


Since the defendant's DWI conviction and DWI acquittal did not meet the definition of a criminal episode, she was entitled to the expunction of her DWI arrest records.
Ex Parte K.T.
Appellate: Civil, Criminal, Evidence, Gov't/Administrative, Procedure
Texas 2nd Court of Appeals
October 22, 2020
02-19-00376-CV
Lee Gabriel
Published
The Texas Department of Public Safety (the Department) appealed the judgment of the trial court which granted the defendant's motion to expunge the records of the defendant's driving-while-intoxicated (DWI) arrest because she had been acquitted of the offense. On appeal, the Department argued that the defendant was not entitled to expunction because she has a prior DWI conviction and, in the Department’s view, the governing expunction statute prohibited the expunction of arrest records relating to an acquitted offense when the acquitted person has once before been convicted of the same or similar offense even if the two offenses arose out of separate arrests. The appellate court concluded that because the defendant's DWI conviction and DWI acquittal did not meet the definition of a criminal episode, she was entitled to the expunction of her DWI arrest records. Accordingly, the judgment of the trial court was affirmed. 


The appellate court concluded that the respondent abused his discretion by signing an order in aid of investigation.
In re Berryman
Constitution, Family, Gov't/Administrative, Juvenile
Texas 12th Court of Appeals
October 14, 2020
12-20-00210-CV
James T. Worthen
Published
The relators appealed the judgment of the trial court, filing an original proceeding to challenge the respondent’s order in aid of investigation of child abuse or neglect. The appellate court noted that absent a sufficient supporting affidavit, an order in aid of investigation of child abuse or neglect did not authorize a legitimate interference with family autonomy for purposes of protecting children from genuine abuse or neglect. The appellate court found that the Texas Department of Family and Protective Services’ representative’s affidavit was simply insufficient to support a conclusion of good cause to order that the relators allow entrance for interviews, examination, and investigation. The appellate court concluded that the respondent abused his discretion by signing an order in aid of investigation. Accordingly, the court conditionally granted the writ.  


The appellate court concluded that the defendant was not entitled to a lesser-included offense instruction and failed to preserve and adequately brief his point of error.
Laws v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
October 14, 2020
06-19-00221-CR
Scott E. Stevens
Published
The defendant appealed the judgment of the trial court which convicted him of assaulting peace officers. On appeal, the defendant challenged the trial court's conviction and sentence of thirty years’ imprisonment for the first officer’s assault and forty years’ imprisonment for the second officer’s assault. The appellate court noted that the defendant argued that the State failed to prove his name was meritless. The appellate court found to the contrary of the defendant's argument, the trial court did not abuse its discretion by striking the venire member for cause and the trial court’s evidentiary rulings were not an abuse of discretion. The appellate court concluded that the defendant was not entitled to a lesser-included offense instruction and failed to preserve and adequately brief his point of error. Accordingly, the judgment of the trial court was affirmed. 


The trial court did not err when it granted the defendant's motions for partial summary judgment as to mental anguish associated with the plaintiffs’ claims for trespass.
Cox v. Helena Chem. Co.
Agricultural, Appellate: Civil, Damages, Procedure, Torts
Texas 11th Court of Appeals
October 16, 2020
11-18-00215-CV
Jim R. Wright
Published
The plaintiffs appealed the judgment of the trial court which granted the defendant's motions for partial summary judgment. On appeal, the plaintiffs sought damages allegedly caused to their cotton crops by drift from the aerial application of Sendero, an herbicide that contained clopyralid and aminopyralid and was toxic to broadleaf plants such as cotton. The appellate court noted that relying on a pesticide inspector’s investigation and observations that the defendant's aerial application of Sendero, which was done in conditions that exacerbated drift, was the only such large-scale application at the relevant time and place, they concluded that the damage to the plaintiffs’ cotton crops was caused by the defendant. The appellate court saw no analytical gap in such a conclusion. The appellate court concluded that the trial court did not err when it granted the defendant's motions for partial summary judgment as to mental anguish associated with the plaintiffs’ claims for trespass. Accordingly, the judgment of the trial court was affirmed, reversed and rendered.  


Since the appellant could not show a right to receive benefits under the policy and because it had not alleged or shown an independent injury, the appellant could not recover on its extracontractual claims.
Prime Time Family Ent. Ctr., Inc. v. Axis Ins Co.
Appellate: Civil, Business, Contracts, Damages, Entertainment, Gov't/Administrative, Insurance, Torts
Texas 11th Court of Appeals
October 16, 2020
11-18-00241-CV
John M. Bailey
Published
The appellant appealed the judgment of the trial court, asserting claims for roof damage that the appellant alleged it had suffered because of the hailstorm. On appeal, the appellant alleged that the appellee breached the policy by underpaying the appellant's claim. The appellate court determined that the appellee properly invoked the doctrine of concurrent causes in its motion for summary judgment. The appellate court found that the appellee's summary judgment evidence established that the appellant had no evidence attempting to segregate losses attributable to covered perils from losses attributable to non-covered perils, and thus, the trial court did not err in granting the appellee's motion for summary judgment on the appellant's breach of contract claim. The appellate court concluded that since the appellant could not show a right to receive benefits under the policy and because it had not alleged or shown an independent injury, the appellant could not recover on its extracontractual claims. Accordingly, the court affirmed the judgment of the trial court.      


While the court did not condone the failure of the trial court to schedule an expeditious hearing, the appellant’s argument and the record did not show that the appellant was entitled to the relief he sought.
Ex Parte I.A.
Constitution, Criminal, Evidence, Juvenile, Procedure
Texas 7th Court of Appeals
October 16, 2020
07-19-00424-CV
Judy C. Parker
Published
The appellant appealed the judgment of the trial court which adjudicated the appellant, a juvenile, alleging he participated in an aggravated robbery and murder. On appeal, the appellant challenged the denial of his petition for writ of habeas corpus, which challenged his detention while awaiting an adjudication hearing before the juvenile court. The appellate court noted that the appellant asserted that his constitutional right to a hearing before the trial court judge was implicated in the case because the magistrate was not an elected official. The appellate court found that the appellant was entitled to have the “head honcho” make the ultimate detention determination. The appellate court found that because either of those grounds justified a continuation of the appellant’s detention, and the appellant did not challenge one of those independent grounds. The appellate court concluded that while the court did not condone the failure of the trial court to schedule an expeditious hearing, the appellant’s argument and the record did not show that the appellant was entitled to the relief he sought. Accordingly, the judgment was affirmed.


The appellate court concluded that the trial court did not have subject-matter jurisdiction over the part of the appellee’s lawsuit seeking judicial review of the Exemption Protest.
Fort Bend Cent. Appraisal Dist. v. McGee Chapel Baptist Church
Appellate: Civil, Gov't/Administrative, Real Property, Tax
Texas 14th Court of Appeals
October 15, 2020
14-19-00334-CV
Kevin Jewell
Published
The appellant appealed the judgment of the trial court which denied its plea to the jurisdiction in the interlocutory appeal in a tax-exemption dispute. The appellate court found that the court sustained the appellant's first issue and held that the trial court lacked subject-matter jurisdiction over the part of the appellee’s lawsuit seeking judicial review of the appellee’s Exemption Protest because the appellee had not exhausted administrative remedies as to that protest. The appellate court found that the trial court erred in denying the jurisdictional plea in that respect. The appellate court concluded that the trial court did not have subject-matter jurisdiction over the part of the appellee’s lawsuit seeking judicial review of the Exemption Protest. Accordingly, the court remanded the case to the trial court for further proceedings.    


The appellate court concluded that since the defendant did not admit to the requisite mental state, he was not entitled to an instruction on the defense of necessity.
Enns v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
October 15, 2020
01-19-00234-CR
Sherry Radack
Published
The defendant appealed the judgment of the trial court which convicted him of possession with intent to deliver methamphetamine in the amount of 400 grams or more, and the trial court assessed punishment at 18 years’ confinement. The appellate court noted that the trial court did not abuse its discretion in finding that there was reasonable suspicion to stop the defendant's car based on the surveillance and information relayed to the captain as well as the deputy’s observation of an arguable violation of the Transportation Code, and thus denying the defendant's motion to suppress. The appellate court found that the defendant conceded in his brief on appeal that he did not admit to all the elements of the offense because he did not have the requisite mens rea because he was forced to participate in the crime at gun point. The appellate court determined that the argument attempted to negate an essential element of the offense the culpable mental state rather than admit to an essential element of the offense as was required to raise the defense of necessity. The appellate court concluded that since the defendant did not admit to the requisite mental state, he was not entitled to an instruction on the defense of necessity. Accordingly, the judgment was affirmed.    


The appellate court concluded that the trial court did not abuse its discretion by concluding the two convictions in the case did not violate the defendant's rights.
Cisneros v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
October 15, 2020
13-18-00652-CR
Dori Contreras
Published
The defendant appealed the judgment of the trial court which convicted the defendant of eleven sex offenses: two counts of continuous sexual abuse of a young child or children, a first degree felony; three counts of aggravated sexual assault, a first degree felony; and six counts of indecency with a child, a second degree felony. On appeal, the defendant challenged the trial court's sentence to concurrent terms of ten years’ imprisonment. The appellate court noted that the parties both asserted that continuous sexual abuse was the most serious offense because, not only was it a first degree felony like aggravated sexual assault, it also carried parole ineligibility as a penalty upon conviction. The appellate court held that the unit of prosecution for continuous sexual abuse was a series of acts of sexual abuse that occurred over an extended period of time against a single complainant. The appellate court concluded that the trial court did not abuse its discretion by concluding the two convictions in the case did not violate the defendant's rights. Accordingly, the judgment was affirmed, reversed and rendered. 


The appellate court concluded that the record did not reflect the appellant presented his complaint on appeal to the trial court and the trial court ruled, or refused to rule, on the issue of damages and attorney fees.
Emmanuel v. Izoukumor
Consumer, Contracts, Damages, Procedure, Torts
Texas 14th Court of Appeals
October 15, 2020
14-19-00361-CV
Charles Spain
Published
The appellant appealed the judgment of the trial court which ruled in favor of appellee and a separate final judgment in the form of an order granting the appellee’s motion to dismiss the appellant’s claims. The appellate court found that the appellant had not preserved a complaint for appellate review on the issue of timely notice of the motion for summary judgment. The appellate court noted that the appellant did not make such a complaint in the trial court in writing, and even if the appellant did raise the issue at the hearing, he was granted relief. The appellate court determined that the appellant’s written request for more time was unsupported by affidavit evidence and he did not obtain a ruling in the trial court. The appellate court concluded that the record did not reflect the appellant presented his complaint on appeal to the trial court and the trial court ruled, or refused to rule, on the issue of damages and attorney fees. Accordingly, the trial court judgments were affirmed.  


The failure of the trial court to comply with Subsection (a)(5) was not a ground for the defendant to set aside the conviction, sentence, or plea.
Abrego v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 08, 2020
14-18-01010-CR
Tracy Christopher
Published
The defendant appealed the judgment of the trial court which convicted him of sexual assault of a child. On appeal, the defendant argued that his conviction must be reversed because his guilty plea was not knowing and voluntary, and because the trial court failed to admonish him that he would have to register as a sex offender. The appellate court noted that the trial court concluded that the record established that the defendant knowingly and voluntarily waived his constitutional rights when he pled guilty. The appellate court found that under Article 26.13(h), any such error was not reversible as the court must substantially comply with Subsection (a)(5). The appellate court concluded that the failure of the trial court to comply with Subsection (a)(5) was not a ground for the defendant to set aside the conviction, sentence, or plea. Accordingly, the judgment of the trial court was affirmed.  


The record in the appeal stood silent as to trial counsel’s trial strategy behind the conduct alleged to constitute ineffective assistance of trial counsel.
Abbott v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 08, 2020
14-18-00685-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted her of possession with intent to deliver a controlled substance in an amount of four grams or more but less than 200 grams. The appellate court noted that the trial court did not violate the defendant's due-process rights by failing to ask her at the plea hearing whether she was satisfied with her trial counsel’s representation or whether she wished to proceed without counsel and represent herself. The appellate court found that the trial court did not violate the defendant's right to a neutral and detached judge by altering the original indictment to be sure that the amendment of the indictment had been effected. The appellate court concluded that the record in the appeal stood silent as to trial counsel’s trial strategy behind the conduct alleged to constitute ineffective assistance of trial counsel. Accordingly, the judgment of the trial court was affirmed. 


The trial court did not err when it refused to consider the extrinsic evidence offered by the defendant because that extrinsic evidence constituted inadmissible parol evidence.
Dayston, LLC v. Brooke
Appellate: Civil, Contracts, Corporations, Evidence, Procedure, Real Property
Texas 11th Court of Appeals
October 08, 2020
11-18-00288-CV
Keith Stretcher
Published
The defendant appealed the judgment of the trial court which granted summary judgment in favor of the plaintiff, declared the agreement void, and ordered the earnest money returned. The appellate court noted that the agreement appeared to contemplate three separate tracts of land in a single conveyance and may contemplate another document, but such document was not “then in existence” at the time the agreement was executed as required under the Texas Supreme Court precedent. The appellate court found that because the conveyance was not sufficiently described in the agreement and because the survey referenced in the agreement did not exist in completed form at the time of execution, the trial court was correct in ruling that the extrinsic evidence offered by the defendant was inadmissible and in declaring that the agreement was void under the statute of frauds. The appellate court concluded that the trial court did not err when it refused to consider the extrinsic evidence offered by the defendant because that extrinsic evidence constituted inadmissible parol evidence. Accordingly, the judgment of the trial court was affirmed.