Conviction for aggravated sexual assault of a child stands despite evidentiary issues raised on appeal
Lamerand v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
January 11, 2018
01-16-00883-CR
Harvey Brown
Published
Defendant appealed his conviction for aggravated sexual assault of a child, raising five issues.  The appellate court affirmed.  First, any error admitting a medical report containing the victim's hearsay statement identifying Defendant was harmless, because other evidence, including the victim's own testimony, established the same fact.  Second, no error arose admitting a school counselor's outcry testimony supported by numerous indicia of reliability.  Third, testimony about the victim's outcry to a second person did not prejudice Defendant, as the same evidence was admitted without objection at other points during the trial.  Fourth, the trial court did not abuse its discretion ruling the danger of unfair prejudice did not outweigh the probative value of Defendant's suicide attempt after his initial police interview, and admitting it as relevant to Defendant's guilt.  Last, no error arose denying a recess based on late notice of intent to introduce the suicide attempt, where the record showed Defendant knew the State would introduce it.  The court accordingly affirmed Defendant's conviction.


Court finds permanent injunction not duplicative of reasonable-royalty damages based on present value, not actual future use, of misappropriated trade secrets owner intended to retain exclusively; but injunction not limited to trade secret technology required further delineation
TMRJ Holdings, Inc. v. Inhance Tech., LLC
Appellate: Civil, Damages, Intellectual Property, Litigation: Commercial
Texas 1st Court of Appeals
January 09, 2018
01-16-00849-CV
Jane Bland
Published
A jury found two executives misappropriated trade secrets from their former employer to start a competing business and awarded $4 million in reasonable-royalty damages and $10,500 in lost profits. The trial court entered those damages and added permanent injunctive relief.  The competing company appealed, arguing that awarding both damages and injunctive relief duplicated remedies in violation of the one-satisfaction rule.  The appellate court disagreed.  First, because the competing company operated only briefly, well before trial, the reasonable-royalty damages compensated for misappropriation of the technology based on its present value; not actual future use.  Second, the court found reasonable-royalty damages did not fully compensate for misappropriation of trade secrets that the owner intended to retain for its own exclusive use.  Therefore, preventing future exploitation of the technology warranted the injunction.  However, the court found the injunction overly broad where it broadly proscribed use of technology known within the industry, not just the trade secrets, thus preventing lawful competition.  The court accordingly reversed and remanded the injunctive portion of the judgment for further delineation, but otherwise affirmed.


Conviction for triple capital murder of cousin, girlfriend, and unborn child stands despite multiple issues raised on appeal
Harper v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
January 09, 2018
01-14-00641-CR
Harvey Brown
Published
A jury convicted Defendant of capital murder for killing his cousin, his eight-and-a-half month pregnant girfriend, and their unborn child.  Defendant appealed, rasing multiple issues, but the appellate court affirmed.  First, evidence that included the girlfriend's dying declaration identifying Defendant and a jailhouse informant's testimony about Defendant's detailed confession sufficed to convict.  Second, the evidence supported finding Defendant murdered more than one person during the same criminal transaction where Defendant shot his cousin, then went to his cousin's residence and stabbed his girlfriend, evidently before taking a large amount of cash from their closet.  Third, failure to require unanimity in the jury charge as to which victims Defendant murdered was harmless, as compelling evidence showed the same person killed both the cousin and his girlfriend; and there was no evidentiary basis to find the person who killed the girlfriend did not also kill her unborn baby as a result.  Fourth, excluding four inmates' testimony that Defendant maintained his innocence while awaiting trial did not prejudice presentation of his defense.  Nor did excluding testimony that the informant lied to the jury about his own charges; or that the lead detective had once been suspended by the police department.  Fifth, Defendant failed to show portions of the record marked "inaudible" as necessary to resolving his appeal.  Sixth, no error arose giving greater weight to a psychiatrist's report finding Defendant competent to stand trial than the defense's conflicting report; particularly where some of Defendant's impairment resulted from refusal to take his medication.   The court accordingly affirmed Defendant's conviction.


Court compels production of full unredacted settlement agreements absent timely motion for protection or designation of portions not discoverable
In re Grecon, Inc.
Appellate: Civil, Discovery, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
January 12, 2018
14-17-00639-CV
Kevin Jewell
Published
Injured Plaintiff settled with all but one Defendant, who requested production of the settlement agreements.  After the trial court declined to compel production, Defendant sought mandamus relief.  The appellate court found Defendant entitled to production where Plaintiff neither filed a timely motion for protection, nor designated portions of the settlement agreements not relevant and discoverable.  Instead, Plaintiff's response stating that no "discoverable" settlement agreements existed was misleading and an abuse of the discovery process.  The court further found all portions of the Settlement Agreements relevant to determining settlement credits and the existence of witness bias or prejudice.  Without that information, Defendant could not properly prepare for trial, precluding an adequate remedy on appeal.  The court accordingly granted mandamus and directed full unredacted production of the settlement agreements.  


Texas holds personal jurisdiction over claim asserting Oklahoma Salesman sold his own equipment to Company's customers in Texas; but not claim based on compensation agreement negotiated in Oklahoma
Turman v. POS Partners, LLC
Appellate: Civil, Contracts, Courts, Litigation: Commercial
Texas 14th Court of Appeals
January 04, 2018
14-17-00105-CV
Tracy Christopher
Published
A Texas-based Company sued its Salesman, an Oklahoma resident, in Texas court for 1) breach of fiduciary duty based on selling his own equipment to Company's existing or potential customers; and 2) a declaration that Company was not liable under Salesman's compensation agreement.  The trial court denied Salesman's special appearances contesting jurisdiction in Texas; Salesman appealed.  The appellate court found Salesman's Texas contacts not sufficiently continuous and systematic to support general jurisdiction.  However, the record showed a substantial connection between Salesman's Texas contacts and the operative facts of the fiduciary duty claim where Salesman deliberately sold his own equipment to Company's customers in Texas on at least two occasions.  Therefore, the trial court did not err in denying special appearance as to that claim.  On the other hand, no substantial connection arose between the operative facts of the declaratory claim and Salesman's Texas contacts because Salesman negotiated the compensation contract, and allegedly accepted less than was promised, in Oklahoma.  The court accordingly affirmed jurisdiction over the fiduciary duty claim, but instructed the trial court to sever and dismiss the declaratory claim for lack of personal jurisdiction.


Pawn shop ousted by landlords to make space for new WalMart recovers moving and build out costs, but not attorney fees; and must retry rent differential damages
First Cash, Ltd. v. JQ-Parkdale, LLC
Appellate: Civil, Contracts, Damages, Landlord and Tenant, Procedure
Texas 13th Court of Appeals
January 11, 2018
13-16-00099-CV
Nelda V. Rodriguez
Published
Pawn Shop sued its Former Landlords for terminating its lease to make way for a WalMart, as well as the Current Landlords on a theory of successor liability.  After the trial court dismissed Current Landlords, the jury awarded over $1M against Former Landlords as follows: 1) $130,000 for costs incurred moving and building out a new location; 2) $182,400 for rent differentials; and 3) $865,000 for attorney fees.  The trial court granted JNOV denying the attorney fee award because Former Landlords were LLCs, but entered the remainder.  The parties cross-appealed.  First, the appellate court agreed that attorney's fees may be assessed only against a natural person or actual corporation in a breach of contract case and affirmed the JNOV.  Second, the court affirmed dismissal of Current Landlords, finding a single line of testimony by both Landlords' co-owner that Former Landlords converted into Current Landlords insufficient to establish successor liability absent evidence of a formal written conversion plan.  Third, the appellate court reversed the rent differential award due to lack of competent evidence of the new market value of the lease following shopping center improvements.  Fourth, the court affirmed the award of moving and build-out costs, finding the "reasonable and necessary" requirement for remedial damages in breach of construction contract cases did not apply to breach of a lease.  The court accordingly affirmed the award of moving and build-out costs and denial of attorney fees; but remanded for a new trial on liability for rent differential damages.


TSU immune from liability for student shot and killed on campus
Texas S. Univ. v. Mouton
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Real Property, Torts
Texas 14th Court of Appeals
January 11, 2018
14-16-01003-CV
Martha Hill Jamison
Published
A non-student shot and killed a TSU freshman outside his dormitory, the day after another shooting occurred in the parking lot of the same dormitory.  His mother sued TSU, asserting negligence based on failure to warn parents and students; detect and prevent criminal activities on campus; and provide adequate security.  The trial court denied TSU's plea to jurisdiction based on governmental immunity and TSU appealed.  The appellate court reversed, finding failure to make property safe did not waive immunity without a causal link between that failure and the injury.   Failure to supervise or provide security, standing alone, constituted a failure to act; not a condition or use.  Although TSU's security equipment and systems were arguably used, misused, or lacked an integral safety component, that use or condition did not proximately cause the shooting.  Instead, the pleadings affirmatively demonstrated that the assailant caused the shooting.  The court concluded TSU's property "merely provided the backdrop for but did not proximately cause [the] death" and accordingly dismissed for lack of subject matter jurisdiction.


Order granting untimely motion for new trial void
In re Merino
Courts, Procedure
Texas 14th Court of Appeals
January 09, 2018
14-17-00805-CV
William J. Boyce
Published
The trial court granted Contractor a new trial after entering default judgment against it.  Homeowner challenged the order as void, arguing the trial court's plenary power had expired when it signed the order.  The appellate court agreed, because Contractor filed its motion nearly three months after the trial court's power to grant a new trial expired.  Contractor countered that its motion should instead be taken as a collateral attack on a void judgment, which has no deadline.  The appellate court disagreed, as nowhere in the motion did Contractor assert a collateral attack.  Moreover, the trial court's order simply granted a new trial; it did not grant a collateral attack or declare the default judgment void.  Therefore, the appellate court conditionally granted mandamus and directed vacatur of the order granting new trial. 


Termination of parental rights affirmed where evidence showed Father sexually abused children
In re R.H.W.
Evidence, Family
Texas 14th Court of Appeals
January 09, 2018
14-17-00217-CV
Ken Wise
Published
Father appealed divorce decree terminating his parental rights to four children.  First, Father argued the evidence did not suffice to prove predicate grounds or the best interest finding.  The appellate court disagreed, finding Father's letters admitting sexual abuse, Mother's testimony about the children's outcries, and the criminal charges against Father with supporting probable cause affidavits provided sufficient evidence of endangerment.  That evidence, and the impact of sexual abuse now and in the future, warranted finding termination in the children’s best interest.  Second, Father claimed error admitting hearsay testimony from the children's therapist.  The court found any error harmless because the forensic interviews referenced in the criminal charges, which were admitted without objection, described specific instances of abuse in greater detail than the therapist's testimony.  Third, no error occurred excluding Father's psychological evaluation where Father provided unchallenged testimony that he had a very positive evaluation; failed to adequately brief how the excluded documents met any hearsay exception; and did not demonstrate how exclusion resulted in improper judgment.  Fourth, Father claimed error awarding attorney's fees to the amicus attorney as additional child support.  The court modified the decree to delete that the fees were awarded “as additional child support” and provisions authorizing wage withholding; and otherwise affirmed.  


No revocation of community supervision absent sufficient proof of willful failure to pay
Carreon v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
January 11, 2018
13-16-00347-CR
Leticia Hinojosa
Published
The trial court revoked Defendant's community service despite the State conceding it lacked evidence to prove willful failure to pay fees, costs, a fine, and restitution.  Defendant appealed, arguing he lacked the ability to pay and violation of his constitutional rights.  The appellate court reversed.  First, the State presented no evidence of the victim's financial resources or ability to cover expenses incurred due to Defendant's burglary where the victim did not testify.  Second, insufficient evidence supported finding Defendant willfully unemployed where he lacked transportation and lived in a rural area, despite the trial court's reasoning that he could walk two miles to the nearest farm and ask for work.  Third, absent sufficient evidence of willfulness, revocation violated the Fourteenth Amendment's proscription of incarcerating an indigent solely for failure to pay.  As Defendant's term of community supervision had meanwhile expired, the court discharged him.


No implied consent or exigent circumstances justified warrantless blood alcohol test of unconscious driver
State v. Ruiz
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
January 11, 2018
13-13-00507-CR
Gina M. Benavides
Published
The trial court suppressed a warrantless blood alcohol test taken when police found Defendant unconscious after leaving the scene of a car accident.  The State appealed, arguing that either Defendant impliedly consented to the blood draw; or that exigent circumstances justified it under recent precedent.  First, the appellate court found implied consent inapplicable where Defendant was unable to give or revoke his consent.  Second, the court found probable cause for arrest where police found exploded beer cans in Defendant's car; then found him unconscious in a nearby field, emitting a strong odor of alcohol.  However, the arresting officer's claim that taking one of two officers off regular duty that night to apply for a warrant would be "unreasonable" did not establish exigent circumstances to justify a warrantless blood draw, particularly absent any procedures in place to procure a late-night warrant on a weekend.  The court distinguished intervening precedent, which involved a serious fatal accident with explosions and fires requiring every available officer to shut down several major intersections and an active crime scene investigation from 10:30 p.m. until 6 a.m. the next day.  That case also involved concern that pain medication given while awaiting a warrant would affect a blood test for methamphetamines.  Waiting two or three hours to obtain a warrant in the instant case would not have affected the outcome because blood alcohol dissipates gradually and relatively predictably, such that experts can extrapolate blood alcohol level at the time of the offense from blood drawn considerably later; and Defendant remained in the hospital overnight.  The court concluded the totality of circumstances did not justify the warrantless blood test and accordingly affirmed its suppression.


Driver tossing pill bottle over a fence but still in plain sight amounts to attempted, not actual, tampering with evidence
Stahmann v. State
Criminal, Evidence, Procedure
Texas 13th Court of Appeals
January 04, 2018
13-16-00400-CR
Dori Contreras
Published
Defendant driver who tossed a prescription bottle over a chain-link fence before police arrived on the scene of a car accident appealed his subsequent conviction for tampering with evidence.  The appellate court found the evidence sufficed for attempted, not actual, tampering where Defendant tried to throw the bottle into some shrubbery; but it landed in plain sight.  That evidence showed a conscious objective or desire to impair the bottle’s availability as evidence in the investigation of an offense just committed; but not its actual destruction, alteration, or concealment.  Second, the court found the indictment need not specify which offense provided the precursor for tampering.  Defendant had actual notice of the nature of the offenses where the original indictment charged him with aggravated assault with a deadly weapon and intoxication assault. Third, for the same reason, no error arose refusing to give an instruction requiring the jury to find a specified offense with unanimity.  Fourth, the court rejected arguments based on a court in another matter finding Defendant had not committed intoxication abuse; as none of his challenges affected the conviction for tampering.  Fifth, prosecutorial remarks during closing relating back to earlier comments during jury selection and disputing defense counsel's theory of the case, without impugning his character, did not amount to prejudicial misconduct.  Sixth, references to a "rabbit trail," which the court directed the jury to disregard, did not require mistrial.  The court accordingly reversed and remanded with instructions to reform the judgment to reflect criminal attempt instead of actual tampering with evidence. 


Refusal to timely designate responsible third parties warrants mandamus relief; but not dismissal on ripeness grounds absent predicate request
In re Coppola
Appellate: Civil, Procedure, Professional Responsibility, Real Property
The Supreme Court of Texas
December 15, 2017
16-0723
Per Curiam
Published
Buyer brought suit against Sellers for failure to disclose a 25-foot right-of-way ordinance.  Prior to trial, Sellers sought mandamus relief on two alternate grounds.  First, Sellers asserted the trial court erred denying leave to designate Buyer's transactional attorneys as responsible third parties.  The Texas Supreme Court agreed, ruling that trial courts have no discretion to deny a timely filed motion to designate absent a pleading defect and opportunity to cure.  Sellers timely filed the motion more than 60 days prior to the amended trial setting in effect; the original trial setting did not control.  The court found no merit to Buyer's argument that attorneys cannot be designated responsible third parties.  Sellers had no adequate appellate remedy because proceeding to trial without permitting designation could skew the proceedings, affect the outcome, compromise defenses in ways not apparent in the appellate record, and impair or preclude the court from determining the proportionate liability of all responsible parties.  Therefore, that ground sufficed for mandamus.  However, Sellers' alternate request did not fare as well.  Sellers requested dismissal of the entire action, claiming no cognizable injury absent Buyer first unsuccessfully seeking a variance to the right-of-way ordinance.  But Sellers had not presented that argument to the trial court, nor received a ruling.   Therefore, the court found no predicate request for mandamus relief on that ground.  The court accordingly granted Seller's first request to permit designation of responsible third parties; but denied Seller's request for dismissal.  


The trial court did not err in issuing a public reprimand against appellant for violating the rules of professional legal conduct, insofar that sufficient evidence was presented to uphold her violation
Hamlett v. Commission For Lawyer Discipline
Evidence, Professional Responsibility
Texas 7th Court of Appeals
December 28, 2017
07-16-00256-CV
Per Curiam
Published
The appellant, an attorney, was publicly reprimanded for violating the state rules of professional conduct. Appellant appealed, contending the evidence used to find her in violation of the rules of professional conduct was insufficient. On appeal, the court held that sufficient evidence was presented to sustain the violation as charged, given case precedent that outlines a lower burden of proof for professional conduct violations. As a result, the public reprimand was upheld.


The appellants' petition did not state a valid cause of action for which the appellee’s immunity was waived; however, the trial court should have given appellants the opportunity to amend their petition to attempt to state a valid cause of action
Luttrell v. EL Paso County
Appellate: Civil, Gov't/Administrative
Texas 8th Court of Appeals
December 20, 2017
08-16-00090-CV
Yvonne T. Rodriguez
Published
The appellants were four residents of the appellee county who were found in contempt by a judge for failing to obey a jury summons. The appellants filed a lawsuit on behalf of themselves and other similarly situated persons, naming the judge and the appellee as defendants. However, because the trial court dismissed the judge from the case with the appellants’ consent, the appellee county was the only remaining defendant. The trial court issued an order granting the appellee’s plea regarding jurisdiction, and dismissed the appellants' plea. On appeal, the appellate court found that the appellants' petition did not state a valid cause of action for which the appellee’s immunity was waived; however, the court agreed with the appellants that they should have been given the opportunity to amend their petition to attempt to state a valid cause of action over which the trial court would have jurisdiction. Accordingly, the court reversed the trial court’s order granting the plea to the jurisdiction, and remanded the case to the trial court.


The trial court reversibly erred by failing to allow the non-party Navajo Nation to intervene in the case
In re J.J.T.
Family, Gov't/Administrative, Juvenile
Texas 8th Court of Appeals
December 20, 2017
08-17-00162-CV
Ann Crawford McClure
Published
Both the mother at issue and the child at issue were members of the Navajo Nation tribe. The mother’s parental rights were terminated following a hearing, from which the non-party Navajo Nation appealed based on the sufficiency of the evidence presented, as well as the trial court’s denial of the Navajo Nation’s plea to intervene in the case. On appeal, the appellate court held that while there was sufficient evidence to support the trial court’s judgment, the trial court erred by disallowing the Navajo Nation’s request to intervene. As a result, the judgment of the trial court was reversed, and the case was remanded for a new trial.


The appellant's employee had altogether stopped operating or using the van before the unfortunate crash, thus, the appellant's employee was not actively operating or using the van when it collided with and damaged the helicopter
Texas Juvenile Justice Department v. Phi, Inc.
Gov't/Administrative, Torts
Texas 2nd Court of Appeals
December 21, 2017
02-17-00013-CV
Elizabeth S. Kerr
Published
The appellee company’s parked helicopter was damaged when a van owned by the appellant department rolled into it. The appellee sued the appellant, claiming that the Texas Tort Claims Act waived the appellant’s sovereign immunity because the appellant employee’s negligent operation or use of a motor vehicle caused the appellee’s damages. The trial court agreed, and denied the appellant’s plea as to jurisdiction and a motion for summary judgment. On appeal, the appellate court  found that, based on the evidence presented, the appellant's employee was not actively operating or using the van when it collided with and damaged the helicopter. As a result, the appellate court concluded that the appellee could not satisfy the state statute's vehicle-operation-or-use requirement, because the appellant was not actively operating or using the van when it damaged the appellee’s helicopter. Accordingly, the court reversed the trial court’s orders denying the appellant’s plea as to jurisdiction and summary judgment, and rendered judgment in favor of appellant.


Because dismissal of the case was a harsh remedy with fee-shifting consequences, the court must strictly construe the "Rule 91a" requirements
Bedford Internet Office Space, LLC v. Texas Insurance Group, Inc.
Appellate: Civil, Contracts, Courts, Insurance, Procedure
Texas 2nd Court of Appeals
December 21, 2017
02-17-00009-CV
Bonnie Sudderth
Published
The appellant's appeal in this insurance policy case derived from the trial court’s order granting the appellee corporation's Rule 91a motion to dismiss the case. The appellate court found that Rule 91a was enacted in response to the legislature’s directive that the Supreme Court adopted rules that provided for the dismissal of causes of action that had no basis in law or fact. Because dismissal by rule 91a was a harsh remedy with fee-shifting consequences, the court must strictly construe the rule’s requirements. As such, the trial court was required to look beyond the appellant’s pleadings and consider whether the appellee corporation raised a valid defense in its pleadings in order to dismiss the appellant's claims without further proceedings. Based on the evidence presented, the appellate court reversed the trial court’s order dismissing the appellant’s claims and remanded the case to the trial court for further proceedings.


Based on the totality of the evidence presented, the appellee's multiple claims were affirmed in part and reversed in part
Warner Bros. Entertainment, Inc. v. Jones
Appellate: Civil, Constitution, Damages, Entertainment, Torts
Texas 3rd Court of Appeals
December 21, 2017
03-16-00009-CV
Cindy Olson Bourland
Published
A news story about a former football player, the appellee, was posted on the the appellant's celebrity news website. The appellee sued the appellant company for libel, civil conspiracy, intentional infliction of emotional distress, malicious prosecution, and abuse of process. The appellant moved to dismiss the appellee’s claims, which was denied by the trial court. On appeal, the appellate court concluded that the appellee failed to establish a prima facie case for the essential elements of his claims for libel and civil conspiracy against the appellant website, and also for intentional infliction of emotional distress, malicious prosecution, and abuse of process. However, the appellee established a prima facie case against various other appellants for libel and conspiracy. Consequently, the appellate court affirmed the trial court’s decision not to dismiss those claims, and reversed on all other claims.


The trial court did not err in denying appellant's motion, since it was not brought to the court in a timely fashion
Grubbs v. ATW Investments, Inc.
Gov't/Administrative, Procedure
Texas 4th Court of Appeals
December 20, 2017
04-17-00555-CV
Irene Rios
Published
The sole issue presented on appeal was whether the trial court erred in denying a motion to dismiss filed pursuant to the Texas Citizen’s Participation Act (TCPA). The trial court’s order expressly stated the motion was denied because the hearing on the motion was untimely. The appellate court found that, based on the evidence presented, the appellant did not obtain a hearing on the motion within the ninety-day limit mandated for a timely filing. Thus, because the appellant failed to obtain a hearing on his motion to dismiss within the statutory limit prescribed, the trial court’s order denying his motion was affirmed.


Because the indictment language failed to at least charge ‘a person’ with the commission of a crime, it was not a valid charging instrument and did not vest the trial court with jurisdiction
Jenkins v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
December 20, 2017
04-17-00114-CR
Karen Angelini
Published
The appellant was charged with one count of continuous trafficking of persons. After a jury trial, the appellant was found guilty and sentenced to a prison term. On appeal by the appellant, the appellate court found that because the charging instrument in the case failed to charge the appellant with an offense, it did not meet the first prong of the constitutional definition of an indictment under the state Constitution. Because the indictment failed to at least charge ‘a person’ with the commission of a crime, it was not an indictment and did not vest the trial court with jurisdiction. Further, because a valid indictment was essential for jurisdiction, it was not subject to waiver. Therefore, the appellant did not waive error, and his conviction was void. Accordingly, the judgment of the trial court was reversed and the case was remanded.


Based on the totality of the evidence presented, as well as the specific language of the appellant's pleadings, the judgment of the trial court was affirmed
In re M.J.M.G.
Family, Procedure
Texas 4th Court of Appeals
December 20, 2017
04-17-00349-CV
Patricia O. Alvarez
Published
This appeal derived from the trial court’s order terminating the appellant’s parental rights to the child at issue. The appellant contended the evidence was neither legally nor factually sufficient for the trial court to have found, by clear and convincing evidence, that terminating his parental rights was in the child’s best interest. The apppellate court determined, based on the evidence presented, that the appellant only challenged the trial court’s best interest findings. An appellant must challenge all independent bases or grounds that fully support a judgment or appealable order, if multiple issues are being challenged. The requirement that an appellant challenge each independent ground is based on the premise that an appellate court normally cannot alter an erroneous judgment in favor of an appellant in a civil case who does not challenge that error on appeal. By failing to challenge the trial court’s finding that the appellant failed to file an admission of paternity, the appellant did not challenge all of the independent grounds listed in the termination order. Therefore, the court must accept the unchallenged finding as true. Accordingly, the judgment was affirmed.


The trial court did not err in convicting the defendant based on the evidence presented, and no trial errors were committed that unfairly prejudiced the defendant
West v. State
Criminal, Evidence, Procedure
Texas 7th Court of Appeals
December 18, 2017
07-16-00195-CR
Brian Quinn
Published
The defendant was convicted, by jury trial, of multiple felonies. The defendant appealed the sufficiency of the evidence used to convict him, as well as alleged trial errors made by the trial court. On appeal, the appellate court held that sufficient evidence of the crimes committed was presented at trial, and any trial errors that may have been committed by the trial court did not unfairly prejudice the defendant. Lastly, without evidence of double jeopardy readily apparent, the appellate court deferred to the jury’s reasonable conviction of multiple similar offenses. Consequently, the judgment of the trial court was affirmed in all respects.


The trial court did not err by applying the convservatorship statute, as opposed to the parental termination statute, because the case did not terminate the parents’ rights
In re G.V., III and G.V.
Family
Texas 2nd Court of Appeals
December 18, 2017
02-17-00220-CV
Elizabeth Kerr
Published
The mother and father of the children at issue had an established Mediated Settlement Agreement (MSA). The MSA did not actually terminate the father’s or mother’s parental rights, nor did either of them voluntarily relinquish their parental rights under the agreement. They then sought to revoke their consent to the MSA after the family services department moved the trial court to enter judgment. The appellate court found that if parents could unilaterally revoke a mediated settlement agreement, they could play havoc with that dismissal deadline. Additionally, and most importantly, children need permanency and stability. An irrevocable MSA lends itself to those goals; a revocable MSA potentially undermined them. Further, neither father nor mother had filed a suit to modify conservatorship, which the court determined was the prevailing statute that was the subject of the case. No trial court had ruled on father’s and mother’s contentions that the 48-month provision and the “emergency” provision were invalid. Any opinion the court might give on the matter would be advisory in anticipation of such a future motion to modify conservatorship. Accordingly, the judgment was affirmed.


Based on the evidence presented, the trial court did not err in denying the appellant's motion to dismiss based on alleged speedy trial infringement by the state
Porter v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 19, 2017
01-16-00716-CR
Per Curiam
Published
The jury found the appellant guilty of the felony offense of manslaughter, and the trial court assessed the appellant’s punishment at confinement for life. In his sole issue on appeal, the appellant contended that the trial court erred by denying his motion to dismiss for violation of his right to a speedy trial. The appellate court found that the appellant did not show that the delay from arrest to trial played any significant role regarding the outcome of the case. In so finding, the court, using case presented, weighed common sense and sensitivity to ensure that the charges would be dismissed only when the evidence showed that the appellant’s actual and asserted interest in a speedy trial had been infringed. Because the trial court did not err in denying the appellant’s motion to dismiss, the court overruled his sole issue. Accordingly, the court affirmed the trial court’s judgment.


The trial court erred in finding, without sufficient supporting evidence, that the state Alcoholic Beverage Commission code provision violated the appellee's constitutional rights
Texas Alcoholic Beverage Commission v. Live Oak Brewing Co., LLC
Appellate: Civil, Constitution, Gov't/Administrative
Texas 3rd Court of Appeals
December 15, 2017
03-16-00786-CV
Melissa Goodwin
Published
The appellant state alcoholic beverage commission challenged from the trial court’s final judgment declaring that Section 102.75(a)(7) of the Texas Alcoholic Beverage Code violated the Due Course of Law guarantees of the state Constitution. On appeal, the appellate court found that because Section 102.75(a)(7) was presumed constitutional, it was appellees’ “high burden” to overcome the presumption and show that the statute as applied to them violated an economic liberty interest protected by state law. The appellate court concluded that, based on the facts presented, appellee failed to meet this high burden of evidentiary support. Thus, the trial court erred in its summary judgment ruling and, accordingly, judgment in favor of the appellant commission was entered.


Based on the totality of the circumstances, the state failed to carry its burden that exigent circumstances existed to permit a warrantless blood draw
State v. Sanders
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
December 14, 2017
02-16-00226-CR
Bill Meier
Published
The appellee was driving on the wrong side of the road, when she struck another vehicle head-on. The collision resulted in the deaths of two individuals and serious injury to another. The state charged the appellee with two counts of intoxication manslaughter and one count of intoxication assault. The appellee filed a motion to suppress the results of a warrantless and involuntary blood draw that occurred after she was transported to the hospital from the accident scene. The trial court granted the appellee’s suppression motion, from which the state appealed. The appellate court, citing Supreme Court precedent, held that based on the circumstances surrounding the search, the warrantless seizure of appellee's blood was unreasonable, since there was no demonstration by the state that exigent circumstances prevented the police from obtaining a warrant within a timeframe that preserved the opportunity to obtain reliable evidence of the appellee’s blood alcohol content. Accordingly, the court affirmed the trial court’s order granting the appellee’s motion to suppress.


The trial court did not err in overruling appellant's contention that the evidence presented was insufficient to render verdict against it
Mid Continent Lift & Equipment, LLC v. J. Mcneill Pilot Car Service
Contracts, Damages, Torts
Texas 3rd Court of Appeals
December 15, 2017
03-16-00290-CV
Bob Pemberton
Published
Following a jury trial, the court ordered the appellant company to pay property damages, including lost profits, to the appellee corporation. The appellant challenged the judgment award of lost profits, urging that sufficient supporting evidence was lacking. On appeal, the court, following a review of the evidence presented, held that sufficient evidence was presented at trial to sustain a verdict against appellant. Consequently, judgment on this issue was entered against appellant and in favor of appellee.


Based on the evidence presented, neither the appellant nor the appellee was entitled to judgment as a matter of law
Paxton v. Texas Health and Human Services Commission
Gov't/Administrative, Procedure
Texas 3rd Court of Appeals
December 14, 2017
03-15-00652-CV
Jeff Rose
Published
The appellee commission supervised the Texas Medicaid program. The appellant Attorney General’s office determined that Medicaid claim numbers were confidential under under state law and, thus, must be withheld under the Texas Public Information Act (PIA)’s exception to disclosure of information made confidential by law. The appellee filed suit, seeking relief from compliance with the appellant’s decision. The trial court granted the appellee's motion for summary judgment. On appeal, the appellate court found that neither party presented sufficient evidence to render judgment as a matter of law. Therefore, neither party was entitled to summary judgment on the record before the court. Accordingly, the judgment was reversed and remanded for further proceedings.


The trial court did not err in convicting the defendant, insofar that sufficient evidence of the crimes committed was presented, and any trial errors were deemed harmless
Rhymes v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
December 12, 2017
06-16-00222-CR
Ralph K. Burgess
Published
The defendant was convicted, by jury trial, of multiple felonies and sentenced to prison. The defendant appealed both the sufficiency of the evidence used to convict him, as well as alleged trial errors made by the trial court. On appeal, the appellate court held that sufficient evidence of the crimes committed was presented at trial, and any trial errors that may have been committed by the trial court did not unfairly prejudice the defendant. As a result, the judgment of the trial court was affirmed.


Defendant seeking habeas corpus did not satisfy the writ requirements where he failed to show that his arguments could not have been formulated based upon past United States Supreme Court and Texas jurisprudence
Ex parte Navarro
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
January 10, 2018
WR-82,264-03
Barbara Parker Hervey
Published
The applicant was convicted of murder and one count of aggravated assault. The applicant was 15 years old at the time of the murder. The State asked the juvenile court to waive its exclusive jurisdiction so that applicant could be tried as an adult. The juvenile court granted the request and applicant was tried as an adult. The jury assessed punishment at ninety-nine years’ imprisonment for the murder charge and twenty years’ imprisonment for the aggravated assault charge. The judge ordered the sentences to run concurrently. The Texas Court of Criminal Appeals subsequently held in Moon v State, 451 S.W.3d 28 (Tex. Crim. App. 2014), that waiver of juvenile court jurisdiction was subject to legal and factual appellate review. Applicant sought habeas corpus based upon Moon. The issues in the instant case were whether the court's decision in Moon was retroactive, and if so, whether the transfer order in the instant case was legally and factually insufficient. The Texas Court of Criminal Appeals found that the court cannot consider a habeas corpus application unless the application alleges facts showing that the current claims and issues could not have been presented during the original criminal case. In this case, although Moon had not been decided, there was United States Supreme Court and Texas jurisprudence discussing the same principles that the court had discussed in Moon. Thus, applicant could have previously formulated his claim. Accordingly, the court dismissed his applications for writs of habeas corpus.  


Defendant waived his right to appeal prosecutors inflammatory closing argument where he failed to properly object or move for a mistrial during the course of the trial
Hernandez v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
January 10, 2018
PD-1389-16
Mary Lou Keel
Published
The appellant was convicted of murder and sentenced to fourteen years in prison. During closing argument, the prosecution argued that the defendant had uttered a racial slur that was not fully supported by the record. Defendant objected. The trial court sustained the objection and asked the jury to disregard the prosecutor's remarks. The defendant did not request any further relief from the trial court. The appellate court reversed the conviction. The Texas Court of Criminal Appeals found that even incurably improper jury argument was forfeitable. Because defense counsel did not pursue his objection to an adverse ruling, the appellate court should not have entertained his complaint about the prosecutor’s argument. Accordingly, the court reversed the judgment of the appellate court.


Case remanded to trial court for second time to obtain an affidavit from trial counsel to address certain issues relating to applicant's habeas corpus application
Ex parte Medrano
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
January 10, 2018
WR-87,182-01
Per Curiam
Published
The case was before the court on applicant's habeas corpus petition. The applicant was convicted of two counts of aggravated sexual assault of a disabled individual and sentenced to two life sentences, which were ordered to run consecutively. The applicant claimed that he received ineffective assistance of counsel. The Texas Criminal Court of Appeals remanded the matter to the trial court to obtain affidavit and findings addressing applicant's ineffective assistance of trial counsel claims. The supplmental record furnished by the trial court was insufficient and did not include a requested affidavit from applicant's original trial counsel. The Texas Criminal Court of Appeals observed that the trial court should make findings of fact and conclusions of law as to whether the performance of the applicant’s trial counsel was deficient and, if so, whether the counsel’s deficient performance prejudiced the applicant. The trial court should also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of the applicant’s claim for habeas corpus relief. That application would be held in abeyance until the trial court has resolved the fact issues. The issues should be resolved within 90 days of that order. A supplemental transcript containing all affidavits and interrogatories or the transcription of the trial court reporter’s notes from any hearing or deposition, along with the trial court’s supplemental findings of fact and conclusions of law, should be forwarded to the instant court within 120 days of the date of that order. 


The appellant reasonably believed that his actions would cause only simple bodily injury, but, his mistake about the severity of the victim’s injuries did not negate any elemental mental state
Rodriguez v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
January 10, 2018
PD-0439-16
Michael E. Keasler
Published
The jury acquitted the appellant of aggravated robbery, convicted him of aggravated assault, sentenced him to 12 years’ imprisonment, and assessed a $10,000 fine. The appellate court reversed the appellant’s conviction and remanded. The Texas Court of Criminal Appeals found that in a prosecution for aggravated assault, the State need only prove the defendant harbored a culpable mental state as to the underlying assault. Thus, even if the appellant reasonably believed that his actions would cause only simple bodily injury, his mistake about the severity of the victim’s injuries did not negate any elemental mental state. A mistake-of-fact instruction on those grounds would have been contrary to Texas Penal Code Section 8.02(a). Accordingly, the appellate court’s judgment was reversed, and the trial court’s judgment was affirmed.


The appellee’s duty was limited to inspecting the elevator for a working phone, and the appellant failed to raise a genuine issue of material fact that the appellee corporation breached its duty in inspecting the elevator
Franklin v. American Elevator Inspections, Inc.
Damages, Torts
Texas 14th Court of Appeals
December 21, 2017
14-16-00684-CV
J Brett Busby
Published
The appellant became trapped inside his residential elevator when it malfunctioned. Without a phone in the elevator or another way of calling for help, he beat his way out with his fists, sustaining injuries. He sued various parties for negligence, including the appellee corporation who inspected the elevator after it was installed by another company. The trial court awarded summary judgment in favor of appellee. On appeal, the appellate court held that the appellant’s evidence did not raise a factual issue as to whether the appellee breached its duty in inspecting the elevator, and the appellant testified only that he did not observe a telephone in the elevator before or after the inspection. The appellant acknowledged that he was not present during the inspection, and the appellee’s duty was limited to inspecting the elevator for a working phone. The court therefore held the appellant failed to raise a genuine issue of material fact that the appellee corporation breached its duty in inspecting the elevator. Accordingly, the trial court's judgment was affirmed.


The trial court did not err in issuing judgment in favor of appellee for breach of contract by appellant, but did err in failing to segregate attorney’s fees
Atrium Medical Center, Lp v. Houston Red C LLC
Contracts, Damages
Texas 14th Court of Appeals
December 21, 2017
14-16-00277-CV
John Donovan
Published
Appellant and appellee, both business entities, were engaged in a contractual business agreement. When appellant failed to perform according to the terms of the contract, appellee sued. The trial court awarded judgment in favor of appellee on the breach of contract claims, and also awarded full attorney’s fees to be paid by appellant. On appeal, the appellate court held that the evidence presented was sufficient to find that appellant breached its contractual agreement with appellee. However, the trial court erred in failing to provide a rationale why full attorney’s fees were ordered against appellant, rather than segregating a portion to be paid by appellant. Consequently, the judgment of the trial court was affirmed in part and reversed in part.


Based on the totality of the evidence presented, the trial court did not err in convicting the appellant of resisting arrest
Crofton v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 21, 2017
14-16-00737-CR
Martha Hill Jamison
Published
A jury found the appellant guilty of resisting arrest, from which the appellant challenged his conviction. The appellate court found that, based on that evidence, it would have been reasonable for the jury to conclude that although the police officer may not have intended to arrest the appellant at the beginning of the encounter, he developed that intention during the encounter, after which the appellant resisted or continued to resist the officer's efforts. Consequenty, a reasonable person in the appellant’s position at the time, being told he was under arrest while being handcuffed by a uniformed officer, would have understood he was being arrested. Accordingly, the court affirmed the trial court’s judgment.  


Because at least one of the jurors struck from the jury pool during voir dire was pretextual, a new trial was warranted
Jackson v. Stroud
Civil Rights, Procedure
Texas 1st Court of Appeals
December 21, 2017
01-17-00145-CV
Harvey Brown
Published
Appellant filed a lawsuit against appellee surgeon for injuries sustained by appellant’s husband during surgery by appellee. During the trial phase, appellee, who is caucasian, used all of his jury peremptory strikes to exclude the only African-Americans from the jury pool. Following the trial, appellant, who is African-American, appealed based on appellee’s use of peremptory challenges to strike the African-Amercian jurors. On appeal, the appellate court held that the rationale provided for striking at least one of the jurors was pretextual, and thus was not allowed. Consequenty, the judgment of the trial court was vacated, and a new trial was ordered.


The appellate court rejected the appellant’s challenge that her punishment, as applied to the facts of the case, amounted to violations of state statute and the federal constitution
Cormier v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 19, 2017
01-16-00566-CR
Jane Bland
Published
The appellant was charged with capital murder arising out of her participation in an aggravated robbery that resulted in the victim’s death. A jury found the appellant guilty of the offense as charged. The state did not seek the death penalty, and thus the trial court automatically assessed punishment of life imprisonment without the possibility of parole. On appeal, the appellant challenged the trial court's decision not instruct the jury on the definition of "imminent" (as written by statute), and the mandatory life prison sentence in a capital murder case in which the death penalty is not sought. The appellate court found that both the lack of a definition for "imminent" in the statute and the statute's frequent use of "imminent" as an undefined modifier support the conclusion that the word had a common meaning. Because of the word’s common use, the court held that the trial court acted within its broad discretion in refusing to submit the appellant's requested definition. Further, mandatory life imprisonment of an adult defendant did not violate constitutional protections against cruel and unusual punishment. Accordingly, the appellate court affirmed the judgment of the trial court.


Because the TCPA was properly determined to be inapplicable to this case, the trial court did not err when it granted appellee’s motion to dismiss
Dolcefino v. Cypress Creek EMS
Constitution, Procedure
Texas 1st Court of Appeals
December 19, 2017
01-17-00254-CV
Evelyn V. Keyes
Published
Appellant, an investigator hired to research appellee company, filed a lawsuit against appellee under the Texas Citizens Participation Act (TCPA), after appellee failed to provide requested financial documents to appellant. The trial court granted appellee’s motion to dismiss, after it held that the TCPA was not a valid protection for the facts of the case. On appeal, the appellate court upheld the judgment of the trial court, and found that appellant’s document request did not fall under the protections intended by the TCPA. Consequently, the judgment of the trial court was affirmed.


Because the respondent abused his discretion in granting the RPI's motion for new trial, and the relator did not have an adequate remedy by appeal, the appellat court conditionally granted the relator's petition for a writ of mandamus
In Re Wagner
Constitution, Damages, Litigation: Personal Injury, Torts
Texas 1st Court of Appeals
December 14, 2017
01-15-00774-CV
Terry Jennings
Published
The real parties in interest (RPI) filed motions for rehearing and for en banc reconsideration of the appellate court's prior opinion. The court denied the motion for rehearing, but withdrew the previous court's opinion and issued a new opinion. Because the court issued a new opinion in connection with the denial of a rehearing, the motion for en banc reconsideration was rendered moot. The relator then filed a petition for a writ of mandamus, requesting that the court direct the respondent to vacate its order granting the new trial motion of RPI. The appellate court found that the respondent abused his discretion in ordering a new trial on the ground that the evidence was factually insufficient to support the jury’s finding that the individual's negligence, if any, in starting the fire did not proximately cause an incapacitated adult injuries. Further, even if an unfavorable verdict were reversed and rendered in the party’s favor, it would have lost the benefit of a final judgment based on the first jury verdict without ever knowing why, and would have endured the time, trouble, and expense of the second trial. Thus, the parties did not have an adequate appellate remedy. As a result, the court conditionally granted the relator's petition for a writ of mandamus and directed the respondent to vacate his order granting a new trial.


The trial court did not err in convicting the appellant, insfoar that the evidence presented was sufficient to prove the crime committed beyond a reasonable doubt
Barrientos v. State
Criminal, Evidence, Procedure
Texas 1st Court of Appeals
December 14, 2017
01-16-00766-CR
Evelyn V. Keyes
Published
A jury convicted the appellant of murder and the trial court issued a prison sentence. The appellant challenged his conviction based on alleged trial errors. The appellate court found that, in viewing the evidence in the light most favorable to the verdict, a rational jury could have determined the appellant's guilt beyond a reasonable doubt. Further, the trial court’s decision not to exclude evidence, based on a finding that the danger of unfair prejudice did not outweigh the evidence’s probative value, was entitled to deference and, as such, the appellate court could not conclude that the evidence of the appellant’s and the complainant’s gang affiliations was unfairly prejudicial. Accordingly, the appellate court affirmed the judgment of the trial court.


The appellant failed to demonstrate that the appellee’s cause of action was a health care liability claim and, as such, the trial court properly denied appellant's motion to dismiss
Houston Methodist Willowbrook Hospital v. Ramirez
Health Care, Litigation: Personal Injury
Texas 1st Court of Appeals
December 14, 2017
01-17-00402-CV
Michael C. Massengale
Published
The appellee alleged that the appellant hospital was liable for her personal injuries stemming from her slip and fall inside a hospital building. The appellant contended that the appellee’s sole cause of action was a health care liability claim, which failed under the facts of the case. The appellate court found, based on case precedent, that the appellee’s slip-and-fall accident, occurring in a publicly accessible hospital hallway, was not substantively related to the appellant’s provision of medical or health care. Further, the appellant made no showing that keeping the floor clean between the elevator and the entry to the radiology department was directly related to the medical procedure that the appellee sought, in the sense that there was no uninterrupted, close relationship or link between maintaining a safe entry to the office and conducting a medical exam. Thus, there was insufficient evidence to conclude that the appellee's cause of action was related onlly to health care liability and, as such, the trial court correctly denied the motion to dismiss. Accordingly, the judgment was affirmed.


The trial court's judgment and damages award was not against the great weight and preponderance of the evidence
McKnight v. Calvert
Damages, Litigation: Personal Injury
Texas 1st Court of Appeals
December 12, 2017
01-16-00429-CV
Michael C. Massengale
Published
The appellee ran a stop sign in a residential neighborhood, injuring one of the appellants. The appellee admitted his failure to stop, but he claimed he could not see the sign because it was covered by trees. The appellants sued the appellee to recover damages caused by the accident. The appellee sought relief by filing cross-claims against the non-party city, as well as the non-party property owner where the obstructing tree was located. The appellate court found that sufficient evidence was admitted at trial to permit a rational factfinder to conclude that the city had reason to know of the obscured condition of the stop sign. Further, the evidence supported a finding that the city had a duty to correct or warn of the condition of the stop sign, and the trial court did not err by denying the motion for directed verdict regarding the city’s negligence. Furthermore, the evidence established that the property owners, as owners or occupiers of premises in close proximity to a public road, were required to exercise reasonable care to avoid endangering the safety of persons using the road for travel. Finally, the jury resolved the conflicts in the evidence by awarding no damages for past disfigurement, and the appellate court held that the verdict was not against the great weight and preponderance of the evidence. Accordingly, the trial court's judgment was affirmed.


Appeal challenging sufficiency of best interest evidence precluded by statute where parent signed voluntary relinquishment affidavit
In re M.M.
Family, Procedure
The Supreme Court of Texas
December 22, 2017
17-0044
Per Curiam
Published
Mother appealed termination of her parental rights after signing an affidavit of voluntary relinquishment, challenging the sufficiency of best interest evidence.  The appellate court reversed, reasoning the affidavit did not satisfy the burden of proof.  But the Texas Supreme Court reversed, finding Texas Family Code §161.211(c) precludes such an appeal except on grounds that fraud, duress, or coercion tainted the relinquishment affidavit.  Therefore, that statute foreclosed an appeal based on sufficiency of evidence.  Moreover, in accord with the court's ruling in a similar case the same day (K.S.L.), the statute's application did not deprive a parent of due process.  The court accordingly affirmed the termination of parental rights.


Firm disqualified where paralegal previously worked for opposing party's counsel and worked on the same matter at both firms
In re Turner
Ethics, Procedure, Professional Responsibility
The Supreme Court of Texas
December 22, 2017
17-0099
Per Curiam
Published
Trial court denied a motion to disqualify a law firm because it employed a paralegal who had previously worked for the opposing party's counsel.  The Texas Supreme Court reversed.  A trial court must disqualify a firm whose nonlawyer employee previously worked for opposing counsel if that employee obtained confidential information about the matter while working at the opposing firm, then shared that information with her current firm.  Here the paralegal was assigned to, and worked on, the matter for approximately six weeks at the first firm; so she was presumed by law to have obtained confidential information about it.  To rebut the presumption that she imparted confidential information obtained through her previous employment, the second firm had to show it instructed her at the outset not to work on any matters on which she worked in any previous employment.  Failure to give a new employee this general instruction creates an unacceptable risk of disclosure, even if the hiring firm is unaware of a specific conflict.  Here, the second firm did not provide this instruction until it discovered the conflict, after the paralegal had been working on the matter for several months.  The court accordingly directed disqualification of the firm.


Because the appellants did not seek an emergency stay, supersedeas bond, or otherwise suspend the enforcement of the trial court’s post-judgment orders, the sale of the property at issue was completed
Estate Land Co. v. Wiese
Procedure, Real Property
Texas 14th Court of Appeals
December 21, 2017
14-16-00040-CV
John Donovan
Published
After signing an amended final judgment and ordering the partition by sale of the real property at issue, the trial court signed two additional orders which were the subject of the instant appeal by the appellants. The parties secured financing, and the record reflected that both the appellant and the appellant's brother were equally responsible for the entire amounts of the loans. After disagreements between the brothers arose, the appellant brother sued the appellants, seeking partition of the properties and reimbursement for contributions he had made to the properties. The appellate court found that the appellants purported to challenge the second-step post-judgment orders; however, the substance of the appellants’ complaints was about whether the trial court’s final judgment could order payment of the appellant’s indebtedness from the net proceeds. Because the appellants did not seek an emergency stay, supersedeas bond, or otherwise suspend the enforcement of the trial court’s post-judgment orders, the sale of the property at issue was completed and, as such, the issues in the case were required to be dismissed as moot. Because the court's decision could not have a practical effect on an existing controversy, the case was moot. Accordingly, without reference to the merits, the court overruled the appellants’ issues and dismissed the appeal as moot.


The trial court did not err by entering the deadly weapon findings, as the appellant pleaded guilty to the charges alleged in the indictments, and each indictment included a deadly weapon allegation
Mills v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
December 21, 2017
14-16-00597-CR
J Brett Busby
Published
The appellant challenged the trial court’s entry of findings, in connection with his convictions of intoxication manslaughter and assault, that he used a motor vehicle as a deadly weapon. The appellate court found that the trial court did not err by entering the deadly weapon findings, because the appellant pleaded guilty to the charges alleged in the indictments, and each indictment included a deadly weapon allegation. Further, the appellant stipulated in his guilty pleas that the facts contained in the indictments were true and correct and constituted evidence in the case. Moreover, even if the appellant could show he did not plead guilty to the deadly weapon allegations, the trial court could still appropriately conclude that a deadly weapon was used because a motor vehicle was capable of causing death or serious bodily injury, and appellant stipulated to and was found guilty of causing both death and serious bodily injury with a motor vehicle due to his intoxication. Accordingly, the court affirmed the judgments containing deadly weapon findings.


The trial court did not abuse its discretion on any of the issue presented by appellant and, as such, the judgment of the trial court was affirmed
Dla Piper LLP (US) v. Linegar
Bankruptcy, Damages, Torts
Texas 11th Court of Appeals
December 21, 2017
11-12-00201-CV
Jim R. Wright
Published
Appellant, an investor and business owner, was represented by appellee law firm for the purposes of a business merger. When the finances for the merger fell through, appellant sued appellee law firm for various causes of action related to legal practice. The trial court issued judgment in favor of appellee, from which appellant appealed based on both merit-based and trial procedure-based causes of action. The appellate court denied each of appellant’s issues raised, and held that no decision made at the trial amounted to an abuse of discretion by the court. As a result, the judgment of the trial court was affirmed.


The trial court did not err in issuing judgment in favor of appellee auto insurance company, since appellant had already recovered actual damages for his sustained injuries
Elwess v. Texas Farm Bureau Mutual Ins. Co.
Contracts, Damages, Insurance, Litigation: Personal Injury, Torts
Texas 11th Court of Appeals
December 21, 2017
11-15-00286-CV
John M. Bailey
Published
Appellant was struck by another vehicle while driving. The driver of the vehicle was uninsured, but the owner of the vehicle driven by the uninsured motorist had an insurance policy. Appellant settled with that insurance company for actual damages, but then sought additional uninsured motorist damages from his own insurance company (appellee). When appellee denied appellant’s claim, he sued. The trial court issued judgment in favor of appellant, from which he appealed. On appeal, the appellate court held that the purpose of an auto insurance policy is for the insured to recover actual damages. Since appellant already received actual damages from another insurance policy, further recoverable damages from appellant’s own insurance policy were not warranted. As such, the judgment of the trial court was affirmed.


Because the DMA abatement period tolled the TCPA’s filing deadline, and because the appellants’ motions to dismiss were timely filed after the abatement period ended, the trial court erred by ruling that the motions were untimely
Hearst Newspapers, LLC v. Status Lounge Incorporated
Appellate: Civil, Constitution, Damages, Torts
Texas 14th Court of Appeals
December 19, 2017
14-17-00310-CV
Ken Wise
Published
The appellants were two media outlets and their reporters. The appellee, a corporation, filed suit against the appellants, asserting claims for libel and business disparagement after the appellants published articles based on a police report of a shooting at the appellee’s bar. Two of the appellants filed an answer that included a verified plea in abatement under the Defamation Mitigation Act (DMA). The appellee did not challenge the plea in abatement by filing a controverting affidavit. Consequently, the suit was automatically abated “in its entirety” without a court order and all statutory and judicial deadlines were stayed. After the abatement period ended, the appellants moved to dismiss the appellee’s claims under the Texas Citizens Participation Act (TCPA). The trial court denied the appellants’ motions to dismiss as untimely. On appeal, the appellate court concluded that based on the plain language and complementary purposes of the two statutory schemes, that the legislature intended the DMA and TCPA to work in tandem to provide the plaintiffs the opportunity to mitigate any perceived defamation damages at an early stage in the dispute and then, should the dispute remain unresolved, to permit a defendant to test the merits of the plaintiff’s case though a TCPA motion to dismiss. Because the DMA abatement period tolled the TCPA’s filing deadline, and because the appellants’ motions to dismiss were timely filed after the abatement period ended, the trial court erred by ruling that the motions were untimely. Accordingly, the judgment was reversed and remanded.


Texas Supreme Court reverses forfeiture of guns Commissioner carried into commissioner's court meeting
Tafel v. State
Appellate: Civil, Criminal, Evidence, Gov't/Administrative, Procedure
The Supreme Court of Texas
December 15, 2017
16-1019
Per Curiam
Published
County Commissioner with a concealed handgun license unlawfully carried two handguns into a commissioner’s court meeting.  After two trials and post-trial hearings, the trial court granted forfeiture of his guns; Commissioner appealed.  The appellate court affirmed the forfeiture orders, finding that "use" of a weapon as defined in the applicable statute includes simply possessing the weapon.  On further appeal, the Texas Supreme Court first confirmed jurisdiction to hear the case, finding forfeiture proceedings civil in nature because they lie against property.  Second, because the underlying conviction for carrying a weapon into a meeting of a governmental entity fell under Texas Penal Code Chapter 46, the court found Tex. Code Crim. Proc. art. 18.19(d) supplied the applicable forfeiture provisions.  That article mandates forfeiture without exception when a person is convicted of an offense involving the "use" of a weapon; but also provides that a person convicted or receiving deferred adjudication under Chapter 46 is entitled to return of their weapon upon request, absent one of five specified exceptions.  Although the State argued the "community threat" exception applied, the only evidence supporting such a finding arose during the first trial and post-trial forfeiture hearing.  It was not properly authenticated or introduced into evidence at the second trial or second post-trial forfeiture hearing; and the trial court issuing the forfeiture order stated it was not considered.  Because an appellate court may take judicial notice only of facts properly before the trial judge or necessary to determine appellate jurisdiction, the Texas Supreme Court could not consider that evidence.  Therefore, the court found no grounds establishing the community threat exception and accordingly rendered judgment holding the guns not subject to forfeiture.


Division of Workers' Compensation held exclusive jurisdiction over Worker's claims that his employer, its insurer, and its adjuster conspired to discharge him after he did not accept two allegedly pretextual offers for modified-duty work while recuperating from a work-related injury
In re Accident Fund Gen. Ins. Co.
Contracts, Employment, Gov't/Administrative, Insurance, Workers' Compensation
The Supreme Court of Texas
December 15, 2017
16-0556
Per Curiam
Published
Employer terminated Worker after he did not accept two allegedly pretextual offers for modified-duty work while recuperating from a serious work-related injury.  Although the offers purportedly conformed with a physician's work-status letter stating that Worker could return to work with certain restrictions, his wife expressed concerns about his ability to work and submitted information from his other doctors.  Worker brought suit asserting his employer, its insurer, and its adjuster conspired to wrongfully discharge him.  The trial court denied Respondents' motion to dismiss on jurisdictional grounds; and the appellate court summarily denied Respondents' request for mandamus.  But the Texas Supreme Court disagreed, finding the Division of Worker's Compensation held exclusive jurisdiction.  Worker's claims arose out of the statutory claims-handling process under the Workers' Compensation Act (Act) because they arose from his participation in the bona-fide-job-offer process and his dissatisfaction with the offers made.  The Act specifically addresses job-offer timing and compliance with medical restrictions from multiple doctors.  Moreover, whether the offers were "bona fide" constituted the threshold factual determination for his claims.  That determination falls within the Act, which precludes alternate remedies.  Therefore, the court found Worker failed to exhaust his administrative remedies through the workers’ compensation system and granted conditional mandamus relief directing the trial court to dismiss for lack of jurisdiction.


Damage award for slander of title reversed where erroneously calculated based on proceeds of frustrated sale, instead of evidence of declining property value or continuing effects of invalid lien
Allen-Pieroni v. Pieroni
Damages, Real Property, Torts
The Supreme Court of Texas
December 15, 2017
16-0900
Per Curiam
Published
Ex-wife filed an abstract of judgment reflecting ex-husband's $500,000 debt from a divorce decree in the county property records when he bought a new house.  She refused to release the lien years later, frustrating the sale of the property.  In the ensuing suit, the trial court granted quiet title and awarded ex-husband damages of $98,438 based on net proceeds of $80,000 over the outstanding mortgage had the invalid lien not cost him the sale; plus additional expenses of $18,438 incurred while the property was vacant.  The Texas Supreme Court reversed, finding the record contained no evidence 1) that the property was worth less than the previous contract price at the time of trial; or 2) that the invalid lien had any continuing effect on value or marketability following its removal.  Ex-husband had the burden to prove those damages as the party seeking affirmative relief, but failed to do so.  Therefore, the court found the damage award both erroneously calculated and unsupported by the evidence and accordingly reversed and remanded. 


Respondent's challenge to City's sex offender residency restrictions rendered moot by legislative amendments
City of Krum v. Rice
Criminal, Gov't/Administrative, Procedure
The Supreme Court of Texas
December 15, 2017
17-0081
Per Curiam
Published
After his release, Respondent who pled guilty to sexual assault of a fourteen-year-old returned to living at his parent's house, 77 feet from a park.  Police ordered him to vacate under threat of enforcement of the City's sex offender residency restrictions ordinance (SORRO), which prohibited offenders who committed violations involving minors under the age of sixteen from residing "within 2,000 feet of any premises where children commonly gather."  Respondent brought an interlocutory appeal challenging the validity of the SORRO.  The City argued 1) Respondent lacked standing because his claims were not traceable to the City or the SORRO where the terms of his community supervision already prohibited him from living within 1,000 feet of a park; and 2) lack of jurisdiction to hear Respondent's civil challenge to a substantively penal ordinance.  The trial and appellate courts recognized Respondent's standing and declined to dismiss for lack of jurisdiction, prompting the City's further appeal to the Texas Supreme Court.  Meanwhile, Texas and the City passed amended sex offender legislation, with a mandatory exemption for persons who established residence within a restricted zone before its effective date.  The amended SORRO also matched the 1,000-foot limit of Respondent's community supervision, eliminating the previous gap in the distance requirements that created his claim of standing.  Any ruling about the SORRO's validity would have no effect on Respondent's rights as a result.  The Court accordingly found Respondent's claims moot, vacated the lower judgments, and dismissed for lack of jurisdiction.


Because evidence was sufficient to support trial court’s finding that appellant employee. acting within the scope of his apparent authority, executed a contract containing a Texas forum-selection clause with appellee, jurisdiction was properly established
Central Petroleum Limited v. Geoscience Resource Recovery, LLC
Appellate: Civil, Contracts
Texas 14th Court of Appeals
December 14, 2017
14-16-00933-CV
Tracy Christopher
Published
The appellant was an Australian corporation that owned vast acreage of petroleum and mineral rights in that country. Needing a business partner, an executive of the appellant attended a conference in Houston. There, the director met the sole owner of the appellee company. Later that year, the appellant retained the appellee’s services in helping the appellant find a suitable partner. The appellee sued the appellant pleading claims alternatively for breach of contract, quantum meruit, and fraudulent misrepresentation. The appellate court found that because the evidence was sufficient to support the trial court’s implied finding that the appellant employee, acting within the scope of his apparent authority, executed a contract containing a Texas forum-selection clause with the appellee, the court concluded that the trial court had specific jurisdiction over the appellee’s breach-of-contract claim against the appellant. Further, the operative facts of the appellee’s related quantum-meruit and fraudulent-misrepresentation claims had a substantial connection to Texas. Lastly, the trial court’s exercise of specific jurisdiction over all of the appellee’s claims against the appellant did not offend traditional notions of fair play and substantial justice. Accordingly, the judgment was affirmed.


The trial court did not err in assessing defendant as a Sexually Violent Predator (SVP), based on the weight of the evidence submitted
In re Commitment of Gomez
Criminal, Evidence
Texas 13th Court of Appeals
December 14, 2017
13-16-00614-CV
Nelda V. Rodriguez
Published
Defendant was determined, by jury, to be a Sexually Violent Predator (SVP), for which he was committed by the state for rehabilitation. Defendant appealed the judgment of the trial court, based on the sufficiency of the evidence presented, as well as the court’s admission of expert witness testimony from a mental health professional. On appeal, the court held that: (1) the evidence presented was sufficient to determine defendant’s SVP status; and (2) the trial court did not err in allowing the expert witness testimony of the mental health professional, who provided relevant testimony concerning defendant’s mental health. Consequently, the judgment of the trial court was affirmed.


The evidence concerning the factors that must be considered when evaluating a forum non conveniens motion weighed overwhelmingly in favor of dismissal, and thus, the trial court abuesd its discretion in denying the motions to dismiss
In re Transcontinental Gas Pipeline Co., LLC
Damages, Litigation: Personal Injury, Torts
Texas 14th Court of Appeals
December 14, 2017
14-17-00451-CV
Tracy Christopher
Published
Multiple wrongful death and personal injury suits were filed as a result of a fire and explosion. The defendants moved to dismiss the case pursuant to the Texas forum non conveniens statute. The trial court denied the motions to dismiss as to all plaintiffs except the first plaintiff. The appellate court found that the trial court did not clearly abuse its discretion in denying the motions to dismiss as they pertain to the claims of the second plaintiff. A trial court was prohibited from dismissing, on the ground of forum non conveniens, the claims of a Texas resident, and the evidence supported the trial court’s implied finding that the second plaintiff continuously resided in Texas at all relevant times, despite a temporary absence from the state. As to the remaining real parties in interest, the evidence concerning the factors that must be considered when evaluating a forum non conveniens motion weighed overwhelmingly in favor of dismissal, and thus, the trial court abused its discretion in denying the motions to dismiss as to those parties. Consequently, the judgment of the trial court was affirmed in part and reversed in part.


Abating the case for the time period at issue was an abuse of discretion which effectively vitiated the relator’s ability to present a claim or defense
In re Shulman
Torts
Texas 14th Court of Appeals
December 12, 2017
14-17-00508-CV
Kevin Jewell
Published
The real party in interest (RPI) engaged relator, an attorney, to provide tax planning advice regarding certain property transfers benefitting the RPI as a result of a divorce settlement with her husband. The RPI later sued the relator alleging negligence, breach of fiduciary duty, and other claims. After relator moved for summary judgment, the RPI filed a motion to abate all of her claims until years later, when she contended the limitations period for the Internal Revenue Service (the IRS) to assess taxes would expire. The trial court abated the case as requested, and also signed a separate order compelling the relator to produce documents that the relator contended were subject to the attorney-client privilege. The relator requested mandamus relief as to both orders. The appellate court held that, based on the facts presented, abating the case for the time period at issue was an abuse of discretion and effectively vitiated the relator’s ability to present a claim or defense. Because relator lacked an adequate remedy by ordinary appeal, the court conditionally granted the petition for writ of mandamus as to the abatement order. Further, the court denied the petition for writ of mandamus as to the order to produce documents, because the trial court had not finally refused the relator’s motion to reconsider and request to review the documents in camera. Accordingly, the petition for writ of mandamus was conditionally granted in part and denied in part.


Texas Tax Code § 171.106 provides exclusive method for multistate taxpayer to calculate Texas franchise tax, precluding election and apportionment as income tax under Multistate Tax Compact
Graphic Packaging Corp. v. Hegar
Gov't/Administrative, Procedure, Tax
The Supreme Court of Texas
December 22, 2017
15-0669
John P. Devine
Published
Taxpayer with business in multiple states used the apportionment formula of the Multistate Tax Compact (Compact) to calculate its Texas franchise tax.  The Texas Comptroller disagreed, denied Taxpayer's refund, and assessed a deficiency.  The trial court granted judgment for Comptroller; Taxpayer appealed.  The court of appeals affirmed, holding that the income-apportionment provisions do not apply to the franchise tax because it is not an "income tax."  On further appeal, the Texas Supreme Court agreed, holding that Texas Tax Code § 171.106 provides the exclusive formula for apportioning franchise tax and precludes the taxpayer from using the Compact's three-factor formula.  First, the Compact is not a binding regulatory compact requiring reciprocity.  Second, it contains no explicit, unmistakable language waiving the state's exercise of its sovereign tax power.  Third, like many states, Texas constitutionally prohibits contractual suspension of its tax power.  Fourth, the Compact's legislative history reflects its members intended to preserve those sovereign tax powers.  Fifth, the Compact’s other provisions, such as its severability clause, show members did not intend the Compact's election option and apportionment method to be immutable, binding contractual terms.  The court concluded that enforcing Texas Tax Code § 171.106 as the exclusive method for apportioning Texas franchise taxes does not violate the Contract Clause or otherwise undermine the Compact’s purpose or efficacy, and accordingly affirmed the judgment for Comptroller.


No probable cause to search vehicle based solely on Defendant's short visit to a bar known for drug traffic followed by furtive gestures around vehicle console
Marcopoulos v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 20, 2017
PD-0931-16
Michael E. Keasler
Published
Defendant spent three to five minutes in a bar known for narcotics activity, then left.  Police pulled up behind Defendant's vehicle, saw him make “furtive gestures” around the center console, then stopped him for changing lanes without signaling.  Police searched the vehicle and found cocaine.  The appellate court found the search justified under the automobile exception.  But the Court of Criminal Appeals reversed, finding that Defendant's short visit to the bar, unsupported by any details about the nature of his visit, did not sufficiently relate to any evidence of crime.  Defendant's furtive gestures in the presence of a police vehicle, without lights or siren activated, did not amount to furtive gestures "in response to police action."  Finally, Defendant's movements were not connected to a known or suspected instrumentality of crime such as a matchbox or baggie.  Therefore, although the officer had reasonable suspicion to temporarily detain Defendant, he lacked probable cause for a full-blown search.  The court concluded the automobile exception could not be stretched so far as to justify an all-out warrantless search under those circumstances and accordingly reversed and remanded.


No separation of powers violation where Defendant's conviction vacated under amendment decriminalizing failure to comply with sex offender treatment
Vandyke v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
December 20, 2017
PD-0283-16
David C. Newell
Published
The Texas legislature amended the Civil Commitment of Sexually Violent Predators Act to decriminalize failure to comply with sex offender treatment, with a savings clause applying those amendments to Defendant's pending appeal.  The appellate court found the savings clause usurped the governor's clemency power and affirmed Defendant's conviction.  But the Court of Criminal Appeals reversed, finding that a clemency pardon removes only the legal consequences of a conviction; not the conviction itself.  Violation of separation of powers occurs where new legislation allows a defendant to petition for resentencing after final conviction; whereas legislative repeal of a criminal statute invalidates a pending conviction, not just a final sentence.  The court concluded that repealing criminal laws without granting clemency power to the courts did not violate separation of powers and accordingly vacated Defendant's conviction.


Texas Supreme Court remands worker's compensation case for appellate court to hear arguments whether a compensable injury may occur in Claimant's home
State Office of Risk Mgmt v. Martinez
Employment, Gov't/Administrative, Litigation: Personal Injury, Workers' Compensation
The Supreme Court of Texas
December 15, 2017
16-0337
Jeffery Brown
Published
Caseworker Claimant brought a workers’ compensation claim after sustaining injuries in a fall while working from home.  The State Office of Risk Management (SORM) denied her claim, finding her injury not compensable because it did not arise from, or occur in, the course and scope of her employment.  After exhaustion of administrative remedies, the trial court granted SORM's motion for summary judgment.  But the appellate court reversed, holding the trial court lacked jurisdiction because Texas Labor Code limits judicial review to "issues decided by the appeals panel" and the parties raised statutory arguments in the first instance before the trial court.  The Texas Supreme Court disagreed.  The Texas Labor Code defines an issue eligible for judicial review as "a final decision of the appeals panel regarding compensability or eligibility."  If the grounds asserted on appeal were arguments, not "issues," then the Texas Labor Code did not require preservation during the administrative process.  Moreover, the "disputed issue" and the issue "decided by the appeals panel and on which judicial review is sought" were the same:  whether Claimant was in the course and scope of her employment at the time of her accident.  The court accordingly affirmed denial of summary judgment and remanded to the court of appeals for consideration of the parties' arguments on the foremost issue of whether Claimant's home is a location where a compensable injury may occur.


Claimant could not avoid dismissal of doctors under Texas Tort Claims Act where original petition alleged tort claims against both UT Health Sciences Center and its doctors
The Univ. of Texas Health Sci. Ctr. v. Rios
Contracts, Damages, Gov't/Administrative, Torts
The Supreme Court of Texas
December 15, 2017
16-0836
Nathan L. Hecht
Published
A former first-year resident sued The University of Texas Health Sciences Center (Center) and several of its Doctors, alleging they breached his contract and discredited his reputation by publishing and false and misleading statements about him to the Texas Medical Board.  The trial court dismissed the contract claim, but denied dismissal of the tort claims.  On Defendants’ interlocutory appeal, a divided appellate court affirmed; but the Texas Supreme Court reversed.  First, the court found Claimant irrevocably elected to pursue a vicarious-liability theory against the Center because his original petition alleged tort claims against both Center and Doctors.  As tort claims against a governmental unit, the original claims against the Center fell within the Texas Tort Claims Act, which "requir[es] a plaintiff to make an irrevocable election at the time suit is filed between suing the governmental unit . . . or proceeding against the employee alone."  Although Claimant later amended his petition to drop all but the contract claims against Center, while retaining the tort claims only as against Doctors, his original petition nonetheless controlled under the explicit language of the Act.  Second, all the claims arose from the allegation that Doctors made false statements about Claimant in retaliation for raising concerns about patient welfare.  Regardless of their subjective intent, those statements arose from Doctors' employment as faculty members at the Center in the operation of its residency program.  Therefore, the connection between their job duties and allegedly tortious conduct placed the statements squarely within the scope of their employment.  Interpreting the Act requires courts to favor early dismissal of suits arising from an employee’s conduct within the scope of employment.  The court concluded that Claimant could not avoid dismissal of Doctors by amending his petition to drop the tort claims against the Center after his original petition had already triggered Defendants’ statutory right to dismissal under the Act’s election-of-remedies provision.  The court accordingly reversed and remanded.


No abuse of discretion reading four expert reports together to find good-faith basis for liability under Texas Medical Liability Act
Miller v. JSC Lake Highlands Operations, LP
Evidence, Health Care, Litigation: Personal Injury, Torts
The Supreme Court of Texas
December 15, 2017
16-0986
Per Curiam
Published
Ms. Hathcock reported losing her dental bridge to staff at the assisted-living facility where she lived.  That evening, she began coughing and showing signs of chest congestion.  The on-call physician order a chest x-ray, which showed the missing bridge in her trachea-- but neither the technician nor the doctor who reviewed the x-ray noticed it.  Emergency room physicians found and removed the bridge the next morning attempting to insert a ventilation tube, but Ms. Hathcock died of pulmonary edema, pneumothorax, and aspiration soon thereafter.  Her daughter filed claims alleging Respondents' failure to timely discover the bridge led to her mother’s death, supported by four separate expert reports to satisfy the Texas Medical Liability Act’s requirements.  Respondents moved to dismiss on the basis of inadequate expert reports.  The trial court denied dismissal; Respondents appealed.  The appellate court reversed, finding the causation expert did not review the other expert opinions and did not specify which Respondent's conduct's caused Ms. Hancock's death.  On further appeal, the Texas Supreme Court disagreed.  The four expert reports, when read together, provided enough information to constitute a good-faith effort to summarize grounds for liability against the assisted living facility, the x-ray technician, and the reviewing physician.  The court found the reports need not definitively determine which Respondent was liable; that issue would be answered further in the litigation process.  The court accordingly reversed and remanded.


No recovery of prejudgment interest or attorney fees where oil well Operator withheld royalties under TNRC safe harbor provisions pending resolution of legitimate title dispute affecting payment distributions
Leavitt v. Ballard Expl. Co., Inc.
Damages
Texas 1st Court of Appeals
December 07, 2017
01-16-00536-CV
Evelyn V. Keyes
Published
Trustee appealed summary judgment denying prejudgment interest and attorney fees against oil well Operator who withheld payment of royalties pending resolution of a title dispute.  The appellate court affirmed, finding the safe harbor provisions of Chapter 91 of the Texas Natural Resources Code (TNRC) allowed withholding of royalties without interest where a legitimate title dispute affecting distribution of payments existed, as contemplated by TNRC § 91.402(b)(1)d.  Nothing in TNRC §§91.404 or 91.402(b) required Operator to provide a written explanation before withholding payments.  Trustee’s appellate brief and the summary judgment record showed Trustee knew about the title dispute and that royalty payments would be suspended pending its resolution.  Therefore, the trial court properly denied prejudgment interest, precluding Trustee's recovery of attorney fees under TRNC §91.406.  Trustee’s equitable subrogation argument likewise failed, absent any payment of another’s debts.  The court accordingly affirmed summary judgment for Operator.


Evidence sufficed to show element of intent to defraud or harm where Defendant cashed two checks of couple who did not know him and denied hiring him to clean gutters
Sanchez v. State
Criminal, Evidence
Texas 1st Court of Appeals
December 07, 2017
01-17-00011-CR
Jane Bland
Published
Defendant appealed his convictions on two separate offenses of fraudulent use of identifying information, arguing the evidence did not show intent to defraud or harm the couple whose checks he cashed allegedly for gutter repairs.  The appellate court found the evidence sufficed to convict where the victims did not recognize Defendant; denied having him repair gutters; and denied writing the two checks, despite a lack of evidence showing how Defendant obtained the checks from checkbooks kept in the couple's bedroom drawer.  The court accordingly affirmed Defendant's conviction.


Summary judgment for AutoNation affirmed, despite refusal to buy leased truck with blown engine after Lessee upgraded in reliance on AutoNation's appraisal of trade-in value and salesman's assurances
Lindsey Constr., Inc. v. Autonation Fin. Serv., LLC
Appellate: Civil, Consumer, Contracts, Discovery, Procedure, Torts
Texas 14th Court of Appeals
December 07, 2017
14-16-00190-CV
Kem Thompson Frost
Published
Lessee brought a truck leased from Enterprise for repairs at AutoNation.  The service department found the engine needed a complete rebuild or replacement.  When Lessee declined repairs, a salesman stated AutoNation would purchase the truck, along with two other trucks Lessee leased from Enterprise; and provided appraisals showing the purported trade-in values.  But the appraisal of the damaged truck did not factor in the blown engine.  Lessee traded in the three trucks for new trucks, also leased from Enterprise.  Several months later, Enterprise informed Lessee that AutoNation did not purchase the truck with the blown engine, and charged Lessee more for the replacement truck.  Lessee sued AutoNation for breach of contract, Texas Deceptive Trade Practices Act (TDTPA) violation, negligent misrepresentation, tortious interference, and declaratory relief.  The trial court entered summary judgment for AutoNation and Lessee appealed.  First, the appellate court found sixteen months adequate time for discovery, especially where the court had continued the summary judgment hearing to allow depositions.  Second, the statute of frauds precluded a cognizable breach of contract claim absent a written agreement or evidence of mutual assent to the terms of an implied-in-fact contract.  Third, without an enforceable contract, no TDTPA violation arose from misrepresenting or failing to disclose alleged contract terms; or from misrepresenting the AutoNation salesman’s authority to negotiate those terms.  Fourth, Lessee’s negligent misrepresentation claim failed absent a genuine issue whether the purported interference was willful and intentional.  Fifth, the trial court properly dismissed declaratory relief claims solely derivative of Lessee’s other claims.  The appellate court accordingly affirmed summary judgment for AutoNation.


No error striking untimely response and entering summary judgment for Lender where Borrower showed no good cause for delay; asserted affirmative defenses waived by omission from initial responsive pleadings; and had not filed verified denial
Duchene v. Hernandez
Contracts, Creditor/Debtor, Procedure
Texas 8th Court of Appeals
December 06, 2017
08-15-00087-CV
Yvonne T. Rodriguez
Published
Trial court granted summary judgment for Lender after striking the response Borrower filed the day before the hearing.  Borrower appealed, arguing that 1) he showed good cause for delay; and 2) material questions of fact precluded summary judgment.  The appellate court disagreed.  First, unsworn statements by Borrower’s counsel claiming he made calendaring mistakes and was awaiting a client affidavit, without any supporting evidence or further explanation, did not establish good cause for delay.  Second, the court found the promissory note supported by Lender's affidavits valid as a matter of law absent a verified denial.  Borrower could not rely on exhibits attached to his stricken response to create questions of fact.  Moreover, Borrower’s arguments all centered on affirmative defenses waived by omission from his initial responsive pleadings.  The court accordingly affirmed summary judgment for Lender.


Elevated sentence as habitual offender reversed where prior court-martial sodomy convictions not "substantially similar" to indecency with a child, although evidence sufficed to identify Defendant as person previously convicted
Fisk v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
December 06, 2017
04-17-00174-CR
Patricia O. Alvarez
Published
The trial court sentenced Defendant on three counts of indecency with a child to three life sentences as a habitual offender, based on his multiple prior court-martial convictions for sodomy.   Defendant appealed, arguing 1) the evidence did not suffice to prove he was the same person previously convicted by court-martial; and 2) the Uniform Code of Military Justice (UCMJ) sodomy offenses were not "substantially similar" to indecency with a child under Texas Penal Code (TPC) §22.011.  The appellate court found sufficient evidence to prove Defendant's identity as the person previously convicted where both arrest records showed matching first and last name, birth date, social security number, and fingerprints; even though the instant arrest record omitted his middle name.  However, the court found the elements of Texas indecency with a child and UCMJ sodomy offenses dissimilar in substance, despite imposing similar punishments.  The former sodomy provision of the UCMJ prohibited against certain types of non-procreative sexual activity, regardless of whether between consenting adults, adults and children, or persons and animals; while TPC §22.011 prohibits nonconsensual sexual contact with an adult or any sexual acts against children.  As a result, Defendant’s prior sodomy court-martial convictions were not "substantially similar" to his current convictions for indecency with a child, as required to elevate his sentence as a habitual offender.  The court accordingly reversed and remanded for resentencing.


Evidence sufficed to establish possession of drugs with Defendant's fingerprints on wrapping and recent transaction ledger found in car parked on mother's property, despite car owner's death three weeks earlier
Barbosa v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
December 06, 2017
04-16-00254-CR
Patricia O. Alvarez
Published
Defendant appealed his conviction for possession of over $50,000 worth of marijuana and cocaine found by police in the trunk of a car parked on his mother’s property.  Defendant argued the evidence did not suffice to convict because the car’s owner died three weeks earlier, leaving the car in Defendant’s care without a key or any knowledge of its contents.  The appellate court found the evidence sufficed to establish Defendant exercised care, custody, control, or management of the drugs where 1) Defendant's fingerprints were on cellophane wrapped around the drugs; and 2) a ledger found alongside showed apparent drug transactions dated after the car owner’s death.  Moreover, the jury could reasonably infer that Defendant knew the $50,000 value of the vehicle’s contents when entrusted with its care.  The court concluded the evidence affirmatively linked Defendant to the drugs and sufficed legally to establish possession beyond a reasonable doubt.  The court accordingly affirmed Defendant's conviction.


No reversible error absent timely objection to allegedly improper comments during voir dire or forensic expert’s testimony about selection of offenders for commitment as sexually violent predators
In re Commitment of Fontenot
Appellate: Civil, Criminal, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
December 05, 2017
01-17-00207-CV
Evelyn V. Keyes
Published
Defendant convicted of rape in 1982 and sexual assault in 1989 appealed his subsequent civil commitment as a sexually violent predator, claiming error in 1) the State's expert testimony about the screening process to determine which sexual offenders are tried for commitment; and 2) the court’s allegedly misleading statements during voir dire about the role of the jury.  The appellate court found Defendant waived any error absent timely objection and affirmed Defendant's commitment.


Commitment as sexually violent predator affirmed where State’s expert found future violent predatory acts likely due to "ingrained" pedophilia and repeated offenses, despite Defendant’s requests for additional proof, jury instructions, and right to counsel during expert examination
In re Commitment of Williams
Appellate: Civil, Criminal, Gov't/Administrative
Texas 1st Court of Appeals
November 30, 2017
01-16-00745-CV
Evelyn V. Keyes
Published
Defendant appealed civil commitment as a sexually violent predator after serving ten years for child sexual offenses and possession of child pornography, raising multiple points of error.  First, the appellate court rejected Defendant’s claim that the Sexually Violent Predators Act requires proof that regular mental health care would not work in his case.  Second, despite Defendant’s low score on the Static-99, the evidence sufficed to establish a behavioral abnormality with likely future acts of predatory violence where the State’s expert observed a pattern of “very-well-ingrained pedophilia” that included repeated offenses against prepubescent children.  Third, Defendant had no right to have counsel present when examined by the State’s expert in commitment proceedings.  Fourth, sustaining the State’s objection to request for admissions as to Defendant’s parole status did not result in an improper judgment, or prevent him from presenting his case, where Defendant testified he had been paroled without objection.  Fifth, no error arose refusing to give jury instructions defining 1) “serious difficulty controlling behavior” and 2) the distinction between sexually violent predators and “dangerous, but typical, recidivists”; as unnecessary to render a verdict.  The court accordingly affirmed Defendant’s commitment. 


Court voids specific end date for incarceration as precluding good-time credit; but otherwise enforces contempt for failure to comply with possession orders, despite Mother's claims that child made sexual abuse outcry, where Department had repeatedly investigated and ruled out sexual abuse
In re Mayorga
Criminal, Evidence, Family, Procedure
Texas 8th Court of Appeals
November 30, 2017
08-17-00158-CV
Yvonne T. Rodriguez
Published
Mother challenged contempt order after refusing to comply with temporary possession orders, claiming police and personnel from the Department of Family Protective Services instructed her to not turn over her child following an outcry of sexual abuse.  First, the appellate court struck that portion of the order specifying a specific end date and time for her incarceration as void, because it precluded good-time credit.  Second, although Texas Family Code § 262.003 provides immunity from civil or criminal liability for making a good faith report of child abuse, it did not provide an affirmative defense to, or immunity from, contempt for violation of a possession order.  Third, the trial court did not err in finding Mother willfully violated temporary orders where she had made multiple reports of sexual abuse over the preceding two-and-a-half year period; but the Department ruled out sexual abuse after each investigation, and non-suited a case for protection of the child.  Moreover, the district court refused to grant Mother’s applications for a protective order over the three previous years.  The appellate court accordingly struck the specified incarceration end date; but otherwise denied Mother’s petition and remanded her to the sheriff’s custody.


Evidence supported implied finding of bad faith where Landlord wrongfully withheld security deposit after approving and thanking Tenants for painting and improvements
Schneider v. Whatley
Contracts, Evidence, Landlord and Tenant, Real Property
Texas 8th Court of Appeals
November 29, 2017
08-14-00300-CV
Ann Crawford McClure
Published
Trial court found Landlord wrongfully withheld a portion of Tenants’ security deposit and ordered an award of triple the amount withheld.  Landlord appealed, arguing the evidence did not support the requisite finding of bad faith.  The appellate court affirmed.  Although the trial court omitted an explicit bad faith finding, Landlord waived that issue by failing to request additional findings.  The record showed Tenants performed all lease conditions and requirements necessary to a refund of their deposit, including efforts to clean and restore the property to the same or better condition.  Meanwhile, Landlord claimed expenses for removing improvements such as shelving and towel bars that she had approved and thanked Tenants for installing-- and actually left in place for subsequent tenants.  Moreover, although Landlord authorized Tenants to paint the house a neutral color at their own expense, she sought to recover the cost to repaint the house back to its original colors, including black.  The appellate court concluded the evidence showed Landlord acted in dishonest disregard of Tenants’ rights or intended to deprive them of a lawfully due refund, and therefore supported the implied finding of bad faith. 


“Summoning Witness/Mileage” fees unconstitutional where allocated to general revenue funds; but Defendant's challenge to indictment and trial before different district courts waived as a procedural issue, not a jurisdictional defect
Allen v. State
Constitution, Criminal, Procedure
Texas 1st Court of Appeals
November 28, 2017
01-16-00768-CR
Terry Jennings
Published
Defendant appealed his conviction for aggravated robbery, asserting that 1) the trial court lacked jurisdiction over an indictment returned by a jury of a different district court within the same county; and 2) the $200 “Summoning Witness/Mileage” fee assessed against him violated the Texas Constitution.  First, the appellate court found Defendant’s challenge to jurisdiction presented a procedural issue, not a jurisdictional defect, which Defendant waived by failing to object to the indictment or proceedings before another district court prior to trial.  Second, the court found the “Summoning Witness/Mileage” fee statute violated Texas’ Separation of Powers clause because it allocated fees collected to general revenue funds expended for purposes other than criminal justice. The court accordingly deleted the $200 fee from the costs assessed against Defendant and otherwise affirmed the judgment as modified.


Court affirms enforcement of mediated family settlement agreement recognizing Decedent's wife's daughter as adopted by estoppel and dividing assets, despite brother-in-law's refusal to seek probate court approval and claimed incapacity from prescription medication
Estate of Riefler
Family, Procedure, Wills/Trusts/Probate
Texas 7th Court of Appeals
November 28, 2017
07-16-00375-CV
Judy C. Parker
Published
Decedent’s will left his entire estate to his wife of fifty-plus years, with no contingent beneficiary.  But his wife died months before he did, leaving him intestate.  Survivors included his wife’s Daughter and her four children; his sister; and three nieces and nephews from a predeceased sister.  Raised in Decedent’s household since age five, Daughter filed county court petitions seeking recognition as his child pursuant to adoption by estoppel.  Brother-in-law, as guardian of Decedent’s sister, objected and filed an action in probate court.  Meanwhile, Daughter passed away and her four children sought substitution in her place.  Thereafter, the parties attended mediation before a former probate judge and reached settlement declaring Daughter Decedent's child and distributing $440,000 to Brother-in-law and one nephew, with the remaining $920,000 to Daughter’s children.  All parties were represented by counsel, except two nieces who agreed with Daughter's position.  But Brother-in-law challenged the settlement agreement he signed, arguing 1) it required probate court approval; 2) he was misled as to the value of the estate; and 3) he lacked capacity due to prescription medication.  The county court enforced the agreement; Brother-in-law appealed.  First, the appellate court found Brother-in-law waived avoidance of enforcement based on lack of probate court approval.  Brother-in-law had authority to enter the agreement as guardian under Texas law and held the duty to request probate court approval; but refused to do so.  Second, no error arose enforcing a family settlement agreement, which Texas law favors in lieu of formal estate administration, where all necessary parties participated in mediation.  Third, Brother-in-law did not prove lack of capacity, despite his physician’s letter that his prescription medication had sedative effects.  Brother-in-law appeared alert and cognizant at the ten-hour mediation; seemed angry, not confused, afterwards; and understood the agreement the next day-- after taking the same dose of medication.  The court accordingly affirmed enforcement of the agreement. 


Termination of parental rights affirmed where evidence sufficed to establish Mother's endangering conduct and termination in child's best interest
In re P.H.
Evidence, Family
Texas 8th Court of Appeals
November 28, 2017
08-17-00135-CV
Ann Crawford McClure
Published
Mother appealed termination of parental rights after her fifth child was removed from her care at three days old, arguing the evidence did not establish predicate grounds or the best interest finding.  The appellate court disagreed.  Mother’s four older children had been removed from her care due to neglect.  Mother moved frequently and failed to provide basic care for her children; was pregnant and homeless when she sought assistance from Emergence Help Network; was living in a storage shed without utilities when she went into labor; had untreated mental illness with cognitive defects; and failed to take her medication or complete her service plan.  That evidence sufficed to find endangering conduct.  Meanwhile, the child fared well placed with her grandmother with three of her siblings.  The court concluded the evidence supported termination in the child’s best interest and accordingly affirmed.


No habeas or mandamus relief for Defendant seeking parole review on expiration of first consecutive sentence, instead of longest concurrent sentence
Ex Parte Johnson
Constitution, Criminal, Procedure
Texas Court of Criminal Appeals
November 22, 2017
WR-85,192-01
Sharon Keller
Published
Defendant serving two stacked ten-year sentences concurrent with a forty-year sentence sought habeas relief, arguing the parole board should review each sentence as if it were his only sentence, resulting in the second stacked sentence beginning to run earlier.  On successive appeals, the Texas Court of Criminal Appeals first found Defendant’s claim lacked any constitutional violation supporting habeas relief.  Parole procedural statutes do not implicate due process because Texas inmates have no substantive liberty interest in parole release.  The court found no other constitutional rights even arguably implicated.  Second, Defendant's claim did not establish a jurisdictional defect or violation of an absolute right or prohibition. Even if the court deemed consideration for parole a procedural right, it hardly qualified as an absolute entitlement that cannot be waived. Third, even assuming the court held authority to issue mandamus against the parole board, Defendant did not establish a clear right to that relief.  Although the relevant statute directs parole review “during each sentence” when an inmate has consecutive sentences, Parole Board Rule 145.3(4) states that an “offender will be considered for parole when eligible.”  The court construed “when eligible” to mean when an inmate reaches parole eligibility on the longest concurrent sentence; not when eligible on a particular offense.  Moreover, the court deferred to that construction as the administrative interpretation applied in practice and not made in anticipation of litigation.  The court accordingly affirmed denial of Defendant's request for relief.


No post-conviction habeas relief on facial constitutionality grounds not preserved before trial court, absent binding precedent finding challenged statute unconstitutional
Ex Parte Beck
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
November 22, 2017
PD-0618-16
Elsa Alcala
Published
Defendant agreed to plead guilty to engaging in an improper relationship with a student, forfeit his teaching license, and not apply for any future U.S. teaching licenses; in exchange for dismissal of a charge of online solicitation of a minor.  Four years later, Defendant filed an application for post-conviction writ of habeas, challenging the facial constitutionality of the improper-relationship statute for the first time.  The trial court denied the request and the appellate court affirmed; but Defendant further appealed.  The Texas Court of Criminal Appeals ruled that a defendant may not raise a facial constitutionality challenge in the first instance in a post-conviction habeas proceeding, absent any binding precedent declaring the statute at issue unconstitutional.  Therefore, Defendant’s failure to preserve the issue in the trial court precluded any habeas relief.  The Court of Criminal Appeals accordingly affirmed.


Conviction and life sentence for violating civil commitment order stands despite subsequent reversal of commitment order
Bohannan v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
November 22, 2017
PD-0347-15
Scott Walker
Published
The Texas Supreme Court affirmed reversal of Defendant’s civil commitment as a sexually violent predator.  But the state indicted Defendant for violating the commitment order before the mandate of reversal issued.  The trial court ultimately convicted Defendant and sentenced him to life imprisonment; Defendant appealed.  The appellate court ruled the indictment sufficed to confer trial court jurisdiction and affirmed.  On further appeal, the Court of Criminal Appeals found the subsequent reversal of the civil commitment order did not invalidate Defendant’s conviction.  The order was immediately effective and enforceable by prosecution for non-compliance, even pending its appeal.  No double jeopardy violation occurred because the circumstances of adjudication as a sexually violent predator, civil commitment, and acts that violated the commitment order were distinct and separate from those providing the basis of Defendant’s prior convictions.  The Final Judgment and Order of Commitment, both admitted without objection, provided sufficient evidence to conclusively prove Defendant had been adjudicated a sexually violent predator and civilly committed.  Last, the court found Defendant’s argument that his prosecution and conviction were “fundamentally unfair” and violated “any notion of due process or due course of law” wholly conclusory and unsupported by any citation to authority.  The court accordingly affirmed Defendant’s conviction.


Take-nothing judgment affirmed where auto-accident Plaintiff did not submit evidence of uncontroverted objective injury or establish causation
Rumzek v. Lucchesi
Damages, Evidence, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 8th Court of Appeals
November 15, 2017
08-15-00067-CV
Yvonne T. Rodriguez
Published
The trial court entered take-nothing judgment after jury found auto-accident Defendant negligent, but awarded Plaintiff zero damages.  Plaintiff appealed, arguing that 1) the weight and preponderance of evidence required a damage award; 2) his sworn medical records sufficed to establish causation; and 3) the court erred refusing to modify the judgment or order a new trial on damages.  The appellate court disagreed.  First, Plaintiff failed to establish an uncontroverted objective injury requiring an award of damages where his physician diagnosed only soft tissue injuries and his x-rays showed degenerative disc disease; not physical injury or abnormalities from the accident.  Plaintiff’s muscle spasms did not suffice as objective evidence of an accident-related injury, particularly where not reported until three weeks later.  Second, Plaintiff did not establish Defendant’s negligence caused his medical expenses.  Plaintiff was 73 years old at the time of the accident, with multiple pre-existing conditions and previous injuries that could have caused or contributed to his symptoms.  Plaintiff never presented any medical evidence linking his symptoms to the accident, or separating treatment required by his pre-existing conditions from treatment necessitated by the accident.  Plaintiff’s uncontroverted medical records affidavit did not substitute for evidence establishing causation.  Instead, the only evidence that the accident caused Plaintiff’s symptoms was his own conflicting testimony.  Under those circumstances, the trial court did not err in refusing to modify the jury verdict or order a new trial on damages.  The appellate court accordingly affirmed the take-nothing judgment.


No habeas relief for Defendant who challenged constitutionality of pre-2015 online-solicitation-of-a-minor statute after pleading guilty
Ex Parte Kenneth Jaye McClellan
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
November 15, 2017
WR-83,943-01
Barbara Parker Hervey
Published
Defendant who pled guilty to online solicitation of a minor applied for post-conviction habeas, challenging the pre-2015 version of the applicable criminal statute as 1) facially unconstitutional; and 2) vague and overbroad.  First, pending review, the court ruled in a substantively similar case that the statute's inclusion of persons who represent they are under seventeen in its definition of "minor" was facially constitutional.  That holding disposed of Defendant’s identical facial challenge.  Second, Defendant lacked standing to challenge the statute’s anti-defensive provisions, where the record did not show those provisions were invoked against him.  The court declined to remand to allow Defendant to supplement the record because the standing issue could have been litigated at trial; and doing so would amount to a futile exercise in speculation, as the prosecution may have opted not to invoke the anti-defensive provisions at trial.  Therefore, even assuming Defendant could challenge the constitutionality of the statute for the first time on post-conviction habeas, his claims would fail.  The court accordingly denied relief.


No forfeiture of error claiming improper judicial comments on weight of evidence or conveying opinion; but proper standard of harm is statutory, not constitutional
Proenza v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
November 15, 2017
PD-1100-15
Michael E. Keasler
Published
Defendant appealed his conviction for injury to a child, claiming the trial court’s improper questioning of the child’s pediatrician amounted to fundamental error not subject to waiver absent timely objection.  The appellate court reversed, finding the improper questioning amounted to fundamental error that it could not “say beyond a reasonable doubt . . . did not contribute to [Defendant’s] conviction.”  The State further appealed to the Texas Court of Criminal Appeals.  After thorough review of applicable precedent, the court ruled the applicable standard is not whether the comments amounted to fundamental error.  Instead, errors claiming the judge commented on the weight of the evidence or conveyed an opinion of the case, in violation of Texas Code of Criminal Procedure Article 38.05, are not forfeitable.  Therefore, the court affirmed that Defendant’s claim could be raised for the first time on appeal, albeit under a different inquiry.  However, the lower appellate court erred in applying the constitutional standard of harm where Defendant claimed only statutory error.  The court should have instead determined whether the error affected substantial rights under Texas Rule of Appellate Procedure 44.2(b).  The court accordingly affirmed in part, but remanded for application of the proper standard of harm.


No new trial for Defendant who elected having the judge determine punishment, despite counsel's erroneous advice
Burch v. State
Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
November 15, 2017
PD-1137-16
Barbara Parker Hervey
Published
Defendant convicted by a jury of sexual assault elected to have the judge determine punishment.  The judge sentenced him to seven years in prison.  Defendant requested a new trial, claiming counsel erroneously advised him the judge could place him on deferred-adjudication community supervision.  The trial court denied the motion; Defendant appealed on grounds of ineffective assistance of counsel.  The appellate court reversed, finding counsel's error deprived him of a meaningful opportunity to have a jury recommend “straight” probation in light of the circumstances of the crime, Defendant’s otherwise clean record, gainful employment, support of a child, and supporting testimony from Defendant's siblings.  On further appeal, the Texas Court of Criminal Appeals reversed, finding the appellate court failed to apply the correct standard of review with due deference to the trial judge's decision.  Viewing the evidence in the light most favorable to the ruling, and implying all findings and conclusions in its favor, required assuming the trial judge disbelieved Defendant’s affidavit, as well as those of his siblings, claiming reliance on counsel's incorrect advice.   If those affidavits were not believed, Defendant could not establish he would have elected the jury to decide his punishment but for his counsel's incorrect advice.  Therefore, the court found no abuse of discretion denying a new trial; reversed the lower appellate decision; and affirmed the trial court ruling. 


New trial on punishment ordered where requiring proof beyond a reasonable doubt of temporary insanity effectively eviscerated mitigating defense that Defendant suffered from mental health and substance-abuse issues causing her to believe murder victim was a demon who must be sacrificed
Kirkland v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
November 15, 2017
06-17-00055-CR
Josh R. Morriss III
Published
Defendant appealed her 40-year sentence after pleading guilty to committing murder on methamphetamines, arguing the court erred by instructing the jury that she needed to prove temporary insanity beyond a reasonable doubt to consider it in mitigation of her sentence.  The State conceded, and the appellate court agreed, that requiring proof beyond a reasonable doubt was erroneous.  However, the State contended Defendant was never entitled to a temporary insanity instruction; and even if she was, the erroneous burden of proof did not result in egregious harm.  But the appellate court found no evidence that the jury actually considered temporary insanity in mitigation of Defendant’s sentence; instead, it assessed exactly the 40 years the State requested.  Here, Defendant pled guilty and sought mitigation of punishment by presenting mental health issues and substance-abuse problems that she alleged played a vital role in her actions, by causing her to believe the murder victim was a demon who must be sacrificed.  Under those circumstances, requiring Defendant to prove those assertions beyond a reasonable doubt "effectively eviscerated her mitigation evidence."  Therefore, the appellate court concluded that the erroneous instruction deprived Defendant of her valuable right to present her defense, or vitally affected her defensive theory, thereby causing her egregious harm.  The court accordingly reversed and remanded for a new trial on punishment.


Conviction for indecency with a child and continuous sexual assault affirmed, despite juror's Facebook post, lack of specific dates of abuse, and denial of new trial without a hearing
Aguilar v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
November 22, 2017
04-16-00508-CR
Rebeca C. Martinez
Published
Defendant appealed his conviction for indecency with a child and continuous sexual abuse of his daughters, raising three issues.  First, he claimed the court should have removed a juror who posted a Facebook comment about women serving as both prosecutor and judge.  The appellate court found Defendant waived any error, as defense counsel did not object or request a substitute after the court read the post and inquired into the juror’s potential bias.  Even so, the record did not show bias that would prevent the juror's service.  Second, Defendant claimed ineffective assistance of counsel for failing to move to quash on grounds of 1) double jeopardy based on overlap of predicate offenses; and 2) unconstitutional vagueness because the continuous sexual abuse statute did not require specific dates of abuse.  The appellate court found no double jeopardy where the indictment charged the indecency offenses occurred outside the time period charged for continuous sexual abuse.  The court further found the continuous abuse statute not unconstitutionally vague as applied to Defendant, who did not show that lack of specific dates precluded him from effectively presenting an alibi.  As a motion to quash on those grounds would have failed, not filing one did not amount to ineffective assistance of counsel.  Third, Defendant claimed the court erred in overruling his motion for new trial without a hearing.  But the appellate court found Defendant failed to present his motion to the presiding trial judge and timely request a hearing.  The court accordingly affirmed Defendant’s conviction.


Manslaughter conviction stands for Defendant who collided with turning truck while racing at high speeds, killing two passengers; despite challenges to indictment on recklessness, jury charge on unanimity, and prejudicial testimony
Flores v. State
Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
November 15, 2017
04-16-00502-CR
Karen Angelini
Published
Two high school students who were passengers in Defendant’s car died when he collided with a turning truck while racing another car at high speeds.  Defendant appealed his resulting conviction for manslaughter, challenging the indictment on recklessness; the jury charge on unanimity; and the admission of several witnesses’ testimony.  First, the appellate court found the indictment sufficiently described how Defendant’s reckless driving caused the deaths of his passenger to notify him of the manslaughter charges against him as required by the Sixth Amendment.  Second, although the indictment did not specify which acts constituted recklessness with sufficient reasonable certainty under article 21.15 of the Texas Code of Criminal Procedure (it stated his driving was reckless because of racing OR excessive speed OR overtaking in the left turn lane, instead of racing AND excessive speed AND overtaking in the left turn lane), the court found that error harmless, as it did not prevent defense counsel from being adequately prepared to defend all three theories of recklessness.  Instead, the record reflected counsel was well prepared and presented a thorough defense.  Third, the jury charge did not violate Defendant’s right to a unanimous verdict, even though it did not require the jury to agree on which acts of recklessness Defendant committed.  Unanimity is not required on the manner and means of how a defendant committed an offense; only that he committed it.  Fourth, the court found no error admitting police officer testimony about factors that turn an accident into a crime, as he made no comments about Defendant’s guilt or innocence.  Finally, no error arose admitting testimony about injuries suffered by Defendant’s third passenger and the truck’s driver and passenger, where relevant to explain their lack of memory of the crash; the rate of speed at which it occurred; and to “set the whole scene of the crime.”  The court found that evidence not substantially more prejudicial than probative; and moreover, unlikely to have undue effect on a jury who heard extensive testimony about the injuries suffered by the two passengers who died.  The court accordingly affirmed Defendant’s conviction.


Cotenants cannot establish adverse possession as a matter of law by presumption of constructive ouster in summary judgment context
Hardaway v. Nixon
Procedure, Real Property
Texas 4th Court of Appeals
November 22, 2017
04-16-00252-CV
Marialyn Price Barnard
Published
Appellants challenged summary judgment awarding real property to cotenants through constructive ouster and adverse possession based on Appellees' possession for nearly 75 years before Appellants asserted title.  The appellate court reversed, finding cotenants could not establish adverse possession through constructive ouster in the summary judgment context.  Because one cotenant may often hold exclusive possession and use lands with the acquiescence of other cotenants for longer periods of time than would be expected among strangers, a cotenant’s possession of property is not adverse until the tenancy is repudiated, with notice of repudiation to the titleholder.  Therefore, under Texas law, a party claiming adverse possession against a cotenant must also prove actual or constructive ouster, defined as “unequivocal, unmistakable, and hostile acts the possessor took to disseize other cotenants.”  Although a jury may infer-- or presume-- constructive ouster based on prolonged adverse possession, the Texas Supreme Court has recognized that a presumption will not shift the burden on proof to the non-movant in the summary judgment context.  Therefore, a cotenant cannot prevail on summary judgment for adverse possession by presumption of constructive ouster.  As movant did not challenge or cross-appeal the ruling on any other grounds, the appellate court reversed summary judgment and remanded for further proceedings.


Amount of bond required to enforce judgment vacating Lender's security interest and declaring option to convert principal terminated, pending Lender's appeal, is value of convertible interest as of judgment date; not loan balance
AME & FE Inv., Ltd. v. NEC Networks, LLC
Appellate: Civil, Contracts, Procedure, Securities
Texas 4th Court of Appeals
November 20, 2017
04-17-00332-CV
Irene Rios
Published
In 2009, Lender loaned $1.5 million secured by Borrower’s assets, with an option to convert the principal into 30% of Borrower’s Class A Units of membership until the maturity date.  In 2012, Borrower brought a breach of contract action asserting that Lender refused to accept a tendered payoff and release its liens and security interests; and for a declaration that Lender’s option to convert had terminated in 2011.  The trial court entered a judgment for $6,000 against Lender; vacated its liens and security interests; and found it not entitled to convert.  Lender appealed and filed a cash deposit of $8,498 in lieu of supersedeas bond.  Borrower filed a motion requesting the court either increase the amount of bond; or enforce the judgment upon Borrower posting security of $1.5. million, representing the loan balance.  The trial court entered an order declining Lender's request to supersede the judgment and requiring Borrower to post $1.5 million security; thereby allowing Borrower to enforce the judgment.  Lender appealed.  The appellate court found Texas Rule of Procedure 24.2(a)(3) applied, which requires security in an amount sufficient to protect a party against loss or damage during the pendency of an appeal of a judgment awarding an interest in an entity.  Here, if Lender prevailed on appeal, it would be entitled to 30% of Borrower’s Class A Units.  As a result, the appellate court ruled the posted security must preserve the value of Borrower’s Class A Units before the issuance of the judgment, when Lender’s liens and security interests remained in place, to prevent Borrower from taking actions that would devalue its secured assets and property in the interim.  Therefore, the trial court abused its discretion by not assessing the value of 30% of those Units on the date of judgment and using that value to set the amount of bond.  The court accordingly granted Lender’s motion and remanded for further proceedings.   


Police car database returning "unconfirmed" insurance status on license plate number sufficed to initiate traffic stop
Ellis v. State
Criminal, Evidence, Procedure
Texas 2nd Court of Appeals
November 22, 2017
02-16-00309-CR
Mark T. Pittman
Published
Defendant appealed his repeat DWI conviction, contending the arresting officer lacked reasonable suspicion to initiate the traffic stop based solely on his patrol car computer returning an "unconfirmed" insurance status on Defendant's license plate number.  The appellate court found the officer had sufficient specific, articulable facts to infer Defendant’s vehicle was uninsured where "except for a handful of times" out of "tens of thousands of times" the officer had used it, a return of "unconfirmed" meant the vehicle lacked insurance.  Moreover, the prosecution established the database's reliability for purposes of providing reasonable suspicion where the parties stipulated that how the database works is controlled by law; and the officer testified that in his experience, it was "very" accurate.  Under those specific facts, the appellate court concluded the officer had sufficient grounds to initiate the traffic stop and affirmed Defendant’s conviction.


No error excluding prior inconsistent statements of witness who did not testify at trial and police opinions on causation based on those statements; any error admitting video of out-of-court experiment harmless where cumulative
Benson v. Chalk
Evidence, Litigation: Personal Injury, Torts
Texas 1st Court of Appeals
November 21, 2017
01-16-00112-CV
Terry Jennings
Published
Son’s mother died from injuries sustained as a passenger in an auto accident where both drivers claimed to have had the green light.  The jury found Driver of the other vehicle 80% liable and awarded damages totaling $640,000.  Driver appealed, arguing the court erred by excluding the sole independent eyewitness’s initial statements that Driver had a green light, portions of her later deposition testimony, and police opinions on causation; and by admitting video of an out-of-court experiment.  First, the appellate court found no error excluding the inconsistent prior witness statements in the police report and investigative file, because that witness did not testify at trial; and counsel did not object on grounds of present sense impression.  Second, the court did not err excluding portions of that witness’s deposition about those same prior inconsistent statements for the sole purpose of impeachment with otherwise inadmissible hearsay.  Because there were no other witnesses to offer an independent accounting of events, the testimony’s highly prejudicial nature outweighed any probative value as impeachment evidence; and did not itself qualify as substantive evidence.  Third, the court properly excluded police officers' opinions as to causation based entirely on witness statements, not direct perceptions, because the officers did not qualify as expert witnesses.  Fourth, the court found harmless any error admitting video of an out-of-court experiment showing Driver’s traffic signal changed to green only if an approaching car stopped or slowed to a mile per hour, where cumulative of expert testimony.  The appellate court accordingly affirmed the judgment against Driver.


No negligence or DTPA violation where staffing agency did not perform complete criminal background check when placing accounting professional with prior conviction who allegedly embezzled from employers
Ryan Constr. Serv., LLC v. Robert Half Int'l, Inc.
Consumer, Contracts, Employment, Torts
Texas 14th Court of Appeals
November 16, 2017
14-16-00181-CV
Kem Thompson Frost
Published
Staffing Agency provided Employers with a temp-to-hire accounting professional, who allegedly embezzled $160,000 from Employers.  Employers asserted claims against Agency for negligence and violation of the Deceptive Trade Practices Act (DTPA) based on its failure to conduct a complete criminal background check, which would have revealed the employee's thirteen-year-old conviction for securing execution of a document by deception. The trial court granted summary judgment for Agency; Employers appealed.  The appellate court affirmed, finding no breach of any duty establishing negligence or any misrepresentations violative of the DTPA.  First, because Agency's contract with Employers specifically stated it had not conducted a criminal background check, at most Agency held an assumed duty to run a limited seven-year criminal background check for its own purposes when the employee converted from temp to permanent status.  That limited check did not reveal the prior conviction.  Second, Agency's statements that it "screened" applicants and ran "background checks" were not false, misleading, or deceptive where Agency 1) performed an initial "background check" that entailed calling the employee’s references and asking select questions about prior employment; 2) provided a document with its contract explaining it did not perform criminal background checks due to legal limitations on sharing the results; and 3) did not report the results of its own limited check to Employer.  Third, Employers submitted no evidence Agency made misrepresentations; failed to disclose known criminal history; or acted unconscionably by not revealing its internal criminal check went back only seven years.  Fourth, the court rendered any improper exclusion of exhibits harmless by considering those exhibits itself on appeal.  The appellate court accordingly affirmed summary judgment for Agency.  


No negligence or DTPA violation where staffing agency did not perform complete criminal background check when placing accounting professional with prior conviction who allegedly embezzled from employers
Ryan Constr. Serv., LLC v. Robert Half Int'l, Inc.
Consumer, Contracts, Employment, Torts
Texas 14th Court of Appeals
November 16, 2017
14-16-00181-CV
Kem Thompson Frost
Published
Staffing Agency provided Employers with a temp-to-hire accounting professional, who allegedly embezzled $160,000 from Employers.  Employers asserted claims against Agency for negligence and violation of the Deceptive Trade Practices Act (DTPA) based on its failure to conduct a complete criminal background check, which would have revealed the employee's thirteen-year-old conviction for securing execution of a document by deception. The trial court granted summary judgment for Agency; Employers appealed.  The appellate court affirmed, finding no breach of any duty establishing negligence or any misrepresentations violative of the DTPA.  First, because Agency's contract with Employers specifically stated it had not conducted a criminal background check, at most Agency held an assumed duty to run a limited seven-year criminal background check for its own purposes when the employee converted from temp to permanent status.  That limited check did not reveal the prior conviction.  Second, Agency's statements that it "screened" applicants and ran "background checks" were not false, misleading, or deceptive where Agency 1) performed an initial "background check" that entailed calling the employee’s references and asking select questions about prior employment; 2) provided a document with its contract explaining it did not perform criminal background checks due to legal limitations on sharing the results; and 3) did not report the results of its own limited check to Employer.  Third, Employers submitted no evidence Agency made misrepresentations; failed to disclose known criminal history; or acted unconscionably by not revealing its internal criminal check went back only seven years.  Fourth, the court rendered any improper exclusion of exhibits harmless by considering those exhibits itself on appeal.  The appellate court accordingly affirmed summary judgment for Agency.  


No error admitting Defendant's prior conviction for assaulting his girlfriend to explain her recantation, rebut defensive theory of fabrication, and establish nature of their relationship, where court included limiting instruction in jury charge shortly thereafter
Gonzalez v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
November 21, 2017
14-16-00739-CR
Kevin Jewell
Published
Defendant appealed his second conviction for assaulting his girlfriend, arguing the court 1) improperly admitted his prior conviction as evidence of guilt; 2) failed to issue a contemporaneous limiting instruction; and 3) overruled objections to prosecutorial statements during closing.  First, the appellate court found no abuse of discretion admitting Defendant’s prior conviction to explain the victim’s recantation and rebut the defensive theory that she fabricated her initial allegations.  Second, the appellate court found failure to give a contemporaneous instruction harmless, where the court issued a limiting instruction in the jury charge almost immediately after admission of the evidence; and where the prosecution made no attempt to rely on the prior conviction for improper purposes in the interim.   Third, when viewed in context, prosecutorial statements during closing that jurors could use Defendant's prior “to consider the nature and type of relationship” between Defendant and the victim fell within the bounds of permissible jury argument.  The court accordingly affirmed Defendant’s conviction. 


No summary judgment for Buyer seeking specific performance of purchase option without sufficient cash to close
Hogan v. Goldsmith
Contracts, Procedure, Real Property
Texas 11th Court of Appeals
November 16, 2017
11-15-00330-CV
Jim R. Wright
Published
Buyer sued Seller for specific performance pursuant to a lease-purchase agreement and moved for partial summary judgment, claiming he met all conditions precedent to exercise his purchase option.  Seller responded with evidence that Buyer lacked funds to close.  The trial court granted summary judgment for Buyer; Seller appealed.  The appellate court found that once Seller produced evidence that Buyer lacked sufficient cash to close, Buyer had to plead and prove he tendered payment to Seller; or at the very least, that he had the full amount owed Seller in cash.  Absent such proof Buyer did not show that he either complied with the purchase option or was ready, willing, and able to perform its terms.  The appellate court accordingly reversed summary judgment for Buyer and remanded for further proceedings.


Blood-alchohol extrapolation evidence admissible where expert knew when Defendant last drank; when and how much he last ate; and time of breathalyzers
Corley v. State
Criminal, Evidence
Texas 14th Court of Appeals
November 14, 2017
14-16-00691-CR
Kem Thompson Frost
Published
Defendant appealed his conviction for driving while intoxicated, arguing the court erred in admitting unreliable expert testimony on retrograde-extrapolation to compute Defendant’s blood alcohol level at the time of driving from two breathalyzers taken an hour later.  The appellate court found the expert had sufficient information to compute Defendant’s blood-alcohol level while driving where she knew 1) how much and when Defendant last ate; 2) the time of his last drink; and 3) the time and results of his breath tests.  Based on that information, the trial court reasonably could have concluded the extrapolation testimony was reliable and helpful.  The appellate court accordingly affirmed Defendant's conviction.


Error claiming lack of neutrality due to consideration of outside evidence must be preserved below; nonetheless, the record showed Defendant orchestrated robbery without considering outside evidence
Elizondo v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
November 14, 2017
14-16-00871-CR
Kem Thompson Frost
Published
Defendant appealed his forty-year sentence for three counts of aggravated robbery, arguing lack of neutrality based on consideration of outside evidence where he left the crime scene before co-conspirators shot two of the victims.  As a matter of first impression, the appellate court ruled such error must be preserved below.  Though Defendant failed to do so, the court nonetheless reviewed the issue arguendo.  The court found the trial judge reasonably could have inferred that Defendant orchestrated the robbery from record evidence that he 1) had essential knowledge of the victims and their home; 2) gathered co-conspirators; 3) drove them to get tools and to the crime scene; 4) gave commands during the robbery (which included duct-taping plastic bags over the victims' heads); and 5) left to get gasoline, purportedly to kill the victims.  The court accordingly affirmed Defendant's sentence.


Homeowners' second garage stands on appeal despite neighbors' efforts to enforce deed restrictions
Garden Oaks Maint. Org. v. Chang
Contracts, Gov't/Administrative, Procedure, Real Property
Texas 14th Court of Appeals
November 14, 2017
14-16-00537-CV
Marc W. Brown
Published
Maintenance Organization formed by three neighbors to enforce a single-garage deed restriction sued Homeowners who built their house following approved plans, but later installed a second garage door in the wall of a former "studio."  Homeowners counterclaimed for a declaration that Organization lacked authority to enforce deed restrictions as a property owners' association under the Texas Property Code.  The trial court entered four declarations in Homeowners' favor, but declined to award attorney fees.  Both sides appealed.  The appellate court affirmed declaratory judgment for Homeowners as to the second garage; but reversed two broader declarations and affirmed denial of fees.  First, Homeowners’ counterclaims did not merely duplicate deed restriction issues raised in Organization’s complaint because Homeowners requested additional relief preventing future enforcement attempts by Organization.  Second, no error arose invalidating Organization’s attempt to form a petition committee and amend restrictive covenants just months after dissolution of a previous petition committee, as Texas Property Code § 201.005 requires a five-year waiting period.  Third, the trial court erred in declaring bylaws invalid absent proof those bylaws were not filed in county records.  Fourth, the trial court erred in declaring Organization lacked authority to enforce deed restrictions in general where the jury expressly limited its findings to the single-garage restriction and Homeowners did not prove otherwise.  Fifth, no error arose in refusing to award attorney fees on claims presenting issues of apparent first impression and requiring statutory interpretation; and where one side committed a breach, but the other side's behavior excused that breach.  The appellate court accordingly affirmed denial of attorney fees and the judgment allowing Homeowners' second garage to stand; but deleted the broader declarations.


Summary foreclosure judgment for Lender on original loans affirmed where voluntary dismissal of bankruptcy prior to plan confirmation rendered bankruptcy refinance agreement unenforceable, despite Borrower's reliance
Badalich v. First Nat'l Bank of Winnsboro
Banking and Finance, Bankruptcy, Creditor/Debtor
Texas 12th Court of Appeals
November 15, 2017
12-16-00258-CV
James T. Worthen
Published
Borrowers appealed summary judgment awarding over $2M in favor of Lender and ordering judicial foreclosure, arguing they raised material issues of fact whether Lender failed to comply with a bankruptcy refinance agreement.  The appellate court found the refinance agreement unenforceable because one of the Borrowers voluntarily dismissed his bankruptcy prior to confirmation of a Chapter 11 plan, returning Borrowers to their prebankruptcy positions.  Without an enforceable refinance agreement, Borrowers conceded Lender could enforce the original loans.  Moreover, equitable estoppel did not apply where Borrowers presented no evidence that Lender represented it would honor the refinance agreement after dismissal of the bankruptcy.  Instead, Borrower’s affidavit claiming he dismissed the bankruptcy in reliance reflected only his subjective belief and did not establish Lender made promises equitably precluding collection on the original loans.  The appellate court accordingly affirmed summary foreclosure judgment for Lender.    


 

Appellant had not shown ineffective assistance by counsel in failing to object to expert opinion on credibility of child complainant, or that visiting judge did not take oath of office, or summoning witness fee prevented him from process on them or his constitutional right to confront them
Macias v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
November 07, 2017
01-16-00664-CR
Evelyn V. Keyes
Published
     The jury found the appellant guilty of indecency with a child by exposure, but it was unable to reach a verdict on the charge of indecency with a child by contact, and the trial court declared a mistrial as to that charge. The appellate court found that the appellant had not established by a preponderance of the evidence that a reasonable probability existed that, but for counsel’s failure to object to the individual's testimony concerning the complainant’s credibility, the result of the proceeding would have been different. The court held that appellant had not established that his trial counsel rendered constitutionally ineffective assistance. Because the appellant had not made a showing that material and favorable witnesses were available to be called by him, the court could not conclude that the $5 fee for summoning witnesses, as applied in that case, operated to deny appellant his right to have compulsory process for obtaining witnesses in his favor. Furthermore, the State called four witnesses to physically appear and testify at trial against the appellant, and the appellant had the opportunity to, and did, cross-examine each witness. The appellant had not established how constructive notice of the $5 fee for summoning witnesses prevented him from exercising his constitutional right to be confronted with the witnesses against him. Finally, the court therefore concluded, pursuant to London v. State, that the appellant had not demonstrated that article 102.011(a)(3), as applied to him, operated to deny him his constitutional rights to confront the witnesses against him or to have compulsory process for obtaining witnesses in his favor. Accordingly, the trial court's judgment was affirmed.


Public policies underlying Peeler doctrine did not support extending it to restitution of monies paid for post-conviction legal services that were never performed, but appellee’s theft claim accrued more than two years before it was asserted and appellee failed show the discovery rule applied
Gonyea v. Scott
Contracts, Damages, Ethics, Procedure, Professional Responsibility, Torts
Texas 1st Court of Appeals
November 02, 2017
01-16-00292-CV
Harvey Brown
Published
     The appellee who had been convicted of several criminal offenses hired attorney to file an application for writ of habeas corpus on his behalf. The appellee sued him, asserting two causes of action. His first cause of action was for breach of contract. He sought $25,000 in restitution damages, which was the full amount of the fee paid under the terms of the contract. His second cause of action was for theft and sought $15,000 in damages, which was the amount of over payment that the appellant never returned. After answering the lawsuit, the appellant moved for summary judgment, the trial court entered judgment in the appellee’s favor on both claims for the damages sought, plus reasonable and necessary attorney’s fees. The appellate court affirmed the judgment as to the breach-of-contract claim, holding that the public policies underlying the Peeler doctrine did not support extending the doctrine to restitution of monies paid for post-conviction legal services that were never performed. However, the court reversed and rendered judgment in the appellant’s favor on the theft claim, holding that the claim accrued more than two years before it was asserted and that the appellee failed to meet his burden to prove that the discovery rule applied.


Beneficiary lacked standing to pursue a fee-forfeiture claim based on alleged deficiencies in opposing counsel’s legal advice to estate’s independent executor, appellant, however, trial court failed to rule the appellant's legal fees and expenses could be paid from the estate by statute
In Estate of Nunu
Contracts, Courts, Damages, Procedure, Torts, Wills/Trusts/Probate
Texas 14th Court of Appeals
November 02, 2017
14-16-00394-CV
Tracy Christopher
Published
     The appellant sisters were each beneficiaries of one-third of the estate of their mother, the decedent, (the Estate). The first appellant was the independent executor of the Estate, and she previously was represented in that capacity by the second appellant, who was an attorney. The probate case originally had been assigned to statutory county Probate Court No. 4 in Harris County. In that court, the second appellant allegedly accused the first appellant's attorney of misconduct and moved to recuse the Judge on the ground that the attorney's father previously was the presiding judge of Probate Court No. 4. After Judge voluntarily recused herself, the case was transferred to statutory county Probate Court No. 1. In the instant appeal, an estate’s beneficiary, the appellants, sought reversal of (a) the trial court’s ruling that the beneficiary had no claim for forfeiture of opposing counsel’s attorneys’ fees, (b) the trial court’s assumed denial of the beneficiary’s challenge to the independent executor’s entitlement to use estate funds to pay her attorneys’ fees and expenses in the case, (c) the denial of the beneficiary’s application to compel distribution of the estate, and (d) the denial of the beneficiary’s motion to recuse the trial judge. The appellate court affirmed the portion of the judgment in which the trial court denied the second appellant's “Application for Attorney Fee Forfeiture and any claims or causes of action relating thereto.” The court agreed with the trial court that the beneficiary lacked standing to pursue a fee-forfeiture claim based on alleged deficiencies in opposing counsel’s legal advice to the estate’s independent executor. The court also found no error in the denial of the motion to recuse. However, the court found error in the trial court’s failure to rule on the extent to which the first appellant's legal fees and expenses could be paid from the estate, and on its failure to order distribution of the estate as statutorily required. The court accordingly affirmed and reversed in part, and remanded the cause to the trial court.


By creating a non-designated bus stop and activating bus's flashing lights, defendant’s bus driver proximately caused deceased’s death by wrongful acts and omissions, and the District was vicariously liable because the district’s school bus, a motor vehicle, was involved in the accident
La Joya Independent School District v. Gonzalez
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts, Transportation
Texas 13th Court of Appeals
November 02, 2017
13-16-00426-CV
Dori Contreras
Published
     The appellee individually and as next friend of a deceased minor, sued the appellant after an accident that resulted in the deceased's death. The instant was an appeal from the trial court’s denial of a plea to the jurisdiction filed by the appellant. The appellate court found that the evidence merely showing that the governmental entity investigated an accident was insufficient to show actual notice. But here, there was also evidence indicating that the individual reported the accident, and the specific details of how he might have been responsible for the accident, to a supervisor. Thus, the court concluded that there was a fact issue as to whether the appellant had actual notice of its alleged fault producing or contributing to the deceased's death. The trial court did not err in denying the appellant's plea to the jurisdiction on those grounds. Further, the appellee's pleadings were sufficient to show that the deceased's death arose from the operation or use of a motor-driven vehicle. Therefore, the trial court did not err by denying the plea to the jurisdiction on those grounds. Accordingly, the court affirmed the trial court’s judgment denying the appellant's plea to the jurisdiction.


Trial court did not have jurisdiction to conduct criminal trial because the appellate mandate on State’s appeal of trial court’s grant of appellant’s motion to suppress had not yet issued, and thus, State could retry defendant without violating constitutional protections against double jeopardy
Ex parte Macias
Constitution, Courts, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
November 01, 2017
PD-0480-17
Sharon Keller
Published
     The appellant was charged with committing family-violence assault. He filed a motion to suppress, which the trial court granted. The State appealed and filed a motion to stay further trial court proceedings, which the appellate court granted. The appellate court handed down an opinion reversing the trial court. The opinion made no explicit statement about the stay that the appellate court had earlier granted. Concluding that trial proceedings were a nullity and that it could not even declare a mistrial, the trial court dismissed the jury. The appellant subsequently filed a pretrial habeas application, alleging that any future trial on the charged offense would violate double jeopardy. The trial court denied the application, and the appellant appealed. After exhausting the administrative remedies, the trial court granted a motion to suppress evidence. The Texas Court of Criminal Appeals found that the trial court was correct in concluding that it lacked jurisdiction over the case because the appellate mandate had not yet issued. The appellate court was incorrect in concluding otherwise. Accordingly, the court reversed the judgment of the appellate court and affirmed the judgment of the trial court.


Trial court committed constitutional error by failing to require State to make an election of the sexual assault incident upon which it relied for conviction, but error was harmless, and appellate court’s reversal was reversed, and remanded to address appellant’s remaining point of error
Owings v. State
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
November 01, 2017
PD-1184-16
Bert Richardson
Published
     The appellant was convicted by a jury of aggravated sexual assault of a child and sentenced to thirty years in prison. The appellate court reversed the appellant’s conviction, holding that the trial court committed harmful constitutional error in failing to require the State to make an election of the incident upon which it relied for conviction. The Texas Court of Criminal Appeals agreed that the trial court committed constitutional error by failing to require the State to make an election of the incident upon which it relied for conviction. However, the court disagreed with the appellate court’s harm analysis. Thus, the trial court’s erroneous failure to require the State to make an election was harmless. As such, the court reversed and remanded the case to the appellate court to address the appellant’s remaining point of error.


Statutory forum non conveniens did not govern appellant’s claims and was inapplicable; motions to dismiss were improvidently granted, either because there was no hearing or the ruling was not timely; however, trial judge did not violate Supremacy Clause in granting dismissals and was not biased
Daniels v. State of New Mexico
Courts, Gov't/Administrative, Procedure, Torts
Texas 8th Court of Appeals
October 31, 2017
08-14-00060-CV
Yvonne T. Rodriguez
Published
     The instant appeal involved a pro se appellant, who was appealing two trial courts’ orders dismissing the appellees. Appellant’s lawsuit alleged various causes of action: fraud, breach of fiduciary duty, defamation, malicious prosecution, false imprisonment, deprivation of first amendment rights, deprivation of equal protection and due process, conspiracy to defraud, and conspiracy to obstruct justice. Appellees were dismissed based on forum non conveniens or lack of personal jurisdiction, except for three media appellees who were dismissed under the Texas Citizens Participation Act (TCPA). The appellate court found that, given that the appellant’s claims did not sound in personal injury, the court found the appellant’s claim that TEX.CIV.PRAC.&REM.CODE ANN. Section 71.051 governed his case unpersuasive. Statutory forum non conveniens did not govern appellant’s claims and so was inapplicable. Further, the statute required a hearing on the Media appellees’ dismissal motions, and without such a hearing the motions to dismiss could not be granted. On the other hand, if the hearing on February 20 was, in fact, the motion hearing, then the dismissal motion was overruled by operation of law when a ruling was not made within 30 days of February 20. The trial court’s April 18 order granting the motions was invalid. In either case, the motions to dismiss were improvidently granted. Furthermore, the appellant’s contention that the dismissal orders were void due to the lack of a hearing was meritless, which rendered his issue regarding the 243rd trial court’s plenary power moot. And, the appellant’s claims were dismissed based on forum non conveniens—not because the trial court refused to hear the supposed federal claims. Lastly, the repeated remonstrations by the trial Judge did not show a deep-seated favoritism or antagonism; at worst, they showed annoyance which was insufficient to demonstrate judicial bias rendering fair judgment impossible. Accordingly, the court vacated in part and affirmed in part.


The extraneous-offense evidence of the appellant’s physical assaults of the victim’s sisters was substantially more prejudicial than probative and, thus, harmful when erroneously admitted and reversible error
Aguillen v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
October 31, 2017
06-17-00004-CR
Josh R. Morriss III
Published
     The jury found the appellant guilty of the two counts of indecency and he was sentenced to twenty years’ imprisonment for each count, to run consecutively. The appellate court found that evidence of the appellant’s physical abuse of the victim’s sisters had no relevant bearing on whether the appellant inappropriately touched the victim on the two occasions he was alleged to have done so. Contrary to the State’s contention, the extraneous-offense evidence involving the victim’s sisters was not admissible pursuant to Article 38.37 of the Texas Code of Criminal Procedure. Further, to include the extraneous-offense evidence involving the victim’s sisters showed merely that it was a part of the appellant’s bad character to physically assault the other children living in the home; but it had little, if any, relevance to the matter of whether the appellant committed the offense of indecency with a child by contact against the victim on the two occasions he was alleged to have done so. That was the precise purpose of Rule 404(b)’s prohibition against the use of character evidence. Furthermore, the fact that the victim’s testimony appeared consistent with the victim’s sister's testimony regarding the physical abuse of the sisters did not rebut the appellant’s defense that the victim was being dishonest about the charged-offenses. It showed only that the girls were most likely telling the truth about the appellant physically assaulting them. Lastly, the extraneous-offense evidence of the appellant’s physical assaults of the victim’s sisters was substantially more prejudicial than probative and, thus, harmful when erroneously admitted. Accordingly, the court reversed the trial court’s judgment and remanded the case to the trial court for a new trial.


Trial court erred in determining that the appellee unambiguously and unequivocally invoked his right to counsel, and the court sustained the State’s sole issue and reversed the trial court’s order striking the portions of the videotaped statement occurring after the alleged invocation of counsel
State v. Norris
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 31, 2017
14-16-00455-CR
Martha H. Jamison
Published
     The instant was an interlocutory challenge from the grant of a motion to suppress a confession. The appellee was charged with capital murder in the course of a robbery. The trial court granted the appellee’s motion to suppress his confession based on a finding that the appellee had unequivocally and unambiguously invoked his right to counsel during questioning. The appellate court found that viewed in conjunction with the first part of the appellee’s statement, which the individual detective interrupted, the statement reflected in the transcript again appeared to be forward-looking. The appellee had indicated that he was okay talking to the detective. Viewed from the standpoint of a reasonable officer and under the totality of the circumstances, the statement in the transcript was not an unambiguous and unequivocal invocation of the right to counsel. Further, the trial court erred in determining that the appellee unambiguously and unequivocally invoked his right to counsel, the court sustained the State’s sole issue and reversed the trial court’s order striking the portions of the videotaped statement occurring after the alleged invocation of counsel. The court remanded for further proceedings consistent with the instant opinion.


Appellant’s broad waiver of all defenses available to guarantors under the anti-deficiency statute necessarily included a defense based on Property Code 51.003(a)’s two-year statute of limitations
Godoy v. Wells Fargo Bank, N.A.
Banking and Finance, Contracts, Creditor/Debtor, Procedure, Real Property
Texas 14th Court of Appeals
October 31, 2017
14-16-00599-CV
William J. Boyce
Published
     The appellee bank sued the appellant to collect a deficiency on a debt that the appellant guaranteed. The appellant moved for summary judgment on grounds that the appellee’s claims were barred by a two-year statute of limitations applying to deficiency claims, the appellee moved for partial summary judgment on grounds that the appellant contractually waived any limitations defense. The trial court denied the appellant’s motion for summary judgment, granted the appellee’s motion as well as a subsequent motion for summary judgment on the deficiency claim, and signed a final judgment in favor of the appellee. The appellate court found that the appellant’s broad waiver of all defenses available to guarantors under the anti-deficiency statute necessarily included a defense based on Property Code 51.003(a)’s two-year statute of limitations. Further, the appellee raised the pleading defect in its response to the appellant’s motion for new trial, in which he again asserted the same public policy arguments with respect to limitations; and the trial court affirmatively recited that it heard and considered Defendant’s Motion for New Trial and the appellee’s response in its order denying the motion. Accordingly, the court affirmed the trial court’s judgment.


Twenty-day period to bring an interlocutory appeal ran separately from each motion, and petitioners timely filed their appeal, where the City’s motion for summary judgment was easily distinguishable from their original plea to the jurisdiction
City of Magnolia 4A Economic Development Corp. v. Smedley
Appellate: Civil, Constitution, Damages, Environmental, Gov't/Administrative, Procedure, Real Property, Torts
The Supreme Court of Texas
October 27, 2017
16-0718
Per Curiam
Published
     In the instant case, the court must determine whether the twenty-day period to bring an interlocutory appeal ran from the petitioners’ initial plea to the jurisdiction or from their later motion for summary judgment, both of which challenged the respondent’s claims on similar jurisdictional grounds. The court held that the twenty-day period ran separately from each motion, and that the petitioners timely filed their interlocutory appeal. The dispute arose from the alleged impoundment of surface water on respondent's property, which he claims was caused by construction of the Magnolia Stroll, a municipal hiking and walking path. The Texas Supreme Court found that the municipal development corporations (MDCs), argued in their original plea to the jurisdiction that the respondent had not alleged any facts that, if proven true, would constitute a claim against them and that the respondent had not alleged facts showing that the MDCs could provide the requested injunctive relief. The MDCs made immunity-based arguments, but the plea’s primary emphasis was the respondent’s failure to allege facts. Included with that motion were the bylaws and articles of incorporation of both MDCs. Further, the MDCs’ motion for summary judgment was easily distinguishable from their original plea to the jurisdiction based on the extensive evidence that the trial court considered for the first time, including the declaration of the City Administrator, which the MDCs argue affirmatively negates the redressability of the respondent’s claims. Finally, in City of Houston v. Estate of Jones, the motions in the instant case were sufficiently different based on both their substance and procedural nature. Finally, the court held that the MDCs’ hybrid motion for summary judgment was not a mere motion for reconsideration, but rather a distinct motion that merits an independent twenty-day interlocutory appeal period. Accordingly, without hearing oral argument, the court reversed the appellate court judgment dismissing the MDCs’ appeal for lack of jurisdiction and remanded the case to that court for further proceedings.


Trial court properly declared appellant individual a vexatious litigant and dismissed pro se lawsuit filed as trustee for appellant trust, where he had a history of filing frivolous lawsuits to prevent foreclosures, and appellee tax lien creditor likely would succeed on enforcement of the lien
1901 N.W. 28th Street Trust v. Lillian Wilson, LLC
Appellate: Civil, Contracts, Courts, Creditor/Debtor, Damages, Procedure, Real Property, Wills/Trusts/Probate
Texas 2nd Court of Appeals
October 26, 2017
02-16-00452-CV
Bill Meier
Published
     The trial court declared the individual a vexatious litigant and dismissed a pro se lawsuit that he had filed as the trustee for the appellant trust. In addition to several complaints directed at the trial court and at opposing counsel, the individual argued that the appellee company failed to meet its burden under chapter 11 of the civil practice and remedies code to deem him a vexatious litigant. The appellate court found that because the individual commenced the litigation pro se, he was a plaintiff as the legislature defined that term in chapter 11. Further, although the appellee recorded the deed of trust several days after the special warranty deed conveying the Property from the individual to his brother was recorded, the deed of trust did not create a new lien against the Property; rather, it merely preserved and extended the existing tax lien and prescribed new terms and conditions for foreclosure. Thus, the individual’s argument was premised on something other than the law. Next, each suit was a Tex. Civ. Prac. & Rem. Code Ann. Section 11.054(1)(A) qualifying litigation. The appellee met its burden under Section 11.054(1)(A). Further, the appellee did not file a motion seeking to declare the appellant a vexatious litigant. Thus, the trial court did not abuse its discretion by determining that the individual was a vexatious litigant. Lastly, the individual failed to preserve that issue for appellate review because he did not cite even one supporting authority. Accordingly, the court affirmed the trial court’s judgment.


Appellee partners in lender’s management did not waive special appearance, and record did not show appellees were the alter ego of appellee limited liability company, or that any of appellants’ claims substantially relate to forum contacts of the appellee individuals
Wormald v. Villarina
Appellate: Civil, Banking and Finance, Contracts, Corporations, Creditor/Debtor, Procedure, Torts
Texas 14th Court of Appeals
October 26, 2017
14-16-00553-CV
Kem Thompson Frost
Published
     The appellee liability company brought a collection suit against the appellee borrowers and the appellant guarantors, and the appellants filed a counterclaim against the lender and filed various claims against others. The appellants challenged the trial court’s granting of the special appearances of three California residents whom the appellants alleged were partners involved in the lender’s management. The appellate court found that neither the first appellee individual nor the second appellee individual, nor the third appellee individual waived his special appearance. The record did not contain sufficient evidence to prove that the appellee individuals were the alter ego of the appellee liability company, or that any of the appellants’ claims substantially relate to forum contacts of the first and second appellee individual, or the third appellee individual. The record contained evidence supporting the trial court’s conclusion that it lacked personal jurisdiction over those defendants, and the trial court did not err in granting their special appearances. Accordingly, the court affirmed the trial court’s order.


No evidence supported two of the three predicate findings, and evidence was legally insufficient to support termination of parental rights under the best-interest finding; appellant had not challenged trial court's appointment of the father as children's sole managing conservator
In re J.E.M.M
Family, Gov't/Administrative, Juvenile
Texas 14th Court of Appeals
October 25, 2017
14-17-00355-CV
Kem Thompson Frost
Published
     In the instant accelerated appeal, the appellant mother sought reversal of the trial court’s judgment terminating her parental rights to two children. She challenged the legal and factual sufficiency of the evidence to support the trial court’s findings on two predicate grounds and its finding that termination was in the best interest of the children. The appellate court found that the minors had a natural and lifelong connection to the appellant. Before the State of Texas could sever their relationship with her, they were entitled to a trial where the State was held to its burden of proof. Though the court recognized the inherent limits of the appellate process and the possibility that additional facts, if proved at trial, might have led to a different result, the court must hold the Department to the heightened standards. Termination of parental rights was serious business. The law required clear and convincing evidence to sever the relationship between a parent and child and due process demanded that the State document a sufficient measure of evidence in the record to support that outcome. The court reversed the judgment of the trial court to the extent that the trial court terminated the appellant’s parental rights as to the minors, and the court rendered judgment denying the Department’s requests to terminate the appellant’s parental rights as to the minors. Finally, the trial court did not make that appointment under Family Code section 161.207; rather, the trial court made the required best-interest findings to support the appointment of Father as sole managing conservator of the child. In that context, a challenge to the appointment of Father as sole managing conservator was not subsumed within the appellant’s challenge to the termination-of-parental-rights decision. Accordingly, the court affirmed the remainder of the trial court’s judgment.


Affidavit contained enough particularized facts given by a named informant to allow the magistrate to correctly determine that there was probable cause to issue a search warrant of appellee’s hotel room, based on arrestee’s information about counterfeit check production at the hotel
State v. Elrod
Constitution, Criminal, Evidence, Procedure
Texas Court of Criminal Appeals
October 25, 2017
PD-0704-16
Bert Richardson
Published
     The appellee was charged with fraudulent use or possession of identifying information and with two offenses of tampering with a governmental record. The appellee filed a motion to suppress evidence seized by Mesquite police officers after they executed a search warrant at his hotel room. The trial court granted the appellee’s motion to suppress, finding that the affidavit in support of the search warrant did not establish probable cause. The Texas Court of Criminal Appeals found that the affidavit contained enough particularized facts given by a named informant to allow the magistrate to correctly determine that there was probable cause to issue a search warrant. Further, the appellate court erred by affirming the trial court’s order granting appellee’s pretrial motion to suppress and the court reversed the judgment of the fifth appellate court, vacated the trial court’s order granting the motion to suppress, and remanded the case to the trial court for proceedings consistent with the instant opinion.


The jury’s finding of no commercial bribery according to the charge’s definition was against the great weight and preponderance of the evidence and the appellants’ duty to the appellee arose only under the contracts and the appellee’s injuries were not independent of the contracts
Cotter & Sons, Inc. v. BJ Corp.
Contracts, Damages, Evidence, Procedure, Torts
Texas 4th Court of Appeals
October 25, 2017
04-16-00186-CV
Patricia O. Alvarez
Published
     The appellee company sued the appellants for breaching the appellee’s contracts to provide janitorial services to buildings belonging to the appellants, quantum meruit, and negligent and fraudulent misrepresentation. With regard to the breach of contract claim, the appellants raised the affirmative defense of commercial bribery. In addition, the appellant company asserted claims against the appellant individuals for breach of fiduciary duty and conspiracy. Based on a jury’s findings, the trial court rendered judgment awarding the appellee damages for its breach of contract and negligent misrepresentation claims. The appellate court found that the jury’s finding of no commercial bribery according to the charge’s definition was against the great weight and preponderance of the evidence. Therefore, the court reversed the portion of the trial court’s judgment awarding the appellee damages on its breach of contract claim. Further, because the appellants’ duty to the appellee arose only under the contracts, and the appellee’s injuries were not independent of the contracts, the court reversed the portion of the trial court’s judgment awarding damages to the appellee on its negligent misrepresentation claim and render judgment for the appellants that the appellee take nothing on its negligent misrepresentation claim. The court also reversed the portions of the trial court’s judgment awarding all other sums to the appellee including attorney’s fees, interest on past due debt, prejudgment interest, postjudgment interest, and costs of court. The court remanded the cause to the trial court for a new trial.


The evidence was factually sufficient to support jury’s finding of damages for breach of contract for the parties’ medical practice and bylaws and fraud by material misrepresentation, but the trial court erred by failing to apply the statutory cap on exemplary damages
Lowry v. Tarbox
Appellate: Civil, Contracts, Corporations, Damages, Torts
Texas 4th Court of Appeals
October 25, 2017
04-16-00416-CV
Irene Rios
Published
     The appellee brought suit against the appellants alleging several causes of action. The jury found in favor of the appellee and awarded both damages and exemplary damages. The appellate court found that upon considering and weighing all of the evidence in the record, including the first appellant's testimony directly contradicting that of the appellee, the court concluded that the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Therefore, the evidence was both legally and factually sufficient to support the jury’s answer to Question No. 1 that the parties agreed to the payment of revenues as described by the appellee. Further, despite the first appellant's testimony disputing the theory under which the damages were awarded, the evidence presented by the appellee through the bookkeeper's testimony was not so weak as to render the jury’s verdict clearly wrong and manifestly unjust. Thus, the evidence was factually sufficient to support the jury’s finding of damages for breach of contract. Furthermore, for the fraud claim, the jury assessed economic damages of $216,486, but did not assess noneconomic damages. As a result, under Section 41.008(b), the exemplary damages cap for the fraud claim was two times the economic damages or $432,972. The jury, however, assessed exemplary damages of $937,500, which exceeded the statutory cap by $504,528. Thus, the trial court erred by failing to apply the statutory cap on exemplary damages. Lastly, the court reformed the trial court’s judgment to cap the exemplary damage award at $498,564 for the breach of fiduciary claim and $432,972 for the fraud claim. Accordingly, the court affirmed the trial court’s judgment as reformed.


Trial court exercised its authority under Rule 165a and declined to dismiss respondent’s cause of action for failure to timely serve process, and because exercise of authority was discretionary, it did not involve a ministerial duty, and was not exceptional so as to require mandamus relief
In re Gibson
Appellate: Civil, Courts, Gov't/Administrative, Procedure, Torts
Texas 6th Court of Appeals
October 24, 2017
06-17-00085-CV
Jack Carter
Published
     The day before the statute of limitations ran, the respondent sued the petitioner for alleged damages sustained in a motor vehicle accident. She did not, however, properly serve the petitioner until April 11, 2017. The petitioner filed a motion to dismiss, alleging that the respondent had not exercised due diligence in serving the petitioner with citation. The trial court denied the petitioner’s motion. The appellate court found that the Texas Supreme Court had tried to give more concrete direction for determining the availability of mandamus review; rigid rules were necessarily inconsistent with the flexibility that was the remedy’s principal virtue. The Texas Supreme Court reaffirmed the rule that an appellate remedy was not inadequate merely because it may involved more expense or delay than obtaining an extraneous writ. Further, the petitioner offered a general statement that where there was such a delay after filing suit, there’s inherent prejudice to the defendant because memories fade, and the longer it takes to try something, the more likely there was that there would be problems remembering what happened, the evidence would be stale, that sort of thing. The trial court denied the petitioner’s motion to dismiss and told the parties to confer and set a trial date. The trial court had previously exercised its authority under Rule 165a and declined to dismiss the respondent’s cause of action. Because the exercise of authority was discretionary, it did not involve a ministerial duty. Furthermore, in judging the benefits versus the detriments of granting a mandamus request, the court believed there was merit in utilizing the traditional and well-established method of resolving that issue by the established procedure outlined in Rule 166a. Finally, the act the petitioner sought to compel was ministerial in neither nature nor that the situation at bar presented such a significant or exceptional circumstance as to require the extraordinary relief of mandamus. Accordingly, the petition for writ of mandamus was denied.


Appellee lacked sufficient minimum contacts with Texas to permit the exercise of personal jurisdiction over it by Texas courts, and the appellee did not purposefully avail itself of the privileges, nor did it allegedly cause any injury to the appellant in Texas
Vinmar Overseas Singapore PTE Ltd. v. PTT International Trading PTE Ltd.
Contracts, Employment, Procedure, Torts
Texas 14th Court of Appeals
October 24, 2017
14-16-00934-CV
John Donovan
Published
     The appellant company challenged the trial court’s interlocutory order granting the special appearance of the appellee company. The appellant sued the appellee, a business competitor, and the appellant’s former employee, after the appellant’s former employee left the appellant to work for the appellee. The appellant asserted claims against the appellee for misappropriation of trade secrets and confidential information, tortious interference with an employment agreement signed by the appellant’s former employee, business disparagement, and conspiracy. The appellate court found that the appellee lacked sufficient minimum contacts with Texas to permit the exercise of personal jurisdiction over it by Texas courts, and that the appellee did not purposefully avail itself of the privileges and benefits of conducting activities within the forum. It did no business in Texas, committed no tort in Texas, nor allegedly cause any injury to the appellant in Texas. All of the acts of which the appellant complains occurred in Singapore or overseas, and the few contacts to which the appellant points were insufficient. Thus, the court affirmed the trial court’s order granting the appellee’s special appearance and dismissing for want of jurisdiction the appellant’s claims against the appellee. Accordingly, the judgment was affirmed.


Appellee failed to offer any proof that constituted a valid contract subject to tortious interference, however, appellee met his burden of producing clear and specific evidence of a prima facie case for defamation/defamation per se claim for appellant’s Facebook Message under Anti-SLAPP statute
Van Der Linden v. Khan
Appellate: Civil, Constitution, Damages, Torts
Texas 2nd Court of Appeals
November 09, 2017
02-16-00374-CV
Bonnie Sudderth
Published
     The appellee was a board-certified family practice physician. The appellant was a retired colonel in the United States Air Force. The appellee sued the appellant for tortious interference with contract and with prospective advantage/business relations and for defamation/defamation per se and sought damages and injunctive relief. The appellant sought dismissal of all of his claims under Chapter 27. The trial court denied the appellant’s motion to dismiss. The appellate court found that the appellee failed to offer any proof clear, specific, or otherwise that constituted a valid contract. Further, the statements fell short of demonstrating, by clear and specific evidence, that the appellee’s business associate's action or inaction constituted a breach of any contractual obligation. Next, because the appellee failed to meet his burden of producing clear and specific evidence of a prima facie case for each of the essential elements of his tortious-interference-with-contract claim, the trial court erred by denying the appellant’s Chapter 27 motion to dismiss as to that claim. Further, the appellee met his burden of producing clear and specific evidence of a prima facie case for each essential element of his defamation/defamation per se claim. Furthermore, because when a legal action was dismissed pursuant to the Texas Citizens Participation Act, all remedies available under that legal theory disappear with the dismissal of the action itself, a Chapter 27 challenge to a request for injunctive relief should be directed at the underlying legal action, not at the requested remedy. Lastly, the trial court had not yet had the opportunity to determine the amount of court costs, attorney’s fees, and other expenses that justice and equity require and that should be awarded to the appellant. Accordingly, the judgment was affirmed in part, reversed in part and remanded.  


Provision of specialized knowledge by a medical expert would not be necessary to prove appellant’s claims against appellee doctor of a sexual assault upon her during a medical examination of her children; production of an expert report would amount to a needless exercise
T. C. v. Kayass
Damages, Health Care, Procedure, Torts
Texas 2nd Court of Appeals
November 09, 2017
02-16-00248-CV
Mark T. Pittman
Published
     The instant appeal involved the alleged sexual assault by a physician of a nonpatient who went to an urgent care clinic to obtain medical treatment for her children. The appellant challenged the trial court’s granting of a motion to dismiss filed by the appellee for failure to serve an expert report as mandated by section 74.351 of the Texas Medical Liability Act (the Act). The appellate court found that the appellant’s allegations of sexual assault implicate the appellee’s actions during the medical exam of her minor children. Thus, the appellant’s claims against the appellee are presumed to be health care liability claims. Further, the appellant’s children were the appellee’s patients, the appellant did not consent to an examination of herself, the alleged assault of the appellant was not done in the scope of examining her, and the record negated any relationship between the appellee’s alleged acts and his rendition of medical services to the appellant’s children. Finally, the allegations and the record reflected that the appellant’s claims against the appellee were that without her consent, the appellee kissed, licked, and groped her and forced her hand onto his genitalia and that she suffered injury and damages as a result. Those actions were of the assault nature and did not stem from the provision of medical care or the treatment of the appellant’s children. Moreover, the provision of specialized knowledge by a medical expert in the instant case would not be necessary to prove the appellant’s claims against the appellee and would amount to a needless exercise. Accordingly, the court reversed the trial court’s judgment and remanded.


More than eight months was a reasonable period of time in which to rule on the parties’ post-verdict motions and render judgment in the case, therefore, the respondent Judge was directed to render judgment within thirty days from the date of the instant opinion
In re Mesa Petroleum Partners, LP
Appellate: Civil, Constitution, Courts, Gov't/Administrative, Oil, Gas, & Mineral, Procedure
Texas 8th Court of Appeals
November 09, 2017
08-17-00195-CV
Yvonne T. Rodriguez
Published
     The relator filed a mandamus petition against the Honorable Judge of the 143rd District Court of Reeves County, Texas. The relator requested that the appellate court direct the respondent to render a final judgment in the case, styled Mesa Petroleum Partners, LP v. Baytech LLP, J. Cleo Thompson and James Cleo Thompson, Jr., LP, and Delaware Basin Resources LLC. The appellate court found that the statistics showed that the respondent was conscientious in the management of his docket and a portion of his time has been devoted to disposing of criminal cases pending in the 143rd District Court of Loving, Reeves, and Ward Counties. The fact that the respondent had been conscientious with respect to his court’s docket did not preclude a determination that he had failed to render judgment within a reasonable time in the instant case. Having considered all of the facts and circumstances, the court concluded that more than eight months was a reasonable period of time in which to rule on the parties’ post-verdict motions and render judgment in the instant case. Therefore, the court sustained the sole issue presented by the relator and directed the respondent to render judgment within thirty days from the date of the instant opinion. The court was confident the respondent would comply with the directive and the writ of mandamus would only issue if he failed to do so.


Appellant did not designate any expert witness to testify about any alleged connection between the first appellee’s prior personal injury claims and the injuries sustained, and trial court did not abuse its discretion in allowing testimony confirming prior back injury but limiting it beyond that
Hernandez v. Moss
Damages, Health Care, Insurance, Litigation: Personal Injury
Texas 8th Court of Appeals
November 09, 2017
08-13-00315-CV
Yvonne T. Rodriguez
Published
     The appellant challenged an award of damages against him. The damage award was for injuries sustained by the appellee when the appellant struck their vehicle. In eight points of error, the appellant argued that the trial court improperly excluded evidence, improperly allowed certain expert testimony, failed to make findings of fact and conclusions of law, and he challenges the factual sufficiency of the award. The appellate court found that the ground for recovery at issue here was negligence, and the past and future medical expenses were the damages awarded for that single ground of recovery. As a result, the appellant was not placed in the position of speculating as to the basis of the trial court’s judgment of negligence. Further, the trial judge asked when the first appellee had last sought treatment, and he responded that it had been at least nine years, at which point the trial judge stated let’s move along. The appellant did not make an offer of proof and continued on to a different line of questioning regarding payment of medical treatment in the instant case. Again, the court was not allowed to speculate and could not conduct a harm analysis absent an offer of proof. Furthermore, it was notable the appellant did not designate any expert witness to testify about any alleged connection between the first appellee’s prior personal injury claims and the injuries sustained in that case. The doctor had already completed his testimony at that juncture. It was difficult to assess how further questioning would have aided the trial court. The court found no indication the trial court abused its discretion in allowing testimony confirming the prior back injury but limiting it beyond that. Finally, the record did not show the trial court’s decision was against the great weight and preponderance of the evidence or manifestly unjust. As to the appellant’s purported list of evidence he hoped to prove if the trial court had not ruled against him, it was not part of the record and no offer of proof was made. The court declined to engage in speculation as to what evidence the appellant could have elicited had the trial court ruled in his favor. Accordingly, the trial court's judgment was affirmed.


Appellant knowingly and voluntarily pleaded guilty, she was not misled or harmed by trial court’s admonishments, trial court did not err in failing to order a competency evaluation or hearing, and appellant had not shown jury misapplied the good-conduct time instruction
Dominguez v. State
Constitution, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
November 08, 2017
08-14-00225-CR
Yvonne T. Rodriguez
Published
     The appellant challenged her conviction for intoxication manslaughter. The appellate court found that the record adequately showed that the appellant freely, knowingly, and voluntarily pleaded guilty. Further, because the appellant had failed to show that she was misled or harmed by the trial court’s admonishments, the appellant had failed to show Tex. Code Crim. Proc. Ann. article 26.13 error necessitating reversal. Next, because the trial court was not required to make an informal inquiry regarding the appellant’s competency to stand trial, the court were unable to conclude that it abused its discretion in failing to order a competency evaluation or hold a competency hearing. Finally, the appellant had not demonstrated the existence of a reasonable likelihood that the jury in the instant case misapplied the good-conduct time instruction, and as a result assessed a higher sentence in violation of due process or due course of law. Accordingly, the trial court’s judgment was affirmed.


Appellant waived her right to object to trial court's failure to dismiss the suit and failed to comply with a court-ordered service plan to obtain child’s return under Termination Ground O; and there was factually sufficient evidence that termination was in the child’s best interest
In re B.H.R.
Family, Gov't/Administrative, Juvenile, Procedure
Texas 6th Court of Appeals
November 07, 2017
06-17-00081-CV
Bailey C. Moseley
Published
     The appellee department brought suit in Wood County to terminate the appellant mother’s parental rights to her daughter. Following a jury trial, the appellant’s parental rights were terminated. The appellate court affirmed the trial court’s judgment because the appellant waived her right to object to the trial court’s failure to dismiss the suit. Further, termination under Ground O was supported by factually sufficient evidence. Lastly, there was factually sufficient evidence that termination was in the child’s best interest. Accordingly, the judgment was affirmed.


Counsel relied on video of victim’s recantation as leverage in his plea negotiations with the State, that led to a favorable plea arrangement for the appellant and counsel’s argument against DNA testing had an objective strategy; all “new” evidence was available prior to appellant’s plea
Stubbs v. State
Constitution, Criminal, Evidence, Procedure
Texas 13th Court of Appeals
November 09, 2017
13-16-00352-CR
Nelda V. Rodriguez
Published
     The appellant challenged from the denial of his motion for new trial following his conviction for three counts of sexual assault of a child. By two issues, the appellant asserted that the trial court erred in denying a new trial on grounds of ineffective assistance of counsel and newly discovered evidence. The appellate court found that the record permitted the view that Counsel relied on the video as leverage in his plea negotiations with the State a process that led to a favorable plea arrangement for the appellant. The court could not say that the trial court abused its discretion in determining that the appellant had not demonstrated ineffective assistance. Further, it was thought that samples collected from the child contained sperm that would be subject to forensic testing. That thinking later turned out to be incorrect. But the appellant eschewed the possible outcomes of such testing and accepted the promise of immediate release from confinement in exchange for community supervision which the appellant did not dispute that he violated and the court therefore could not say that the appellant demonstrated diligence in securing the instant evidence. Finally, the court had determined that each of the forms of evidence advanced by the appellant failed to satisfy at least one prong of the controlling test for newly discovered evidence. Accordingly, the trial court's judgment was affirmed.


Appellant presented sufficient evidence from which jury could conclude appellee knew or should have known appellant was relying on him for legal representation, but appellee’s no-evidence motion for summary judgment did not challenge causation element of the legal malpractice claim
Border Demolition & Environmental, Inc. v. Pineda
Appellate: Civil, Contracts, Procedure, Professional Responsibility, Torts
Texas 8th Court of Appeals
November 08, 2017
08-16-00094-CV
Gina M. Palafox
Published
     The instant was an appeal from a judgment granting a hybrid motion for summary judgment. The appellant company filed tort and contract claims against the appellee, a licensed Texas attorney, based on alleged duties flowing from a continuing relationship and implied agreement of representation. The appellate court found that the appellant presented sufficient evidence from which a jury could reasonably conclude that the appellee knew or should have known that the appellant was relying on him for representation. Further, the evidence showed that the appellee told the president he would keep an eye on the construction worker suit, or convince construction worker to drop it. While a jury may decide not to believe the testimony, the court were not free to do so on review. Furthermore, the appellee’s no-evidence motion did not conform to the specificity requirement of Rule 166a(i) to give fair notice to the appellant to address the causation element of the legal malpractice claim. Thus, the appellee’s no-evidence motion for summary judgment did not challenge the causation element of the legal malpractice claim. Lastly, because the court concluded that the appellant’s claim sounds solely in professional negligence, the trial court did not err by granting the appellee’s motion for summary judgment on the breach of fiduciary duty claim or the breach of contract claim. Accordingly, the judgment was affirmed in part, reversed in part and remanded. 


Grounds in Judgment Notwithstanding the Verdict Motion did not address fraud claim against appellee for failure to disclose Commission Information or for Failure to Disclose Termination Information, and did not provide a proper basis for trial court to have disregarded jury’s findings
Bryan v. Papalia
Contracts, Damages, Procedure, Securities, Torts
Texas 14th Court of Appeals
November 09, 2017
14-15-00802-CV
Kem Thompson Frost
Published
     In the instant case involving fraud claims by two plaintiffs against their alleged financial advisor, the trial court granted judgment notwithstanding the jury’s verdict. The trial court disregarded the jury’s findings in answer to questions as to liability and actual damages for fraud and negligent misrepresentation, the discovery rule, and exemplary damages. The appellee testified that he recommended the instant plan to the individual appellant and that the appellee believed that the appellant could invest $132,000 per year for ten years. The appellee denied telling the appellant that the plan would work if the appellant made only three annual payments. The appellate court found that the grounds which did not address the fraud claim against the appellee based on a failure to disclose the Commission Information or based on the Failure to Disclose Termination Information. Therefore, none of the grounds in the JNOV Motion provided a proper basis for the trial court to have disregarded the jury’s finding in response to Question 2, and the trial court erred in granting the JNOV Motion as to that finding and the court sustained the second issue to the extent it addresses that finding. Further, the court sustained the third issue as to the jury’s finding in response to Question 9. Because the appellant Parties sought rendition of judgment only on their fraud claim, the court need not and did not address the first issue to the extent the appellant Parties assert that the trial court erred in disregarding the jury’s negligent-misrepresentation finding in response to Question 3. Furthermore, the court sustained the remainder of the first issue as well as the second issue. Because the trial court erred in granting the JNOV Motion as to Questions 1, 2, 6, 9, and 10 and in rendering judgment that the appellant parties take nothing, the court reversed the trial court’s judgment and remand for further proceedings.


Appellee had presented facts supporting a violation of Texas Open Meetings Act and Texas Whistleblower Act; appellant sued only in his individual capacity could not assert governmental unit’s sovereign immunity, and appellants’ interlocutory appeal was not authorized by Code Section 51.014(a)(8)
City of Donna v. Ramirez
Appellate: Civil, Constitution, Employment, Gov't/Administrative, Procedure, Torts
Texas 13th Court of Appeals
November 09, 2017
13-16-00619-CV
Leticia Hinojosa
Published
     The appellee, the city manager, brought causes of action against the appellant city under the Texas Whistleblower Act. The appellee alleged that he was terminated after he reported to the Donna Chief of Police and a municipal judge that the appellant's city officials ordered him to waive or discount certain municipal fees or charges for city services. The appellants, the city, and the five individuals brought the instant interlocutory appeal from the trial court’s denial of their plea to the jurisdiction seeking to dismiss claims brought by the appellee. The appellate court found that no matter the contents of the other postings, a person viewing the “Cancelled” agenda notice inside the appellant's hall would not be informed of the date and time of the meeting. The appellee had presented facts supporting a violation of Texas Open Meetings Act (TOMA). Further, recognizing that the appellee's burden of proof did not involve a significant inquiry into the substance of his Whistleblower claim, the court concluded that the appellee had presented evidence that he reported a violation of law in good faith. Furthermore, a person sued only in his individual capacity may not assert the governmental unit’s sovereign immunity. Therefore, the appellants’ interlocutory appeal was not authorized by Civil Practice and Remedies Code Section 51.014(a)(8), which was the sole basis for the court’s jurisdiction over the instant appeal. Thus, any ruling by the trial court regarding claims against the appellants in their individual capacities did not constitute a ruling that granted or denied a plea to the jurisdiction by a governmental unit. Accordingly, the court affirmed the trial court’s order denying the appellants’ plea to the jurisdiction.


Appellant raised fact questions regarding existence and enforceability of a contract between himself and appellees, and trial court’s judgment granting a declaration that there was no agreement between the parties was reversed, but denial of appellant’s motion to transfer venue was affirmed
Smith v. Smith
Contracts, Damages, Employment, Procedure
Texas 14th Court of Appeals
November 09, 2017
14-16-00467-CV
Martha Hill Jamison
Published
     In two issues in the instant contractual dispute, the appellant challenged the trial court’s denial of his motion to transfer venue and grant of final summary judgment in favor of the appellees. The trial court rendered summary judgment against the appellant on his breach of contract claim and in favor of the appellees on their declaratory judgment claims. In a cross appeal, the appellees challenge the trial court’s denial of their motion for costs and attorney’s fees under the Texas Declaratory Judgment Act. The appellate court found that the trial court reasonably could have determined that the appellant waived his venue objection, and thus, the trial court did not abuse its discretion in denying the appellant’s motion to transfer venue. Further, the court found that the appellant failed to challenge every basis for summary judgment as to his breach of contract claim, but presented evidence raising fact questions regarding the existence and enforceability of a contract between himself and the appellees. Accordingly, the court reversed and remanded that portion of the trial court’s judgment granting a declaration that there was no agreement between the parties. The court affirmed the trial court’s judgment in all other respects.


Appellant did not consent to jurisdiction in Texas but parties’ consent to New York jurisdiction did not preclude Texas court from asserting jurisdiction over appellant; however, appellants structured their transactions so as neither to profit nor subject themselves to jurisdiction in Texas
Jutalia Recycling, Inc. v. CNA Metals Limited
Contracts, Procedure, Torts
Texas 14th Court of Appeals
November 09, 2017
14-16-01007-CV
Martha Hill Jamison
Published
     The instant interlocutory appeal involved breach of contract and fraud claims. The appellants, the company and the individual, challenged the trial court’s denial of their special appearance, contending that they did not consent to jurisdiction in Texas and they lacked sufficient minimum contacts such that they would reasonably anticipate being haled into a Texas court. The appellate court found that the appellant did not consent to jurisdiction in Texas but the parties’ consent to New York jurisdiction did not preclude the Texas court from asserting jurisdiction over the appellant, the court sustained the appellants’ first issue in part and overruled it in part. Further, by never meeting in Texas and also signing Sales Orders with New York jurisdictional clauses for the sale of products that were never sent to Texas, it appeared that the appellants intended to avoid Texas by structuring their transactions in such a way as neither to profit from Texas law nor to subject themselves to jurisdiction there. Thus, the trial court could not exercise specific jurisdiction over the appellants. Concluding that the appellants lacked sufficient minimum contacts with Texas to confer specific jurisdiction, the court sustained their second issue. Accordingly, having concluded that the trial court lacked jurisdiction over that appellants, the court rendered judgment dismissing the appellee's claims against the appellant's for want of jurisdiction.


Trial court did not abuse its discretion in admitting extraneous offense evidence, and Section 21.02 of Texas Penal Code was not facially unconstitutional in regards to jury unanimity that individual acts of two or more acts of sexual abuse were not elements in and of themselves of the offense
Navarro v. State
Constitution, Criminal, Evidence, Procedure
Texas 10th Court of Appeals
November 08, 2017
10-16-00173-CR
Tom Gray
Published
     The appellant was convicted of the offenses of Continuous Sexual Assault of a Young Child (Count I) and Indecency with a Child by Contact (Count II). He was sentenced to life in prison on Count I and 20 years in prison on Count II. The appellate court after reviewing cases cited, joined those coordinate courts in Texas which have determined that the individual acts of sexual abuse were the manner and means by which the element of "two or more acts of sexual abuse" was committed, and not elements in and of themselves. Therefore, TEX. PENAL CODE Ann. Section 21.01 did not violate a defendant’s constitutional right to jury unanimity. Further, the court concluded that the State’s evidence of the volatile relationship directly rebutted the appellant’s defensive theory and the expressed reasons for the admission of the incidents when the child's mother dropped off the child. Therefore the trial court did not abuse its discretion in admitting the extraneous-offense evidence under Texas Rules of Evidence 404(b). The trial court, after balancing the various Rule 403 factors, could have reasonably concluded that the probative value of the extraneous offense testimony was not substantially outweighed by the danger of unfair prejudice or by misleading the jury. Therefore, the trial court did not abuse its discretion in admitting the State’s extraneous offense evidence. Accordingly, the judgment was affirmed.


Extensive history of child sexual assault legally sufficient to prove behavioral abnormality with likely recurrence and commit Defendant to a treatment program, despite excluded expert opinion that parole would adequately prevent recidivism
In re Commitment of Colantuono
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
November 08, 2017
04-16-00801-CV
Karen Angelini
Published
Defendant imprisoned since 1995 for child sexual assault appealed civil commitment as a sexually violent predator.  First, Defendant claimed the evidence legally insufficient to prove he suffered from a "behavioral abnormality" with a likelihood of recidivism.  The appellate court disagreed where Defendant 1) had five similar prior convictions; 2) admitted assaulting 15 children not related to him (including while married); 3) exhibited extreme grooming activities, (including leading Campfire Adventure groups, driving an ice-cream cart pulled by a  pony, and working at hot dog stands and carnivals); 4) gave contorted explanations that he was actually the victim of children he assaulted; and 5) experts opined that he had pedophilic and antisocial personality disorders with a very high risk to reoffend as a "true recidivist."  Moreover, the court ruled that intent to victimize is implicit in finding a behavioral abnormality, rejecting Defendant’s argument that his assaults were "loving" and "consensual" and therefore lacked the requisite victimizing intent.  Mitigating evidence that Defendant’s crimes occurred 22 years ago (before his incarceration) and of his advanced age and health issues did not render the verdict unjust.  Second, the court found no prejudicial error in excluding arguably relevant expert testimony that parole conditions would prevent recurrence; as the jury had already heard about the conditions of parole, as well as Defendant’s expert opinion that he was unlikely to recidivate.  The court accordingly affirmed finding Defendant a sexually violent predator subject to civil commitment instead of parole.