The trial court did not err in denying the appellant's motion for mistrial because there was no prejudicial misconduct that the trial court needed to cure
Torres v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 17, 2019
14-18-00502-CR
Tracy Christopher
Published
Appellant was charged with aggravated robbery with a deadly weapon, but the jury convicted appellant of just the lesser offense of simple robbery. The jury then assessed appellant’s punishment at twenty-two years’ imprisonment. The appellate Court found that the appellant believed that a mistrial was warranted in the case because the prosecutor “argued a hypothetical” on the topic of parole eligibility. But there was nothing improper with the prosecutor’s hypothetical argument. The prosecutor was allowed to explain how the rules on parole eligibility would apply towards sentences of varying lengths. Appellant did not specifically contend in his brief that the prosecutor’s invocation of his own personal fears constituted an improper plea for law enforcement (a point that was not preserved in any event). Even if the Court agreed that the prosecutor’s argument was improper, the trial court issued a curative instruction on that very point: “You may consider parole, but do not try to factor in the eligibility of this person.” The Court presumed that the jury followed the instruction, which was sufficient to cure any unfair prejudice stemming from the prosecutor’s argument. Further, Cabrera v. State, 513 S.W.3d 35, was not applicable in the case at bar because appellant’s punishment was determined by the jury, not by the trial court. On its face, the record did suggest that the trial court may have exceeded its proper role in the process of plea negotiations. But the complaint was not preserved for appellate review because appellant never objected to the trial court’s comments. Lastly, the deputy's video interview was admitted without objection, the deputy’s opinion was already before the jury. The deputy’s live opinion testimony was merely cumulative of that evidence, which meant that any error in its admission was harmless. Accordingly, the judgment was affirmed.

The State presented legally sufficient evidence that appellant's ex-girlfriend was an owner of the apartment at the time of the murder which, was sufficient to show appellant committed murder while burglarizing the apartment
Davis v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
October 15, 2019
14-17-00884-CR
Frances Bourliot
Published
The appellant challenged the legal sufficiency of the evidence in support of his capital murder conviction and challenged the constitutionality of his mandatory life sentence. The State charged the appellant by indictment with capital murder, alleging that he intentionally caused the death of the complainant while burglarizing or attempting to burglarize a habitation. The appellant contended that the State did not present legally sufficient evidence that he entered the apartment where the crime occurred without the effective consent of the owner as defined by the Penal Code, because he and the owner, his ex-girlfriend had equal rights of possession of the apartment. The appellate Court found that the State presented legally sufficient evidence that the appellant's ex-girlfriend was an owner of the apartment at the time of the offense and had possession of the apartment, while appellant did not. This was sufficient to show that appellant committed capital murder, in this case, murder while committing a burglary. Further, a person at least 18 years of age at the time of an offense must preserve error in the trial court as to a complaint that a mandatory life sentence was unconstitutional. In accordance with binding precedent, the Court concluded that the appellant was required to preserve error in the trial court as to his constitutional complaints and failed to do so. Accordingly, the Court affirmed the judgment of the trial court.  

The email exchange between a city employee and the appellee was no evidence that the appellant had made a final decision to apply the new ordinance to the appellee property.
City of Houston v. Commons at Lake Houston, Ltd.
Evidence, Gov't/Administrative, Real Property, Technology
Texas 14th Court of Appeals
October 15, 2019
14-18-00664-CV
Ken Wise
Published
The appellee corporation sued the appellant city for inverse condemnation and a declaratory judgment regarding a newly amended ordinance that regulated development in the 500-year floodplain. The appellant filed a plea to the jurisdiction, contending that the appellee claims were not ripe. The appellate Court found that the permissible uses of the appellee property were not known to a reasonable degree of certainty. The appellee had give the appellant an opportunity to exercise its discretion. Because the appellee had not yet done so, the inverse condemnation claim was not ripe. Further, the chapter 245 claim was not ripe either. The email exchange between a city employee and the appellee was not an “official action” under section 245. The appellant’s employee clarified that she was not an attorney and gave a general answer. She offered to follow-up and get more information if the answer did not help. But the appellee did not respond with a request for more information or make any specific request to have Chapter 245 applied to the Crossing. The email exchange was no evidence that the appellant had made a final decision to apply the new ordinance to the appellee property. Finally, considering the pleadings and undisputed facts, the appellee claims were not ripe. The trial court erred by denying the appellant’s plea to the jurisdiction. Accordingly, the Court sustained the appellant’s issue, reversed the trial court’s order, and rendered a judgment that the appellee claims were dismissed without prejudice.  

Although the jury specifically questioned the use of the term “injuries” in the negligence jury question, appellant’s counsel did not raise the objection asserted on appeal and was consequently not preserved
Saenz-Guerrero v. Gardner
Damages, Litigation: Personal Injury, Torts
Texas 14th Court of Appeals
October 15, 2019
14-18-00440-CV
Meagan Hassan
Published
The appellant was driving to work in stop-and-go traffic. The appellant brought his truck to a complete stop and was rear-ended by a vehicle driven by the appellee. The appellant’s truck sustained damaged on its bumper and tailgate, and the appellant went to the hospital that evening for neck and back pain. Several days later, the appellant saw a chiropractor for his back pain and was prescribed various treatments, including electric shocks, injections, and physical therapy. According to the appellant, he continued to have lower back pain and his doctor had recommended surgery. The appellant sued the appellee for negligence and the parties proceeded to a jury trial. The jury returned a verdict in the appellee’s favor. The appellate Court found that although the jury specifically questioned the use of the term “injuries” in the negligence jury question, the appellant’s counsel did not raise the objection he asserted on appeal. Thus, the issue was not preserved for appellate review. Further, the Court rejected the appellant’s argument on its merits. Neither the cited Pattern Jury Charge comment nor Nabors Well Services, Ltd. addressed the term at issue in the case, namely, the use of the word “injuries” in the trial court’s negligence jury question. Likewise, those authorities did not prohibit the use of injuries in a negligence jury question. Thus, the authorities did not show the trial court abused its discretion by using the term “injuries” in its negligence jury question. Accordingly, the judgment was affirmed.

The trial court did not err when it granted the defendants’ no-evidence summary judgment motion on the plaintiff’s alter ego claim.
Durham v. Accardi
Appellate: Civil, Employment, Insurance, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
Texas 14th Court of Appeals
October 10, 2019
14-18-00060-CV
Jerry Zimmerer
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in favor of the defendants on his claims against them. On appeal, the plaintiff argued that the trial court erred when it granted the defendants’ summary judgment on his veil piercing claims. The plaintiff further asserted that the defendants each owed him individual duties of care. The appellate court noted that the plaintiff did not address the separate grounds raised by the defendants that he had no evidence that they had breached a duty, or that any breach had proximately caused him damages. The appellate court found that even if it accepted the plaintiff’s argument that the evidence established the company did not rigidly follow corporate formalities, the lack of corporate formalities was no longer a consideration when determining an alter ego question. The appellate court concluded that the trial court did not err when it granted the defendants’ no-evidence summary judgment motion on the plaintiff’s alter ego claim. Accordingly, the judgment of the trial court was affirmed. 

The trial court did not behave arbitrarily or unreasonably by concluding that therapist-supervised visits between the petitioner and his paternal grandmother would serve as an appropriate introduction.
In re M.I.A.
Appellate: Civil, Family, Gov't/Administrative, Juvenile, Procedure
Texas 4th Court of Appeals
October 09, 2019
04-19-00227-CV
Beth Watkins
Published
The petitioner appealed the judgment of the trial court which denied the petition filed by the Texas Department of Family and Protective Services (the Department) to terminate the parental rights of the petitioner’s biological father and award visitation to the petitioner’s paternal grandmother. On appeal, the petitioner argued that the trial court abused its discretion by refusing to terminate the father’s parental rights because the evidence was legally and factually sufficient to support termination. The appellate court noted that based on the court's review of the record and applying proper deference to the trial court’s findings and credibility determinations, it believed a reasonable factfinder could conclude that the evidence described weighed against terminating the parental rights on seven of the eight Holley factors. The appellate court concluded that the trial court did not behave arbitrarily or unreasonably by concluding that therapist-supervised visits between the petitioner and his paternal grandmother would serve as an appropriate introduction. Accordingly, the judgment of the trial court was affirmed. 

The trial court’s order finding no probable cause in the context of a Chapter 841 biennial review was not a final judgment so it was not appealable
In the Commitment of Black
Appellate: Civil, Constitution, Criminal, Procedure
Texas 4th Court of Appeals
October 02, 2019
04-18-00798-CV
Luz Elena D Chapa
Published
The petitioner was civilly committed in April 2016, after a jury found him to be a sexually violent predator. The appellate court affirmed the judgment and commitment. In May 2018, the trial court signed a biennial review order that continued the requirements of the 2016 final judgment and order of commitment without modification. The petitioner sought review of that order. The appellate court found that the biennial review was not initiated by a party’s petition or motion; rather it was a statutorily required review. Generally, a post-judgment order that did not follow a new trial and did not impose any new obligations or “work a material change in the adjudicative portions of the original judgment” did not qualify as another final judgment and was not appealable. The court concluded a trial court’s order finding no probable cause after a biennial review was not a final judgment so it was not appealable. Accordingly, the court dismissed the appeal for lack of jurisdiction and denied the alternative petition for a writ of mandamus.

The inmate did not take advantage of the opportunity to amend his pleadings by dismissing the individual employees and instead naming the governmental unit as defendant within 30 days after the motion was filed, thus, the appellees were entitled to dismissal of the negligence claims against them
Morgan v. Whitfield
Appellate: Civil, Constitution, Gov't/Administrative, Torts
Texas 8th Court of Appeals
September 27, 2019
08-18-00055-CV
Yvonne T. Rodriguez
Published
The appellant, an inmate, filed suit against the appellees, a prison warden and two corrections officers, all sued in their individual and official capacities, for injuries the appellant sustained in an altercation with another inmate. The appellant appealed from the dismissal of his claims without prejudice. The appellate court found that to the extent the appellant addressed exhaustion of remedies for the first time in his reply brief, his response was conclusory and did not refute the appellees’ argument that his grievances raised different issues and requested different relief than his lawsuit. Further, the appellant did not take advantage of the opportunity to amend his pleadings by dismissing the individual employees and instead naming the governmental unit as defendant within 30 days after the motion was filed. Thus, the appellees were entitled to dismissal of the negligence claims against them. Finally, the appellant presented no argument that the trial court abused its discretion by finding the constitutional claims frivolous under the Standard of Section 14.003(b) because they had no arguable basis in law, including but not limited to his failure to exhaust administrative remedies. Accordingly, the court affirmed.

The Supreme Court concluded that the appellate court erred in deciding factual sufficiency without explaining its application of the standard.
Windrum v. Kareh
Appellate: Civil, Evidence, Litigation: Personal Injury, Procedure, Torts
The Supreme Court of Texas
May 24, 2019
17-0328
Paul W. Green
Published
The petitioner appealed the judgment of the appellate court which denied their motion for judgment notwithstanding the verdict and motion for a new trial in a wrongful death action. On appeal, the Supreme Court was asked to determine whether the expert testimony was conclusory such that the jury could not rely on it to conclude that a neurosurgeon was negligent in breaching his standard of care by failing to treat his patient properly, and the defendant’s negligence was too remote to be a proximate cause of the plaintiff’s death. The petitioner maintained that the trial court erred in applying the factual sufficiency review standard. The Supreme Court noted that a conclusory statement asserted a conclusion with no basis or explanation. The Supreme Court found that the expert testimony was not conclusory, and the defendant’s negligence was not too remote to be a proximate cause of the plaintiff’s death. The Supreme Court concluded that the appellate court erred in deciding factual sufficiency without explaining its application of the standard. Accordingly, the judgment of the appellate court was reversed and remanded.  

The requirement under the subsection that the attorney representing the state give notice applied only if the defendant makes a timely request to the attorney representing the state for the notice
Gullatt v. State
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
October 04, 2019
06-19-00001-CR
Ralph Burgess
Published
The County jury convicted the appellant of murdering the victim. The appellant argues that the trial court erred in ruling that he had opened the door to extraneous-offense evidence. The appellate court found the appellant opened the door and that he received sufficient notice of that evidence. While the State’s amended notice was not filed until eight days before trial, there was nothing in the record establishing when the defense requested notice. There was no certificate of service, no copy of correspondence, or any reference in the record to any specific request for notice. In the absence of any record establishing when the appellant requested notice under Rule 404(b), the court could not say that eight days’ notice was untimely. Further, the requirement under the subsection that the attorney representing the state give notice applied only if the defendant makes a timely request to the attorney representing the state for the notice. As with the Rule 404(b) argument, the court did not find any evidence that the appellant requested notice under Article 37.07, Section 3(g). In the absence of such information, the State’s notices were untimely. Accordingly, the trial court’s judgment of conviction and sentence was affirmed.

The trial court did not abuse its discretion by declaring the appellant a vexatious litigant or by dismissing the case when the appellant failed to post the requisite security.
Amrhein v. Bollinger
Appellate: Civil, Procedure
Texas 5th Court of Appeals
October 03, 2019
05-18-00567-CV
Ken Molberg
Published
The appellant, appearing pro se, challenged the trial court’s order declaring her a vexatious litigant, pursuant to which the trial court subsequently dismissed with prejudice her claims against the appellee attorneys for failing to post the required security. The appellant filed suit against the appellees and she filed an amended petition on November 27, 2017, asserting a legal malpractice claim and other claims. The appellees filed a Texas Rule of Civil Procedure 91a motion to dismiss all of the appellant’s claims except for the legal malpractice claim. The appellate court found that the trial court did not abuse its discretion by declaring the appellant a vexatious litigant or by dismissing the case when the appellant failed to post the requisite security. Further, to the extent the appellant purports to appeal any order of the trial court other than the order declaring her a vexatious litigant, she was required to obtain an order from the appropriate local administrative judge permitting the filing. Accordingly, the trial court's judgment was affirmed.

The trial court’s appointment of the Guardian ad Litem and reappointment of the Master were both ineffective because the appointments occurred after the relator nonsuited the proceeding
In re Fort Bend Indep. Sch. Dist.
Constitution, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
October 03, 2019
01-18-01113-CV
Evelyn V. Keyes
Published
The mandamus proceeding arose out of a suit brought in 2018 by the relator district, under Texas Health & Safety Code chapter 711. The proceeding sought judicial approval under section 711.010 of the Code to remove the dedication of an abandoned prison farm cemetery found during construction of a vocational school on property the relator owned and to move human remains found there to a nearby municipal cemetery pursuant to an agreement reached by the relator and the City of Sugar Land (the City), which owns and maintains the municipal cemetery. The appellate court agreed with the relator that its filing of its nonsuit of the suit to remove the cemetery dedication mooted all proceedings pending in the underlying suit in the trial court except as to the assessment of court costs. Thus, the trial court lost jurisdiction to act on the merits of the proceeding. Next, the court held that the nonsuit moots the relator’s original mandamus petition challenging the November 2018 appointment of the Master, and the court therefore dismissed the original mandamus petition. Further, the court held that the trial court’s appointment of the Guardian ad Litem and reappointment of the Master were both ineffective because the appointments occurred after the relator nonsuited the proceeding. Therefore, the court conditionally granted the relator’s two supplemental mandamus petitions and ordered that the trial court vacate the two orders.

The court could not conclude that the trial court abused its discretion in overruling the appellant’s motion for new trial without conducting an evidentiary hearing, the court also could not conclude that the appellant was denied his right to a public trial
Corporon v. State
Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
October 02, 2019
03-18-00286-CR
Gisela D. Triana
Published
A jury convicted the appellant of two counts of indecency with a child by sexual contact and assessed punishment at twelve years’ imprisonment for count one and fifteen years’ imprisonment for count two. The trial court rendered judgment on the verdicts and ordered the sentences to run consecutively. The appellate court could not conclude that the trial court abused its discretion in overruling the appellant’s motion for new trial without conducting an evidentiary hearing. The court also could not conclude that the appellant was denied his right to a public trial. Further, the evidence was sufficient to prove that the appellant touched the victim’s anus and genitals with the requisite sexual intent. Next, given the strength of the evidence against the appellant and the limited nature of the allegedly improper testimony, the court could not conclude on the record that the trial court’s decision not to grant a mistrial was outside the zone of reasonable disagreement. Again, that remedy was reserved for “extreme circumstances.” Such circumstances were not present. Accordingly, the court affirmed the trial court’s judgments of conviction.

The trial court erred in failing to award any amount in attorneys’ fees and sanctions related to the nonsuited claims as authorized by Section 27.009(a), but, the court affirmed in part the trial court’s order denying the motion to dismiss pursuant to the TCPA
Brown Sims, P.C. v. L.W. Matteson, Inc.,
Admiralty & Maritime, Insurance, Litigation: Personal Injury, Torts
Texas 4th Court of Appeals
September 30, 2019
04-18-00596-CV
Liza A. Rodriguez
Published
When the appellee company, a dredging contractor, was sued in March 2012 by its former employee, the deceased, it hired the appellant attorney and the appellant firm to represent it. The deceased had filed a maritime personal injury suit in Starr County, Texas, pursuant to the Jones Act, as codified in 46 U.S.C. Section 30104. The deceased alleged that the appellee company was negligent by failing to furnish him with a reasonably safe place to work and by failing to provide a seaworthy vessel. After being diagnosed with liver cancer, the deceased passed away. The appellee company, along with the appellee insurance companies that provided the appellee company with excess coverage, filed the legal malpractice suit against the appellants. After the trial court denied the motion to dismiss, the appellants filed the interlocutory appeal. The appellate court observed that the TCPA did apply to the malpractice suit at issue in the case and the former client established a prima facie case for its malpractice claim. Thus, the court affirmed in part the trial court’s order denying the motion to dismiss pursuant to the TCPA. However, because the former client nonsuited other claims before the hearing on the motion to dismiss, the court agreed the trial court should have awarded reasonable attorney’s fees and sanctions with respect to those nonsuited claims. Thus, the court reversed the trial court’s order in part.

Appellate timetables to be reinstated in an appeal from a juvenile court delinquency adjudication because there was not sufficient evidence in the record showing that the juvenile affirmatively waived his appeal
In re J.A.C.
Juvenile, Procedure
Texas 8th Court of Appeals
September 27, 2019
08-19-00042-CV
Percuriam
Published
The attorney for juvenile filed a motion to dismiss the appeal from a juvenile court delinquency adjudication. The appellate court denied the motion to dismiss and directed the trial court to hold a hearing. The trial court conducted the hearing. Present at the hearing were the juvenile’s attorney, the juvenile’s mother, and the juvenile’s former probation officer. The juvenile was not present. Therefore, the trial court found that the juvenile had no desire to appeal his case. The appellate court ordered the appeal timetables to be reinstated and provided the juvenile’s counsel one more opportunity to file an appellate brief. There was not sufficient evidence in the record showing that the juvenile affirmatively waived his appeal, and his mother’s stated reason for wanting the appeal dismissed was not an adequate reason for the court to justify dismissing this appeal in light of the gravity of consequences that a quasi-criminal juvenile conviction carries for her son. Accordingly, the court order the appellate timetables to be reinstated.

The trial court did not have authority to reform the judgment of conviction to reflect a conviction for either attempted organized retail theft or theft of property against the defendant.
Lang v. State
Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
September 27, 2019
03-15-00332-CR
Melissa Goodwin
Published
The defendant appealed the judgment of the trial court which convicted her of organized retail theft involving merchandise valued at $500 or more but less than $1,500 and assessed her punishment at confinement for 20 months in a state jail facility. On appeal, the State argued that the existence of the specific owner of the property was inherent in the charged elements of organized retail theft. The appellate court noted that when evidence had been found to be insufficient to support a conviction, reformation of the judgment of conviction to a lesser-included offense was required when: (1) in the course of convicting the defendant of the greater offense, the jury necessarily found every element needed to convict the defendant of the lesser-included offense, and (2) the evidence that was presented at the defendant’s trial was sufficient to support a conviction on that lesser-included offense. The appellate court concluded that the trial court did not have authority to reform the judgment of conviction to reflect a conviction for either attempted organized retail theft or theft of property against the defendant. Accordingly, the judgment of the trial court was reversed. 

In refusing to allow the defendant to withdraw his guilty plea and instead instructing the jury to find him guilty, the trial court erred and it was not harmless.
Mendoza v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
September 26, 2019
01-18-01140-CR
Gordon Goodman
Published
The defendant appealed the judgment of the trial court which convicted him of twelve sexual offenses. On appeal, the defendant challenged his judgment of conviction as to one of these offenses, contending that the trial court erred by refusing to allow him to withdraw his guilty plea to count eleven of the indictment and instructing the jury to find him guilty in conformity with his plea. The appellate court noted that the jury had not retired to deliberate when the defendant asked to withdraw his guilty plea to count eleven of the indictment. The appellate court found that the defendant had an absolute right to withdraw his guilty plea, and the trial court erred by not allowing him to do so. The appellate court concluded that in refusing to allow the defendant to withdraw his guilty plea and instead instructing the jury to find him guilty, the trial court erred and it was not harmless. Accordingly, the judgment of the trial court was affirmed in part and reversed in part. 

The appellate court concluded that considering the evidence in the light most favorable to the verdict, a rational trier of fact could have found the intent-to-deliver element beyond a reasonable doubt.
Espino-Cruz v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
September 24, 2019
14-18-00504-CR
Kevin Jewell
Published
The defendant appealed the judgment of the trial court which convicted him of possession with intent to deliver a controlled substance weighing more than 400 grams and sentenced him to twenty years’ confinement in the Texas Department of Criminal Justice. On appeal, the defendant challenged the evidentiary sufficiency to support his conviction. The defendant contended that the evidence was legally insufficient to support a finding that he possessed the controlled substance, heroin, because no evidence affirmatively linked him to the heroin. The defendant further alleged that the evidence was legally insufficient to support the finding that he intended to deliver the heroin. The appellate court disagreed with the defendant and found that intent to deliver contraband could be proved by circumstantial evidence, including evidence that the accused possessed the contraband and the quantity of the drugs possessed. The appellate court concluded that considering the evidence in the light most favorable to the verdict, a rational trier of fact could have found the intent-to-deliver element beyond a reasonable doubt. Accordingly, the judgment of the trial court was affirmed. 

The trial court did not err when it refused to submit an instruction on the lesser-included offense of murder.
Brooks v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
September 24, 2019
01-18-00175-CR
Evelyn V. Keyes
Published
The defendant appealed the judgment of the trial court which convicted him of capital murder and automatically assessed his punishment at confinement for life. On appeal, the defendant contended that the trial court erred when it denied his motion for mistrial because he was not afforded the opportunity to effectively cross-examine a key State witness concerning the witness’s mental health history; the trial court erred by refusing his request to submit a jury instruction on the lesser-included offense of murder; and Texas’s statutory scheme of automatically sentencing juvenile defendants who committed capital felonies to confinement for life with the possibility of parole after forty years was facially unconstitutional. The appellate court noted that, at the time the defendant moved for a mistrial, no error had occurred relating to allowing the individual to testify. The appellate court found that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial and the evidence presented at trial was not sufficient to establish murder as a valid, rational alternative to the charged offense of capital murder. The appellate court concluded that the trial court did not err when it refused to submit an instruction on the lesser-included offense of murder. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the trial court did not abuse its discretion in denying their motion to dismiss.
Morris v. Ponce
Appellate: Civil, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
September 24, 2019
14-17-00997-CV
Charles Spain
Published
The defendants appealed the judgment of the trial court which denied their motion to dismiss the health-care liability claims of the plaintiffs against them. On appeal, the defendants claimed that the trial court abused its discretion in denying their motion to dismiss for failure to timely serve an expert report in accordance with the medical liability chapter of the Civil Practice and Remedies Code. The appellate court noted that the amended version of Tex. Civ. Prac. & Rem. Code Ann. section 74.351(a) applied in the case because the defendants were named as defendants after the amendment to chapter 74. The appellate court found that the plaintiffs served their expert report on the defendants within the statutory deadline of the 120th day after the date on which each of the defendants filed their respective answers. The appellate court concluded that the trial court did not abuse its discretion in denying their motion to dismiss. Accordingly, the judgment of the trial court was affirmed. 

The trial court could have rationally determined that it would serve the interest of convenience to finalize its orders regarding all defendants except the City, and therefore, the trial court did not abuse its broad discretion by ordering severance.
Watson v. Southlake
Appellate: Civil, Constitution, Gov't/Administrative, Litigation: Personal Injury, Procedure
Texas 2nd Court of Appeals
September 19, 2019
02-18-00143-CV
J. Wade Birdwell
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s plea to the jurisdiction in its suit, seeking a declaration and injunction against enforcement of the redlight-camera laws, as well as the return of the fines that he and other citizens were assessed. On appeal, the plaintiff contended that the trial court erred by granting pleas to the jurisdiction in favor of all but one defendant. the appellate court noted that for failure to exhaust administrative remedies, the plaintiff’s claim for takings failed. The appellate court found that the trial court did not err in granting pleas to the jurisdiction as to the parties. The appellate court concluded that the trial court could have rationally determined that it would serve the interest of convenience to finalize its orders regarding all defendants except the City, and therefore, the trial court did not abuse its broad discretion by ordering severance. Accordingly, the judgment of the trial court was affirmed. 

Since the trial court erred in granting summary judgment on the plaintiff’s breach of contract and noncontractual claims, there was no justiciable controversy as to the plaintiff’s request for declaratory judgment.
Hilburn v. Storage Trust Properties, LP
Appellate: Civil, Contracts, Procedure, Real Property
Texas 14th Court of Appeals
September 17, 2019
14-18-00184-CV
Frances Bourliot
Published
The plaintiff appealed the judgment of the trial court which granted summary judgment in favor of the defendant in a dispute involving the personal property from storage units. On appeal, the plaintiff challenged the trial court’s grant of final summary judgment in favor of the defendant. On appeal, the plaintiff argued that the defendant mischaracterized contested facts as undisputed. The appellate court found that the trial court lacked jurisdiction over the plaintiff’s request for declaratory judgment because there was not a justiciable controversy regarding whether the plaintiff paid rent for the storage units. The appellate court concluded that since the trial court erred in granting summary judgment on the plaintiff’s breach of contract and noncontractual claims, there was no justiciable controversy as to the plaintiff’s request for declaratory judgment. Accordingly, the judgment of the trial court was reversed in part and vacated in part. 

The trial court did not err by refusing to instruct the jury under Article 38.23(a) of the Code of Criminal Procedure.
Ramjattansingh v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
September 17, 2019
01-15-01089-CR
Sarah Beth Landau
Published
The defendant appealed the judgment of the trial court which convicted him of Class A misdemeanor driving while intoxicated. On appeal, the defendant argued that the trial court erred by denying his requests for jury instructions on unlawful arrests and custodial interrogation; refusing to allow his counsel to present jury argument on the unlawfulness of the arrest; and admitting an audio recording of the call for emergency assistance from a tow truck driver who observed the defendant driving erratically the night of his arrest. The appellate court noted that because the timing of the tow was immaterial to the lawfulness of the first officer's ostensible arrest of the defendant, a jury finding that the car was towed before the second officer's conducted the DWI investigation could not serve as a basis for the jury to disregard the evidence that the defendant smelled of alcohol, had poor balance and slurred speech, admitted he had “some shots of alcohol” and had started drinking around 5:00 p.m., and showed signs of intoxication during certain field sobriety tests. The appellate court concluded that the trial court did not err by refusing to instruct the jury under Article 38.23(a) of the Code of Criminal Procedure. Accordingly, the judgment of the trial court was affirmed. 

Since the essence of the plaintiff’s cause of action was one for ordinary negligence and not a health care liability claim, the plaintiff was not required to satisfy the expert report requirements of the TMLA.
Coci v. Dower
Appellate: Civil, Health Care, Litigation: Personal Injury, Torts
Texas 11th Court of Appeals
September 12, 2019
11-18-00353-CV
Jim R. Wright
Published
The defendants appealed the judgment of the trial court which denied its motion to dismiss the plaintiff’s personal injury lawsuit. On appeal, the appellate court was asked to consider whether the plaintiff’s claims constituted health care liability claims under the TMLA; and if so, then the plaintiff was required to serve an expert report and curriculum vitae in accordance with Section 74.351(a) of the TMLA. The appellate court noted that if the plaintiff’s claims constituted health care liability claims, then the trial court should have granted the motion filed by the defendants and dismissed the plaintiff’s claims with prejudice because she did not file or serve an expert report within 120 days of the defendants filing their original answer. The appellate court found that the plaintiff was not required to satisfy the expert report requirements of the TMLA. The appellate court concluded that since the essence of the plaintiff’s cause of action was one for ordinary negligence and not a health care liability claim, the plaintiff was not required to satisfy the expert report requirements of the TMLA. Accordingly, the judgment of the trial court was affirmed. 

The trial evidence was legally sufficient to support each solicitation-to-commit-capital-murder conviction against the defendant.
Jacob v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 29, 2019
14-18-00304-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of solicitation to commit capital murder of two complainants. On appeal, the appellate court was asked to consider whether the evidence established beyond a reasonable doubt that defendant intended for a hitman to murder the complainants. The defendant argued that the use of initials to refer to the complainant in each indictment created a material variance because the trial evidence proved the full names of each complainant, and the trial court abused its discretion in excluding enhanced audio recordings that the defendant’s expert prepared for the stated purpose of assisting the jury in understanding recorded phone conversations. The appellate court found that the trial court did not err in excluding the defendant’s audio expert and the expert’s demonstrative exhibits, and that the trial court’s voir-dire comment challenged in the third issue did not constitute error. The appellate court concluded that the trial evidence was legally sufficient to support each solicitation-to-commit-capital-murder conviction against the defendant. Accordingly, the judgment of the trial court was affirmed. 

The appellate court concluded that the defendant had standing to file a motion for new trial, to be heard on the matter, and to offer evidence in support thereof.
Barrow v. Wells Fargo Bank, N.A.
Appellate: Civil, Banking and Finance, Creditor/Debtor, Employment, Procedure
Texas 2nd Court of Appeals
September 05, 2019
02-19-00026-CV
Bonnie Sudderth
Published
The defendant appealed the judgment of the trial court which denied his motion for a new trial. On appeal, the defendant complained that he had standing to file the motion for new trial and that the evidence was legally and factually insufficient to grant a judgment of garnishment to the plaintiff. The appellate court noted that to require a garnishment defendant to intervene in a garnishment action at a time prior to acquiring proper notice of the proceeding would render meaningless the right to notice of the proceedings in the first place because most garnishment-action defendants would learn of improper service only after it was too late to complain. The appellate court concluded that the defendant had standing to file a motion for new trial, to be heard on the matter, and to offer evidence in support thereof. Accordingly, the judgment of the trial court was reversed and remanded. 

The justice court had jurisdiction to determine who had a superior right of possession in eviction suits.
Fornesa v. Fifth Third Mortgage Co.
Appellate: Civil, Contracts, Procedure, Real Property
Texas 14th Court of Appeals
August 30, 2019
14-18-00045-CV
Per Curiam
Published
The defendants appealed the judgment of the district court which found them guilty of forcible detainer and awarded possession of the property to the plaintiff. On appeal, the defendants argued that the trial judge did not disregard the district court’s Findings of Fact and Conclusions of Law in a separate federal lawsuit. The appellate court noted that the defendant non-lawyer had no authority to sign the notice of appeal from the justice court on behalf of the other defendants. The appellate court found that the justice court had jurisdiction to determine who had a superior right of possession in eviction suits. Accordingly, the judgment of the trial court was affirmed. 

The trial court did not abuse its discretion in denying the plaintiffs’ motion for a jury trial.
Kruse v. Henderson Tex. Bancshares, Inc.
Appellate: Civil, Business, Constitution, Procedure, Securities
Texas 12th Court of Appeals
August 30, 2019
12-18-00238-CV
Brian Hoyle
Published
The plaintiffs appealed the judgment of the trial court which rendered an adverse judgment in their suit to determine the value of their dissenters’ shares of stock in the company, which merged with the defendant company. On appeal, the plaintiffs contended that the trial court abused its discretion when it denied their motion for a jury trial. The appellate court noted that the proceeding for determining the fair value of a dissenting shareholder’s ownership interest was not a “cause” within the meaning of Article V, Section 10 of the Texas Constitution. The appellate court found that the constitutional provision’s jury trial mandate did not support the plaintiffs’ request for a jury trial. The appellate court concluded that the trial court did not abuse its discretion in denying the plaintiffs’ motion for a jury trial. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that Section 271.152 did not waive the Housing Authority’s governmental immunity from suit.
Hous. Auth. of Austin v. Elbendary
Appellate: Civil, Contracts, Damages, Family, Gov't/Administrative, Landlord and Tenant, Procedure, Real Property, Torts
Texas 3rd Court of Appeals
August 15, 2019
03-18-00657-CV
Edward Smith
Published
The Housing Authority appealed the judgment of the trial court which rendered default judgment against it in favor of the petitioner. On appeal, the Housing Authority argued that the trial court lacked subject matter jurisdiction and, in the alternative, that the default judgment should be set aside on equitable grounds. The appellate court noted that the record conclusively established that the Housing Authority and its counsel first learned of the judgment and the trial court’s contrary finding was therefore legally insufficient. The appellate court found that by timely filing notice of appeal, the Housing Authority successfully invoked its appellate jurisdiction. The appellate court concluded that Section 271.152 did not waive the Housing Authority’s governmental immunity from suit. Accordingly, the judgment of the trial court was vacated. 

The record did not demonstrate that the trial court could not effectively and completely adjudicate the dispute between relators and the defendants without the joinder of the prospective defendants and the prospective defendants were not necessary parties
In re Boyaki
Appellate: Civil, Constitution, Contracts, Procedure, Torts
Texas 8th Court of Appeals
August 28, 2019
08-19-00119-CV
Yvonne T. Rodriguez
Published
The relators filed a mandamus petition against the Honorable Judge of the trial court of county asking that the court order the respondent to vacate her order requiring the relators to file an amended petition joining two brothers as defendants. The appellate court found that while it preferred to have the transcriptions from any hearings pertaining to the issue being raised in an original proceeding, Rule 52.7 required that the relator only provide “a properly authenticated transcript of any relevant testimony from any proceeding, including any exhibits offered in evidence,” TEX.R.APP.P. 52.7(a)(2). The court concluded that the relators complied with the requirements of Rule 52.7. The defendants motion to dismiss was denied. Further, in order for the defendants joinder to be required under Rule 39(a)(1), the trial court was required to find that in the defendants absence, complete relief could not be accorded among those already parties. The record did not demonstrate that the trial court could not effectively and completely adjudicate the dispute between the relators and the defendants without the joinder of the defendants. While the defendants may be fact witnesses with respect to the donation made by the relators, the court was unable to conclude that they must be joined as parties in order for the trial court to completely adjudicate the dispute between the relators and the defendants. Accordingly, the court conditionally granted mandamus relief.

Because the Administrator’s Motion for Summary Judgment demonstrated that the October 19, 2016 assumption deed was executed without the probate court’s approval, or compliance with Section 360.253, summary judgment was properly granted
In re Estate of Abraham
Contracts, Gov't/Administrative, Real Property, Wills/Trusts/Probate
Texas 8th Court of Appeals
August 21, 2019
08-18-00032-CV
Ann Crawford McClure
Published
Non-exempt community property that passed hands on the death of a spouse did so subject to the debts of that deceased spouse. Before the debts were all paid, however, the surviving spouse was accorded a statutory mechanism to obtain legal title to a portion of the community property in an estate by partitioning the property. To do so, however, the surviving spouse must post a bond sufficient to account for the community property being withdrawn from the estate and obtain court approval. In the case, the appellant did not follow that statutory scheme. Rather, she executed a deed assigning her interest in community property land to a relative and did so with an effective date prior to the date of death. The estate representative filed a summary judgment to set aside that deed, which the probate court granted. The appellate court found that because the Administrator’s Motion for Summary Judgment demonstrated that the October 19, 2016 assumption deed was executed without the probate court’s approval, or compliance with Section 360.253, summary judgment was properly granted. Accordingly, the judgment was affirmed.

Appellant did not present a sufficient record or argument to show that the probate court erred in granting summary judgment invalidating a deed that purportedly transferred the property
In re Esate of Abraham
Creditor/Debtor, Family, Real Property, Wills/Trusts/Probate
Texas 8th Court of Appeals
August 21, 2019
08-18-00089-CV
Ann Crawford McClure
Published
The driving force for the disputants in the case was whether a piece of property passed from father to son before the father’s death, or whether it was part of the deceased father’s estate, subject to the provisions of a will and the claims of creditors. The deciding issue, however, was whether the appellant had presented a sufficient record and arguments to convince the appellate court that the probate court erred in granting summary judgment invalidating a deed that purportedly transferred the property. The appellate court found that the Administrator’s Motion for Summary Judgment was based in part on the appellant’s wife's failure to sign the January 7, 2013 deed, and her failure to comply with Section 360.253 when she executed the October 19, 2016 deed. The appellant failed to raise either a factual or legal argument challenging that independent ground supporting the summary judgment. Further, even if the appellee’s signature was actually his signature, the absence of the wife’s signature was a ground asserted in the summary judgment that had not been addressed and was fatal to the validity of the deed. Accordingly, the court affirmed.

The appellee had no need to show that employer was a license holder under the PEOA, rather, under Section 93.004 it was enough to show that the employer was a temporary employment service with workers’ compensation coverage that provided a temporary employee to the appellee’s workplace
Robles v. Mount Franklin Food, L.L.C.
Appellate: Civil, Contracts, Employment, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
Texas 8th Court of Appeals
August 14, 2019
08-18-00170-CV
Ann Crawford McClure
Published
A mishap in an industrial workplace injured the appellant. His regular employer had sent him as a temporary worker to the appellee company. It was an appellee employee that allegedly caused the industrial accident resulting in the appellant’s injury. The employer's workers’ compensation carrier accepted the appellant’s claim and paid him medical and indemnity benefits. The appellant then sued the appellee, who prevailed on the trial court to dismiss the suit based on the exclusive remedy provisions of the Texas Workers’ Compensation Act. The appellate court found that given the statutory definitions under the Professional Employer Organization Act (PEOA), that Chapter (found in Section 91 of the Labor Code) did not apply to the appellant’s employment. Nor did it apply to the exclusive remedies defense given to the client companies of temporary employment agencies found in Chapter 93 of the Texas Labor Code. Thus, the appellee had no need to show that the employer was a license holder under the PEOA. Rather, under Tex.Lab.Code Ann. Section 93.004 it was enough to show that the employer was a temporary employment service with workers’ compensation coverage that provided a temporary employee to the appellee’s workplace. Accordingly, the court affirmed.

The trial court did not act unreasonably or arbitrarily in determining that it was in the minor’s best interest to lift the geographic residency restriction in the original order
In re M.V.
Family
Texas 8th Court of Appeals
August 14, 2019
08-17-00191-CV
Ann Crawford McClure
Published
The appellee and the appellant, who were never married, were the parents of the minor. The trial court entered an Order establishing the parent-child relationship (the original order), designating both parents as joint managing conservators of the minor, but naming the appellee as the primary managing conservator with the right to designate the minor’s primary residence. The appellee filed a motion to modify the parent-child relationship, seeking to lift the geographic residency restriction. The appellant opposed the motion. The trial court granted the motion. The appellate court observed that the appellee satisfied her burden of demonstrating that a material and substantial change in circumstances had occurred after the time the original order was entered, thereby making appropriate for the trial court to consider her modification request. After reviewing the record and considering and balancing the relevant factors, the court concluded that the trial court did not act unreasonably or arbitrarily in determining that it was in the minor’s best interest to lift the geographic residency restriction in the original order, and that the trial court’s determination was supported by both legally factually sufficient evidence. Accordingly, the trial court’s order was affirmed.

The doctor was qualified to render the expert opinions he expressed, and his opinion satisfied the Act’s requirements. Accordingly, the court affirmed the trial court's orders denying the motions to dismiss.
Mem'l Hermann Health Sys. v. Heinzen
Damages, Health Care, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
August 29, 2019
14-18-00476-CV
Tracy Christopher
Published
Under the Texas Medical Liability Act, a medical-negligence claim was subject to dismissal on the motion of the defendant physician or health-care provider if the claimant failed to timely serve reports by qualified experts opining that the defendant’s breach of the applicable standard of care caused the harm alleged. The plaintiff brought medical-negligence claims after she suffered permanent vision loss from acute angle-closure glaucoma, and she alleged that the damage would have been minimal and reversible but for the breaches of the respective standards of care by a hospital’s emergency-room nurses, an emergency-room doctor, and the ophthalmologist who examined her in the hospital. On appeal, the defendants argued that the trial court improperly gave the plaintiff three 30-day extensions to serve the required expert reports rather than the single 30-day extension authorized by the Act. The defendants also challenged the qualifications of a given report’s author, and the adequacy of the reports themselves. The appellate court found that the trial court did not give the plaintiff a 30-day extension from the date of the oral hearing on the defendants’ objections as they contended, and that each of the trial court’s three signed orders granted the plaintiff a 30-day extension, from the date the order was signed, to cure the original expert report’s deficiencies concerning the defendant or the defendants named in the order. The doctor was qualified to render the expert opinions he expressed, and his opinion before the court satisfied the Act’s requirements. Accordingly, the court affirmed the trial court’s orders denying the motions to dismiss. 

the court dismissed the appeal filed in the court on the first cause, and conditionally granted the petition for writ of mandamus filed in the court on the second cause. Accordingly, the court reversed all parts of the trial court's final order and remanded.
Brandon v. Rudisel
Family, Juvenile, Procedure
Texas 14th Court of Appeals
August 29, 2019
14-18-00283-CV
Kem Thompson Frost
Published
The appellant mother challenged from the trial court’s order modifying the conservatorship of her three children. She also challenged the trial court’s order denying her any rights of possession or access to the children. The appellate court found that the trial court did not abuse its discretion in denying the appellant’s motion for a new trial in which she asserted that she had no notice of the trial setting. The record supported the trial court’s implied finding that the circumstances of the children, conservator, or other party affected by the previous order materially and substantially changed. The record evidence supported the trial court’s removal of the appellant as a managing conservator. The trial court abused its discretion in finding that appointing the appellant as a possessory conservatory was not in the best interest of the children, in failing to appoint the appellant as a possessory conservator, and in denying the appellant all possession of and access to the children. Accordingly, the court reversed all parts of the trial court’s final order and the court remanded the case to the trial court. 

Motions for new trial and to modify judgment were appropriate methods for preserving error about an alleged defect in the form of the judgment. The record did not reflect that the appellant filed such a motion, or otherwise brought the alleged error to the attention of the trial court. Affirmed.
Schear Hampton Drywall, LLC v. Founders Commercial, Ltd
Contracts, Damages, Procedure, Real Property, Torts
Texas 14th Court of Appeals
August 29, 2019
14-17-01010-CV
Frances Bourliot
Published
The instant dispute involved the foreclosure of a mechanic’s lien. The appellant company sued to foreclose on its lien against the appellee company, and challenged in three issues the trial court’s reduction of the amount of the appellant's lien and failure to award attorney’s fees to the appellant. The appellate court deferred to the factfinder’s responsibility to fairly resolve conflicts in the evidence. Considering the conflicting evidence presented at trial, the appellant had not established a lack of evidence supporting the trial court’s finding that the appellant caused damages to the appellee of at least $15,000, an amount far less than the amount sought by the appellee, or that the finding was so contrary to the overwhelming weight of the evidence. Given that the trial court reduced the amount of the appellant's lien and awarded damages to the appellee, the court could have concluded it would not have been equitable or just to award attorney’s fees to the appellant. Thus, the trial court did not abuse its discretion in refusing to award attorney’s fees to the appellant. To preserve a complaint for appellate review, a party must first present the issue to the trial court. Motions for new trial and to modify judgment were appropriate methods for preserving error about an alleged defect in the form of the judgment. The record did not reflect that the appellant filed such a motion, or otherwise brought the alleged error to the attention of the trial court. Accordingly, the court affirmed the judgment of the trial court.

Because the uncontroverted evidence was that the jury did not follow the trail court’s charge and considered outside evidence that was adverse on a critical issue, the trial court's judgment was reversed and remanded.
Najar v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 29, 2019
14-17-00785-CR
Charles Spain
Published
A jury found the appellant guilty of the third-degree felony of fleeing, using a vehicle, from a peace officer who was attempting lawfully to detain him. The trial court assessed punishment at ten-years imprisonment, suspended the sentence, and placed the appellant on four-years community supervision. The appellate court found that as stated in trial counsel’s affidavit, the jury’s ability to hear the siren from fifteen floors above led the members of the jury to believe that the appellant must have heard officer’s siren, but deliberately ignored it in an attempt to evade detention. That was supported by the uncontested affidavit provided by trial counsel stating that the fact they could hear the siren from inside the jury room influenced their verdict. Rule 21.3(f) mandated reversal when the jury received other evidence that was detrimental. The trial court lacked discretion to deny the appellant’s motion for new trial, and the court sustained the appellant’s first issue. Accordingly, the trial court's judgment was reversed and remanded.

The court overruled the issue because the appellant had not demonstrated that she was prejudiced by her trial counsel’s allegedly deficient handling of her case. The court affirmed the trial court's judgment.
Wexler v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 27, 2019
14-17-00606-CR
Jerry Zimmerer
Published
The appellant was convicted of possession of methamphetamine with intent to distribute. The trial court sentenced the appellant to serve 25 years in prison. The appellate court found that the appellant asserted in her first issue that the trial court erred when it overruled her objection to the admission of a statement she made at the scene of her arrest, and before she was given Miranda v. Arizona warnings. The court overruled the issue because the appellant’s statement was made before she was in custody. The appellant argued in her second issue that she received ineffective assistance of counsel because her trial counsel failed to request a trial continuance due to a missing defense witness. The court overruled that issue because the appellant had not demonstrated that she was prejudiced by her trial counsel’s allegedly deficient handling of her case. Accordingly, the court affirmed the trial court’s judgment.  

The court needed not determine whether the appellant's identity was readily ascertainable as no statute required evidence of DNA test results. The trial court erred in denying the appellant’s application for a writ of habeas corpus. Thus, the court reversed the order of the trial court.
Ex parte Edwards
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
August 27, 2019
01-19-00100-CR
Julie Countiss
Published
A Grand Jury issued a true bill of indictment, accusing the appellant of committing the felony offense of aggravated sexual assault on or about May 2, 2003. The appellant filed a verified application for a writ of habeas corpus asserting that his confinement and restraint were illegal because the statute of limitations barred prosecution for the alleged offense in violation of the Sixth Amendment to the United States Constitution, Article I Section 10 of the Texas Constitution, and Article 12.01 of the Texas Code of Criminal Procedure. The appellant challenged the trial court’s order denying his pretrial application for a writ of habeas corpus. The appellate court found that in the trial court, the parties focused on the meaning of “readily ascertained” and the trial court concluded that the appellant was not “readily ascertainable at the time.” The statute required forensic DNA testing results that “show(ed) that the matter did not match the victim or any other person whose identity was readily ascertained,” not “readily ascertainable.” The court needed not determine in the instant case whether and when the appellant’s identity was “readily ascertained” because there was no statutorily required evidence of forensic DNA testing results. Thus, the trial court erred in denying the appellant’s application for a writ of habeas corpus. Accordingly, the court reversed the order of the trial court.

The trial court did not err in granting the appellees summary judgment, and in denying the appellant summary judgment on such a basis. The court held that the appellees did not constitute a “governmental body” under Texas Government Code section 552.003(1)(A)(xii). Trial court affirmed.
Fallon v. MD Anderson Physicians Network
Constitution, Gov't/Administrative, Procedure
Texas 1st Court of Appeals
August 27, 2019
01-17-00882-CV
Julie Countiss
Published
The appellant doctor challenged from the trial court’s rendition of summary judgment in favor of the president and Chief Executive Officer of the company in the appellant’s suit for a writ of mandamus and a declaratory judgment. The appellate court held that the appellees did not constitute a “governmental body” under Texas Government Code section 552.003(1)(A)(i), which defined a “governmental body” as “a board, commission, department, committee, institution, agency, or office that was within or is created by the executive or legislative branch of state government, and that was directed by one or more elected or appointed members.” The trial court did not err in granting the appellees summary judgment, and in denying the appellant summary judgment on such a basis. The court held that the appellees did not constitute a “governmental body” under Texas Government Code section 552.003(1)(A)(xii). The court's holding in the instant case was in line with the court's conclusion in the appellant’s separate, but related, appeal. The court held that it was not subject to the disclosure obligations of the Texas Public Information Act (PIA), and the appellant was not entitled to seek mandamus relief against the appellees to compel it to make the information he requested available under the PIA. Accordingly, the court affirmed the judgment of the trial court.

Because the trial court abused its discretion by denying relator’s motion to withdraw the deemed admissions and motion to reconsider, he was conditionally granted the mandamus relief that he had sought.
In re Cagle
Constitution, Torts
Texas 14th Court of Appeals
August 27, 2019
14-19-00536-CV
Meagan Hassan
Published
The plaintiff alleged that she was injured in an automobile accident with relator. Plaintiff filed suit against the relator for negligence and against relator’s mother for negligent entrustment of the vehicle. The petition was accompanied by requests for disclosure, interrogatories, requests for production, and forty-four (44) requests for admission. Relator filed a petition for writ of mandamus to compel the Honorable, presiding judge of the 113th District Court of Harris County, to: (1) vacate her orders denying relator’s requests to withdraw certain deemed admissions, and (2) permit relator to withdraw deemed admissions numbers 1-5, 7-15, 17-18, 20, 22-36, 41, and 43. The appellate court found that relator conclusively proved good cause through his uncontradicted affidavit. Given relator was not a lawyer, that even a slight excuse would suffice, and the absence of prejudice, the court concluded “the trial court could reasonably have reached only one decision.” There was no evidence in the record supporting the trial court’s implicit conclusion that the relator failed to establish good cause. The action had not yet been set for trial, and there was no evidence from plaintiff (or finding from the trial court) that withdrawing relator’s admissions would have any impact, much less (1) “delay trial” or (2) “significantly hamper” plaintiff’s ability to prepare for same. Therefore, the trial court abused its discretion by denying relator’s motion to withdraw the deemed admissions and motion to reconsider. Absent mandamus relief, relator likely would be harmed by deemed admissions that should have been withdrawn. Accordingly, the court conditionally granted the relator the mandamus relief he sought.

Because the appellant had not shown that he satisfied his burden of proof, the court could not say that the trial court abused its discretion by denying his claim of selective prosecution. The trial court's judgment was affirmed.
Robles v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 20, 2019
14-18-00401-CR
Tracy Christopher
Published
In the appeal from a conviction for prostitution, the court considered several challenges to the constitutionality of a statute, as well as a challenge to the trial court’s exclusion of evidence, and its denial of two requested charge instructions. The appellate court found that because the court presumed that a prosecution for the violation of a criminal law was undertaken in good faith and in a nondiscriminatory fashion, the burden fell on the defendant to establish a prima facie case of selective prosecution. Because the appellant had not shown that he satisfied his burden of proof, the court could not say that the trial court abused its discretion by denying his claim of selective prosecution. Even if the appellant had pressed an argument under Jackson v. State and Ruffin v. State, the psychologist did not testify that the appellant lacked knowledge that he had solicited sexual conduct in exchange for a fee. The psychologist conceded that a person with the appellant’s level of executive dysfunction would still be capable of having knowledge of his actions. Based on that concession, any error in the exclusion of the psychologist’s testimony would have been harmless. Because the jury was never presented with any evidence of mental illness or entrapment, the issues never became law applicable to the case, and the trial court was not required to submit the appellant’s requested instructions. Accordingly, the trial court’s judgment was affirmed.

The evidence was sufficient to affirm the appellant’s conviction for continuous sexual abuse of a young child, and the State had shown the existence of exigent circumstances and probable cause. Thus, the seizure of the appellant’s cell phone was reasonable under the Fourth Amendment.
Gutierrez v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
August 20, 2019
14-18-00201-CR
Ken Wise
Published
A jury found the appellant guilty of the continuous sexual abuse of a young child, and the trial court assessed punishment at forty years’ imprisonment. The appellate court held that a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Thus, the evidence was sufficient to affirm the appellant’s conviction for continuous sexual abuse of a young child. The State had shown the existence of exigent circumstances and probable cause. Thus, the seizure of the appellant’s cell phone was reasonable under the Fourth Amendment. The trial court did not abuse its discretion by admitting evidence of child pornography under Article 38.37 of the Code of Criminal Procedure. Any error in the admission of State’s Exhibits 16 through 37 over the appellant’s Rule 403 objection was harmless because the trial court admitted State’s Exhibit 15 without the appellant making a timely Rule 403 objection. The State did not emphasize the bestiality pornography, the testimony about it was brief, it was not published to the jury, the nature of the other evidence of guilt was significant, and the jury instructions limited the jury’s consideration of the evidence to the permissible Rule 404(b)(2) uses. Thus, the court were assured that the error did not influence the jury, or had but a slight effect. The error, if any, was harmless. Accordingly, the judgment was affirmed.

The alleged failures to expressly account for unambiguous constitutional principles were inherently incapable of affecting the People’s clearly established right to Due Process. Accordingly, the court reversed the trial court's dismissal, and remanded for further determination of process.
McNeill v. Phillips
Constitution, Contracts, Gov't/Administrative
Texas 14th Court of Appeals
August 20, 2019
14-18-00278-CV
Meagan Hassan
Published
In the appeal from an order granting a plea to the jurisdiction and denying a petition for writ of mandamus, the appellants (the appellant individual and the appellant company) complained they should receive a contested case hearing to challenge the results of an administrative agency’s audit, that the agency failed to comply with a valid Rule 11 agreement, and the agency completed its audit using a faulty extrapolation methodology. The State argued the judiciary should sanction state-sponsored seizures of property the People swore belonged to them (without affording them a constitutionally-adequate opportunity to voice allegations said seizures were contrary to law) simply because both the Legislature and the administrative branch failed to provide an express remedy. The alleged failures to expressly account for unambiguous constitutional principles were inherently incapable of affecting the People’s clearly established right to Due Process. Therefore, the court reversed the trial court’s dismissal, and remanded for a determination as to whether the process afforded was compliant with the Supreme Court’s decision in Eldridge.

The appellants failed to carry their burden of proof at trial to overcome the presumption of bad faith, and therefore forfeited their right to withhold any portion of the security deposit or sue for any damages. The trial court's judgment was affirmed.
Zhang v. Capital Plastic & Bags, Inc.
Appellate: Civil, Contracts, Damages, Landlord and Tenant, Procedure, Real Property, Torts
Texas 14th Court of Appeals
August 15, 2019
14-17-00991-CV
Margaret Poissant
Published
The appellee company, a commercial tenant, sued the appellant individual (landlord) for breach of contract and violation of Texas Property Code Section 93.011, alleging that the appellants, the landlord, and the company retained its security deposit in bad faith. After conducting a bench trial, the trial court entered final judgment in favor of the appellee. The appellate court found that even though the court were required to interpret appellate briefs reasonably and liberally, parties asserting error on appeal still must put forth some specific argument and analysis citing the record and authorities in support of their argument. It was not the court's duty to perform an independent review of the summary-judgment record for evidence supporting an appellants’ position. With those principles in mind, the court could not rule on the request, and the portion of the appellants’ appeal had been waived. The Lease unambiguously showed that the appellant individual was named as the landlord. There was no assignment of the Lease in the record to the appellant company. The trial court’s determination that the appellants were landlord was supported by the evidence of record. The appellants failed to carry their burden of proof at trial to overcome the presumption of bad faith, and therefore forfeited their right to withhold any portion of the security deposit or sue for any damages. Accordingly, the trial court’s judgment was affirmed.

Even if the trial judge thought the course of events reflected on the individual’s competency, the concerns did not authorize the individual’s removal over his and the relator’s objections. The court conditionally granted the petition for writ of mandamus.
In re Fletcher
Criminal, Ethics, Professional Responsibility
Texas 1st Court of Appeals
August 13, 2019
01-18-01109-CR
Sarah Beth Landau
Published
The relator filed an application for writ of mandamus seeking to compel the respondent county court at law judge to vacate the “Order Removing Appointed Counsel” and the “Order Denying Defendant’s Ex Parte Motion to Reverse Removal of Court-Appointed Attorney”, and reinstate the individual as his appointed trial counsel in the underlying criminal misdemeanor proceeding. The real party in interest filed a response. The appellate court found that the conflict identified by the respondent was an abstract one and one that, if given effect, would stymie any appointed representation in Chambers County. The compensation for appointed attorneys was the same whether the individual represented the relator, or whether another attorney represented him. Any possibility of a conflict would remain the same no matter which attorney represented the relator. The attorney was best situated to assess, in consultation with his client, whether continuing to represent the relator after a year of legal work posed a true conflict, or whether his concerns were limited to the viability of accepting additional appointments in the future. The relator informed the trial court that he preferred to continue to be represented by the individual, his counsel of over one year. The complaint about the general conditions of working as court-appointed counsel, without inquiry about how those conditions would create a conflict here, could not override the relator’s Sixth Amendment right to be defended by the counsel he believed to be best. Accordingly, the court conditionally granted the petition for writ of mandamus.

The trial court erred by adding an offset provision not originally contemplated by the will or first codicil as part of the court’s ruling that the appellant and his wife were required to pay the full value of the ranch to option to purchase any party of it. Reversed and remanded.
Brewer v. Debra Moore Fountain
Real Property, Wills/Trusts/Probate
Texas 1st Court of Appeals
August 13, 2019
01-18-00550-CV
Sarah Beth Landau
Published
The deceased executed his will in 2012, and his first codicil to the will in 2014. The deceased also executed a second codicil, but it was not at issue in the appeal. the deceased died in 2016. The beneficiary of the will was his daughter, the appellee individual. Following the deceased’s death, the appellee individual filed an application in the trial court to have the will and two codicils admitted to probate, and to be named administrator of his estate. The trial court appointed the appellee individual as the sole administrator of the deceased’s estate and granted issuance of letters of administration. The appellee center and the appellee foundation intervened in the probate proceeding. Each nonprofit charitable organization asserted an interest as charitable beneficiaries. The appellant also intervened as another beneficiary of the estate and the trustee of the the deceased trust. The appellate court observed that there was no mention of or reference to an offset reimbursement provision in the will or the first codicil, nor did either document allude to it indirectly. Courts must not redraft wills to vary or add provisions “under the guise of construction of the language of the will” to reach a presumed intent. The trial court erred by adding an offset provision not originally contemplated by the will or first codicil as part of the court’s ruling that the appellant and his wife were required to pay the full value of the ranch to option to purchase any party of it. Accordingly, the court reversed the judgment of the trial court and remanded.

The trial court did not err in granting summary judgment in the appellee’s favor. Because such a claim was redundant, the trial court did not err in denying the appellant’s claim for declaratory relief. A declaratory-judgment action that mirrored a claim for statutory relief was redundant.
Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist.
Appellate: Civil, Constitution, Contracts, Gov't/Administrative, Real Property, Tax, Torts
Texas 14th Court of Appeals
July 23, 2019
14-18-00358-CV
Kevin Jewell
Published
The appellant co. was an open-enrollment charter school that was part of the Texas public school system. The appellant’s campus at issue was located on real property. The appellant subleased the relevant part of the property from a private entity, the company, which leased it from another private entity or entities. Under the sublease agreement between the appellant and the co., the appellant was obligated to pay and remain current on ad valorem taxes assessed on the Property. The appellant sought a refund of all personal and real property taxes paid on the Property for the 2013-2015 tax years. The appellee district denied the appellant’s exemption request, and the appellant protested to the District’s Administrative Review Board (the Board). The Board denied the appellant’s protest. Appellant appealed from a summary judgment denying it an ad valorem tax exemption. The appellate court concluded that the Property was not owned by the State or a political subdivision of that State, and therefore the appellant was not entitled to the claimed tax exemption. The trial court did not err in granting summary judgment in the appellee’s favor. Because such a claim was redundant, the trial court did not err in denying the appellant’s claim for declaratory relief. A declaratory-judgment action that merely mirrored a claim for statutory relief was redundant and should be dismissed. Accordingly, the court affirmed.

The appellee presented factually sufficient evidence that the appellant breached the contract by failing to properly supervise the dismantling, leading to the damage of the metal components of the building
AKIB Constr. Inc. v. Shipwash
Appellate: Civil, Contracts, Damages, Procedure, Real Property, Torts
Texas 1st Court of Appeals
August 01, 2019
01-18-00135-CV
Evelyn V. Keyes
Published
The appellee sued the appellant company for breach of contract, arising out of an agreement for the appellant to facilitate the dismantling, moving, and reassembly of a steel building. The appellant filed a counterclaim for breach of contract. After a bench trial, the trial court rendered judgment in favor of the appellee, finding that the appellant breached the parties’ contract and awarded the appellee $30,424.50 in damages, plus pre and post judgment interest, attorney’s fees, and court costs. The appellate Court found that the appellee was not required to present expert testimony to establish that the appellant breached the contract by failing to properly supervise the dismantling of the building. Further, the evidence in the record supporting the fact findings was not so weak or contrary to the overwhelming weight of the evidence as to make the findings and the trial court’s judgment based on those findings, clearly wrong and manifestly unjust. The Court therefore held that the appellee presented factually sufficient evidence that the appellant breached the contract by failing to properly supervise the dismantling, leading to the damage of the metal components of the building. Furthermore, all of the damages that the appellee sought at trial, and was awarded by the trial court in its final judgment, were out-of-pocket expenditures that he made in reliance on the contract that he signed with the appellant. Out-of-pocket damages were general or direct damages that were not required to be specially pleaded. Nevertheless, the appellee pleaded for “actual or economic damages for out of pocket damages.” The trial court did not err by awarding the appellee those damages. Accordingly, the Court affirmed the judgment of the trial court.

The appellee’s premises-liability claim fell within the scope of the CBA, as the claim involved the interpretation and application of the appellant rules pertaining to the terms and conditions of employment of the appellants
Houston NFL Holding L.P. v. Ryans
ADR, Contracts, Employment, Litigation: Personal Injury, Torts
Texas 1st Court of Appeals
August 01, 2019
01-18-00811-CV
Laura Carter Higley
Published
The following was an accelerated interlocutory appeal from an order denying a motion to compel arbitration under the Federal Arbitration Act. The appellee, a former professional football player for the Philadelphia Eagles, suffered a career-ending injury while playing an away game against the Houston Texans. The appellee sued the appellants in the state court, asserting a claim for premises liability as an invitee. The appellants filed a motion to compel arbitration under the Collective Bargaining Agreement (CBA) between the National Football League’s club owners and players’ union, and the trial court denied the motion. The appellate Court held that the appellee’s premises-liability claim fell within the scope of Article 43 of the CBA because the claim involved the interpretation and application of the appellant rules pertaining to the terms and conditions of employment of the appellant players. Further, because the premises-liability claim was within the scope of the CBA, the arbitration provision of the CBA applied and arbitration was required. The trial court therefore abused its discretion in denying the appellants’ motion to compel arbitration. Accordingly, the Court reversed and remanded.

An attorney was not allowed to withdraw representation from a juvenile client after filing an Anders brief in the trial court
In re T.M.
Criminal, Gov't/Administrative, Juvenile, Procedure
Texas 5th Court of Appeals
August 01, 2019
05-18-00644-CV
David L. Bridges
Published
The appellant juvenile appealed the trial court’s order modifying disposition with the Texas Youth Commission (TYC) commitment for a period of one year. The appellant’s appointed counsel had filed a motion to withdraw, along with an Anders brief, asserting the appeal was without merit and there were no arguable grounds for reversal. The appellate Court affirmed the trial court’s judgment. However, the Court had not yet considered whether counsel was permitted to withdraw in a juvenile case after filing an Anders brief. The appellate Court agreed with the majority of appellate Courts that had addressed the issue, concluding that the counsel’s obligations to the appellant had not yet been discharged. If the appellant, after consulting with counsel, desired to file a petition for review, counsel should timely file with the Texas Supreme Court a petition for review that satisfied the standards for an Anders brief. Thus, the Court denied the counsel’s motion to withdraw. Accordingly, the Court affirmed the trial court’s judgment.  

The appellant individuals and the appellant patient presented more than a scintilla of evidence raising a genuine issue of material fact on their gross negligence claims
Mason v. Amed-Health, Inc.
Health Care, Litigation: Personal Injury, Torts
Texas 1st Court of Appeals
August 01, 2019
01-18-00045-CV
Evelyn V. Keyes
Published
The following was a medical liability claim filed against a hospice-care company and its medical director (the appellee company and the appellee doctor) by the appellants (the appellant patient and the appellant individuals). The appellant individuals and the appellant patient sued the appellee company and the appellee doctor for negligence arising out of a fire that occurred when the appellant patient smoked a cigar while using oxygen prescribed by the appellee doctor and provided by the appellee company. The trial court granted summary judgment in favor of the appellee company and the appellee doctor and dismissed the appellant individuals’ and the appellant patient’s claims. The appellate Court observed that the summary judgment evidence demonstrated a duty on the part of the appellee company and the appellee doctor to warn the appellant individuals of the hazard posed by the oxygen delivered to their home and used to treat the appellant patient and a duty to take reasonable measures to lessen foreseeable risks to the appellant patient’s caretaker under the circumstances known to his health-care providers. Further, the appellant individuals and the appellant patient presented more than a scintilla of evidence raising a genuine issue of material fact on the element of breach. Next, there was at least some evidence that the appellee doctor’s and the appellee company’s treatment of the appellant individual resulted in his having a diminished mental capacity on the night of the fire and that his cognitive impairment was a substantial factor in causing the fire. Finally, summary judgment on the appellant individuals’ and the appellant patient’s negligence claims was improper because there were material questions of fact on all essential elements of that claim. Thus, there were material issues of fact remaining on their gross negligence claim. Accordingly, the Court reversed the judgment of the trial court and remanded.

The appellant police officers were acting within the scope of their employment when investigating the appellees' report of a stolen vehicle and providing an interview to the media
Rivera v. Garcia
Appellate: Civil, Procedure, Torts
Texas 4th Court of Appeals
July 31, 2019
04-18-00842-CV
Patricia O. Alvarez
Published
Appellees filed suit for defamation, malicious prosecution, and intentional infliction of emotional distress against appellants, both deputies with the Sheriff’s Office, related to the appellees' report of a stolen vehicle and for providing a media interview regarding the appellees' claims. Appellants appealed alleging their actions were within the scope of their employment and the trial court lacked subject matter jurisdiction. The appellate Court found that when the first appellant prepared the affidavits, he was acting in his capacity as a deputy of the Sheriff’s office and he was discharging the duties assigned to him by the Assistant Chief Deputy. Both officers were acting in the scope of their employment regarding the investigation of the appellees. Finally, an officer’s scope of employment included the activities performed in his role as officer, including investigating, arresting, and answering media inquiries. Therefore, when the second appellant was interviewed by the media, he was acting in his capacity as a deputy of the Sheriff’s Office. As Sheriff testified, the second appellant was discharging the duties assigned to him even without the sheriff directly authorizing him to do so. Thus, the second appellant was acting in the scope of his employment regarding his contact with the media. Accordingly, the Court reversed the trial court’s October 31, 2018 order denying the motion to dismiss the appellees suit for lack of subject matter jurisdiction.

Case law established that the legislature's elevation of section 308.04(b)(2)(A) for punishment for first-time offenders convicted of committing evading arrest with a mother vehicle was appropriate
Fulton v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
July 31, 2019
04-18-00529-CR
Patricia O. Alvarez
Published
Appellant was convicted of evading arrest with a vehicle and pled true to two enhancement paragraphs. The trial court assessed punishment at twenty-five years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. The appellate Court found that In Ex parte Jones, the Texas Court of Criminal Appeals addressed the 2011 Legislature’s elevation of section 308.04(b)(2)(A)’s punishment for first-time offenders convicted of committing evading arrest with a motor vehicle to a third-degree felony. Jones, indicted for evading arrest with a motor vehicle, challenged the validity of a provision within that amendment that elevated the range of punishment for offenders committing the offense of evading arrest with a motor vehicle without having committed a prior evading arrest. The Court explained the provisions’ purpose was to increase criminal penalties for offenses related to motor vehicles to better protect law enforcement and the public from actors who evaded arrest. Although the appellant contended the different versions were irreconcilable, the amendment could be harmonized because each amendment made a substantive change the other did not. The appellant in the case at bar did not contest the jury’s finding that he was intentionally fleeing from a person he knew was a peace officer attempting to lawfully arrest or detain him. The appellant also did not challenge the jury’s finding that he used a vehicle while committing the offense of evading arrest. The Court previously had held that the use of a vehicle elevated evading arrest to a third-degree felony, without the added requirement of proof of a prior conviction. Accordingly, the judgment was affirmed.

The revocation of the appellant's probation after the trial court determined the appellant had committed assault, and consequently violated a condition of his probation, was not a violation of due process
Smith v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
July 31, 2019
04-18-00604-CR
Patricia O. Alvarez
Published
The appellant was found guilty of failing to register as a sex offender, repeat offender, and sentenced to two years’ confinement in the Institutional Division of the Texas Department of Criminal Justice, suspended and probated for a term of two years. The appellee subsequently filed a motion to revoke appellant's probation based on an alleged assault appellant had committed. The appellate Court found that the trial court could have reasonably determined that, especially in light of the victim’s responses to the questions asked by the trial court, the appellant’s pulling of the victim by the hair and her falling on the rocks caused physical pain to the victim. Further, the Court could not conclude the trial court abused its discretion in finding the evidence supported, by a preponderance of the evidence, that the appellant violated Condition No. 1 of the terms of his probation by assaulting the victim. The evidence was thus sufficient to support the trial court’s judgment. The Court also determined that the appellant's revocation satisfied due process. The trial court orally stated the sole basis for the revocation was that the assault on the victim violated Condition No. 1 of his probation, which was also the sole ground on which the State moved for revocation; the judgment corresponded to the trial court’s oral pronouncement on the same basis. Thus, because the information necessary to determine the basis of the appellant’s revocation was apparent from the record, the court concluded due process was satisfied. Accordingly, the trial court’s judgment was affirmed.

The trial court had subject matter jurisdiction over the forfeiture proceeding, as the trial court reasonably determined that the State’s case commenced within thirty days of the seizure
One Thousand Four Hundred Thirty-Seven Dollars ($1, 437.00) v. State
Appellate: Civil, Constitution, Criminal, Evidence, Procedure
Texas 4th Court of Appeals
July 31, 2019
04-18-00601-CV
Patricia O. Alvarez
Published
The State filed an Original Notice of Seizure and Intention to Forfeit alleging $1437.00 in cash and a vehicle identification number 2T1BURHE0GC627119, was seized from the appellant. The State’s Notice of Seizure was filed pursuant to Chapter 59 of the Texas Code of Criminal Procedure. The State’s notice alleged the cash and the vehicle were used or intended to be used in the commission of a felony under Chapter 481 of the Health and Safety Code or were the proceeds gained from the commission of a felony under the same chapter. The State filed a motion for default judgment averring the appellant failed to timely file an answer. After exhausting the administrative remedies, the appellant appealed the trial court’s order denying his motion for new trial to overturn a default judgment entered against him in a civil forfeiture proceeding. The appellate Court found that the longest time-period between the date of arrest and the filing of the notice of forfeiture was twelve days. Thus, the Court could not say the trial court abused it discretion in finding the appellant could reasonably ascertain the nature and basic issues of the State’s claim, including that the amount of time that elapsed from the seizure to the filing of the notice was within the thirty days. Further, having concluded that the trial court could reasonably determine the State’s case commenced within thirty days of the seizure, the Court further concluded that the trial court had subject matter jurisdiction over the forfeiture proceeding. Furthermore, because the appellant failed to establish all three elements under Craddock, the Court could not conclude that the trial court erred in denying his motion for new trial. Accordingly, the Court affirmed the trial court’s judgment.

Because the record did not support the appellant’s assertion that he was entitled to an expunction on the driving while intoxicated charge, the trial court’s judgment was affirmed
Ex Parte Petitto
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
July 31, 2019
04-18-00539-CV
Patricia O. Alvarez
Published
The appellant entered a plea of nolo contendere to a possession of marijuana offense. The trial court deferred a finding of guilt and placed the appellant on deferred adjudication probation for a period of nine months. Having successfully completed his deferred adjudication probation, the State dismissed the possession of marijuana charge. The State also dismissed the driving while intoxicated charge based on the appellant having successfully completed a pretrial intervention program. The appellant appealed the trial court’s order denying his petition for expunction. The appellate Court observed that the expunction statute necessarily required an inquiry into any and all offenses or charges stemming from the same transaction from which an individual sought an expunction, because the statutory scheme of an expunction required the trial court to review the entire criminal transaction surrounding the arrest. Thus, because the appellant filed the petition for expunction, the State could properly ask questions pertaining to all related offenses that arose from the same transaction for which the individual was arrested. Next, the possession of marijuana and driving while intoxicated charges were related offenses arising out of the same transaction. By excluding driving while intoxicated from the deferred adjudication statute, but allowing a dismissal under the pretrial intervention program, the Court presumed the legislature intended a just and reasonable result. Finally, because the record did not support the appellant’s assertion that he was entitled to an expunction on the driving while intoxicated charge, the Court affirmed the trial court’s judgment.

The non-accomplice evidence showed more than the appellant's mere presence at the scene of the attack on the victim and tended to connect the appellant with the commission of the offense of felony murder
Hernandez v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
July 31, 2019
04-18-00036-CR
Liza A. Rodriguez
Published
The appellant was found guilty of felony murder and sentenced to forty-five years of imprisonment. Appellant challenged the judgment of conviction, arguing that the accomplice witness rule barred his conviction. The appellate Court disagreed, finding that the non-accomplice evidence showed more than the appellant's mere presence at the scene of the attack on the victim. There existed testimony that the appellant and other assailants had been present at the establishment where the victim was attacked and were the ones responsible for the murder. Further, photos and text messages also corroborated that the appellant and the other assailants were at the location of the murder when it occurred. The Court then noted that some of the witness testimony was inadmissible hearsay and could not be considered as corroboration evidence. However, like in Jackson v. Virginia, the Court noted that when determining whether there was sufficient evidence to corroborate accomplice-witness testimony, the Court was not required to consider whether the evidence was properly admitted. The Court thus held the non-accomplice witness evidence tended to connect the appellant with the commission of the offense of felony murder.

It was undisputed that the amount of fees awarded by trial court included fees for preparing for the first appeal to the Court, where appellees were not the prevailing party
Melton v. CU Members Mortg.
Constitution, Contracts, Creditor/Debtor, Damages, Real Property
Texas 3rd Court of Appeals
July 31, 2019
03-18-00363-CV
Gisela D. Triana
Published
In the following dispute concerning the constitutionality of a loan on real property, the appellant challenged the trial court’s grant of summary judgment in favor of the appellees. The appellate Court observed that although the appellant’s declaration may have reflected his changing beliefs, the fact that it did so without offering an explanation rendered it susceptible to the trial court’s conclusion that it was a sham affidavit executed to create a fact issue regarding the property’s value. Further, having confirmed the property’s value by signing the loan agreement, the appellant was estopped from taking a contrary position. Next, the $70,000 did not count toward the constitution’s 80% cap, and the loan complied with section 50(a)(6)(B) of the Texas Constitution. Further, the Court could not agree that reporting delinquent payments to a credit agency was equivalent to averring that a person was exposed to personal liability. Also, the note refered to “accrued and unpaid interest”—interest that was already owed but not yet paid, as the amount to which a prepayment could be applied before applying the remainder to principal. Finally, it was undisputed that the amount of fees awarded by the trial court included fees for preparing for the first appeal to the Court, where the appellees were not the prevailing party. Thus, there was a genuine issue of material fact as to whether the amount of attorney’s fees awarded was reasonable. Accordingly, the judgment was affirmed, reversed and remanded.

The relators did not have an adequate remedy by appeal because the error in ordering the production of privileged documents could not be cured on appeal, therefore, conditional issuance of the writ of mandamus was appropriate
In re Alexander
Business, Constitution, Discovery, Procedure
Texas 14th Court of Appeals
July 30, 2019
14-18-00466-CV
Frances Bourliot
Published
The relators, individually and as co-trustees, filed a petition for writ of mandamus. By a separate filing, the relator joined in the petition. In the petition, the relators asked the court to compel the Honorable, presiding judge of Probate Court No. 4 of Harris County, to vacate his May 2, 2019 order granting the motion to compel production filed by real party in interest (RPI). The appellate Court observed that because the company simultaneously represented all relators on the same matter, the joint client doctrine applied. Further, accepting the RPI’s view of the discoverability of the subject documents would strip the attorney-client privilege and joint-client doctrine of their core purpose and meaning. Therefore, relators had no duty under Huie to disclose the draft documents to the RPI. Furthermore, the second relator’s equivocal testimony did not disclose details of the purported agreement or rise to the level of the disclosure of the report in Ashworth. The privilege was not waived by the second relator’s testimony. Finally, the Court held that relators did not have an adequate remedy by appeal because the error in ordering the production of privileged documents could not be cured on appeal. Therefore, conditional issuance of the writ of mandamus was appropriate. Accordingly, the Court conditionally granted the petition.

Because the record contained no evidence that the appraisal award was a result of fraud or was made without authority, the trial court clearly abused its discretion by setting the appraisal award aside
In re Auto Club Indem. Co.
Appellate: Civil, Contracts, Insurance, Real Property
Texas 14th Court of Appeals
July 30, 2019
14-19-00490-CV
Jerry Zimmerer
Published
The relator in the original proceeding was the corporation, an insurer that issued a home insurance policy to the insured. The corporation filed a petition for writ of mandamus asking the trial court to compel the Honorable presiding judge of the County Civil Court at Law No. 1 of Harris County, to vacate his order, which set aside an appraisal award of $0 as the amount of loss to the indured’s property. The appellate Court found that the Texas Supreme Court had held in State Farm Lloyds v. Johnson, that appraisers had authority to determine, as was the cas here, whether the damages found were pre-existing or caused by a pre-existing condition. The appraisal award did not show that the appraisers acted outside of the scope of their authority. Because the record contained no evidence that the appraisal award was a result of fraud or was made without authority, the Court concluded that the trial court failed to correctly apply the law to the facts and clearly abused its discretion by setting the appraisal award aside. Further, the Court saw no material difference between a trial court’s improper refusal to enforce an appraisal clause and a trial court’s improper setting aside an appraisal award; they both may vitiate or severely comprise the defendant’s ability to defend against the plaintiff’s breach of contract claim. Finally, the Court conditionally granted the petition for writ of mandamus, and directed the trial court to vacate its March 26, 2019 order setting aside the appraisal award.

The jury could reasonably determine, based on the common meaning of "dating relationship", that the appellant and the victim were in a "dating relationship" as defined by Texas Family Code section 71.0021(b)
Granger v. State
Criminal, Evidence, Procedure
Texas 4th Court of Appeals
July 24, 2019
04-18-00707-CR
Patricia O. Alvarez
Published
The county jury found the appellant guilty of felony assault family violence. The trial court subsequently sentenced the appellant to forty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. The appellate Court found that the State had presented sufficient evidence to support the existence of a dating relationship between the appellant and the victim. The Court then turned to whether the trial court erred in failing to include a definition of "dating relationship" in the charge of the court. The Court presumed error and turned to whether the appellant was egregiously harmed by the trial court’s failure to include the statutory definition of "dating relationship." The jury could reasonably determine, based on the common meaning of "dating relationship", that the appellant and the victim were in a "dating relationship" as defined by Texas Family Code section 71.0021(b). Also, the jury could reasonably determined that based on the appellant previously staying at the victim’s mother’s house and referring to the victim as his girlfriend, testifying they had previously been dating, and both neighbors thinking the appellant and the victim were in a dating relationship, the jury could reasonably infer the dating relationship about which the State and defense counsel were referring was a continuing relationship of a romantic or intimate nature. Lastly, based on a review of the entire jury charge, the weight of the evidence, the arguments of counsel made during opening arguments and throughout trial, the statements of both the appellant and the victim, and the common meaning of "dating relationship", the Court concluded the record did not support a showing of egregious harm. Accordingly, the Court affirmed the trial court’s judgment.  

The Court believed there was enough evidence for the appellee to establish her prima facie case under a true replacement theory sufficient to survive appellant's motion for summary judgment
Tex. Tech Univ. Health Sci.-El Paso v. Flores
Civil Rights, Employment, Evidence, Procedure
Texas 8th Court of Appeals
July 26, 2019
08-18-00151-CV
Yvonne T. Rodriguez
Published
The appellant University appealed the trial court’s denial of a plea to the jurisdiction seeking dismissal of an age discrimination suit brought by the appellee. The appellate Court found that, bearing in mind that the standard for establishing a prima facie case was fairly lenient and that the Court had to employ a summary judgment-type analysis in reviewing the trial court’s decision, there was enough evidence for the appellee to establish her prima facie case under a true replacement theory. The Court reasoned that appellee's former boss, a doctor, had informed her that she would be demoted near the same time that he placed another individual into the assistant to the president position that the appellee had held. The Court agreed with the appellant that the appellant had met its burden to offer an ostensibly nondiscriminatory reason for the employment action, as the doctor's stated reasons for the demotion were not bald assertions or vague, but went to the quality of work and skill, which was a nondiscriminatory reason. However, while the appellant's arguments were well-taken, the standard to proceed to trial only required the appellee to raise genuine issues of material fact. The appellee's countervailing testimony as to her ability, her positive performance evaluations, the lack of documentation of her negative traits, the conflicting evidence as to who made the ultimate decision on her reclassification, and the doctor's remarks as to age, taken cumulatively, were enough to meet the standard. Accordingly, the judgment of the trial court was affirmed.

There was no basis, either in fact or in law, to support the appellant's position that release from commitment in Texas could be done with a less-than-unanimous verdict
In re Commitment of Gipson
Appellate: Civil, Criminal, Evidence, Procedure
Texas 3rd Court of Appeals
July 26, 2019
03-18-00332-CV
Melissa Goodwin
Published
The State filed a sexually violent predator (SVP) civil commitment petition against the appellant, who was close to completing eighteen years of sentence time for his convictions for aggravated sexual assault of a child, sexual assault, and failure to comply with sex offender registration. The State of Texas appealed from the trial court’s final judgment based on a non-unanimous jury verdict determining that the appellant was not a SVP. The appellate Court found that the fact that commitment required a unanimous verdict would make it absurd to conclude the legislature intended to permit a less-than-unanimous verdict to release the respondent. Such a result found no support in the legislative scheme. The Court found that reasoning inadequate, lacking both textual analysis and any substantive argument regarding absurdity. But even were the Court to agree with that reasoning, the Texas legislative scheme, in contrast to the Iowa legislative scheme, provided support for such a result by expressly stating the rules of civil procedure applied. Further, there was no conflict between Health & Safety Code Section 841.062(b)’s requirement for unanimous jury verdict as to an affirmative SVP determination and Rule 292(a)’s allowance for the concurrence of ten or more jury members to suffice for a negative SVP determination. The Court neither agreed with the reasoning in Williams nor found it applicable to the interpretation of Section 841.146(b). Lastly, even if the trial court had abused its discretion in excluding the evidence, which the court did not decide there, the excluded “evidence” did not rise “beyond mere suspicion” and was unlikely to have caused the rendition of an improper judgment. Accordingly, the Court affirmed the trial court’s final judgment.

The summary-judgment evidence did not conclusively establish a condition that amounted to an unreasonable interference with a right common to the general public
Tex. Cent. Partners, LLC v. Grimes Cnty.
Contracts, Damages, Gov't/Administrative, Procedure, Torts
Texas 14th Court of Appeals
July 25, 2019
14-17-00619-CV
Kem Thompson Frost
Published
After contractors doing surveying work for a project of the appellant company placed pins and markings in various county roadways, the appellee county sued the appellant and defendant company, asserting a single claim for common-law public nuisance. The appellant sought only injunctive relief. The trial court granted the appellant’s motion for a traditional summary judgment on that claim and granted a final summary judgment, permanently enjoining the appellant and the defendant and their agents from performing survey(s) or other studies which damaged, altered, or impaired county-maintained rights of way. The trial court also overruled all of the appellant’s objections to the appellant’s summary-judgment evidence. In the appeal, the appellant asserted that the trial court erred in granting summary judgment in the appellant’s favor, and the trial court erred in overruling the appellant’s objections to two affidavits. The appellate Court found that because statements made in affidavits were conclusory, they could not support a summary judgment in the appellant’s favor, and the trial court abused its discretion in overruling the appellant’s objections. Further, the summary-judgment evidence did not conclusively establish a condition that amounted to an unreasonable interference with a right common to the general public. Because the summary-judgment evidence did not establish as a matter of law that the appellant was liable under the common-law public-nuisance claim, the trial court erred in granting summary judgment and in granting a permanent injunction. Thus, the trial court abused its discretion in overruling the objections to the summary-judgment evidence. Finally, because the summary-judgment evidence did not conclusively establish a common-law public nuisance, the trial court erred in granting the appellant’s summary-judgment motion. Accordingly, the Court reversed and remanded.    

Based on the exchange between the parties, the appellee and the appellant entered into a legally enforceable settlement agreement
Tauch v. Angel
Banking and Finance, Contracts, Damages
Texas 14th Court of Appeals
July 25, 2019
14-17-00976-CV
Kevin Jewell
Published
The dispositive issue presented in the appeal was whether the appellant entered into a valid and enforceable settlement agreement with the appellee bank. The appellant appealed a summary judgment against him declaring that he and the appellee did not have a settlement agreement. The trial court concluded that the appellee impliedly revoked its settlement offer before the appellant attempted to accept it. The appellate Court observed that, as a matter of law, the appellee made a settlement offer to the appellant, the appellee did not impliedly revoke its offer before the appellant accepted, and consequently the appellant and the appellee had a valid settlement agreement. The Court reasoned that the appellant accepted the settlement offer by indicating the party was “ok” with the offer and dollar value. The material portions of the settlement offer had been accepted at that time and asking for paperwork to review was not a conditional acceptance. Further, the elements of the implied revocation doctrine were not met, as the appellee did not take any definite action inconsistent with the intent of entering the settlement agreement and no manifestation of an intent not to enter into the proposed settlement agreement was made. Thus, the Court held that the appellee and the appellant entered into a legally enforceable settlement agreement. Accordingly, the Court reversed the trial court’s judgment and remanded.

The trial court did not abuse its discretion in determining the appellee did not nonsuit his claims to avoid an unfavorable ruling, as there could be legitimate and strategic reasons why appellee might nonsuit and refile
Lacy v. Castillo
Appellate: Civil, Contracts, Damages, Gov't/Administrative, Procedure, Torts
Texas 14th Court of Appeals
July 25, 2019
14-17-00766-CV
Meagan Hassan
Published
The appellee bought a mobile home from the appellants. The appellee filed suit against the appellants and its general partner and representative. The appellee asserted claims against the appellants for breach of contract, Deceptive Trade Practices Act violations, common law fraud, fraud in a real estate transaction, and negligent misrepresentation. The appellants appealed the trial court’s order denying their Motion to Declare the plaintiff’s Nonsuit a Dismissal with Prejudice. The appellate Court found that the appellee timely responded to the appellants’ requests for admissions and other discovery. The record did not reveal, and the appellants did not point to any procedural obstacles that could defeat the appellee’s claims, such as an inability to join necessary parties. Further, the Court rejected the appellants’ contention that the appellee’s stated intent to refile his case at a later time showed he filed a nonsuit to avoid an unfavorable ruling. The appellants cited no authority for their contention; and there could be legitimate and strategic reasons for why a plaintiff might nonsuit and then refile his case that were unrelated to wanting to avoid an unfavorable result. Based on the record before the Court and considering the trial court was free to believe the appellee’s testimony, the Court could not conclude that the trial court abused its discretion in determining the appellee did not nonsuit his claims to avoid an unfavorable ruling and in denying the appellants’ motion. Accordingly, the Court affirmed the trial court’s order denying the appellants’ Motion to Declare the plaintiff’s Nonsuit a Dismissal with Prejudice.  

In the relator's petition for writ of mandamus to compel the trial court judge to vacate court costs and fees, the relator did not satisfy his burden to show a demand for performance by the judge and a refusal to act
In re Hart
Constitution, Criminal, Evidence, Procedure
Texas 7th Court of Appeals
July 24, 2019
07-19-00217-CV
Per Curiam
Published
Five charges were brought against the relator in the trial court resulting in five convictions for sexually-related offenses. The relator was convicted and sentenced in each cause. Those convictions were affirmed by the previous court in prior opinion. The relator filed a petition for writ of mandamus seeking to compel the presiding judge of the 31st District Court to vacate all court costs and fees assessed in trial court in each cause. The relator sought to compel the judge to amend a supplemental Bill of Cost in the trial court in the sixth cause, generated in 2019, that added a $2,000 fine to the original Bill of Cost generated in 2014. The appellate Court found that the relator never presented a request to the judge to vacate some or all of the trial court costs and fees assessed; nor did he file a motion to modify, correct, or amend any of the bills of cost or withdrawal orders. Although the relator presented a well-reasoned petition with meritorious arguments, mandamus would not lie when the judge sought to be compelled to vacate fees and costs had not been given an opportunity to consider the relator’s complaints and arguments. Thus, the relator did not satisfy his burden to show a demand for performance by the judge and a refusal to act on that demand. As such, he failed to show any abuse of discretion. Further, relief from any costs and fees that may have been inappropriately assessed in the five causes was not warranted under the documents provided to the Court or under the tenets of a mandamus proceeding. Similarly, in the sixth cause, the relator did not provide the Court with sufficient documentation to substantiate his claim that a $2,000 fine was improperly added. Without the necessary documentation pertaining to the sixth cause, the Court was unable to grant any relief. Accordingly, the relator’s petition for writ of mandamus was denied.

The appellee established an express written contract with the appellants as required to recover on its breach of contract claim
Sameera Arshad & Almorfa, LLC v. Am. Express Bank, FSB
Appellate: Civil, Banking and Finance, Contracts, Creditor/Debtor, Damages, Procedure, Torts
Texas 14th Court of Appeals
July 25, 2019
14-17-00676-CV
Kem Thompson Frost
Published
The appellants challenged the final judgment in favor of the appellee bank on its breach of contract claim based on the appellants’ failure to pay their credit card debt. The appellee filed a notice of business records affidavit of an assistant custodian of records for the appellee. The appellate Court rejected the appellants’ contention that the trial court rendered judgment on a claim for account stated. The trial court concluded that the the appellants breached the contract by failing to pay the appellee in accordance with the terms of the contract. The appellee established an express written contract with the appellants as required to recover on its breach-of-contract claim. Further, the review of the account statements, which were also in evidence, reflected that the appellee did not charge interest on the overdue balance. The appellants did not otherwise assert that the appellee could not calculate and prove its damages. The trial court expressly found that the damages were $316,007.97, an amount reflected in the last account statement showing the outstanding balance. Finally, the trial court did not abuse its discretion in failing to exclude the assistant custodian from testifying under Texas Rule of Civil Procedure Rule 193.6(a). Finally, the Court did not address the appellants’ arguments that the appellee did not provide custodian’s phone number and that the appellee’s failure to identify the custodian as a fact witness unfairly surprised and unfairly prejudiced the the appellants. Accordingly, the trial court's judgment was affirmed.

The appellants could not recategorize the same arguments as breach of contract or tort claims in an attempt to get the appellee company to pay to the appellants as damages in the present suit
Shawn Ibrahim, Inc. v. Houston-Galveston Area Local Dev. Corp.
Banking and Finance, Contracts, Corporations, Torts
Texas 1st Court of Appeals
July 25, 2019
01-18-00195-CV
Evelyn V. Keyes
Published
The appellees (the appellee corporation and the appellee company) were both involved in financing a construction project undertaken by the appellant company, the appellant individual, the appellant company’s president, and the second appellant individual, another individual associated with the appellant company (collectively, the appellants). The appellants sued both the appellee corporation and the appellee company for breach of contract, fraud, and other causes of action, and the trial court granted summary judgment dismissing all of the appellants’ claims. The appellate Court observed that the appellants could not recategorize the same arguments as breach of contract or tort claims in an attempt to get the appellee company to pay to the appellants as damages in the present suit, the very judgment that the trial court awarded to the appellee company in the first suit. Further, the appellee corporation established, as a matter of law, that nothing in the loan documents obligated it to enforce the Standby Creditor’s Agreement with the appellee company, Finally, nothing in the Loan Documents could be construed as such a representation. The appellants did not provide any other summary judgment evidence identifying any promise or representation made outside of the memorialized in the Loan Documents. Thus, the trial court correctly granted summary judgment dismissing the causes of action. Accordingly, the Court affirmed the judgment of the trial court.

Because the trial court’s decision to admit the three extraneous sexual assault offenses was within the zone of reasonable disagreement, there was no abuse of discretion in their admission
Davis v. State
Criminal, Evidence, Procedure
Texas 5th Court of Appeals
July 24, 2019
05-18-00272-CR
David Schenck
Published
A jury found appellant guilty of sexual assault. The trial court assessed appellant’s punishment, enhanced by a prior felony conviction, at confinement in the Institutional Division of the Texas Department of Criminal Justice for life. The appellate Court found that the jury could have inferred from the testimony of the witnesses that appellant administered a large dose of GHB to the first victim, without her knowledge, precisely so he could have sex with her when she could not resist. The Court concluded the evidence was sufficient to support the jury’s verdict. Further, the Court concluded the trial court’s decision to admit the three extraneous offenses was within the zone of reasonable disagreement. The Court generally presume that the jury followed the trial court’s instructions in the manner presented. An appellant could refute that presumption, but he must do so by pointing to evidence that the jury failed to follow the instruction. Appellant had not identified any such evidence in the case. Thus the admission of evidence of the extraneous allegations of sexual assault did not affect appellant’s substantial rights. Lastly, given all the evidence of appellant’s guilt, the Court was convinced, beyond a reasonable doubt, that the erroneous admission of the second victim’s testimonial statements would probably not have had a significant impact on the mind of an average juror. Accordingly, the judgment was affirmed.

The appellate court concluded that the petitioner’s ability to present a viable defense at trial was vitiated or severely compromised by the trial court’s discovery error.
In re Soc’y of Our Lady of Most Holy Trinity
Appellate: Civil, Constitution, Discovery, Evidence, Procedure
Texas 13th Court of Appeals
July 23, 2019
13-19-00064-CV
Leticia Hinojosa
Published
The petitioner appealed the judgment of the trial court, seeking to compel it to vacate its order allowing for the real party in interest’s examination to be recorded by video and denying reconsideration of that order. On appeal, the petitioner contended that the trial court abused its discretion by allowing the real party in interest to videotape the psychological examination ordered for her pursuant to Texas Rule of Civil Procedure 204.1. The real party in interest argued that mandamus relief was inappropriate and that the court should reject any argument that the trial court abused its discretion when making a discovery ruling on an issue that had not been clearly resolved by the relevant case law. The appellate court noted that to obtain relief by writ of mandamus, a relator must establish that an underlying order was void or a clear abuse of discretion and that no adequate appellate remedy existed. The appellate court found that the real party in interest did not meet her burden to show good cause for the examination to be videotaped. The appellate court concluded that the petitioner’s ability to present a viable defense at trial was vitiated or severely compromised by the trial court’s discovery error. Accordingly, the petitioner’s petition for a writ of mandamus was conditionally granted.

The appellate court concluded that it was confident that the trial judge will take all necessary steps to identify any person who paid the fines and court costs in violation of applicable laws and return those funds.
In re State ex rel. Durden
Constitution, Criminal, Procedure
Texas 4th Court of Appeals
July 24, 2019
04-19-00376-CR
Rebeca C. Martinez
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus in which it raised two complaints. On appeal, the relator asserted that the trial judge abused his discretion by denying an indigent criminal defendant's motion to withdraw from the court registry all of the fines and court costs she paid after the criminal charges against her had been dismissed. The relator asserted that the trial court allowed the defendant to withdraw only $500.00 of the total $897.00 she paid, and the judge abused his discretion by imposing fines and court costs on criminal defendants prior to conducting a hearing on whether to accept a plea bargain and formally pronouncing sentence. The appellate court found that any policy requiring a defendant to fully pay any fines and courts costs before being allowed to enter a plea and begin community supervision was no longer in practice in the county. The appellate court concluded that it was confident that the trial judge will take all necessary steps to identify any person who paid the fines and court costs in violation of applicable laws and return those funds. Accordingly, the relator’s writ was conditionally granted.

Since the petitioner’s appeal was not frivolous and a statement of facts and the clerk's transcript were needed to decide the issues presented by the appeal, the petitioner was entitled to a free record.
In re Commitment of Metcalf
Criminal, Evidence, Procedure
Texas 6th Court of Appeals
July 24, 2019
06-19-00045-CV
Josh Morriss, III
Published
The petitioner appealed the judgment of the trial court which denied his request for a free reporter’s record in his involuntary commitment as a sexually violent predator. On appeal, the appellate court was asked to consider whether the petitioner, in his subsequent appeal, would be presenting an arguable basis in law or in fact that he was not such a predator. The petitioner argued that the trial court committed reversible error by admitting improper hearsay evidence and the evidence was legally and factually insufficient to support a finding that the petitioner was a sexually violent predator. The appellate court noted that a free appellate record was provided only if the trial court found that the appeal was not frivolous and the statement of facts and the clerk's transcript was needed to decide the issue presented by the appeal. The appellate court found that because the petitioner’s appeal was not frivolous and a statement of facts and the clerk's transcript were needed to decide the issues presented by the appeal, the petitioner was entitled to a free record. The appellate court concluded that since the evidence demonstrated an arguable basis in fact, the indigent petitioner was entitled to a free record for that subsequent appeal. Accordingly, the judgment of the trial court was reversed and remanded with instructions.

The appellate court concluded that the taxes imposed under Section 11.201(a) and subject to Paragraph 13(B) must be mutually exclusive of taxes subject to Paragraph 13(A) because the two paragraphs conflicted in how they assigned responsibility among the parties.
Title Res. Guaranty Co. v. The Lighthouse Church & Ministries
Appellate: Civil, Contracts, Damages, Procedure, Tax, Torts
Texas 1st Court of Appeals
July 23, 2019
01-18-00015-CV
Richard Hightower
Published
The subrogee appealed the judgment of the trial court which partially granted summary judgment finding that it would take nothing by its contract cause of action. On appeal, the subrogee contended that subrogor’s contract for the sale of land unambiguously obligated it to pay taxes that were imposed on the land post-sale under Tax Code Section 11.201(a). The appellate court noted that the parties' competing contract interpretations played out against the backdrop of Tax Code Sections 11.20 and 11.201, and a qualified religious organization was entitled to an exemption from taxation. The appellate court found that the contract gave rise to an ambiguity, even after interpreting the plain language of the competing contract provisions and applying the interpretive canons advanced by the parties. The appellate court concluded that the taxes imposed under Section 11.201(a) and subject to Paragraph 13(B) must be mutually exclusive of taxes subject to Paragraph 13(A) because the two paragraphs conflicted in how they assigned responsibility among the parties. Accordingly, the judgment of the trial court was affirmed in part and remanded for further proceedings.

The officer’s authority to act placed him within the scope of his employment with the police department and the City’s sovereign immunity had been waived.
CKJ Trucking, L.P. v. Honey Grove
Appellate: Civil, Employment, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts
Texas 5th Court of Appeals
July 23, 2019
05-18-00205-CV
Robbie Partida-Kipness
Published
The plaintiffs appealed the judgment of the trial court which granted the City’s plea to the jurisdiction in the plaintiffs’ suit asserting various claims for negligence. On appeal, the plaintiffs asserted that the trial court erred in granting the plea to the jurisdiction and motion to dismiss filed by the City. The City maintained that the officer was not in the scope of his employment because he was not acting under the direction of the police department, was not on duty at the time of the accident, was not being paid by the City, and had not received an assignment from the City. The plaintiffs counterargued that Texas law imposed a duty on peace officers to prevent crimes against persons committed in their presence outside their employer’s geographical limits. The appellate court noted that under the doctrine of sovereign immunity, governmental entities were not liable for the negligence of their employees absent a constitutional or statutory waiver of immunity. The appellate court concluded that the officer’s authority to act placed him within the scope of his employment with the police department and the City’s sovereign immunity had been waived. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.

Since the assessment of the cost of electronic monitoring was authorized by statute, and there was a basis in the record for the assessment of this cost, the trial court did not err in assessing this cost.
Wolfenbarger v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
July 23, 2019
06-18-00209-CR
Scott E. Stevens
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated sexual assault of a child under six years of age and assessed a punishment of life imprisonment, court costs, and the cost of electronic monitoring. On appeal, the defendant contended that legally insufficient evidence supported the jury’s finding that his victim was under six years of age at the time of the offense and that the trial court erred by assessing the cost of electronic monitoring against him. The defendant further alleged that the assessment of this cost was not authorized by statute and that there was no basis for the assessment of the cost. The appellate court noted that it would review all the evidence in the light most favorable to the trial court’s judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. The appellate court found that since the assessment of the cost of electronic monitoring was authorized by statute, and there was a basis in the record for the assessment of this cost, the trial court did not err in assessing this cost. The appellate court concluded that sufficient evidence supported the jury’s finding and the trial court did not err in its assessment of the cost of electronic monitoring. Accordingly, the judgment of the trial court was affirmed.

There was no factual issue regarding past damages left for the jury’s consideration, only the legal issue of the employer’s equitable right of offset, which was rightly left to the trial court for its post-verdict determination.
McMillan v. Hearne
Appellate: Civil, Damages, Employment, Evidence, Gov't/Administrative, Litigation: Personal Injury, Procedure, Torts, Workers' Compensation
Texas 6th Court of Appeals
July 22, 2019
06-18-00040-CV
Ralph Burgess
Published
The employer appealed the judgment of the trial court which found that he was liable for the employee’s injuries, and it awarded him past and future damages in the underlying workers’ compensation action. On appeal, the employer argued that the evidence was legally and factually insufficient to support the jury’s finding of negligence and the trial court committed reversible error by failing to offset the jury’s award of past medical damages in the appropriate amount. The employee alleged the trial court erred in failing to render judgment on the jury verdict for all the past damages awarded by the jury, and even if the trial court had authority to award an offset, it erred in doing so because the offset violated the collateral source rule and the employer failed to obtain findings on which he had the burden of proof. The appellate court disagreed and found that the collateral source rule was inapplicable, and the employer was entitled to a post-verdict offset of the jury’s award of past damages. The appellate court concluded that there was no factual issue regarding past damages left for the jury’s consideration, only the legal issue of the employer’s equitable right of offset, which was rightly left to the trial court for its post-verdict determination. Accordingly, the judgment of the trial court was affirmed.

The plaintiff’s suit to enforce the judgment did not offend res judicata, and the plaintiff conclusively established the defendant’s liability as a successor to the judgment debt.
Peterson, Goldman & Villani, Inc. v. Ancor Holdings, LP
Appellate: Civil, Contracts, Creditor/Debtor, Procedure, Torts
Texas 2nd Court of Appeals
July 18, 2019
02-18-00102-CV
J. Wade Birdwell
Published
The plaintiff appealed the judgment of the trial court which rendered a take-nothing summary judgment in favor of the defendants on grounds of res judicata, reasoning that the plaintiff should have pressed all of its claims in the earlier suit. On appeal, the plaintiff argued that regardless of whether its own liability should have been raised in the initial proceeding, that claim was indeed raised in the initial proceeding. The appellate court noted that it would consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. The appellate court found that the trial court erred in concluding otherwise, and in dismissing the plaintiff’s claims for contractual and successor liability, principal-agent liability, unjust enrichment, and multiple forms of estoppel. The appellate court concluded that the plaintiff’s suit to enforce the judgment did not offend res judicata, and the plaintiff conclusively established the defendant’s liability as a successor to the judgment debt. Accordingly, the judgment of the trial court was affirmed in part, reversed and remanded in part.

In balancing all of the Rule 403 factors, the trial court acted within the zone of reasonable disagreement when it determined that the probative value of the extraneous offense evidence was not substantially outweighed by its prejudicial effect.
Ryder v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 18, 2019
14-18-00148-CR
Meagan Hassan
Published
The defendant appealed the judgment of the trial court which convicted him of four counts of aggravated sexual assault of a child and sentenced him to four life sentences. On appeal, the defendant asserted that the evidence was insufficient to support the convictions, the trial court erred by admitting evidence of certain extraneous offenses, and the trial court erred by admitting Facebook messages that were not properly authenticated.  The appellate court noted that to assess the legal sufficiency of the evidence to support a criminal conviction, it would consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. The appellate court found that it would defer to the jury’s responsibility to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences, and it did not disturb these determinations on appeal. The appellate court concluded that in balancing all of the Rule 403 factors, the trial court acted within the zone of reasonable disagreement when it determined that the probative value of the extraneous offense evidence was not substantially outweighed by its prejudicial effect. Accordingly, the judgment of the trial court was affirmed.

Since the City retained its governmental immunity, the trial court should have dismissed the plaintiffs’ claims against the City for want of jurisdiction.
Nguyen v. SXSW Holdings, Inc.
Appellate: Civil, Gov't/Administrative, Litigation: Personal Injury, Procedure, Real Property, Torts
Texas 14th Court of Appeals
July 18, 2019
14-17-00575-CV
Tracy Christopher
Published
The plaintiffs appealed the judgment of the trial court which disposed of the plaintiffs’ claims through summary judgment in their civil action, asserting various claims against the defendants to recover on various claims of negligence, premises liability, and public nuisance. On appeal, the plaintiffs argued that the City was actually engaged in a proprietary function because it was funding, maintaining, and operating the festival alongside the remaining defendants. The appellate court noted that governmental functions were generally defined as those actions performed by a municipality that were “public in nature” and “in furtherance of general law for the interest of the public at large.” The appellate court found that because the City demonstrated that it was performing a governmental function, and thus, that it was shielded by governmental immunity, the plaintiffs were required to plead a valid waiver of that immunity. The appellate court concluded that the City retained its governmental immunity, which meant that the trial court should have dismissed the plaintiffs’ claims against the City for want of jurisdiction. Accordingly, the judgment of the trial court was vacated in part and affirmed in part.

The appellate court concluded that the trial court did consider the defendant’s requests for the appointment of counsel in a civil lawsuit and did not err in denying the requests.
Erazo v. Sanchez
Appellate: Civil, Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 18, 2019
14-17-00929-CV
Frances Bourliot
Published
The defendant appealed the judgment of the trial court which denied appointing counsel in a civil lawsuit, where the defendant requested the trial court to order the performance of a new autopsy related to a criminal case. On appeal, the defendant asserted that the trial court erred in failing to consider his requests for appointment of counsel, and the trial court erred by refusing or failing to appoint counsel. The defendant contended that the trial court abused its discretion in refusing or failing to appoint counsel pursuant to Government Code section 24.016. The appellate court noted that there was no general right to counsel in Texas in civil cases; however, under Government Code section 24.016, a district judge had the discretion to appoint counsel for an indigent party in a civil case. The appellate court found that a convicted person seeking another chance to discover exonerating evidence did not appear exceptional. The appellate court concluded that the trial court did consider the defendant’s requests and did not err in denying the requests. Accordingly, the judgment of the trial court was affirmed.

The trial court did not err in granting summary judgment as to the plaintiff’s negligence claim on the no-evidence-of-proximate-cause ground.
Shultz v. Lone Star Rd. Constr., Ltd.
Appellate: Civil, Damages, Evidence, Litigation: Personal Injury, Procedure, Torts
Texas 14th Court of Appeals
July 18, 2019
14-17-00550-CV
Kem Thompson Frost
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s summary-judgment motion, asserting a negligence claim against the defendant that was performing road construction work at the time of the accident. On appeal, the plaintiff argued that the testimony of the expert witness and fact witness, together with other circumstantial evidence raised a fact issue as to causation. The plaintiff further alleged gross negligence as a potential basis for recovering exemplary damages in addition to actual damages based on the negligence claim. The appellate court noted that to raise a genuine fact issue on causation, the summary-judgment evidence must raise a genuine fact issue as to whether the tow hook originated from the highway’s left shoulder, in the defendant’s work area. The appellate court found that the summary-judgment evidence did not raise a genuine fact issue as to whether the tow hook’s launch point fell within the left shoulder or as to whether the defendant’s act or omission served as a substantial factor in causing the plaintiff’s injuries, without which the harm would not have occurred. The appellate court concluded that the trial court did not err in granting summary judgment as to the plaintiff’s negligence claim on the no-evidence-of-proximate-cause ground. Accordingly, the judgment of the trial court was affirmed.

The trial court’s admission of the officer’s testimony regarding the defendant’s credibility did not have a substantial and injurious effect or influence in determining the jury’s verdict.
Brown v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 18, 2019
14-17-00622-CR
Meagan Hassan
Published
The defendant appealed the judgment of the trial court which convicted him of sexual assault and sentenced him to ten years’ confinement with the sentence suspended for ten years. On appeal, the defendant challenged his conviction based on alleged jury-charge error and the trial court’s admission of improper opinion testimony. The defendant alleged that this error caused him harm and required reversal and a new trial. Specifically, the defendant asserted that including the instruction on non-consent by threat was harmful because the instruction was equally prominent with the alternative theory of non-consent by use of physical force or violence. The appellate court noted that the requirement of jury unanimity was not violated by a jury charge that presented the jury with the option of choosing among various alternative manner and means of committing the same statutorily defined offense. The appellate court found that evidence showing that an accused was deceptive during an investigation was relevant and admissible. The appellate court concluded that the trial court’s admission of the officer’s testimony regarding the defendant’s credibility did not have a substantial and injurious effect or influence in determining the jury’s verdict. Accordingly, the judgment of the trial court was affirmed.

The evidence established that the plaintiff could not establish a violation of the Act to show its standing or a waiver of the defendant’s governmental immunity from suit.
Tex. Ass’n of Cnty. Employees v. Wolff
Appellate: Civil, Employment, Gov't/Administrative, Procedure
Texas 4th Court of Appeals
July 17, 2019
04-19-00003-CV
Luz Elena D Chapa
Published
The plaintiff appealed the judgment of the trial court, seeking a money judgment and a court order requiring the defendant immediately begin to engage in collective bargaining. On appeal, the appellate court was asked to consider whether, under chapter 174 of the Texas Local Government Code, a county’s deputy constables and deputy sheriffs were officers of the same “police department” or different “police departments.” The appellate court noted that the evidence established that, even if the plaintiff was correct that under the Act, deputy constables and deputy sheriffs were separate “police departments” and were entitled to collectively bargain with the county independently, the plaintiff failed to follow procedures set out in the Act to be recognized as the exclusive bargaining agent for the county’s deputy constables’ “police department.” The appellate court found that the plaintiff failed to follow the procedures, and the dispute about whether a county’s deputy constables and deputy sheriffs were in separate “police departments” was immaterial. The appellate court concluded that the evidence established that the plaintiff could not establish a violation of the Act to show its standing or a waiver of the defendant’s governmental immunity from suit. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the trial court clerk was instructed to forward to the appellate court the supplemental clerk’s record containing the new certification.
Young v. State
Criminal, Procedure
Texas 3rd Court of Appeals
July 17, 2019
03-18-00080-CR
Thomas J. Baker
Published
The defendant appealed the judgment of the trial court which convicted him forgery, theft, and money laundering. Thereafter, the trial court issued certification of the defendant’s right of appeal with checks and other marks next to the boxes certifying that the defendant waived the right of appeal. The appellate court noted that it appeared that the trial court’s certification was incorrect. The appellate court found that it needed to abate the appeal and remand the case to the trial court to issue a new certification. The appellate court concluded that the trial court clerk was instructed to forward to the appellate court the supplemental clerk’s record containing the new certification. Accordingly, the judgment of the trial court was abated and remanded.

The appellate court concluded that the dispute was moot and if the ground that the relief sought had become moot and, therefore, there was nothing to mandamus, petition to mandamus was proper.
In re Evans
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
July 17, 2019
06-19-00110-CR
Scott E. Stevens
Published
The relator appealed the judgment of the trial court, seeking a writ of mandamus compelling the trial judge to comply with the appellate court’s mandate requiring the trial court to provide the relator with a new punishment hearing. On appeal, the relator maintained that the trial court failed to conduct the punishment proceeding as required by the court’s mandate. The appellate court noted that the State could dismiss a criminal action at any time, subject to approval by the trial court. The appellate court found that the third trafficking conviction, due to insufficient evidence, was modified to a conviction for compelling prostitution and remanded to the trial court for a punishment proceeding. The appellate court noted that the State decided to forego the new punishment hearing and filed a waiver of the charge, which was approved by the trial court, and thus, the charge was effectively dismissed. The appellate court concluded that the dispute was moot and if the ground that the relief sought had become moot and, therefore, there was nothing to mandamus, petition to mandamus was proper. Accordingly, the judgment of the trial court was affirmed.

The trial court did not abuse its discretion in admitting the accident report, however, since the testimony regarding the white van was not hearsay, the trial court erred in excluding the officer’s testimony.
Mora v. Valdivia
Appellate: Civil, Damages, Employment, Evidence, Litigation: Personal Injury, Procedure, Torts, Wills/Trusts/Probate
Texas 4th Court of Appeals
July 17, 2019
04-17-00565-CV
Patricia O. Alvarez
Published
The defendants appealed the judgment of the trial court which found that they were grossly negligent and awarded actual and exemplary damages in the plaintiffs’ suit asserting claims for negligence and gross negligence. On appeal, the defendants contended that the evidence was legally and factually insufficient to support the jury’s findings that the defendants were not in the course and scope of their employment at the time of the accident, the driver of the third vehicle was neither negligent nor partially responsible for the accident based on the defense of sudden emergency, and the defendants were grossly negligent based on an act or omission. The appellate court noted that if the conduct fell within an exception to one of the elements, the employee’s actions were not in the course and scope of his employment. The appellate court found that because commuting to and from work were the type of risks shared by the traveling public and did not generally arise from a specific trade or profession, an injury sustained while commuting was generally not a compensable injury arising out of an individual’s course and scope of employment. The appellate court concluded that the trial court did not abuse its discretion in admitting the accident report, however, since the testimony regarding the white van was not hearsay, the trial court erred in excluding the officer’s testimony. Accordingly, the judgment of the trial court was affirmed.

The evidence was sufficient for any rational trier of fact to find that the essential elements of criminal trespass were proved beyond a reasonable doubt, and the evidence was legally sufficient to support the defendant’s conviction.
Tatro v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 16, 2019
14-18-00073-CR
Jerry Zimmerer
Published
The defendant appealed the judgment of the trial court which convicted him of criminal trespass and assessed punishment at confinement in jail for thirty days and a fine of $100. On appeal, the defendant contended that the evidence was legally insufficient to support his conviction because the defendant was a tenant, not a guest, in the home and thus the victim had no right to ask him to leave. The State maintained that the defendant intentionally and knowingly entered and remained on and in the property of the victim, the owner, without the owner’s effective consent, and that the defendant entered with notice that entry was forbidden and failed and refused to depart after being told to leave. The appellate court found that the evidence showed that the defendant entered and remained on the victim’s property, that the defendant had notice that entry was forbidden whenever he was in an intoxicated state, and that the defendant received notice to depart from the victim’s property but failed to do so. The appellate court concluded that the evidence was sufficient for any rational trier of fact to find that the essential elements of criminal trespass were proved beyond a reasonable doubt, and the evidence was legally sufficient to support the defendant’s conviction. Accordingly, the judgment of the trial court was affirmed.

The trial court properly convicted the defendant of possession of a controlled substance because he conceded possession, however, it erred on the tampering-with-physical-evidence conviction.
Ransier v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 16, 2019
14-17-00580-CR
Charles Spain
Published
The defendant appealed the judgment of the trial court which convicted and assessed punishment at life in prison for tampering with a syringe. On appeal, the defendant argued that the trial court erred by admitting evidence that the defendant was an “ex-con” in the guilt/innocence phase of trial and by denying his request for a jury instruction on a lesser-included offense. The defendant further alleged that the trial court erred in refusing to submit his requested instruction regarding the lesser-included offense of attempted tampering with evidence. The State counterargued that the defendant waived this point of error because, when the trial court asked if there were any objections to the charge, the defendant responded, “No objection.” The appellate court noted that if, after applying the test, it remained ambiguous whether abandonment was intended, then it must resolve the ambiguity in favor of finding waiver. The appellate court correctly found that the trial court ruled on the possession-of-a-controlled-substance charge because the defendant conceded possession of a controlled substance at trial. The appellate court concluded that the trial court properly convicted the defendant of possession of a controlled substance because he conceded possession, however, it erred on the tampering-with-physical-evidence conviction. Accordingly, the judgment of the trial court was affirmed in part and reversed and remanded in part.

The evidence presented to the trial court supported the damages award in the order granting summary judgment, and the plaintiff did not produce any proof of credits that may have offset that award.
Transamerica Corp. v. Braes Woods Condo Ass’n, Inc.
Appellate: Civil, Business, Contracts, Corporations, Damages, Landlord and Tenant, Procedure, Torts, Wills/Trusts/Probate
Texas 14th Court of Appeals
July 16, 2019
14-16-00880-CV
Meagan Hassan
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment and motion to show authority in the plaintiff’s suit alleging conversion of rental payments, fraud, injury to business reputation, breach of duty good faith and fair dealing, and seeking an accounting as well as both injunctive and declaratory relief. On appeal, the plaintiff argued that the trial court’s orders granting the defendant’s motion for summary judgment and motion to show authority were void because the trial court lacked subject matter jurisdiction. The plaintiff further asserted that the defendant judicially admitted the plaintiff lacked capacity to sue or be sued in this case because it forfeited its corporate charter. The appellate court noted that as a general rule, corporations whose charters have been forfeited and not reinstated could neither sue nor defend themselves in Texas courts. The appellate court found that the plaintiff could have entered into a valid contract because the law did not expressly declare that contracts made by a corporation whose right to do business had been forfeited were void. The appellate court concluded that the evidence presented to the trial court supported the damages award in the order granting summary judgment, and the plaintiff did not produce any proof of credits that may have offset that award. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the trial court did not err in granting the plaintiffs’ summary judgment and denying the defendants’ cross-motion for summary judgment.
Cook v. Nissimov
Appellate: Civil, Consumer, Contracts, Procedure, Real Property, Torts
Texas 14th Court of Appeals
July 16, 2019
14-18-00055-CV
Margaret Poissant
Published
The defendants appealed the judgment of the trial court which denied their motion for summary judgment and granted summary judgment in favor of the plaintiffs in a suit, alleging violations of portions of the Property Code and the Deceptive Trade Practices Act. On appeal, the defendants argued that the trial court should have granted their motion for summary judgment and denied the plaintiffs’ motion. Specifically, the defendants asserted that the exception clauses in the deeds used to convey the tracts retained the Access Easement running through the 130 acres. The appellate court noted that in determining whether an easement had been granted expressly, it would look to the same rules of construction applicable to deeds. The appellate court found that the conveyance from the defendants to the plaintiffs included the Access Easement and did not reserve a right in the defendants to grant access to the easement to others. The appellate court concluded that the trial court did not err in granting the plaintiffs’ summary judgment and denying the defendants’ cross-motion for summary judgment. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the record clearly established the complainants were public servants, and thus, it could not find the defendant was egregiously harmed by the charge error.
Niles v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 16, 2019
14-15-00498-CR
Margaret Poissant
Published
The defendant appealed the judgment of the trial court which convicted him of two offenses of terroristic threat against a public servant and assessed punishment at concurrent terms of one year in county jail, probated for two years. On appeal, the defendant claimed that the trial court abused its discretion in denying a mistrial, the evidence was insufficient to support the defendant’s conviction, and there was error in both judgments that entitled him to a reformation of the judgment in both cases to reflect that he was convicted of a Class B misdemeanor rather than a Class A. The appellate court noted that because such error was subject to a harm analysis, it erred to reform the judgments without first analyzing whether the jury charge error resulted in harm. The appellate court found that the jury charge weighed in favor of concluding the defendant had suffered egregious harm. The appellate court concluded that the record clearly established the complainants were public servants, and thus, it could not find the defendant was egregiously harmed by the charge error. Accordingly, the judgment of the trial court was affirmed.

The County established conclusively that the defendant was liable for the tolls and fees under Section 284.0701 of the Texas Transportation Code.
Harris Cnty. v. Ramirez
Appellate: Civil, Damages, Evidence, Gov't/Administrative, Procedure, Transportation
Texas 14th Court of Appeals
July 16, 2019
14-17-00718-CV
Jerry Zimmerer
Published
The County appealed the judgment of the trial court which rendered a take-nothing judgment in favor of the defendant in the County’s suit to collect unpaid tolls and fees incurred on two vehicles for which the defendant remained the registered owner, but that she previously had sold. On appeal, the County contended that the trial court erred in rendering judgment against it because the trial court failed to issue findings of fact and conclusions of law, the evidence was legally and factually insufficient to support the trial court’s judgment, and the trial court abused its discretion by acting arbitrarily and without regard to guiding rules and principles. The appellate court noted that by statute, the County was authorized to collect tolls from vehicles operated on certain roadways. The appellate court found that the County failed to provide substantive legal analysis, with citation to relevant authority and the record, regarding the basis of its claim for attorney’s fees. The appellate court agreed with the County and concluded that the County established conclusively that the defendant was liable for the tolls and fees under Section 284.0701 of the Texas Transportation Code. Accordingly, the judgment of the trial court was reversed in part and affirmed in part.

Since the defendant failed to raise his Confrontation-Clause objection at the time the lab report was offered into evidence, the defendant this complaint on appeal.
Craven v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
June 20, 2019
14-18-00037-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which adjudicated guilt based on violations of the terms and conditions of his deferred adjudication community supervision. On appeal, the defendant asserted that the trial court abused its discretion in adjudicating guilt following a hearing at which the court permitted evidence that violated his right under the Sixth Amendment to be confronted with the witnesses against him. The appellate court was asked to determine whether the defendant preserved this error in the trial court. The appellate court noted that for an accused to preserve error as to an alleged violation of his right under the Confrontation Clause to be confronted with the witnesses against him, the accused must make a timely objection with enough specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. The appellate court found that in his closing remarks, the defendant’s trial counsel even acknowledged the moments during the defendant’s cross-examination when it became apparent that the witness was unable to answer for certain aspects of the validity and accuracy of the drug testing. The appellate court concluded that because the defendant failed to raise his Confrontation-Clause objection at the time the lab report was offered into evidence, the defendant this complaint on appeal. Accordingly, the judgment of the trial court was affirmed.

Because the Court found that the trial court judgment was not void for lack of jurisdiction, the appellate Court lacked jurisdiction to review the issue on appeal of the revocation of community supervision
Rogers v. State
Criminal, Evidence, Procedure
Texas 10th Court of Appeals
July 31, 2019
10-18-00368-CR
John E. Neill
Published
The appellant was charged by indictment with the offense of attempted sexual assault. He entered a plea of guilty to the offense of unlawful restraint, and the trial court deferred adjudication of guilt and placed the appellant on community supervision for ten years. The State filed a motion to adjudicate the appellant's guilt on the underlying offense and revoke his community supervision. The appellant entered pleas of true to five of the allegations in the State’s motion. The trial court found the allegations to be true, adjudicated the appellant guilty of unlawful restraint, revoked his community supervision, and sentenced the appellant to five years confinement. The appellate Court agreed with the Court in Crume v. State, 342 S.W.3d 241, 243, and found that the trial court had both personal and subject matter jurisdiction to accept the appellant’s plea. The Court reasoned that subject matter jurisdiction existed as both crimes, attempted sexual assault and unlawful restraint were felony offenses. Further, the Court had personal jurisdiction, as there was a valid indictment charging the defendant with attempted sexual assault and personal jurisdiction was "person specific" and not "offense specific.  Thus, the Court found that the judgment was not void. Because the Court found that the judgment in the case was not void, it lacked jurisdiction to review the issue on appeal of the revocation of community supervision. Accordingly, the judgment was affirmed.

The trial court erred in concluding that, as a matter of law, the 1999 deed was valid, effective, and enforceable to convey the appellants interests when not all of the deceased children executed and delivered the 1999 deed
In re Estate of Tatum
Appellate: Civil, Contracts, Family, Wills/Trusts/Probate
Texas 11th Court of Appeals
August 01, 2019
11-18-00009-CV
Keith Stretcher
Published
The appeal involved a dispute among family members regarding the validity of a warranty deed. The parties disputed whether certain executing grantors of the 1999 deed conveyed their individual interests in the property at issue even though the 1999 deed was not executed and delivered by all of the proposed grantors who owned an interest in the property being conveyed. The appellants and the appellee owned an equal, undivided future interest in the property and executed the 1999 Deed. The appellate Court found that the appellants presented summary judgment evidence which showed that the parties orally agreed on a condition precedent to the enforcement of the 1999 Deed, the condition precedent being the execution and delivery of the 1999 deed by all of the deceased children. Specifically, the appellants produced personal affidavits in which they explained the events surrounding their signing of the 1999 deed. The appellate Court specifically noted that such a provision or agreement was absent in the contract and that there was no testimony or evidence that any such agreement existed either among the tenants who signed the deed or between them and the grantee. Furthermore, summary judgment evidence showed that the appellants and the deceased did have an agreement and understanding that the 1999 Deed would not be effective unless and until it was signed by all of the deceased children. Thus, although the appellants signed the 1999 deed, a genuine issue of material fact remained regarding the enforceability of the 1999 deed. Finally, the trial court erred in concluding that, as a matter of law, the 1999 deed was valid, effective, and enforceable to convey the appellants interests when not all of the deceased children executed and delivered the 1999 deed. Accordingly, the Court sustained the appellants sole issue on appeal, and the Court reversed the trial court’s judgment and remanded for further proceedings.

The record was devoid of any evidence establishing the existence of a confidential relationship between the parties that would otherwise give the defendants a duty to disclose the information.
CLC Roofing, Inc. v. Helzer
Appellate: Civil, Contracts, Damages, Procedure, Torts
Texas 2nd Court of Appeals
July 11, 2019
02-17-00229-CV
Mark T. Pittman
Published
The plaintiff appealed the judgment of the trial court which found that the defendants committed fraud against the plaintiff but granted the defendants’ motion for judgment notwithstanding the verdict (JNOV). On appeal, the plaintiff complained of both the JNOV for the defendants and the reduction in damages in the final judgment, asserting that the trial court erred in setting aside the jury’s finding that the defendants committed fraud by omission. The defendants challenged the evidence supporting the jury’s fraud findings against him. Specifically, the defendant maintained that the law did not support the duty to disclose relied on by the plaintiff and that there was no evidence that he engaged in any actionable nondisclosure. The appellate court found that the evidence did not support a fraud finding against either the defendants. The appellate court concluded that the record was devoid of any evidence establishing the existence of a confidential relationship between the parties that would otherwise give the defendants a duty to disclose the information. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.

Since the Texas Medical Liability Act required that the plaintiff file an expert report, the trial court improperly denied the defendant’s motion to dismiss.
Southeast Tex. Cardiology Assoc. v. Smith
Appellate: Civil, Evidence, Health Care, Procedure, Torts
Texas 9th Court of Appeals
July 11, 2019
09-18-00438-CV
Hollis Horton III
Published
The defendant appealed the judgment of the trial court which ruled in favor of the plaintiff in the underlying medical malpractice action. On appeal, the appellate court was asked to decide whether the trial court erred by denying a health care provider’s motion to dismiss the wrongful death and survival claims of the Estate. The defendant argued that the plaintiff failed to file an expert report to support her claims as required by the Texas Medical Liability Act. The plaintiff maintained that her claims were premises liability claims, not health care liability claims, and thus not subject to the Act. The appellate court noted that Section 74.351 of the Act required a plaintiff pursuing health care liability claims to serve a timely report from an expert on each of the health care providers the plaintiff sued. The appellate court found that the plaintiff’s claims were health care liability claims, and as such, they were subject to the expert report requirements of the Act. The appellate court concluded that since the Act required that the plaintiff file an expert report, the trial court improperly denied the defendant’s motion to dismiss. Accordingly, the judgment of the trial court was remanded.

The defendant owed a duty to the plaintiff to either rectify or warn about known, concealed defects on its premises, and the plaintiff provided sufficient summary judgment evidence to raise a question of material fact for the jury to decide whether the defendant breached that duty.
Rodriguez v. Cemex, Inc.
Appellate: Civil, Litigation: Personal Injury, Procedure, Real Property, Torts
Texas 8th Court of Appeals
July 10, 2019
08-17-00113-CV
Gina M. Palafox
Published
The plaintiff appealed the judgment of the trial court which granted the defendant’s motion for summary judgment based on the reasoning that the plaintiff lacked evidence establishing that the defendant owed him a duty of care given that he was injured while performing his work as an employee of an independent contractor. On appeal, the plaintiff asserted that the trial court erred in granting the defendant’s motion for summary judgment based on a no-duty defense that was abolished in Parker v. Highland Park, and that summary judgment evidence demonstrated the existence of a pre-existing, concealed defect on the premises. The appellate court noted that a defendant moving for traditional summary judgment pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure must state the specific grounds for the motion and must negate at least one essential element of the plaintiff's cause of action. The appellate court concluded that the defendant owed a duty to the plaintiff to either rectify or warn about known, concealed defects on its premises, and the plaintiff provided sufficient summary judgment evidence to raise a question of material fact for the jury to decide whether the defendant breached that duty. Accordingly, the judgment of the trial court was reversed.

The appellate court concluded that whether the psychiatric examination could be recorded was an unsettled legal question and the State did not show that the trial court’s order was clearly contrary to well-settled principles. Accordingly, the State’s writ was denied.
In re State
Constitution, Criminal, Evidence
Texas 8th Court of Appeals
July 10, 2019
08-18-00102-CR
Yvonne T. Rodriguez
Published
The State appealed the judgment of the trial court, seeking a writ of mandamus which requested that the appellate court order the trial judge to vacate his order placing restrictions on the State’s choice of expert witness and the manner of the expert’s examination of the defendant in the underlying criminal complaint. On appeal, the State argued that there was no legal authority for recording the examination, the State’s chosen expert had professional and ethical objections to the examination being recorded, and Texas courts had prohibited the presence of third-party observers in psychiatric examinations. The defendant responded that the State had not cited any legal authority prohibiting the recording of the psychiatric examination and he noted that another jurisdiction expressly permitted recording. The appellate court noted that the trial court granted the State’s motion for a psychiatric examination of the defendant by its own expert. The appellate court found that the presence of a third party in a legal and non-medical capacity would severely limit the efficacy of the psychiatric examination. The appellate court concluded that whether the psychiatric examination could be recorded was an unsettled legal question and the State did not show that the trial court’s order was clearly contrary to well-settled principles. Accordingly, the State’s writ was denied.   

The appellate court found that the sheriff’s return reflected that he posted the citation on the door of the county courthouse rather than on the front door of the defendant’s residence as ordered by the trial court.
Gonzalez v. Perez
Appellate: Civil, Criminal, Evidence, Procedure
Texas 8th Court of Appeals
July 10, 2019
08-18-00206-CV
Yvonne T. Rodriguez
Published
The defendant appealed the judgment of the trial court which granted the plaintiff’s motion for substituted service and ordered that service on the defendant be effected by affixing a copy of the application for protective order, order to show cause, and order extending temporary ex parte order to the front door of her residence. On appeal, the defendant contended that the default protective order was void due to defective service and should be vacated. The defendant argued that the trial court erred by failing to grant her motion to vacate. The appellate court noted that the sheriff’s return reflected that he posted the citation on the door of the county courthouse rather than on the front door of the defendant’s residence as ordered by the trial court. The appellate court found that the recitations in the return of citation were prima facie evidence of the facts recited therein. The appellate court concluded that error was shown on the face of the record. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.

The appellate court concluded that whether the administrator’s motion for reconsideration was a motion for new trial or not, it certainly sought either to vacate, modify, correct, or reform the final and appealable order.
In re Estate of Brazda
Appellate: Civil, Procedure, Wills/Trusts/Probate
Texas 1st Court of Appeals
July 11, 2019
01-18-00324-CV
Richard Hightower
Published
The dependent administrator of an estate administration appealed the judgment of the trial court which denied the motion for reconsideration and entered written orders reconsidering and removing the personal liability against the administrator. On appeal, the dependent administrator contended that the trial court lacked jurisdiction to enter the orders reconsidering and removing the damages against the administrator because the original order awarding the damages was final and appealable in its own right and because the trial court lost plenary power over that order before the time that it entered the written reconsideration orders. The appellate court noted that the plain-language reading of the statute disposed of the administrator’s first statutory-text counterargument. The appellate court found that Section 360.301 allowed the administrator to call upon “any court of competent jurisdiction” to assist him in the recovery of his Section 360.301 damages. The appellate court concluded that whether the administrator’s motion for reconsideration was a motion for new trial or not, it certainly sought either to vacate, modify, correct, or reform the final and appealable order. Accordingly, the judgment of the trial court was vacated and remanded.

The appellate court found that the Water District entered into a properly executed contract with the plaintiff and the trial court had jurisdiction over claims arising out of that contract.
Lower Valley Water Dist. v. Danny Sander Constr., Inc.
Appellate: Civil, Contracts, Gov't/Administrative, Procedure, Torts
Texas 8th Court of Appeals
July 10, 2019
08-17-00261-CV
Yvonne T. Rodriguez
Published
The Water District appealed the judgment of the trial court which denied its plea to the jurisdiction. On appeal, the Water District contended that the trial court lacked subject matter jurisdiction over the plaintiff’s breach of contract claim to the extent the claim was based on an amendment to the contract that was never incorporated into the contract. The Water District asserted that it did not waive immunity regarding delays or expenses caused by denial of funding for the change order because the change order was never incorporated into the contract. The appellate court noted that if the pleadings did not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but did not affirmatively demonstrate incurable defects in jurisdiction, the issue was one of pleading sufficiency and the plaintiffs should be given the opportunity to amend. The appellate court found that the Water District entered into a properly executed contract with the plaintiff and the trial court had jurisdiction over claims arising out of that contract. Accordingly, the judgment of the trial court was affirmed.

If it was within the jury’s purview to apportion responsibility between the University and the plaintiffs, any reduction in the University’s liability recovery was barred by parental immunity as a matter of law.
Ruff v. The Univ. of St. Thomas
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Torts
Texas 1st Court of Appeals
July 11, 2019
01-17-00875-CV
Russell Lloyd
Published
The plaintiffs appealed the judgment of the trial court which reduced the damage award made by the jury for injuries that the plaintiffs’ daughter sustained on the premises of the University. On appeal, the plaintiffs contended that the common-law doctrine of parental immunity prohibited the trial court from reducing the award under the apportionment-of-responsibility provisions of Chapter 33 of the Civil Practice & Remedies Code. The plaintiffs also asserted that the trial court abused its discretion by declining to adjudge costs entirely in their favor as the “successful parties” in the suit. The appellate court noted that parental immunity prevented Chapter 33 apportionment of responsibility on the record. The appellate court found that the doctrine was subject to certain exceptions not relevant, and the trial courts could properly refuse to apply parental immunity if no evidence supported its application or if its proponent failed to bring it to the court’s attention. The appellate court concluded that if it was within the jury’s purview to apportion responsibility between the University and the plaintiffs, any reduction in the University’s liability recovery was barred by parental immunity as a matter of law. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.

The appellate court concluded that the offenses contained elements that were substantially similar and that the defendant had a reportable conviction or adjudication for purposes of the Sex Offender Registration Act.
Tex. Dep’t of Pub. Safety v. Fowle
Appellate: Civil, Criminal, Procedure
Texas 14th Court of Appeals
July 11, 2019
14-18-00263-CV
Tracy Christopher
Published
The Department of Public Safety (the Department) appealed the judgment of the trial court which granted the respondent’s appeal and signed an order stating that his conviction in Arizona was not a reportable conviction or adjudication for purposes of the Sex Offender Registration Act. On appeal, the appellate court was asked to consider whether a person must register as a sex offender in Texas if he was convicted under an Arizona statute for sexual abuse. The appellate court noted that the Arizona offense required affirmative proof that the minor was not the spouse of the accused, and the Texas offense did not share this requirement, but the Texas statute provided an affirmative defense in the event that the accused was the minor’s spouse. The appellate court found that there was no indication that the Arizona statute was ever applied in the manner suggested by the respondent not even when there was no statutory defense for lack of sexual interest. The appellate court concluded that the offenses contained elements that were substantially similar and that the defendant had a reportable conviction or adjudication for purposes of the Act. Accordingly, the judgment of the trial court was reversed.

The appellate court concluded that any of the defendant’s claims based on the defendant’s failure to release the lis pendens did not implicate the Texas Citizens Participation Act.
Shopoff Advisors, LP v. Atrium Circle, GP
ADR, Appellate: Civil, Contracts, Damages, Procedure, Real Property
Texas 4th Court of Appeals
July 10, 2019
04-18-00438-CV
Liza A. Rodriguez
Published
The defendant appealed the judgment of the trial court which issued an interlocutory order denying its motion to dismiss filed pursuant to the Texas Citizens Participation Act (TCPA). On appeal, the defendant contended that the trial court erred in denying its motion because the claims brought by the plaintiff related to the exercise of the defendant’s right to petition. The parties disputed whether the TPCA applied to the underlying claims brought by the plaintiff against the defendant, and the defendant emphasized that pursuant to the TPCA, the legal action need merely to relate to a party’s exercise of the right to petition. The appellate court noted that the defendant’s alleged failure to release the lis pendens did not relate to the exercise of its right to petition. The appellate court found that the defendant Atrium did not meet its burden of establishing by clear and specific evidence a prima facie case for the element of damages with respect to its claims based on the email sent by the defendant’s attorney. The appellate court concluded that any of the defendant’s claims based on the defendant’s failure to release the lis pendens did not implicate the TCPA. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.

The trial court abused its discretion in finding it had jurisdiction over the case, and the petitioner had no adequate remedy on appeal.
In re Swart
Appellate: Civil, Constitution, Family, Procedure
Texas 5th Court of Appeals
July 09, 2019
05-19-00015-CV
David Schenck
Published
The petitioner appealed the judgment of the trial court, seeking relief from the trial court’s denial of his special appearance in a divorce proceeding brought against him by the respondent. On appeal, the petitioner contended that the respondent did not meet the statutory requirements for filing a petition for divorce in this state and that her unilateral decision to travel did not subject him or his assets to the court’s territorial jurisdiction. The appellate court noted that the Texas Family Code did not attempt to define the term “domicile” or “domiciliary.” The appellate court found that notwithstanding the petitioner’s allegation that she intended to reside in Texas permanently, she did not meet the subjective intent requirement based on the fact that the respondent was precluded by law from relocating permanently to the United States. The appellate court concluded that the trial court abused its discretion in finding it had jurisdiction over the case, and the petitioner had no adequate remedy on appeal. Accordingly, the petitioner’s petition was conditionally granted.

The trial counsel's decision not to object to the punishment recommendations was not so deficient or lacking in tactical or strategical decision-making as to overcome the presumption that counsel's performance was reasonable and professional.
Fernandez v. State
Constitution, Criminal, Evidence, Procedure
Texas 14th Court of Appeals
July 09, 2019
14-18-00353-CR
Meagan Hassan
Published
The defendant appealed the judgment of the trial court which convicted him of aggravated robbery with a deadly weapon and sentenced him to 40 years' confinement. On appeal, the defendant asserted that he received ineffective assistance of counsel because his trial counsel failed to object to the State's witnesses' and prosecutor's statements that the trial court should sentence the defendant to life imprisonment. The appellate court noted that to prevail on a claim for ineffective assistance of counsel, an appellant must show that the trial counsel's performance fell below the objective standard of reasonableness; and the deficient performance prejudiced the defense. The appellate court found that although the defendant raised through direct appeal his claim that trial counsel was ineffective for failing to object to the State's witnesses' and prosecutor's sentencing recommendations, the record did not support the conclusion that these failures to object fell below an objective standard of reasonableness. The appellate court concluded that the trial counsel's decision not to object to the punishment recommendations was not so deficient or lacking in tactical or strategical decision-making as to overcome the presumption that counsel's performance was reasonable and professional. Accordingly, the judgment of the trial court was affirmed.

The trial court did not make any findings of fact or conclusions of law, nor did it specify which factual or legal ground or agreement it was relying on when it compelled arbitration.
Rodriguez v. Tex. Leaguer Brewing Co. L.L.C
ADR, Appellate: Civil, Contracts, Damages, Procedure
Texas 14th Court of Appeals
July 09, 2019
14-17-00872-CV
Meagan Hassan
Published
The plaintiffs appealed the judgment of the trial court which granted the defendant’s application to compel arbitration and dismissed the suit for breach of contract. On appeal, the plaintiffs argued that, although the parties section 9.4 was not an agreement to arbitrate, they did not agree to arbitrate following mediation. The plaintiffs contended that this was because section 9.4.a referred to arbitration as an election, such as the party “electing” arbitration gave notice to the other parties and appointed an arbitrator. The appellate court noted that section 9.4 reflected a clear intent that if the parties were unable to settle their dispute through mediation, to submit to binding arbitration at the election of either party, and section 9.4 did not require consent of the other party when one party elected binding arbitration. The appellate court found that since the plaintiffs filed suit without first seeking mediation, they waived their right under section 9.4 to insist on mediation before arbitration and could not rely on their own failure to request mediation as a condition precedent to arbitration. The appellate court concluded that the trial court did not make any findings of fact or conclusions of law, nor did it specify which factual or legal ground or agreement it was relying on when it compelled arbitration. Accordingly, the judgment of the trial court was affirmed in part and reversed in part.

The evidence was sufficient for the jury rationally to find that the defendant’s actions prevented or interfered with the victim’s ability to request assistance.
Williams v. State
Constitution, Criminal, Evidence, Procedure
Texas 1st Court of Appeals
July 09, 2019
01-18-00332-CR
Gordon Goodman
Published
The defendant appealed the judgment of the trial court which convicted him of interference with an emergency request for assistance and sentenced him to one year in jail, probated for 18 months. On appeal, the defendant contended that the trial court erred by denying her motion for an instructed verdict at the close of the State’s evidence and that the evidence was insufficient to support her conviction. The defendant maintained that a telecommunicator could not knowingly prevent or interfere with a caller’s ability to request assistance, as required to sustain a conviction under Section 42.062(a), then consider whether sufficient evidence supported her conviction. The appellate court noted that a challenge to a trial court’s ruling on a motion for a directed verdict was a challenge to the sufficiency of the evidence to support the conviction. The appellate court found that Section 42.062(a) did not require the State to prove a complete and indefinite foreclosure of the victim’s ability to request assistance. The appellate court concluded that the evidence was sufficient for the jury rationally to find that the defendant’s actions prevented or interfered with the victim’s ability to request assistance. Accordingly, the judgment of the trial court was affirmed.

The plaintiffs failed to present evidence sufficient to raise a genuine issue of material fact that the defendant was actually aware of the presence of any water or liquid on the floor, and the knowledge of the presence of the floor cleaning machine foreclosed the premises liability claim.
Wilson v. N.W. Tex. Healthcare Sys., Inc.
Appellate: Civil, Litigation: Personal Injury, Procedure, Torts
Texas 7th Court of Appeals
May 29, 2019
07-18-00073-CV
Judy C. Parker
Published
The plaintiffs appealed the judgment of the trial court which granted summary judgment in favor of the defendant in a suit arising from a slip and fall. On appeal, the plaintiffs contended reversible error arose from improper venue. The appellate court noted that a hearing on a motion to compel was a preliminary matter in which a jury could not be demanded, and thus, the trial court could hold a hearing on the motion to compel in one county, even though the case was filed in another county. The plaintiffs maintained that a reasonable jury could view the evidence and decide in favor of the plaintiffs. The appellate court found that the plaintiffs’ negligence and negligent activity claims were based on an unsafe or dangerous condition on the property – the placement of the machine and the presence of liquid on the floor. The appellate court concluded that the plaintiffs failed to present evidence sufficient to raise a genuine issue of material fact that the defendant was actually aware of the presence of any water or liquid on the floor, and the knowledge of the presence of the floor cleaning machine foreclosed the premises liability claim. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that the defendants were entitled to an award of reasonable and necessary attorney’s fees incurred with respect to the dismissed claims.
Darnell v. Rogers
Appellate: Civil, Constitution, Damages, Ethics, Procedure, Professional Responsibility, Torts
Texas 8th Court of Appeals
July 05, 2019
08-17-00067-CV
Yvonne T. Rodriguez
Published
The plaintiffs appealed the judgment of the trial court which dismissed their claims against the defendants pursuant to the Texas Citizen’s Participation Act (TCPA). On appeal, the plaintiffs contended that the trial court erred in granting the motion to dismiss under the TCPA, so the award of attorney’s fees based on TCPA could not stand, in granting the motion to dismiss pursuant to Rule 91a, and erred in awarding attorney’s fees. The appellate court noted that the merits of a Rule 91a motion to dismiss were reviewed de novo because the availability of a remedy under the facts alleged was a question of law and the rule’s factual-plausibility standard was akin to a legal-sufficiency review. The appellate court found that the trial court erred by granting the Rule 91a motion to dismiss as to the plaintiffs’ claims for defamation and business disparagement. The appellate court concluded that the defendants were entitled to an award of reasonable and necessary attorney’s fees incurred with respect to the dismissed claims. Accordingly, the judgment of the trial court was affirmed in part and reversed in part and remanded.

Based on due deference to the trial court’s credibility determinations, the trial court did not clearly abuse its discretion in failing to find a material and substantial change in circumstances sufficient to modify the parties’ child-support obligations.
In re N.H.N.
Appellate: Civil, Family, Procedure
Texas 14th Court of Appeals
June 27, 2019
14-17-00725-CV
Tracy Christopher
Published
The father appealed the judgment of the trial court which denied his motion to modify an agreed order respecting child support. On appeal, the father contended that the trial court erred in failing to order the mother to pay him child support based on a material and substantial change in circumstances. The father also challenged the trial court’s failure to award him child support in pre- and post-judgment temporary orders. Specifically, the father asserted that by filing a counter-petition requesting child support and the right to establish the child’s primary residence, the mother judicially admitted that there had been a material and substantial change in circumstances, and thus, he was not required to prove such a change. The appellate court noted that after a trial court rendered a final judgment, any pre-judgment temporary orders became moot and were not subject to appellate review. The appellate court found that because the father’s attempted appeal of the prejudgment temporary order was rendered moot by the trial court’s final judgment, it must dismiss that part of the father’s appeal. The appellate court concluded that based on due deference to the trial court’s credibility determinations, the trial court did not clearly abuse its discretion in failing to find a material and substantial change in circumstances sufficient to modify the parties’ child-support obligations. Accordingly, the judgment of the trial court was affirmed.

The trial court abused its discretion in conditioning a new trial on the payment of attorney’s fees in spite of an uncontested affidavit of indigence.
Abrigo v. Ginez
Appellate: Civil, Damages, Family, Procedure
Texas 14th Court of Appeals
June 25, 2019
14-18-00280-CV
Kevin Jewell
Published
The wife appealed the judgment of the trial court which granted her motion for new trial conditioned on payment of the husband’s attorney’s fees in the underlying divorce. On appeal, the wife contended that the trial court abused its discretion in conditioning the grant of a new trial on paying the opposing side’s attorney’s fees because the wife was indigent and filed a statement of inability to pay costs under Texas Rule of Civil Procedure 145. The wife maintained that since she filed an affidavit of inability to pay costs, which qualified as a rule 145 statement, and it was not overruled by the trial court, it was an abuse of discretion to condition a new trial on payment of attorney’s fees. The husband counterargued that the wife’s affidavit was deficient in form, and the timing of her statement did not afford him sufficient time to assert a contest before the hearing. The appellate court found that the trial court’s order was an abuse of discretion. The appellate court concluded that the trial court abused its discretion in conditioning a new trial on the payment of attorney’s fees in spite of an uncontested affidavit of indigence. Accordingly, the judgment of the trial court was reversed and remanded for further proceedings.

Since the adjoining neighbors had no duty under the doctrine of lateral support to support their own land, that doctrine imposed no absolute duty on them to repair the retaining wall.
Scott v. West
Appellate: Civil, Damages, Litigation: Personal Injury, Procedure, Real Property, Torts
Texas 2nd Court of Appeals
July 03, 2019
02-18-00211-CV
Mark T. Pittman
Published
The plaintiffs appealed the judgment of the trial court, seeking damages and injunctive relief related to a failing retaining wall installed decades ago by the original developer of the parties’ properties, that separated the plaintiffs’ residential property from the neighbors’ elevated residential properties. On appeal, the appellate court was asked to determine whether the plaintiffs and neighbors had the legal duty to repair or replace the retaining wall. The appellate court noted that the duty was not specifically to build a retaining wall, rather the duty, as expressed through various causes of action, was for landowners to avoid using their property so as to injure another’s property. The appellate court found that liability under the doctrine arose only if the removal of lateral support caused the soil to subside. The appellate court concluded that since the adjoining neighbors had no duty under the doctrine of lateral support to support their own land, that doctrine imposed no absolute duty on them to repair the retaining wall. Accordingly, the judgment of the trial court was affirmed and remanded for further proceedings.

The appellate court concluded that the trial court appropriately exercised its discretion in refusing to dismiss the respondent’s lawsuit and in granting a new trial.
In re Coats
Appellate: Civil, Constitution, Litigation: Personal Injury, Procedure, Torts, Wills/Trusts/Probate
Texas 6th Court of Appeals
June 27, 2019
06-19-00040-CV
Ralph Burgess
Published
The petitioner appealed the judgment of the trial court which denied its motion to dismiss to personal injury suit based on a death and granted the respondent’s motion for new trial. On appeal, the petitioner claimed that the trial court lacked jurisdiction over the case after the decedent died and no estate representative was substituted in his stead. The petitioner further alleged that the trial court had no choice but to dismiss the lawsuit and that she had no adequate remedy by appeal because the new trial order and the writ of scire facias were issued by a court without jurisdiction to proceed. The appellate court noted that a suggestion of death of a defendant notified a trial court of the fact that a defendant died. The appellate court found that when a defendant died, the trial court only lost personal jurisdiction over the deceased defendant, not subject-matter jurisdiction over the case. The appellate court concluded that the trial court appropriately exercised its discretion in refusing to dismiss the respondent’s lawsuit and in granting a new trial. Accordingly, the judgment of the trial court was affirmed.

The trial court did not abuse its discretion when it denied the defendant’s request to instruct the jury on assault as a lesser-included offense.
Palacio v. State
Criminal, Evidence, Procedure
Texas 14th Court of Appeals
June 27, 2019
14-17-00512-CR
Kem Thompson Frost
Published
The defendant appealed the judgment of the trial court which convicted him of burglary of a habitation and sentenced him to forty-five years imprisonment. On appeal, the defendant argued that the trial court allowed the State to define and discuss “deadly weapon” during voir dire, failed to grant a mistrial, and failed to instruct the jury on an alleged lesser-included offense of assault. The State counterargued that the defendant did not preserve error on his complaint that the trial court overruled his objection to the State’s discussion of the legal definition for “deadly weapon” because he did not first object when the trial court read the deadly-weapon paragraph to the panel. The appellate court noted that the trial court had broad discretion over the jury-selection process. The appellate court found that because the defendant failed to secure an adverse ruling on his first motion for mistrial, he failed to preserve the complaint for appellate review. The appellate court concluded that the trial court did not abuse its discretion when it denied the defendant’s request to instruct the jury on assault as a lesser-included offense. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that when a trial court's void judgment was appealed, it had jurisdiction to declare the judgment void and dismiss the underlying case.
In re G.X.H.
Appellate: Civil, Constitution, Family, Juvenile, Procedure
Texas 14th Court of Appeals
June 27, 2019
14-19-00053-CV
Ken Wise
Published
The parents appealed the judgment of the trial court which terminated their parental rights with respect to their sons and appointed the Texas Department of Family and Protective Services (the Department) to be the boys' managing conservator. On appeal, the parents contended that the decree was void because the trial on the merits did not commence before a statutory deadline. The parents further asserted that the evidence was legally and factually insufficient to support termination. The Department counterargued that the trial on the merits did commence before the deadline, and even if it did not, the decree was not void for various reasons. The appellate court found that the Department did not demonstrate section 263.401(a) violate the constitutional protections of equal protection, due process, or separation of powers, and therefore, it did not satisfy its burden to overcome the presumption that section 263.401(a) was constitutional. The appellate court noted that it lacked jurisdiction to address the merits of an appeal from a void judgment. The appellate court concluded that when a trial court's void judgment was appealed, it had jurisdiction to declare the judgment void and dismiss the underlying case. Accordingly, the judgment of the trial court was vacated.

The marital residence was community property at the time the payments were made, and thus, the wife was not entitled to an offset because community property funds were used to pay community property expenses.
In re Marriage of Rangel
Appellate: Civil, Family, Procedure, Real Property
Texas 14th Court of Appeals
June 27, 2019
14-17-00672-CV
Kevin Jewell
Published
The wife appealed the judgment of the trial court which entered a final decree of divorce dissolving her marriage to the husband. On appeal, the wife claimed that the trial court abused its discretion by excluding certain evidence, the cumulative effect of which denied her a fair trial and probably caused an improper judgment. The wife further asserted that the trial court’s equal disposition of the marital residence was manifestly unjust because it was unsupported by factually sufficient evidence. The appellate court noted that to show that the trial court abused its discretion in excluding evidence, a complaining party must preserve error by actually offering the evidence and obtaining an adverse ruling from the court. The appellate court found that since the wife failed make a timely offer of proof, it would not reach the issue of whether the trial court abused its discretion in excluding evidence that she used separate property to purchase the marital residence. The wife further alleged that the exclusion probably caused the rendition of an improper judgment because her testimony probably would have had a substantial impact on the division of the marital residence. The appellate court concluded that the marital residence was community property at the time the payments were made, and thus, the wife was not entitled to an offset because community property funds were used to pay community property expenses. Accordingly, the judgment of the trial court was affirmed.

The appellate court concluded that no reasonable factfinder could form the firm belief or conviction that termination of the mother’s parental rights was in the best interest of the children.
In re K.N.J.
Family, Procedure
Texas 4th Court of Appeals
July 03, 2019
04-18-00826-CV
Luz Elena D Chapa
Published
The mother appealed the judgment of the trial court which terminated her parental rights. On appeal, the mother argued that there was legally and factually insufficient evidence that termination of her parental rights was in the children’s best interest. The Department maintained that the factor supported terminating Shari’s parental rights, pointing to evidence of a pattern of relationships with abusers and asserting Shari has not acknowledged the harm her former partners have caused the children. The Department further asserted that if and when the children achieved stability and reached a point in their therapy where they were ready for a permanent placement, the pool of potential foster-to-adopt homes would be smaller if the mother maintained her parental rights. The appellate court noted that the testimony at trial disclosed that the children were removed from the mother’s custody in as a result of allegations the mother’s boyfriend had sexually abused them. The appellate court found that the evidence was insufficient to prove that termination of the mother’s rights was in the children’s best interest. The appellate court concluded that no reasonable factfinder could form the firm belief or conviction that termination of the mother’s parental rights was in the best interest of the children. Accordingly, the judgment of the trial court was reversed in part.

The trial court was within its discretion to find that the defendant was manipulating his right to counsel by being intentionally uncooperative with counsel to get him to withdraw and trigger a continuance just days before trial.
Temple v. State
Constitution, Criminal, Evidence, Procedure
Texas 6th Court of Appeals
July 03, 2019
06-19-00015-CR
Josh Morriss, III
Published
The defendant appealed the judgment of the trial court which convicted him of evading arrest or detention with a motor vehicle and sentenced him to forty years in prison. On appeal, the defendant argued that he received ineffective assistance of counsel, the trial court erred by denying his counsel’s motion to withdraw, and the trial court erred by denying his motion for continuance. The defendant further asserted that counsel was ineffective because he held a personal animus toward him. The appellate court noted that counsel admitted to having personal animus toward the defendant and voluntarily asked to be relieved from his appointed representation; however, counsel’s dislike of his client did not constitute deficient performance for purposes of ineffective assistance. The appellate court found that the defendant failed to show his counsel’s performance was deficient, the trial court was within its discretion to deny the motion to withdraw, and there was no error regarding the motion for continuance was preserved. The appellate court concluded that the trial court was within its discretion to find that the defendant was manipulating his right to counsel by being intentionally uncooperative with counsel to get him to withdraw and trigger a continuance just days before trial. Accordingly, the judgment of the trial court was affirmed.

The Department of Motor Vehicles’ explanation of its changes to the finding of fact and corresponding conclusions of law were insufficient to meet section 2001.058(e)’s requirements to state the specific reason and legal basis for the changes.
Hyundai Motor Am. v. New World Car Nissan, Inc.
Appellate: Civil, Gov't/Administrative, Procedure, Transportation
Texas 3rd Court of Appeals
July 03, 2019
03-17-00761-CV
THOMAS J. BAKER
Published
The petitioner appealed the decision of the Board of the Texas Department of Motor Vehicles (the Board) which determined that it violated the Texas Occupations Code in its transactions with its franchised dealers. On appeal, the Board contended that because the petitioner sought only judicial review of an order of the Board and asserted no other claim against any of the State defendants, those other defendants should be dismissed from the case with prejudice. The appellate court noted that the Occupations Code authorized judicial review of final actions of the Board in matters arising under Chapter 2301. The appellate court found that the Board did not explain how its opposite ultimate findings and conclusion were reasonably supported by the administrative law judge’s numerous basic findings that the Board adopted, and it did not articulate any rational connection between any underlying agency policy and the altered findings and conclusion. The appellate court concluded that the Board’s explanation of its changes to the finding of fact and corresponding conclusions of law were insufficient to meet section 2001.058(e)’s requirements to state the specific reason and legal basis for the changes. Accordingly, the decision of the Board was reversed and remanded for further proceedings.