Most Viewed Decisions

Court of Appeals of Texas, Fifth

In Re Paxton, 05-17-00507-CV (TexApp Dist 05/30/2017)

Judge George Gallagher presided over the state's criminal case against Relator Warren Kenneth Paxton, Jr. in Collin County. Gallagher granted the state's motion to transfer the case to Harris County, and relator advised Gallagher that he did not consent to Gallagher continuing to preside over the case in Harris County. Relator also moved for the Collin County clerk to transfer files to Harris County. Gallagher, however, scheduled the trial in Harris County and invited the parties to tour the Harris County facilities. Furthermore, the Collin County clerk declined to transfer files, advising relator that doing so might run afoul of Gallagher's directions. Relator sought mandamus relief, on grounds that a judge who transfers venue may not preside over the case without the consent of the state, the defendant, and defendant's counsel. The court found that a change of venue order "immediately and automatically" vests jurisdiction in the new court. The court also found that under Tex. Code Crim. Proc. Art. 31.09, a judge who transfers venue cannot continue to preside over the case without consent of all parties. Because defendant withheld his consent, the court held that all orders Gallagher issued after the change of venue were void. The court thus granted conditional mandamus relief, ordering Gallagher to vacate the scheduling order, any express or implied orders preventing the Collin County clerk from transferring case files, and any other orders issued after the change of venue. In Re Paxton, Dallas Court of Appeals, Case No. 05-17-00507-CV, 5/30/17.

05-17-00507-CV
ROBERT M. FILLMORE, JUSTICE

United States Court of Appeals, Fourth Circuit

State of Texas v. Ruiz, 04-16-00226-CR (4th COA. 07/26/2017)

Ruiz was working as a substitute teacher when students complained to administrators that he appeared to be taking upskirt pictures of female students. Upon being questioned by school administrators, Ruiz acknowledged that he "had a problem." The school administrator (Saenz) took possession of Ruiz's cell phone and stated that he was going to provide it to law enforcement. The phone was found to contain upskirt pictures, and Ruiz was charged with multiple counts of attempted production of sexual performance by a child. The trial court granted Ruiz's motion to suppress the pictures on the cell phone. The court reversed. It held that Saenz was a private citizen and not a law enforcement agent and that Ruiz had not shown that Saenz violated the law when he took the phone with the intent to providing it to law enforcement. State v. Ruiz, Court of Appeals, No. 04-16-00226-CR, 7/26/17.

04-16-00226-CR
PATRICIA O. ALVAREZ, JUSTICE

Court of Appeals of Texas, Fourteenth

Thompson v. Geico, 14-16-00154-CV (TexApp Dist 08/03/2017)

Appellant owned a 2011 Infiniti G37 automobile and secured insurance for it from appellee. Appellant subsequently traded in her vehicle and leased a 2015 Infiniti Q50 automobile but did not notify appellee that she had acquired the replacement vehicle. A few months later, while driving the Q50, appellant was involved in an automobile accident. Appellant filed a claim with appellee the day of the accident which was appellee's first notification of the difference vehicle. Appellee denied the claim because appellant failed to notify it within thirty days of acquiring the new vehicle, citing to a replacement-vehicle notification provision in the insurance policy as support for its denial. Appellant filed suit alleging breach of contract, breach of the duty of good faith and fair dealing, violations of the Texas Deceptive Trade Practices Act, and violations of the Texas Insurance Code. On motion, the trial court granted appellee's summary judgment. On appeal, appellant argued the policy's replacement-vehicle notification requirement did not apply to leased vehicles or, alternatively, that the policy language was ambiguous to the point and should be construed in her favor. The court affirmed finding the policy required appellant who leased a vehicle to comply with the notice requirements to extend coverage to that vehicle. The court discerned no other reasonable interpretation of the operative policy provisions and declined to conclude the policy was ambiguous. Accordingly, the trial court properly granted appellee's motion for summary judgment. Thompson v. GEICO Insur. Agency, Inc., Houston 14th Court of Appeals, Case No.: 14-16-00154-CV, 08/03/2017.

14-16-00154-CV
KEM THOMPSON FROST, CHIEF JUSTICE

Court of Appeals of Texas, First District

Phillips v. State of Texas, 01-16-00653-CR (TexApp Dist 07/27/2017)

Police officer Meyers pulled over a car in a parking lot before dawn. He approached the vehicle and saw appellant Joseph Jamal Phillips behind the wheel with another man in the passenger seat. Although it was still dark out, Meyers testified he could clearly see appellant and the passenger in the light of his cruiser's spotlight. The car then pulled away and led Meyers and other officers on a high-speed chase for half an hour, ending when the car crashed and the two occupants exited and attempted to run away. Meyers caught the passenger and could be heard on his dash-cam video asking other officers if they caught the driver; in fact, another officer had caught appellant. Officers found a bag of marijuana in the car, and the trial court admitted evidence of the marijuana over appellant's objection that it was extraneous. The court also allowed an officer to testify about appellant's gang affiliation, partially based on his tattoos, over appellant's objection. The court convicted appellant of felony evading arrest and sentenced him to 50 years, based on enhancements. On appeal, he argued that the state provided insufficient evidence that he was driving the car, and also challenged the admission of the marijuana evidence and the gang affiliation testimony. The court, viewing the evidence in the light most favorable to the verdict, found that Meyers' testimony that he could see appellant in the driver's seat in the spotlight was sufficient to establish appellant as the driver. The court also noted that Meyers' repeated question on the dash-cam video about whether anyone caught "the driver" showed he was fully confident at the time that the other man was the passenger, not the driver, and thus the dash-cam footage supported his contention that appellant was the driver. The court also upheld the admission of the marijuana evidence, finding that the trial court properly ruled that it could establish a motive for fleeing police. The court found the expert witness on gangs was qualified, even though he worked a different area of Houston than the one where the offense occurred, because he established appellant was a member of a nationwide gang that he tracked. The court also found that gang tattoos have "distinctive meaning" and are "sound evidence" of affiliation. The court affirmed the trial court's judgment. Joseph Jamal Phillips v. The State of Texas, Houston 1st Court of Appeals, Case No. 01-16-00653-CR, 7/27/17.

01-16-00653-CR
EVELYN V. KEYES, JUSTICE

Supreme Court of Texas

United Scaffolding v. Levine, 15-0921 (TexApp Dist 06/30/2017)

Levine, a pipefitter, alleged that he slipped on scaffolding, injuring his neck. He sued United Scaffolding, Inc. (USI), claiming that it improperly constructed the scaffold and failed to remedy or warn of the dangerous condition on the scaffold, causing his injury. The trial court submitted a general-negligence question to the jury, and USI neither offered a premises liability question nor objected to the general-negligence question. The jury allocated 100% of the responsibility to USI and awarded Levine nearly $2 million in past and future damages. USI filed a motion for judgment notwithstanding the verdict, arguing that that the trial court improperly submitted a general-negligence question to the jury when Levine's claim sounded in premises liability. Levine asserted that submission of the improper theory of recovery required the trial court to render a take-nothing judgment. The trial court denied the motion and the court of appeals affirmed. The court reversed. It held that USI properly preserved error by raising its argument in its motion for judgment notwithstanding the verdict. It further held that the nature and circumstances of Levine's injury, Levine's allegations against USI, and the evidence presented at trials showed that Levine's claim was premised on USI's having the right to control the scaffold at the time Levine allegedly suffered injury. As a result, the court held that, because Levine's claim sounded in premises liability, the general-negligence findings could not support Levine's recovery. United Scaffolding, Inc. v. Levine, Supreme Court, No. 15-0921, 6/30/17

15-0921
PAUL W. GREEN, JUSTICE

Court of Appeals of Texas, Fourteenth

University of Texas v. McKenzie, 14-16-00681-CV (TexApp Dist 08/03/2017)

The McKenzie estate sued MD Anderson following the death of Courtney McKenzie, alleging that MD Anderson's negligence caused her death. MD Anderson filed a plea to jurisdiction, arguing that it was immune from suit under the TTCA because an independent contractor performed the procedure, and that McKenzie's death was not foreseeable. Following a hearing, the trial court denied MD Anderson's plea to jurisdiction. The court affirmed the trial court's denial of MD Anderson's plea. It agreed that the estate alleged and produced evidence that MD Anderson "used" tangible personal property, waiving its immunity. It also agreed that the estate alleged and produced evidence that MD Anderson proximately caused McKenzie's death. It accordingly affirmed the trial court's order denying MD Anderson's plea to jurisdiction and remanded the case to the trial court for further proceedings. University of Texas M.D. Anderson Cancer Center v. McKenzie, Court of Appeals, No. 14-16-00681-CV, 8/3/17.

14-16-00681-CV
KEVIN JEWELL, JUSTICE

United States Court of Appeals, Fourth Circuit

Dwyer v. State of Texas, 04-15-00805-CR (4th COA. 07/26/2017)

A jury convicted appellant Edward James Dwyer, Jr., of two sex crimes against his minor daughter, C.D. The continuous sexual abuse conviction was based on incidents of touching her genitals between January 2011 and June 6, 2012. The aggravated sexual assault charge was based on an incident of penetrating her with his finger on June 12, 2012. On appeal, appellant argued that the trial court's jury instructions could have permitted the jury to convict on both charges based on a single incident, in violation of Double Jeopardy protections. The instruction was that "the State is not required to prove the exact dates alleged in the indictment." The court rejected appellant's argument that the court thereby instructed the jury to disregard the dates of the alleged incidents, but the court acknowledged the instruction raised a theoretical possibility of convicting on a single incident. However, it also found that evidence of the alleged dates, and therefore of separate incidents, was clear: The state chose June 6, 2012, as the cut-off for the first charge because C.D.'s mother died that day, and C.D.'s testimony showed the abuse escalated after her death. The court thus held that any error was not harmful. In another issue, appellant argued the trial court violated his Constitutional rights by denying his request for potential jurors to stay in their assigned seats while his attorney made strikes. Appellant argued he did not know who was who without being able to see the venire panel and thus could not intelligently confer with his attorney. The court reasoned that appellant could have made notes or other memory aids, and thus the trial court was within its broad authority to conduct jury selection. In another issue, appellant argued evidence related to the earlier incidents was insufficient to show that he touched C.D. with the intent to gratify himself. Appellant had argued that C.D. equivocated in her testimony; however, the court found that because Dwyer told police he was aroused at least once or twice while touching C.D., a rational jury could find that evidence sufficient. The court affirmed the trial court's judgment. Edward James Dwyer, Jr., v. The State of Texas, San Antonio Court of Appeals, Case No. 04-15-00805-CR, 7/26/17.

04-15-00805-CR
LUZ ELENA D. CHAPA, JUSTICE

Court of Appeals of Texas, Sixth Appellate District

Bolton v. Fisher, 06-16-00082-CV (TexApp Dist 07/26/2017)

While walking to her mailbox, appellant was viciously attacked by two dogs owned by her neighbor. After undergoing seven surgeries as a result of the attack, appellant sued the neighbor and appellee, her landlord, and asserted separate causes of action for negligence, strict liability, public nuisance, and private nuisance. Among other things, appellant's petition alleged that appellee knew the neighbor was harboring aggressive dogs on her property, but failed to use reasonable care to prevent the attack. On motion, the trial court granted appellee's traditional and no-evidence summary judgment finding appellee owed no duty of ordinary care to appellant. On appeal, the court reversed concluding there were genuine issues of material fact as to whether appellee had actual knowledge of the presence of a vicious animal on the leased premises. Here, the case established that appellee saw the dogs prior to the attack, described them as aggressive dogs, and knew the neighbor was keeping them to serve as guard dogs. The court noted, however, that evidence must be presented of appellee's actual knowledge of a dog's dangerous propensities in order for a duty to exist to protect others from a lessee's dog. The court concluded appellant demonstrated appellee knew the guard dogs' were aggressive in nature sufficient enough to withstand a no-evidence motion for summary judgment. Bolton v. Fisher, Texarkana Court of Appeals, Case No.: 06-16-00082-CV, 07/26/2017.

06-16-00082-CV
RALPH K. BURGESS JUSTICE

Court of Appeals of Texas, Fourteenth

Clear Creek v. Cotton Commerical, 14-16-00466-CV (TexApp Dist 08/01/2017)

After Hurricane Ike damaged several of its campuses, appellant Clear Creek Independent School District contracted with Cotton USA, a predecessor to appellee Cotton Commercial, to remove debris and make repairs. A dispute ensued over debris removal purported to have been done by a subcontractor, and appellant paid Cotton only $700,000 of the $1.4 million invoiced. The subcontractor eventually produced false documentation of its work to substantiate Cotton's claims, which led to the Federal Emergency Management Agency withholding more than $250,000 in reimbursement that appellant sought. Appellant sued, the trial court compelled arbitration on Cotton's motion, and the arbitrator awarded Cotton roughly $670,000 plus interest for appellant's failure to pay. When Cotton moved to confirm the award at the trial court, appellant moved to vacate, claiming the trial court lacked subject-matter jurisdiction due to governmental immunity. The trial court denied the motion and confirmed the award, and an appeal followed. Appellant argued that its contract was not subject to the immunity waiver in Tex. Loc. Gov't Code §271.152 because it did not contain a statement of the work to be done, and therefore did not meet §271.152(2)'s requirement that the written contract must "state the essential terms of the agreement." The court found that the service provided is indeed an essential term under the statute, but that general terms in the contract regarding cleanup were sufficient to meet the "low threshold" for stating terms under the statute. The court rejected appellant's argument that the contract failed to state essential terms because it did not specifically provide for Cotton to use subcontractors. The court found that the contract simply called for Cotton to provide debris removal and for appellant to pay Cotton regardless of how the service was rendered. The court also noted that when appellant initially sued Cotton, it argued that the contract included debris removal services. The court held that the trial court had subject-matter jurisdiction over appellant and affirmed the trial court's judgment. Clear Creek Ind. School Dist. v. Cotton Commercial USA, Inc. Houston 14th Court of Appeals, Case No. 14-16-00466-CV, 8/1/17.

14-16-00466-CV
KEVIN JEWELL, JUSTICE

Court of Appeals of Texas, Third District

In re Volkswagen, 03-17-00478-CV (TexApp Dist 07/28/2017)

The state sued to enforce the Texas Clean Air Act against Volkswagen based on issues with its diesel engines. Later, several counties also filed TCAA enforcement claims, which were consolidated in a multi-district litigation action. The state pleaded for the MDL court to abate the counties' claims, the MDL court denied the plea, and the state filed for mandamus relief. The appeals court found that the state acquired dominant jurisdiction in all 252 Texas counties when it filed its claims, and the MDL court was required to abate the claims. The court rejected the counties' argument that the statutory MDL scheme superseded common-law dominant jurisdiction. The court found that the statute was intended for cases of separate injuries all arising from the same fact pattern, and that it does not control when the competing claims involve the same controversy. "[T]hese TCAA enforcement actions differ from the typical MDL cases in that each local-government action seeks, by definition, to punish the very same violations that the State could, using the same penalty and enforcement mechanism set forth in the TCAA and including the State as a necessary party as required by the TCAA," the court found. The court also rejected the counties' argument that mandamus relief is unwarranted because no harm would come to the state if the MDL action proceeded; the court found that dominant jurisdiction mandates an abatement. The court granted conditional mandamus relief, directing the MDL court to grant the abatement. In re Volkswagen, Austin Court of Appeals, Case No. 03-17-00478-CV, 7/28/17.

03-17-00478-CV
JEFF ROSE, CHIEF JUSTICE