Recent Decisions

COURT OF CRIMINAL APPEALS OF TEXAS

ANTONIO LEIJA, JR., Appellant v. THE STATE OF TEXAS

The court of appeals denied the state's motion to recuse a court of appeals' justice. While the denial of a recusal motion is reviewable, there is no explicit right to file a petition for discretionary review from an interim ruling. The state's motion to stay proceedings is denied. Court of Criminal Appeals, No. PD-0241-15, 03-18-2015

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI - EDINBURG

4FRONT ENGINEERED SOLUTIONS, INC., Appellant, v. CARLOS ROSALES, INDIVIDUALLY, AND ROSA MEJIA AS NEXT FRIEND OF CARLOS ROSALES, JR., Appellees.

The appellant challenges a judgment in excess of $10 million rendered in a personal injury suit arising from a forklift accident. The appellee was one of two electricians hired to repair an illuminated sign. The appellant allowed the first electrician to use the forklift, which tipped over, causing the injury to the other electrician. Texas Civil Practice and Remedies Code Chapter 95 does not apply to this case. The evidence supported a finding that the appellant's employee should have known that the first electrician was an incompetent forklift operator, but the evidence did not support a finding that the employee actually knew that. The evidence was sufficient to support liability on a negligent entrustment theory. Under such a theory, the entrustor is liable for the acts of the entrustee, without regard to the degree of negligence of the entrustor itself. Evidence of an OSHA regulation was relevant and therefore generally admissible under Texas Rule of Evidence 401. The award of exemplary damages is deleted, and the trial court's judgment is otherwise affirmed. Corpus Christi Court of Appeals, No. 13-13-00655-CV, 03-12-2015

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

HWY 3 MHP, LLC, Appellant v. Electric Reliability Council of Texas (ERCOT), Appellee

The appellant, a retail-electric-service provider, challenges the grant of ERCOT's plea to the jurisdiction and the dismissal of the appellant's counterclaims. ERCOT is not a governmental unit as that term is used in Texas Civil Practice and Remedies Code §101.001(3)(D): ERCOT is not fulfilling the same role that a government agency is performing and has not been statutorily defined as being a part of a governmental unit; ERCOT is not statutorily entitled to any services or benefits that a typical governmental unit might receive; ERCOT does not receive funding from the state. The appeal is dismissed for want of jurisdiction. Austin Court of Appeals, No. 03-14-00303-CV, 03-12-2015

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Tommy Adkisson, Individually, and Officially on Behalf of Bexar County, Texas as County Commissioner Precinct 4, Appellant v. Ken Paxton, Attorney General of Texas; and Hearst Newspapers, LLC, Appellees

A county commissioner contends that correspondence from his personal e-mail accounts is not subject to disclosure under the Texas Public Information Act. Official-capacity e-mails related to official county business are necessarily information held in connection with the transaction of official business, and this information is held for the county, which owns it. Thus, it satisfies the PIA's definition of "public information." The trial court's judgment is affirmed as modified to reflect that only the county is liable for the attorneys' fees awarded. Austin Court of Appeals, No. 03-12-00535-CV, 03-16-2015

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

DAVID MICHAEL DOLLINS, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his conviction by a jury of alleged felony escape. The appellant claims the trial court erroneously limited his cross-examination of one of the state's witnesses. The appellant made no objection to the trial court about the limitation of cross-examination or any violation of his Confrontation Clause rights. The appellant made no attempt to inform the trial court what line of questioning he would have pursued or what answers he would have sought to elicit upon further cross-examination on the limited issue. The appellant failed to preserve the point of error. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-14-00133-CR, 03-17-2015

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

LEAVELLE FRANKLIN, Appellant v. THE STATE OF TEXAS, Appellee

The appellant argues that that the trial court erred in admitting a Sexual Assault Nurse Examiner's reports over his hearsay objection. Unlike statements made to non-medical professionals, which require affirmative evidence in the record on the issue of veracity, courts can infer from the record that the victim knew it was important to tell a SANE the truth in order to obtain medical treatment or diagnosis. Asking the jury to "fight for those little girls" constituted a plea for abandonment of objectivity, which does not fall within the four categories of permissible jury argument; the error was harmless. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-14-00046-CR, 03-10-2015

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

KEVA NUCKOLS SAMPSON, Plaintiff - Appellant v. ASC INDUSTRIES, Defendant - Appellee

The plaintiff died while this age discrimination suit was pending. After the 90 days allotted for substitution of a party passed without any motion being filed, the district court granted the defendant's motion to dismiss. A Federal Rule of Civil Procedure 25 notice of death must be personally served on a deceased-plaintiff's estate, in accordance with Rule 4, before the 90-day clock can begin to run on the deceased-plaintiff's action. The district court's judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 14-10085, 03-13-2015

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. KENDRICK JERMAINE FULTON, also known as Ken Fulton, Defendant - Appellant

This is a review of the appellant's second 28 U.S.C. §2255 motion. The district court did not err by transferring this motion for lack of jurisdiction; the current motion asserts an ineffective assistance claim that was previously denied in his first §2255 motion. A transfer order under §1631 is not a final order within the meaning of §2253(c)(1)(B), and the appeal of such an order does not require a certificate of appealability. The district court's order is affirmed and remanded with instructions to dismiss for want of jurisdiction. 5th U.S. Circuit Court of Appeals, No. 12-10659, 03-16-2015

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellant v. ROBERT KALUZA; DONALD VIDRINE, Defendants - Appellees

The district court dismissed 10 counts of seaman's manslaughter in violation of 18 U.S.C. §1115 for failure to charge an offense. The defendants were well site leaders working on the Deepwater Horizon rig. The district court was correct in its "common attribute" analysis of the statute. The district court found that the terms "captain," "engineer," and "pilot" suggest a class of persons dealing with the operation and navigation of the vessel. Thus the statutory phrase "every . . . other person" includes only those persons responsible for the "marine operations, maintenance, or navigation of the vessel." As a result, the defendants were excluded. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-30122, 03-11-2015

Practice Areas: Criminal Law

SUPREME COURT OF TEXAS

KCM FINANCIAL LLC, R.J. SIKES, ROGER SIKES, KATHY SIKES, GREG LOUVIER, PAM LOUVIER, CHRISTY ROME, R. CRIST VIAL, DACOTA INVESTMENT HOLDINGS, L.L.P. A/K/A DACOTA INVESTMENT HOLDINGS, L.P., RANGE RESOURCES CORPORATION, AND RANGE PRODUCTION I, L.P, PETITIONERS, v. BETTY LOU BRADSHAW, RESPONDENT

This case involves an oil and gas lease. The non-executive contends that the executive breached its duty by executing a mineral lease on terms that included a sub-market royalty rate, which the executive and non-executive would share equally, in exchange for an above-market bonus payable only to the executive. The non-executive also alleges that the lessee acted in concert with the executive in facilitating the breach and that the executive's ill-gotten gains were fraudulently transferred to third parties. An executive owes a duty of utmost good faith and fair dealing to a non-executive and is prohibited from engaging in self-dealing in connection with the formation of a mineral-lease agreement. The alleged failure to obtain a market-rate royalty does not, in and of itself, constitute a breach of that duty. Any possible liability cannot be imputed to the lessee under civil-conspiracy and aiding-and-abetting theories as a matter of law. The royalty owners conclusively negated at least one element of the constructive-trust claim and there is no evidence of insolvency, as alleged in the fraudulent-transfer claim. The court of appeals' judgment is reversed and rendered in part, affirmed in part, and remanded. Texas Supreme Court, No. 13-0199, 03-06-2015

SUPREME COURT OF TEXAS

THE FREDERICKSBURG CARE COMPANY, L.P., PETITIONER, v. JUANITA PEREZ, VIRGINIA GARCIA, PAUL ZAPATA, AND SYLVIA SANCHEZ, INDIVIDUALLY AND AS ALL HEIRS OF ELISA ZAPATA, DECEASED, RESPONDENTS

The McCarran-Ferguson Act provides an exemption from preemption that applies to state statutes enacted for the purpose of regulating the business of insurance. The trial court found the McCarran-Ferguson Act applied to the plaintiffs' claims against a nursing home, triggering the exemption under which the Federal Arbitration Act would not preempt Texas Civil Practice and Remedies Code §74.451, relating to agreements to arbitrate health care liability claims. Chapter 74, as a whole, was not a law enacted by the Texas Legislature for the purpose of regulating the business of insurance. Section 74.451 is not a law enacted for the purpose of regulating the business of insurance for purposes of the MFA. The MFA does not exempt §74.451 from preemption by the FAA, and the trial court should have granted the nursing home's motion to compel arbitration. The court of appeals' judgment that affirmed the trial court is reversed and remanded. Texas Supreme Court, No. 13-0573, 03-06-2015

Practice Areas: Health Law

COURT OF CRIMINAL APPEALS OF TEXAS

EX PARTE ERIC MICHAEL HEILMAN, Appellee

In an application for a writ of habeas corpus, the appellee challenged the trial court's jurisdiction to accept his plea to a time-barred offense. Phillips's distinction between factual and pure-law limitations defenses was in error, at least in circumstances lacking any legislative ex post facto violation. In circumstances lacking any legislative ex post facto violation, especially when that occurs in the context of a good-faith, arm's length plea agreement, both factual and pure-law limitations defenses are Marin category-three forfeitable rights. The holdings of the habeas court and the court of appeals are reversed and remanded. Court of Criminal Appeals, No. PD-1591-13, 03-18-2015

Practice Areas: Criminal Law

SUPREME COURT OF TEXAS

IN RE CRAWFORD & COMPANY, CRAWFORD & COMPANY HEALTHCARE MANAGEMENT, INC., PATSY HOGAN AND OLD REPUBLIC INSURANCE COMPANY, RELATORS

The plaintiffs, one of which suffered an injury while working, filed suit against the employer's workers' compensation insurance provider. The plaintiffs specifically pleaded that the Texas Workers' Compensation Act does not require them to pursue their claims through its administrative procedures or otherwise exhaust administrative remedies. The Division of Workers' Compensation has exclusive jurisdiction over a claim for "misrepresentation of an insurance policy" when the alleged misrepresentation occurs within the claims-settlement context. The writ of mandamus requested by the insurer is conditionally granted. Texas Supreme Court, No. 14-0256, 02-27-2015

Practice Areas: Labor and Employment

SUPREME COURT OF TEXAS

AMERICAN STAR ENERGY AND MINERALS CORPORATION, PETITIONER, v. RICHARD "DICK" STOWERS, RICHARD W. STOWERS, FRANK K. STOWERS AND LINDA SUE JASURDA, RESPONDENTS

A judgment creditor attempted to collect from a partnership after litigating a contract claim for over a decade and a half. The partnership was insolvent. When the creditor sought a judgment against the individual partners, the trial court ruled the limitations period began when the underlying cause of action accrued. The court of appeals affirmed. In light of a partnership's status as a separate entity and the statutory prerequisites to proceeding against a partner, the cause of action against a partner does not accrue until a creditor can proceed against a partner's assets-that is, generally at the expiration of the 90-day satisfaction period. The court of appeals' judgment is reversed and remanded. Texas Supreme Court, No. 13-0484, 02-27-2015

Practice Areas: Business Entities

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

IN RE ROY DEAN DUFFEY

The relator asks for a writ of mandamus directing the trial judge to enforce a plea agreement. Between the time when a trial court accepts the plea of guilty - by finding the defendant competent and finding that his plea was free and voluntary - and the time when the court finds the defendant guilty, or defers adjudication of guilt, and imposes the agreed upon sentence, the trial court has broad discretion to accept or reject the state's sentencing recommendation. The relator bargained for a sentencing recommendation of shock probation. The judge could not impose that sentence without further hearing and without a PSI report. Thus, the trial judge had many steps remaining before he could impose the recommended sentence. The petition is denied. Texarkana Court of Appeals, No. 06-15-00008-CR, 02-27-2015

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

HERITAGE CONSTRUCTORS, INC., Appellant v. CHRIETZBERG ELECTRIC, INC., AND RICHARD MARC CHRIETZBERG, Appellees

After a construction company was named prime contractor, a subcontractor, the appellee, withdrew its subcontract bid. Where an agreement explicitly states a time for performance greater than one year, the mere possibility that the agreement could be performed within one year is not enough to satisfy the statute of frauds. Nowhere in the written bid is the prime contractor mentioned or identified as the recipient of the bid. Oral testimony was necessary to identify the prime contractor as the recipient of the bid. The appellant failed to point to any actions unequivocally referable to its agreement with the appellee, or that could be considered a partial performance by the appellant of the agreement. The trial court's judgment is affirmed in part, and reversed and rendered in part. Texarkana Court of Appeals, No. 06-14-00048-CV, 03-04-2015

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

SKIE JORDAN SMITH, Appellant v. THE STATE OF TEXAS, Appellee

The appellant complains that the trial court erred in allowing the alleged victim's mother to testify as an outcry witness, instead of another person the appellant argues was the proper outcry witness. Nothing in the appellant's trial objections alerted the trial court that the appellant believed the mother was not the proper outcry witness. Although there may have been a valid argument for the exclusion of an audio/video recorded interview with the alleged victim, that argument was not presented to the trial court - at trial, the appellant referred to a "prior objection" that did not in fact relate to the video recording. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-14-00071-CR, 02-25-2015

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

IN THE INTEREST OF C.A.J., A CHILD

The appellant challenges the termination of his parental rights to a child. The appellant argues that Texas Family Code §161.001(1)(L) requires a finding of serious injury to a child and that such a finding cannot be inferred from the mere commission or conviction of indecency with a child - here, the evidence was sufficient for the trial court to make a finding under §161.001(1)(E). As to the first Holley factor, the appellant's love for his child and the fact that he was an active part of her life is not evidence concerning the desires of the child herself. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-14-00089-CV, 02-27-2015

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

RUSSELL D. MILLER AND JULIET INVESTMENTS, INC., Appellants, v. DARLENE ARGUMANIZ, INDIVIDUALLY AND ON BEHALF OF ARGMIL, INC., Appellees.

This case, alleging fraud and breach of fiduciary duty, concerns an oral agreement between shareholders to transfer a parcel of real estate to a corporation. Lost profits are damages for the loss of income to a business, not the value of property allegedly promised but not delivered. While an appraisal of the property performed closer in time to the foreclosure would perhaps be entitled to more weight on the issue of past economic damages, an appraisal completed four years prior is not irrelevant. Because the jury was instructed about common law fraud, attorney's fees were not recoverable on that claim. The trial court's judgment is reversed and rendered in part, and affirmed. El Paso Court of Appeals, No. 08-13-00091-CV, 02-11-2015

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

MICHAEL D. KARNS, Appellant, v. JALAPENO TREE HOLDINGS, L.L.C., MARK S. PARMERLEE, and PAUL BAMBREY, Appellees.

The trial court held that the appellant, the owner of a restaurant chain, could not hold the appellee, a competing restaurant chain, liable for alleged breach of a letter of intent. The LOI is enforceable insofar as the parties agreed to confidentially negotiate a final sales agreement in good faith and refrain from engaging other parties during that process. Although the LOI does not explicitly state that it is non-binding, the agreement grants either side the option to terminate the LOI, clearly indicating that the parties intended to go through with the sale only if they reached a definitive agreement. There is more than a scintilla of evidence showing the appellee negotiated in good faith. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-13-00314-CV, 02-20-2015

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

IN THE INTEREST OF: S.A.P., C.M.P., AND J.L.P., MINOR CHILDREN.

The appellant challenges the best-interests finding in the trial court's order terminating his parental rights to three children. Inferences may be drawn from the father's invocation of his 5th Amendment right. It is a reasonable inference that he would return home after release from a state hospital. Father had the opportunity to testify concerning his medication, psychiatric treatment, progress, goals and plans for his children; he cannot now complain that the Department of Protective and Family Services provided little evidence of medical treatment or the severity of his alleged paranoid schizophrenia. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-14-00312-CV, 02-13-2015

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

IN RE: UNION PACIFIC RAILROAD COMPANY AND WANDA HECKEL, RELATORS,

The relators challenge an order compelling them to turn over a train engineer's medical records. There are neither pleadings nor evidence in the record demonstrating that the plaintiff is relying on the engineer's medical condition as the basis for her negligence claims such that it is an ultimate or central issue in the case. It is not enough that inadequately-treated sleep apnea might have caused the engineer to be drowsy or that the medications might cause confusion as a side effect. These theories amount to nothing more than an allegation that the medical condition may be relevant to the negligence claims. The writ of mandamus is conditionally granted. El Paso Court of Appeals, No. 08-14-00141-CV, 02-11-2015

Practice Areas: Torts

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CENTRAL SOUTHWEST TEXAS DEVELOPMENT, L.L.C., Plaintiff - Appellee v. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Defendant - Appellant, FDIC/ WASHINGTON MUTUAL BANK, Federal Deposit Insurance Corporation, as Receiver for Washington Mutual Bank, Intervenor - Appellant

The plaintiff-appellee entered into a lease agreement with a bank as lessee. The appellee sued after it determined that the lease was "other real estate" that passed to a successor bank after the initial lessee bank failed. The appellants, the successor bank and the FDIC, waived the issue of whether the appellee's contract to purchase the property was an option contract, or whether an option contract would deprive the appellee of privity of estate with the appellant bank, because this defense was never raised in the district court. Emails sent by the appellee did not seek a contractual rescission, but instead reflected the appellee's incorrect understanding of the terms of the purchase and assumption agreement and the FDIC's repudiation authority. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-51083, 03-02-2015

Practice Areas: Residential and Commercial Real Estate

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JOSE MANUEL RODRIGUEZ-AVALOS, Petitioner v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent

The Board of Immigration Appeals held that the prison sentence the petitioner served following his conviction for allegedly falsely and willfully representing himself as a United States citizen, barred him from demonstrating the "good moral character" necessary to be statutorily eligible for relief from removal. The BIA did not err in finding that the petitioner is statutorily ineligible for cancellation of removal based on his incarceration in excess of 180 days as a result of conviction, pursuant to 8 USC §1101(f)(7), regardless of whether his conviction is not categorically a crime involving moral turpitude. The BIA's interpretation that the period for establishing good moral character is the 10 years immediately preceding the final administrative ruling regarding a petitioner's application for cancellation of removal is entitled to deference. The petition for review is denied. 5th U.S. Circuit Court of Appeals, No. 13-60736, 03-04-2015

Practice Areas: Immigration Law

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

DAVID ALBERT D/B/A DAVID ALBERT OIL & GAS AND ABX OIL & GAS, INC., Appellants v. DUNLAP EXPLORATION, INC., Appellee

The trial court determined as a matter of law that a horizontal Pugh clause did not apply to the gas wells that are the subject of this appeal. The pooling agreement and the ratification agreement eliminated the applicability of the horizontal Pugh clause in the 251.5-acre lease. the depth limitations of the horizontal Pugh clause were never triggered because first production from the unit occurred before the primary term of the 251.5-acre lease ended. The ratification agreement expressly supersede any conflicting terms in the two leases and negates the horizontal Pugh clause contained in the 251.5-acre lease. The orders and judgment of the trial court are affirmed. Eastland Court of Appeals, No. 11-12-00064-CV, 02-12-2015

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

SANDERS OIL & GAS GP, LLC AND SANDERS OIL & GAS, LTD., Appellants, v. RIDGEWAY ELECTRIC, Appellee.

The appellee sued the appellants, Sanders Oil & Gas Ltd. and Sanders Oil & Gas GP LLC, for alleged past due amounts and for foreclosure on a mechanic's and materialman's lien. The appellee argues that the evidence shows that Joe Johnson, acting with actual authority or apparent authority, entered into the oral agreement in question as the appellants' agent. Joe Johnson testified that he worked for "Sanders Oil" which was owned by Gail Sanders. Other evidence at trial showed that Gail is the CEO of Sanders Oil & Gas, Ltd., but there was no evidence showing her relationship with Sanders Oil & Gas GP LLC. Judgment is rendered that the appellee take nothing on its breach of contract claim against Sanders Oil & Gas GP LLC. The judgment is affirmed as modified. El Paso Court of Appeals, No. 08-13-00299-CV, 02-11-2015

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

IN THE MATTER OF THE ESTATE OF VERNON LEE DOWNING, DECEASED.

The appellant in this probate matter challenges judgment against her. Because the appellant failed to articulate any harm caused by the trial court's alleged error in taking judicial notice of the entire court file, the taking of judicial notice did not probably cause rendition of an improper judgment. There was some evidence supporting the trial court's finding of waste - the appellant, as holder of a life estate, defaulted on the mortgage payments leading to foreclosure, and that action caused an injury to the children's reversionary interest in the residence. Provisions for attorney's fees in the Estates Code do not specify that recovery is allowed from the adverse party. The judgment is reversed and rendered in part and affirmed. El Paso Court of Appeal, No. 08-14-00030-CV, 02-25-2015

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

THE STATE OF TEXAS, Appellant, v. DANIEL VILLEGAS, Appellee.

The state appeals a pretrial order excluding evidence in a capital murder prosecution. The appellee contends that the prosecuting attorney failed to personally certify the necessary facts because the notice of appeal states that "The State certifies...." By signing the notice of appeal as the representative of the state, the district attorney personally certified that the appeal from the trial court's order excluding the described evidence is not taken for the purpose of delay and the evidence is of substantial importance in the case. The appellee's motion to dismiss is denied. El Paso Court of Appeals, No. 08-15-00002-CR, 02-25-2015

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

EDDIE LERMA, Appellant, v. BORDER DEMOLITION & ENVIRONMENTAL, INC., Appellee.

The appellant challenges a judgment holding him liable for breach of an oral demolition contract and attorneys' fees. The evidence shows that the appellant offered to resolve the dispute between him and the appellee by letting it keep bricks and other building materials in exchange for a reduction in price on the contract. That constituted a settlement offer, inadmissible to prove liability for or invalidity of the claim or its amount. Recasting a settlement offer as a mitigation attempt does not render the evidence admissible under other purposes grounds. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00105-CV, 02-20-2015

Practice Areas: Evidence

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

BOBBY JOHNSON, Appellant, v. JUAN ENRIQUEZ, Appellee.

The appellant challenges a take-nothing judgment in this alleged dog bite case. The appellant did not actually witness the dog bite him, but felt a puncture wound and then saw a dog walking away from the appellee's fence. The appellant conceded he was not close to the fence when he thinks he was bitten. The evidence is legally sufficient to support the jury's apparent belief that the the appellant was not bitten. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-13-00260-CV, 02-26-2015

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

CHARLES R. TIPS FAMILY TRUST, HAZEL W. TIPS FAMILY TRUST, AND CHARLES T. WATKINS, Appellants v. PB COMMERCIAL LLC, Appellee

The parties to this appeal entered into a residential loan agreement and guaranty for the principal amount of "ONE MILLION SEVEN THOUSAND AND NO/100 ($1,700,000.00) DOLLARS." The words control over the numerals. The trial court rendered judgment in favor of the bank on their action alleging default. The bank did not include any request for equitable reformation of the agreement in its petition, nor did it argue for equitable reformation in its motion for summary judgment. The trial court's judgment is reversed in part, affirmed in part, and remanded. Houston's 1st Court of Appeals, No. 01-13-00449-CV, 02-19-2015

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

CLARENCE STUMHOFFER, HEIR OF THE ESTATE OF ROBERT BRIAN STUMHOFFER, DECEASED, Appellant v. DANIEL PERALES AND ERIN PERALES, Appellees

An appellee moved for summary judgment on the ground that the general warranty deed obligated the seller and his heirs and assigns to defend his title to the property from an adjoining property owner's claims, and, in the absence of providing such a defense, the estate was obligated to indemnify the appellee for the attorney's fees associated with defending against the suit. There is no special agreement or clause requiring such reimbursement. Crossland does not support a conclusion that attorney's fees are recoverable on a claim under a general warranty deed. Neither Texas Civil Practice and Remedies Code §37.009 nor §38.00 entitles the appellee to recover his attorney's fees. The trial court's summary judgment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-12-00953-CV, 02-19-2015

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

WALTER EARL TAYLOR, Appellant v. THE STATE OF TEXAS, Appellee

A jury appellant of possession of cocaine weighing between four and 200 grams. The underlying non-aggravated state jail felony had been enhanced, and appellant was punished for that offense under Texas Penal Code §12.42(a)(2). Because the underlying offense was not punished under §12.35(a), the state was not precluded by §12.42(e) from using that underlying offense for enhancement of the charged offense. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-11-00210-CR, 02-19-2015

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

BARON ABLON, Appellant v. BARI ABLON CAMPBELL, Appellee

The appellant in this guardianship and trust matter argues that the trial court erred in setting aside an order as void and in granting appellee's application for a statutory bill of review. This case involves the validity of a trust not created pursuant to the probate code. The appellee had a justiciable interest as a remainder beneficiary of the alleged trust. As a named beneficiary, the appellee was a necessary party to an action concerning the trust. The trial court could have concluded that it abused its discretion by entering the prior order without all necessary parties before it. The trial court's order is affirmed. Dallas Court of Appeals, No. 05-13-01465-CV, 02-17-2015

Practice Areas: Trusts and Estates

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

IN RE VERP INVESTMENT, LLC, Relator

The relator seeks relief from the trial court's order compelling it to turn over its computer hard drive to a third-party forensic examiner for mirror imaging of the accounting software and supporting data related to invoices prepared for certain leases. The real party did not put on any evidence demonstrating that the kind of information he sought could be retrieved by the examination ultimately ordered by the trial court and the record is devoid of any attempt by the real party to explain this search methodology except for his counsel's explanation that the search would attempt to exclude communications with counsel. The writ of mandamus is conditionally granted. Dallas Court of Appeals, No. 05-15-00023-CV, 02-17-2015

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE CWABS, INC., ASSET-BACK CERTIFICATES, SERIES 2006-15, Appellant v. NADER DARYAPAYMA AND FARIBA DARYAPAYMA, Appellees

A bank appeals the trial court's grant of summary judgment in favor of homeowners. Because the parties agreed the home equity loan was made, in large part, to pay off the existing mortgages, the loan documents reflect this agreement, and the existing mortgages were paid off, the balances of those existing mortgages should not be included when determining whether the amount of the home equity loan exceeds 80 percent of the fair market value of the homestead. Because the home equity loan did not exceed 80 percent of the fair market value of the homestead, the loan did not violate the Texas Constitution. The trial court's judgment is reversed and remanded. Dallas Court of Appeals, No. 05-14-00268-CV, 02-19-2015

Practice Areas: Banking and Financial Institutions

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

BOBBY DUNCAN, APPELLANT v. FIRST TEXAS HOMES AND FIRST TEXAS HOMES, INC., APPELLEES

The appellant sued his employer, a non-subscriber, for injuries sustained after he fell down a set of stairs on a worksite trailer. Assuming without deciding that an employee's awareness of a defect eliminates an employer's duty to provide a safe workplace, the employer failed to establish as a matter of law that the plaintiff knew of or appreciated the risk of harm created by the insufficient clearance between the swing of the door and the edge of the platform. Applicable safety standards is a relevant consideration when determining whether a condition posed an unreasonable risk of harm. That the plaintiff left the trailer numerous times without incident does not establish sole proximate cause as a matter of law. Fort Worth Court of Appeals, No. 02-12-00464-CV, 02-12-2015

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

TEXAS RICE LAND PARTNERS, LTD., JAMES E. HOLLAND, DAVID C. HOLLAND, AND MIKE LATTA, Appellants v. DENBURY GREEN PIPELINE-TEXAS, LLC, Appellee

The appellant challenges the trial court's judgment that a carbon dioxide pipeline operator is a common carrier with the right of eminent domain. Texas Business Organizations Code §2.105 is not an independent basis for exercising eminent domain authority. Reasonable minds could differ regarding whether, at the time the appellee intended to build the pipeline, a reasonable probability existed that the pipeline would serve the public. The trial court's judgment is reversed and remanded. Beaumont Court of Appeals, No. 09-14-00176-CV, 02-12-2015

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Mary MOCZYGEMBA, Appellant v. Thomas J. MOCZYGEMBA and Harry Lee Moczygemba, Appellees

The appellant challenges the trial court's determination that the statute of limitations barred her claims for breach of fiduciary duty. For the discovery rule to apply, the nature of the injury must be objectively verifiable. The evidence in this case consists of deposition testimony, which is not objectively verifiable evidence, and copies of the actual deeds showing a transfer of the mineral estate from the appellant to the appellees, her sons. The appellant testified that she wanted to transfer her property to her sons at a price lower than market value. The mere transfer of mineral interests does not necessarily equate to the appellant having suffered from a wrongful transfer of her property. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-14-00110-CV, 02-18-2015

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Devon Alexander KANE, Appellant v. The STATE of Texas, Appellee

The trial court denied the appellant's motions to suppress photographs obtained on an unmarked, unlocked flash drive left in a university classroom and discovered by employees. The flash drive was found in a public computer. The flash drive did not have any identifying marks suggesting the identity of its owner and was not password protected, encrypted, or locked. Even without the trial court's finding that the flash drive was abandoned, the trial court didn't err in concluding that the employees took the flash drive with the intent to turn the evidence over to law enforcement. The employee did not violate Texas Penal Code §33.02 by checking the flash drive as part of standard operating procedure. The appellant effectively consented to access of the flash drive by the university employee. The trial court's denial is affirmed. No. 04-14-00004-CR, 04-14-00005-CR, 04-14-00006-CR, 04-14-00007-CR, 02-11-2015

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

IN THE INTEREST OF D.B.J., A CHILD

The trial court denied a motion seeking enforcement by contempt of support provisions in an agreed divorce decree. The decree requires support for a nondisabled child of the marriage after the child turned 18 and graduated from high school. An order of support may be based on a contractual obligation, but it is enforceable by contempt only if it was also authorized by the Family Code. Texas Family Code §§154.001 and 154.002 prohibit courts from ordering support for nondisabled children who have reached 18 and graduated from high school. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-14-00285-CV, 02-24-2015

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

MOISES DONJUAN, Appellant v. THE STATE OF TEXAS, Appellee

The appellant contends that the trial court committed reversible error by 1. denying appellant's motion to suppress the results of a blood alcohol test; and 2. failing to direct appellant to wear civilian clothes at trial. The appellant consented to the blood draw. Although the appellant argues that his consent was mere acquiescence, no evidence in the record indicates that any officer told appellant his blood draw was mandatory. A defendant must timely object to being made to wear prison clothes or he waives the right to complain. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00829-CR, 02-19-2015

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

ROBERT CAMERON MCCALL, Appellant v. BOBBY RAY HESTER, Appellee

The plaintiff sued a seller of farm equipment after he was injured while the seller and his father loaded equipment onto a truck. The jury awarded $25,000 for past medical bills, although there was a pre-trial stipulation that the amount incurred was higher. The jury could have determined that medical bills incurred by the plaintiff after he had re-aggravated his injury by participating in strenuous activity were not attributable to the defendant's alleged negligence. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-14-00044-CV, 02-12-2015

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

BP AMERICA PRODUCTION COMPANY, APPELLANT v. LADDEX, LTD., APPELLEE

A top-lessor sought termination of the primary mineral lease on the basis that, during 15 months of slowed production, there was no production in paying quantities. The trial court entered judgment that the top lease has terminated. Because the top lease conveys a presently vested interest in the landowners' reversionary right, it is not subject to the Rule Against Perpetuities. Evidence that a lease had returned to profitable production is material to the determination of whether a jury question inquires about a period that is reasonable under the circumstances. The trial court's judgment is reversed and remanded. Amarillo Court of Appeals, No. 07-13-00392-CV, 02-17-2015

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

JOHN DENNIS CLAYTON ANTHONY, APPELLANT v. THE STATE OF TEXAS, APPELLEE

The appellant seeks to reverse the trial court's decisions to revoke his deferred adjudication community supervision, adjudicate him guilty of the offense of aggravated sexual assault and assess the maximum period of confinement. The appellant was denied effective assistance of counsel. Because appellant was charged with an offense punishable under Texas Penal Code §22.021(f) and because the minimum term of imprisonment exceeded 10 years, the trial court was never authorized to place appellant on deferred adjudication community supervision. If appellant would have known he was facing a minimum period of 25 years' confinement instead of deferred adjudication community supervision, it is reasonable to conclude he would not have stipulated to the evidence against him and entered a plea of guilty without the agreed upon recommendation as to punishment. The judgment is reversed, the appellant is remanded to the answer the charge against him, and he is allowed to withdraw his plea. Amarillo Court of Appeals, No. 07-13-00089-CR, 02-12-2015

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

BBVA COMPASS INVESTMENT SOLUTIONS, INC.; DORIS G. SILVA; KAREN L. MCROBERTS; MARIO RAMOS; AND DAVID S. NEEL, JR., APPELLANTS v. EDWARD BROOKS AND GENEVA BROOKS, APPELLEES

A bank appeals the trial court's denial of their motion to compel arbitration in this suit alleging that the bank wrongfully transferred funds from the appellee's account. The appellees' claims, including their tort claims, are both direct and collateral results of the appellants' alleged breach of their contractual agreement. Because it cannot be said with positive assurance that the arbitration clause does not encompass the dispute in question, all of the appellee's claims, including those not based on the contract, are within the scope of the arbitration provision. The appellant's content that the appellant's conduct was not foreseeable when the agreement was signed; subsequent events do not retroactively make an agreement procedurally unconscionable. The trial court's order is reversed and remanded. Fort Worth Court of Appeals, No. 02-13-00047-CV, 02-12-2015

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

RODNEY DIMITRIUS LAKE A/K/A RODNEY D. LAKE, APPELLANT v. THE STATE OF TEXAS, STATE

The appellant challenges the revocation of community supervision. The trial court, when asked by appellant's counsel whether he could make a closing statement, responded "I don't need one." The appellant made no further statement that could be construed as an abandonment of his request. The appellant properly preserved his complaint for appellate review by requesting to make a final argument and securing the trial court's denial of that request. It is no longer required that a litigant except to the trial court's ruling in order to preserve the complaint. The defendant's right to make a closing argument is constitutional, therefore the error is reversible without a showing of harm. The trial court's judgment is reversed and remanded for a new trial on revocation. Fort Worth Court of Appeals, No. 02-13-00521-CR, 02-19-2015

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

CHILDRESS ENGINEERING SERVICES, INC., APPELLANT v. NATIONWIDE MUTUAL INSURANCE COMPANY, AS SUBROGEE TO MERITAGE HOMES OF TEXAS, L.L.C., APPELLEE

An insurer, as subrogee, filed suit against an engineering firm for various claims relating to the engineering firms alleged failure to defend, indemnify, and pay particular costs on a homeowner's claim against a homebuilder. The trial court denied a motion to dismiss the suit based on the failure to file a certificate of merit. The trial court is equipped to determine the indemnity clause's viability as a matter of law and to interpret it without requiring recourse to an expert's report. The alleged error resulting in the breach of contract claim was the engineering firm's alleged failure to comply with a contractual obligation, not a specific act, error, or omission performed in its provision of engineering services. The trial court's order is affirmed and the case is remanded. Fort Worth Court of Appeals, No. 02-14-00332-CV, 02-12-2015

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, TENTH DISTRICT, WACO

DARREL WAYNE WASHINGTON, Appellant v. THE STATE OF TEXAS, Appellee

The appellant contends the trial court erred in admitting the opinion testimony of an expert witness that a sentence at the low end of the punishment range would not be appropriate. Even though the expert did not recommend a particular term of years, recommending a range within which to punish or not punish the defendant is impermissible. The error was not harmful. The trial courts judgments are affirmed. Waco Court of Appeals, No. 10-13-00361-CR, No. 10-13-00365-CR, 02-19-2015

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

MARISOL PRIEGO, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges her conviction of alleged driving while intoxicated. The appellant was found passed out in a parked truck in a parking lot. A partially consumed whiskey bottle was found on the floorboard of the appellant's truck, there was evidence of the approximate length of time the truck was parked in the locale where it was discovered, and there was evidence of the time period in which the appellant ingested enough whiskey to render her unresponsive. Although the gear selector was in "park," the appellant was still wearing her seatbelt. The trial court's judgment is affirmed as modified to delete the indication that attorney's fees were "TBD." Texarkana Court of Appeals, No. 06-14-00008-CR, 02-13-2015

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

IN THE INTEREST OF R.L.C., JR., R.D.C., K.M.S., AND A.M.C., CHILDREN

The appellant argues there was factually insufficient evidence to show that termination of her parental rights was in the best interests of the children. A parent who lacks stability, income, and a home is unable to provide for a child's emotional and physical needs. The appellant's alleged continued drug use demonstrates an inability to provide a stable environment sufficient to support her children's emotional and physical needs. Evidence of alleged past misconduct or neglect can be used to measure a parent's future conduct. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-14-00078-CV, 02-12-2015

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

JULIO PEREZ, JR., Appellant v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, ET AL., Appellees

The trial court dismissed an inmate's suit as untimely filed. A pro se inmate's civil petition is deemed filed when given to prison authorities for mailing. No evidence in the record compels a finding that the appellant gave his petition to prison authorities before the date it was actually mailed to the district clerk to be filed. The appellant's claimed, but defective, certificate of service does not establish prima facie proof that he timely delivered the petition to prison authorities. The trial court's dismissal is affirmed. Texarkana Court of Appeals, No. 06-14-00065-CV, 02-20-2015

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

MICHAEL EARITT WHITE, Appellant v. THE STATE OF TEXAS, Appellee

The appellant was convicted by a jury of allegedly driving while license invalid with a previous conviction for driving while license invalid. Without any evidence that a notice of suspension was mailed or the date that any such notice was mailed, there was insufficient evidence presented by the state to support a finding that a valid suspension period was in effect at the time the appellant was operating his vehicle. The state only offered the license return printed from a police computer and the officer's testimony regarding the no-notice nature of the alleged previous suspension. The trial court's judgment is reversed and a judgment of acquittal is rendered. Texarkana Court of Appeals, No. 06-13-00110-CR, 02-18-2015

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

IN THE INTEREST OF A.T., A CHILD

The appellant challenges the best-interest finding supporting the termination of his parental rights. The amount of contact between the parent and child, the parent's alleged failure to provide financial and emotional support, continuing alleged criminal history, and past performance as a parent are all relevant in determining the child's best interest. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-14-00091-CV, 02-18-2015

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

STATE EX REL. MICHAEL E. JIMERSON, RELATOR

The relator, a county attorney, challenges an order denying his motion to quash a subpoena. That the county attorney has refused to disclose the prosecution file does not create a substantial need for the county attorney's testimony when other sources are available to prove the elements of the malicious prosecution claim. The writ of mandamus is conditionally granted. Tyler Court of Appeals, No. 12-14-00153-CV, 02-11-2015

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

REX SMITH AND NANCY SMITH, APPELLANTS v. KELLY DAVIS AND AMBER DAVIS, APPELLEES

The appellants challenge judgment against them in this case involving a contract to purchase land. Texas Property Code §5.077, pertaining to failure to provide annual statements, is subject to Chapter 41. A claimant must prove more than nominal damages as a predicate to recovery of liquidated damages under §5.077. The trial court's judgment is reversed and rendered in part, affirmed in part, and remanded for a recalculation of prejudgment interest. Tyler Court of Appeals, No. 12-14-00007-CV, 02-18-2015

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI - EDINBURG

GILBERTO RINCONES, Appellant, v. WHM CUSTOM SERVICES, INC., ET AL., Appellees.

The appellant alleged that his employer discriminated against him based on his race or national origin. According to the employer, the summary judgment evidence established that the appellant had received an "inactive" status with a third party substance abuse administrator and was therefore ineligible to work. The status factor is not the same as the qualification requirement - proof or absence of one does not necessarily establish or negate the other. Summary judgment on the appellant's defamation claim based on self-publication was improper. In some circumstances, a defamed individual might be compelled to disclose a statement that he or she knows is defamatory. Under these circumstances, it is unreasonable to require the plaintiff to be ignorant of the statement's defamatory nature. The trial court's judgment is reversed and remanded in part and affirmed in part. Corpus Christi Court of Appeals, No. 13-11-00075-CV, 02-12-2015

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI - EDINBURG

JAMES THOMAS JONES II, Appellant, v. THE STATE OF TEXAS, Appellee.

The appellant challenges his conviction for alleged possession of drugs with the intent to deliver. The appellant argues that a dog sniff at a bus station was an unreasonable search. The dog alerted on the appellant and attempted to bite, scratch, and jump on him. Because a non-contact dog sniff of a person will not reveal anything but the presence of contraband, and there is no legitimate expectation of privacy in concealing contraband, a non-contact sniff of a person in a public place by a trained drug-detection dog is generally not a search for purposes of the Fourth Amendment. The trial court's judgment is affirmed. Corpus Christi Court of Appeals, No. 13-14-00183-CR, 13-14-00184-CR, 02-19-2015

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI - EDINBURG

STANLEY BRADFORD WHITTINGTON, Appellant, v. THE STATE OF TEXAS, Appellee.

A jury convicted the appellant of the offense of cruelty to livestock animals by allegedly causing roosters to fight. An actual conflict of interest exists if counsel is required to make a choice between advancing a client's interest in a fair trial or advancing other interests to the client's detriment. Even if a conflict of interest exists, a defendant may waive his right to conflict-free counsel so long as the record demonstrates that the defendant knowingly and voluntarily waived his right to conflict-free counsel. The trial court's judgment is affirmed. Corpus Christi Court of Appeals, No. 13-13-00169-CR, 02-19-2015

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Brandon Robisheaux, Appellant v. The State of Texas, Appellee

The appellant was convicted of two counts of alleged sexual assault of a child. The appellant seeks access to the sealed record of two in-camera hearings. The court of appeals declines to follow Kesterson. To ensure a defendant's right to effective assistance of counsel, counsel should be given limited access to the sealed record in order to assert the arguments he deems best through the use of his professional judgment. With instructions, the sealed portions of the reporter's record are ordered unsealed only as to the attorneys of record for the purpose of preparing the parties' briefs and motions to the court of appeals. Austin Court of Appeals, No. 03-14-00329-CR, 02-13-2015

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

TIMEGATE STUDIOS, INCORPORATED, Plaintiff-Appellee v. SOUTHPEAK INTERACTIVE, L.L.C.; GONE OFF DEEP, L.L.C., doing business as Gamecock Media Group; SOUTHPEAK INTERACTIVE CORPORATION; TERRY M. PHILLIPS, Defendants-Appellants v. MELANIE MROZ, Appellant

The district court vacated an arbitration award that favored a video game publisher. An arbitrator's remedial power hinges upon the aims, wording and purpose, and essence of the underlying agreement. Because the publishing agreement between the publisher and developer bestowed broad remedial powers upon the arbitrator and because it was allegedly fraudulently induced and irreversibly violated by the developer, the grant of a perpetual license is a rational and permissible attempt to compensate the publisher and maintain the agreement's essence. The district court's judgment is reversed and remanded with instructions to confirm the award. 5th U.S. Circuit Court of Appeals, No. 12-20256, 04-09-2013

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

SUPREME COURT OF TEXAS

NABORS WELL SERVICES, LTD. F/K/A POOL COMPANY TEXAS, LTD. AND LAURO BERNAL GARCIA, PETITIONERS, v. ASUNCION ROMERO, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF AYDEE ROMERO, DECEASED, AND AS NEXT FRIEND OF EDGAR ROMERO AND SAUL ROMERO; ESPERANZA SOTO, INDIVIDUALLY AND AS NEXT FRIEND OF ESPERANZA SOTO, GUADALUPE SOTO, MARIA ELENA SOTO; AND MARTIN SOTO, RESPONDENTS

This case arises from a collision between a truck and a passenger vehicle. Following Carnation, the trial court excluded all evidence of nonuse of seat belts. The court of appeals affirmed. The proportionate responsibility statute contradicts Kerby and Carnation. For purposes of the proportionate-responsibility statute, fact-finders must consider relevant evidence of a plaintiff's pre-occurrence, injury-causing conduct. The court of appeals' judgment is reversed and remanded. Texas Supreme Court, No. 13-0136, 02-13-2015

Practice Areas: Torts

SUPREME COURT OF TEXAS

IN RE DEEPWATER HORIZON, RELATOR

This is a response to questions certified by the 5th U.S. Circuit Court of Appeals concerning the extent of insurance coverage afforded to the oil-field developer as an additional insured under primary- and excess-insurance policies procured by the drilling-rig owner. The developer's status as an additional insured is limited to the liabilities the drilling-rig owner assumed in the drilling contract. The developer is not entitled to coverage under the rig-owner insurance policies for damages arising from subsurface pollution because the developer, not the rig owner, assumed liability for such claims. Texas Court of Appeals, No. 13-0670, 02-13-2015

Practice Areas: Insurance Law

COURT OF CRIMINAL APPEALS OF TEXAS

DONOVAN DARREN LEVOY MEADOWS, Appellant v. THE STATE OF TEXAS

The appellant challenges the trial court's decision allowing the state to cross-examine him about felony convictions that were more than 10 years old. The unambiguous plain language of Texas Rule of Evidence 609 supplants the common-law tacking doctrine. In deciding whether, in the interests of justice, the probative value of a remote conviction substantially outweighs its prejudicial effect, a court may consider all relevant specific facts and circumstances, including whether intervening convictions dilute the prejudice of that remote conviction. The court of appeals conducted its analysis using the general "outweighs" standard found in Rule 609(a) rather that the correct "substantially outweighs" test of Rule 609(b). The court of appeals' judgment is reversed and remanded. Court of Criminal Appeals, No. PD-0175-14, 02-25-2015

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

JOHN FRANGIAS, Appellant v. THE STATE OF TEXAS

The trial court allowed the appellant's motion for new trial, based on an alleged ineffectiveness argument, to be denied by operation of law. The court of appeals affirmed. The abandonment of alternative ways of implementing a particular trial strategy is reasonable only if trial counsel have undertaken reasonable efforts to pursue those alternatives -- by conducting a reasonable investigation and then bringing a professionally appropriate level of knowledge and skill to bear -- before deciding to abandon them. If the likelihood that the trial court would not have granted a request for a deposition or continuance in the appellant's case is itself attributable to trial counsel's lack of diligence in preparing for the contingency that their first strategy might fail, trial counsel's performance is not reasonable. The court of appeals' judgment is reversed and remanded. Court of Criminal Appeals, No. PD-0728-12, 02-27-2013

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

IN RE: TARRANT REGIONAL WATER DISTRICT, A WATER CONTROL AND IMPROVEMENT DISTRICT

In this condemnation matter, the petitioner challenges the trial court's refusal to appoint special commissioners. The trial court had a statutory duty to appoint three special commissioners. A condemnation proceeding does not become a "case" until the commissioners have made their award and an objection to it has been filed in the trial court. A plea to the jurisdiction, filed during the administrative phase, was premature, and the trial court's only course of action was to ignore it until an objection to the commissioners' award had been filed. The writ of mandamus is conditionally granted. Tyler Court of Appeals, No. 12-14-00329-CV, 02-11-2015

Practice Areas: Residential and Commercial Real Estate

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BELEAL GARCIAGONZALEZ, Defendant-Appellant.

The appellant was indicted on two counts of alien-harboring for each of three sisters. The only difference between the counts in each pair was the location of the harboring -- one count involved a house and the other involved the appellant's bar. The appellant claims that it was error for the district court not to vacate one of the two alien-harboring convictions for each sister, alleging that the convictions involved the same offense. There is no precedent defining the meaning of "any" -- which may mean mean "one" or "some" -- in 8 U.S.C. §1324(a)(1)(A)(iii). As the interpretation is an issue of first impression, any error was not plain or obvious. The convictions and sentence are affirmed. 5th U.S. Circuit Court of Appeals, No. 11-41097, 04-17-2013

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JAMES ALFORD; ALL PLAINTIFFS; RUTHIE ALLEN; WILLIE ALLEN; REUBEN ANDERSON; ET AL, Plaintiffs - Appellees v. KUHLMAN ELECTRIC CORPORATION, Defendant - Appellant v. KUHLMAN CORPORATION; BORGWARNER, INCORPORATED, Defendants - Appellees

The appellant challenges the district court's order denying it's motion for a declaration and specific performance of the obligations of the appellee under three agreements -- a Master Settlement Agreement, the Merger Agreement, and the Cooperation Agreement. Because the parties are defendants in the underlying case and have filed no counterclaim or cross-claim among themselves, the terms of the Merger Agreement and the Cooperation Agreement are not relevant unless their terms are incorporated into the MSA. The MSA does not reference the provisions, plans and specifications of the Merger Agreement. Merely because the MSA does not change the terms of the separate agreements between the parties provides no basis for incorporating the terms of those separate agreements into the MSA. The district court's order is affirmed. 5th U.S. Circuit Court of Appeals, No. 11-60728, 05-24-2013

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

DORIS FORTE, O.D., on behalf of herself and all other similarly situated persons; BRIDGET LEESANG, O.D.; DAVID WIGGINS, O.D.; JOHN BOLDAN, O.D., Plaintiffs - Appellees v. WAL-MART STORES, INCORPORATED, Defendant - Appellant

The Texas Supreme Court has not decided whether a statutory penalty such as the penalty in the Texas Optometry Act falls within the meaning of the clause "any action in which a claimant seeks damages relating to a cause of action" in Texas Civil Practice and Remedies Code Chapter 41. The issue is certified as a question to the Texas Supreme Court. 5th U.S. Circuit Court of Appeals, No. 12-40854, 02-20-2015

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. JOSE ANTONIO SARABIA-MARTINEZ, Defendant - Appellant

The appellant argues that the district court plainly erred by treating his prior Florida "Trafficking in Methamphetamine 14 Grams or More" conviction as a "drug trafficking offense" for purposes of the sentencing guidelines. By classifying mere possession as drug trafficking, the Florida statute defines drug trafficking more broadly than does the guidelines. No conclusions on appeal may be drawn from documents the district court would not be permitted to consider, including the "arrest report" and other non-Shepard documents provided by the government. The sentence is vacated and remanded for resentencing. 5th U.S. Circuit Court of Appeals, No. 14-50064, 02-15-2015

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

10 RING PRECISION, INC., Plaintiff - Appellant; ROBBY BETTS, doing business as Golden States Tactical, Intervenor - Appellant v. B. TODD JONES, Acting Director, Bureau of Alcohol, Tobacco, Firearms & Explosives, in his official capacity, Defendant - Intervenor - Appellee

The appellants, firearms dealers, challenge the issuance of ATF demand letters requiring them to report certain sales of firearms. The text of 18 USC §923(g)(5)(A) unambiguously authorizes the demand letter. The demand letter falls short of consolidating or centralizing records as prohibited by an appropriations rider. The ATF decision to direct its demand letter to federal firearms licensees based on their geographic location was not arbitrary and capricious. The district court's judgment in favor of the ATF is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-50742, 07-11-2013

Practice Areas: Administrative Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

TIFFANY L. ROMANO, Plaintiff - Appellee v. BRUCE D. GREENSTEIN, in his official capacity as Secretary of the Louisiana Department of Health and Hospitals, Defendant - Appellant

The Louisiana Department of Health and Hospitals appeals the denial of its motion to dismiss the plaintiff-appellee's challenge to DHH's termination of medicaid benefits. 42 U.S.C. §1396a(a)(8) -- a provision of the Medicaid Act -- creates a right that is enforceable under 42 U.S.C. §1983. Exhaustion of Louisiana's procedure for judicial review is not required before a Medicaid claimant files suit in federal court. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-30565, 06-28-2013

Practice Areas: Health Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. RENE VALERIANO DIAZ SANCHEZ, also known as Rene Valeriano Diaz, also known as Rene V. Diaz, also known as Rene Valeriano Diaz-Sanchez, Defendant - Appellant

The appellant, after pleading guilty to unlawfully reentering the United States, filed a sentencing memorandum requesting a sentence below the guidelines range. The appellant argued that he was compelled to return to the United States because of harassment and intimidation by a criminal gang. The district court weighed the defense's argument for a below-guidelines sentence, but, in light of the totality of the factors, the court found the defense's points only persuasive enough to warrant a sentence at the guidelines range's low end. The 46 month sentence was not procedurally or substantively unreasonable. The district court's sentence is affirmed. 5th U.S.Circuit Court of Appeals, No. 12-20166, 04-16-2013

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ABDULLAHI OMAR FIDSE, also known as Abdirahman LNU, also known as Abdiraham Fidse, also known as Abdullaho Fidse, Defendant - Appellant.

In sentencing appellant for two obstruction offenses related to lying on his asylum application, the district court applied an enhancement for offenses involving the promotion of terrorism, U.S. Sentencing Guidelines §3A1.4(a). The district court did not expressly identify a federal crime of terrorism under investigation to support the enhancement. The record is inconsistent as to whether the district court made a factual finding that the appellant was involved in alleged conduct that would support the enhancement. The sentence is vacated and remanded for resentencing. 5th U.S. Circuit Court of Appeals, No. 13-50734, 02-13-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

THOMAS EDWIN LODEN, JR., Petitioner - Appellant v. RICK MCCARTY, INTERIM COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS, Respondent - Appellee

The petitioner-appellant asserts that his trial counsel inaccurately informed him that, if he pleaded guilty, the trial court's adverse rulings on his suppression motions would still be examined during the Mississippi Supreme Court's automatic review of his case. Where a lower state court ruled on an element that a higher state court did not, the lower state court's decision is entitled to AEDPA deference. Here, the state trial court's decision as to the Strickland prejudice element is entitled to AEDPA deference. The state trial court was free to conclude that the appellant understood his appellate rights at the time of trial or that the other considerations that prompted his guilty plea would nevertheless have motivated him to maintain a guilty plea even had he known he would be unable to appeal the trial court's rulings on his suppression motions. The Mississippi Supreme Court's conclusion that appellant's decision not to present mitigation evidence precludes a showing of Strickland prejudice was not an unreasonable application of clearly established Supreme Court precedent. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-70033, 02-13-2015

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

SUPERIOR MRI SERVICES, INCORPORATED; SUPERIOR MRI SERVICES, INCORPORATED, as Successor in Interest of P & L Contracting, Incorporated, Plaintiffs - Appellants, v. ALLIANCE HEALTHCARE SERVICES, INCORPORATED, formerly known as Alliance Imaging, Incorporated, doing business as Alliance Imaging; ALLIANCE IMAGING, INCORPORATED; JOHN DOE, Defendants I Through X, Defendants - Appellees.

The district court dismissed the appellant's tortious interference claims, holding that the appellant did not establish that it acquired contractual rights from its purported predecessor-in-interest. The district court found that the appellant did not exist as a corporation at the time of the purported assignment from the asserted predecessor. The appellant failed to support its argument that an assignment after incorporation was valid and that the appellant ratified the assignment once it finalized its incorporation process. Under the prudential standing doctrine, a party must assert its own rights. Lexmark's zone-of-interests test did not overrule the prudential standing doctrine. The district court's judgment is affirmed. 5th U.S. Circuit, No. 14-60087, 2-18-2015

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In re: LLOYD'S REGISTER NORTH AMERICA, INCORPORATED, Petitioner.

The district court denied the petitioner's motion to dismiss. The usual appeals process does not provide an effective way to review a denial of a motion to dismiss for forum non conveniens. Immediate appellate review of the decision to deny is rarely available, and review after final judgment is ineffective to vindicate a wrongfully denied motion for FNC. The district court's failure to enforce a valid forum-selection clause was patently erroneous. The petition for writ of mandamus is granted. 5th U.S. Circuit Court of Appeals, No. 14-20554, 2-18-2015

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CONTENDER FARMS, L.L.P.; MIKE MCGARTLAND, Plaintiffs - Appellants v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant - Appellee

The appellants, participants in the Tennessee walking horse industry, challenge a USDA regulation. The appellants have standing: whether someone is in fact an object of a regulation is a flexible inquiry rooted in common sense; an increased regulatory burden typically satisfies the injury in fact requirement. The plain language of the Horse Protection Act suggests that Congress intended a private horse inspection system. This statutory regime does not support the USDA's position that Congress authorized it to promulgate the regulation requiring private parties to impose government-mandated suspensions as an arm of HPA enforcement. The district court's judgment is affirmed in part, reversed and vacated in part, and remanded for entry of judgment for the plaintiffs. 5th U.S. Circuit Court of Appeals, No. 13-11052, 2-19-2015

Practice Areas: Administrative Law

COURT OF CRIMINAL APPEALS OF TEXAS

MARK RANDALL BRISTER, Appellant v. THE STATE OF TEXAS

A jury convicted the appellant of felony driving while intoxicated. The court of appeals struck the portion of the trial court's judgment that found use or exhibition of a deadly weapon. There was no testimony that appellant caused another vehicle or person to be in actual danger. The officer stopped the appellant after the appellant committed a single traffic offense -- crossing the center line -- at a time when there were very few, if any, cars in the opposite lane. The court of appeals' judgment is affirmed. Court of Criminal Appeals, No. PD-1545-13, 12-10-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

CAMERON MOON, Appellant v. THE STATE OF TEXAS

The court of appeals found that the juvenile court abused its discretion to waive jurisdiction. In conducting a review of the sufficiency of the evidence to establish the facts relevant to the Texas Family Code §54.02(f) factors and any other relevant historical facts, which are meant to inform the juvenile court's discretion whether the seriousness of the offense alleged or the background of the juvenile warrants transfer for the welfare of the community, the appellate court must limit its sufficiency review to the facts that the juvenile court expressly relied upon, as required to be explicitly set out in the juvenile transfer order under §54.02(h). The court of appeals' judgment is affirmed. Court of Criminal Appeals, No. PD-1215-13, 12-10-2014

Practice Areas: Family Law , Juvenile Law

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

THE STATE OF TEXAS, APPELLANT v. TERENCE JOHNSON, APPELLEE

The appellee was charged by complaint and information with the offense of destruction of a flag. The trial court dismissed the case. The record does not show that the appellee intended to convey a particularized message when he threw the flag into the street. The appellee did not satisfy his burden by proving that the Texas flag destruction statute is unconstitutional as applied to him. The statute does not condition criminal culpability on the actor's intent to offend someone. Thus, Texas Penal Code §42.11 criminalizes a substantial amount of constitutionally protected conduct when judged in relation to its legitimate sweep. Section 42.11 is not unconstitutional as applied to appellee, but is unconstitutionally overbroad. The trial court's order is affirmed. Tyler Court of Appeals, No. 12-12-00425-CR, 01-22-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

AARON JORDAN, MICHAEL JORDAN, HEATHER JORDAN, GILBERT JORDAN, PHYLLIS ANN WOODS AND DONNA JOYCE CURTIS, APPELLANTS v. CYNTHIA KAY LYLES, APPELLEE

The appellants argue that the trial court erroneously rendered judgment notwithstanding the jury's verdict and, alternatively, the evidence supports the jury's verdict for interference with inheritance rights. For the purpose of determining whether appellants' have standing, the trial court's order admitting the will and codicil to probate as a muniment of title is the functional equivalent of the closing of an independent administration. The record contains no evidence that the appellee or anyone else specifically discussed any of three disputed transactions with the decedent and informed him of all material facts relating to the transactions. As a result, the appellee failed to meet her burden of proving that she complied with her fiduciary duty. The trial court's judgment is reversed and rendered in accordance with the jury verdict. Tyler Court of Appeals, No. 12-13-00035-CV, 12-10-2014

Practice Areas: Trusts and Estates

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

TEXAS FARM BUREAU UNDERWRITERS, Appellant v. TERRY GRAHAM, JR., Appellee

The appellee sued to recover costs from his insurer that the were incurred successfully defending a wrong death suit. The underlying suit arose following a fatal shooting that occurred during an alleged burglary attempt. A mere allegation of negligence does not control the duty to defend. The petition did not allege an accident, because death is the sort of injury that naturally follows a shotgun blast to the head at close range. The trial court's judgment is reversed and rendered in favor of the insurer. Texarkana Court of Appeals, No. 06-13-00132-CV, 12-5-2014

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

CATRINA MALDONADO, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges the admission of photographs during her trial for alleged injury to a child by omission. The photographs, which depicted the severity and extent of the child's burn injuries at the time of his death, were helpful to the jury in assessing the appellant's moral blameworthiness for her crime. The photographs were relevant notwithstanding the appellant's guilty plea. The probative value of a photograph that is gruesome and disturbing to view is not substantially outweighed by the danger of unfair prejudice if it merely depicts the gruesome reality of the injuries sustained by the victim. The trial court's failure to conduct an explicit, on-the-record weighing of the Texas Rule of Evidence 403 considerations was not error. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-14-00010-CR, 12-11-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. GREGORY P. BOYD, Defendant - Appellant

The appellant was convicted of three counts of filing false income tax returns showing he had no taxable income. The appellant argued that these tax returns reflected his belief that the only people required to pay federal income taxes were those who earned income working for the federal government. The district court did not abuse its discretion by denying the requests for the appointment and funding of a neuropsychologist to examine the appellant. Closing statements by the prosecutor that the theory was "wrong," "absurd," "one of the most preposterous things I've ever heard in my life," and "one of the dumbest things I have ever heard," were at most weakly prejudicial and did not affect the appellant's substantial rights. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-50163, 12-09-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT; ANDREA SANDERS; JOCELYN PRITCHETT; CARLA WEBB, Plaintiffs - Appellees v. PHIL BRYANT, in his Official Capacity as Governor of the State of Mississippi; JIM HOOD, in his Official Capacity as Mississippi Attorney General, Defendants - Appellants

The state of Mississippi moves to stay the effect of the district court's injunction pending appeal. The district court's order enjoined the enforcement of marriage bans regarding same-sex couples. Several factors militate in favor of granting the motion: the legal questions are serious and substantial, the need for intra-circuit uniformity and the avoidance of confusion, and any potential harm to the plaintiffs is attenuated by the imminent consideration of the issue. The state's motion is granted. 5th U.S. Circuit Court of Appeals, No. 14-60837, 12-04-2014

Practice Areas: Constitutional Law

COURT OF CRIMINAL APPEALS OF TEXAS

CYNTHIA ANN HUDSON, Appellant v. THE STATE OF TEXAS

The court of appeals found that the appellant was not entitled to a lesser-included instruction on manslaughter. Even if the jury believed the evidence that the appellant was only reckless in killing her child, that evidence supported two lesser-included offenses, one of which was felony murder -- a lesser included of capital murder, but greater than manslaughter. Therefore, the appellant was not entitled to the requested instruction on manslaughter. The court of appeals' judgment is affirmed. Court of Criminal Appeals, No. PD-1699-13, 12-10-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

EX PARTE SCOTT LOUIS PANETTI, Applicant

Judge Price issues a dissenting statement on an order denying a motion for stay of execution and dismissing a subsequent application for writ of habeas corpus. "I have given a substantial amount of consideration to the propriety of the death penalty as a form of punishment for those who commit capital murder, and I now believe that it should be abolished." Court of Criminal Appeals, No. WR-37,145-04, 11-26-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

KIMBERLY SAENZ, Appellant v. THE STATE OF TEXAS

The appellant argues that that the language in the jury charge and the state's closing argument allowed the jury to convict her of capital murder without agreeing on which two or more of the five named individuals were allegedly murdered by the appellant, violating the requirement that jury verdicts be unanimous. Without unanimous agreement regarding a predicate murder as defined under Texas Penal Code §19.02(b)(1), which in this case could have been any one of the five people she was alleged to have killed, there was no foundation from which to progress to a conviction for capital murder, and the appellant's right to a unanimous verdict was violated. The court of appeals' judgment is vacated and remanded. Court of Criminal Appeals, No. PD-0253-14, 12-10-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

HENRY TAYLOR, JR., Appellant v. THE STATE OF TEXAS

The court of appeals found that the evidence would support a rational inference that, by the time the appellant took a second installment payment on a contract in the amount of $10,000, on a false premise, he had formulated the requisite intent to deprive his customer of that amount. The trial court's reliance on the appellant's other recent failures to perform on his contractual obligations to infer both deception and an intent to deprive on the appellant's part in this particular case was not so outrageous that no rational trier of fact could agree. The court of appeals' judgment is affirmed. Court of Criminal Appeals, No. PD-0051-14, 12-10-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHERYL DENISE LAGRONE, Defendant-Appellant.

The appellant was convicted on two felony counts of violating 18 U.S.C. §641. Although the two alleged theft offenses involved government property with a value exceeding $1,000 in the aggregate, the value of the property involved in each theft offense was less than $1,000. A felony conviction may be obtained for an initial theft below the $1,000 threshold when all thefts in the case, aggregated, exceed $1,000. It is only if the aggregate value of the thefts does not exceed $1,000 that the defendant may receive the benefit of §641's lenity provision and be sentenced under a misdemeanor penalty scheme. The second felony conviction does not raise significant double-jeopardy concerns. The sentence is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-10049, 12-11-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In the Matter of: BP RE, L.P., Debtor.BP RE, L.P., Appellant, v. RML WAXAHACHIE DODGE, L.L.C.; RML-MCLARTY-LANDERS AUTOMOTIVE HOLDINGS, L.L.C; RML WAXAHACHIE FORD, L.L.C; RML WAXAHACHIE GMC, L.L.C.; RLJ-MCLARTY-LANDERS AUTOMOTIVE GROUP, Appellees.

Judge Higginson dissents from the denial of enbanc rehearing, noting that the case presents an important issue: whether a bankruptcy court, consistent with its statutory authority under 28 U.S.C. §157(c)(2), may enter final judgment in a non-core proceeding with the parties' consent. "Fortunately, Executive Benefits likely will shed light on this issue. Our court will benefit from that guidance, and I write separately to note that I would usefully have incorporated such guidance into our own full court assessment of these weighty constitutional boundaries." 5th U.S. Circuit Court of Appeals, No. 12-51270 Consolidated with No. 12-51279, 2-28-2014

Practice Areas: Bankruptcy

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JAIME VARELA, individually and on behalf of similarly situated individuals; YESICA WIEGERT, individually and on behalf of similarly situated individuals, Plaintiffs - Appellants v. DAVID BENITEZ GONZALES; ANA CRISTINA BENITEZ; INTELLIGENT MEXICAN MARKETING, INCORPORATED; MARKETING AND INVENTORY MANAGEMENT, L.L.C., Defendants - Appellees

The appellants brought a civil RICO action alleging that the appellees hired undocumented workers, resulting in the depression of their wages. Without an allegation as to the proportion of undocumented workers within appellees' workforce, it is impossible to determine whether the alleged hiring of undocumented workers could have had any plausible effect on overall wages. The theory that the alleged hirings depressed wages within the entire industry is also implausible. The appellants made no attempt to define this market. The fact that appellants' wages are lower than the average within their local market according to Bureau of Labor Statistics data is insufficient to prove wage depression -- employees within the relevant category are not necessarily similar to these employees. The district court's judgment, dismissing the complaint for failure to establish RICO standing, is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-10452, 12-11-2014

Practice Areas: Labor and Employment

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff Appellee v. FRENCHITT SU-DELL COLLINS; ALLEN MURRAY ROBISON, Defendants Appellants

The appellants alleged conspired together and with others to defraud insurance companies. A special assessment fee of $100 was imposed on each defendant for each count of conviction. The appellants contend that the special assessments should be vacated to create complete concurrence. The concurrent sentence doctrine is applicable when the trial court neglects to impose special assessments required by law. The presence of a special assessment on appeal defeats the concurrent sentence doctrine. The convictions and sentence are affirmed. 5th U.S. Circuit Court of Appeals, No. 12-10582, 12-12-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. DAVID KEVIN LEWIS, also known as David Shane Lewis, also known as "DW", Defendant - Appellant

The appellant argues that 18 U.S.C. §3301, which extended the applicable statute of limitations from five years to six, is a violation of the Constitution's prohibition of ex post facto laws. He also indirectly argues that the statute's extension of the applicable statute of limitations should not be applied retroactively because it lacks an explicit retroactivity provision. The appellant raised his statute of limitations defense for the first time in his post-conviction motion for acquittal. A defendant must affirmatively assert a limitations defense at trial to preserve it for appeal. The trial court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-10119, 12-08-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BURNETTE AVAKIAN, Plaintiff - Appellee v. CITIBANK, N.A., Defendant - Appellant

The district court found that that the deeds of trust signed by the appellee and her husband were void because the couple signed separate but identical deeds of trust rather than a single instrument. Under Mississippi law, a deed of trust on a husband and wife's homestead is void if it is not signed by both spouses. The Mississippi Supreme Court would likely hold that a valid deed of trust is created when a husband and wife contemporaneously sign separate but identical deeds of trust. The district court's judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 14-60175, 12-09-2014

Practice Areas: Residential and Commercial Real Estate

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

LORI M. MINGO; JOHN M. MINGO, Petitioners - Appellants v. COMMISSIONER OF INTERNAL REVENUE, Respondent - Appellee

The tax court held that the petitioners-appellants were not entitled to utilize the installment method to report the portion of the proceeds from the sale of a partnership interest attributable to the partnership's unrealized receivables. The proceeds from the unrealized receivables, classified as ordinary income, do not qualify for installment method reporting because they do not arise from the sale of property. For the purposes of present-day I.R.C. §481(a) adjustments, once there has been a change in the method of accounting, no statute of limitations applies to the commissioner's ability to correct errors on old tax returns. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-60801, 12-09-2014

Practice Areas: Taxation

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LENDELL BEACHAM; WILLIAM RANDOLPH TISDALE, JR., Defendants-Appellants.

The appellants were convicted by a jury on various counts of conspiracy, wire fraud and bank fraud. The appellants contend that the loss amount for a victim who purchased a mortgage on the secondary market cannot be based on the amount of the original loan. The purchase prices paid by many of the victims who were not the original lenders are not in the record. The government has not carried its burden of establishing the restitution amount as it pertains to the secondary-market purchasers. Accordingly, the district court abused its discretion by using the original loan amounts to calculate restitution for these victims. The convictions are affirmed, the sentences are vacated and remanded for resentencing. 5th U.S. Circuit Court of Appeals, No. 12-10883 Cons. w/ No. 12-11209, 12-12-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

TAYLOR BELL; DORA BELL, individually and as mother of Taylor Bell, Plaintiffs - Appellants v. ITAWAMBA COUNTY SCHOOL BOARD; TERESA MCNEECE, Superintendent of Education for Itawamba County, individually and in her official capacity; TRAE WIYGUL, Principal of Itawamba Agricultural High School, individually and in his official capacity, Defendants - Appellees

This appeal challenges a public high school student's suspension and transfer to alternative school for his off-campus alleged posting on the Internet of a rap song criticizing, with vulgar and violent lyrics, two named male athletic coaches for allegedly sexually harassing female students at his school. The student composed and recorded his rap song completely off campus; he used his home computer to post it on the Internet during non-school hours; and the School Board did not demonstrate that the song caused a substantial disruption of school work or discipline, or that school officials reasonably could have forecasted such a disruption. The district court's judgment in favor of the school board is reversed and rendered, awarding the student nominal damages for the Board's violation of his First Amendment rights. 5th U.S. Circuit Court of Appeals, No. 12-60264, 12-12-2014

Practice Areas: Education Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

THOMAS BURNSIDE, Plaintiff - Appellee v. JIM KAELIN, Individually, Defendant - Appellant

A deputy sheriff, filed this 42 USC §1983 action alleging that, because he did not support the defendant-sheriff's re-election bid, he was punitively transferred, and later fired, for exercising his First-Amendment rights to engage in free speech and association. Jail-duty transfers are demotion-like and, thus, adverse employment actions, because the new job is less interesting, less prestigious, and provides less opportunity for promotion. The sheriff is not entitled to qualified immunity at this motion-to-dismiss stage. The sheriff is entitled to qualified immunity on the termination claim. There was no direct allegation, or reasonable inference, that the termination resulted for the dissemination of a tape recording that allegedly contained a threat against another officer. The district court's denial of qualified immunity is reversed in part, affirmed in part, and remanded. 5th U.S. Circuit Court of Appeals, No. 13-41344, 12-09-2014

Practice Areas: Civil Rights